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§ 40102. Background checks

Version history — every release point where this text changed

Release point 116-72 · current through 11/25/2019

§ 40102.

Background checks

(a)

In general

(1)

A State may have in effect procedures (established by State statute or regulation) that require qualified entities designated by the State to contact an authorized agency of the State to request a nationwide background check for the purpose of determining whether a covered individual has been convicted of a crime that bears upon the covered individual’s fitness to have responsibility for the safety and well-being of children, the elderly, or individuals with disabilities.

(2)

The authorized agency shall access and review State and Federal criminal history records through the national criminal history background check system and shall make reasonable efforts to respond to the inquiry within 15 business days.

(3)
(A)

The Attorney General shall establish a program, in accordance with this section, to provide qualified entities located in States that do not have in effect procedures described in paragraph (1), or qualified entities located in States that do not prohibit the use of the program established under this paragraph, with access to national criminal history background checks on, and criminal history reviews of, covered individuals. In any case where the use of a Federal national criminal history background check program is required pursuant to Federal law as of the effective date of this subparagraph, the program under this subparagraph may not be used.

(B)

A qualified entity described in subparagraph (A) may submit to the appropriate designated entity a request for a national criminal history background check on, and a criminal history review of, a covered individual. Qualified entities making a request under this paragraph shall comply with the guidelines set forth in subsection (b), and with any additional applicable procedures set forth by the Attorney General or by the State in which the entity is located.

(b)

Guidelines

The procedures established under subsection (a) shall require—

(1)

that no qualified entity may request a background check of a covered individual under subsection (a) unless the covered individual first provides a set of fingerprints and completes and signs a statement that—

(A)

contains the name, address, and date of birth appearing on a valid identification document (as defined in section 1028 of title 18) of the covered individual;

(B)

the covered individual has not been convicted of a crime and, if the covered individual has been convicted of a crime, contains a description of the crime and the particulars of the conviction;

(C)

notifies the covered individual that the entity may request a background check under subsection (a);

(D)

notifies the covered individual of the covered individual’s rights under paragraph (2); and

(E)

notifies the covered individual that prior to the completion of the background check the qualified entity may choose to deny the covered individual access to a person to whom the qualified entity provides care;

(2)

that the State, or in a State that does not have in effect procedures described in subsection (a)(1), the designated entity, ensures that—

(A)

each covered individual who is the subject of a background check under subsection (a) is entitled to obtain a copy of any background check report;

(B)

each covered individual who is the subject of a background check under subsection (a) is provided a process by which the covered individual may appeal the results of the background check to challenge the accuracy or completeness of the information contained in the background report of the covered individual and obtain a prompt determination as to the validity of such challenge before a final determination is made by the authorized agency;

(C)
(i)

each covered individual described in subparagraph (B) is given notice of the opportunity to appeal;

(ii)

each covered individual described in subparagraph (B) will receive instructions on how to complete the appeals process if the covered individual wishes to challenge the accuracy or completeness of the information contained in the background report of the covered individual; and 1

1 So in original. The word “and” probably should not appear.

(iii)

the appeals process is completed in a timely manner for each covered individual described in subparagraph (B); 2

2 So in original. Probably should be followed by “and”.

(iv)

the appeals process is consistent with title VII of the Civil Rights Act of 1964 (42 U.S.C. 2000e et seq.); and

(D)

an authorized agency, upon receipt of a background check report lacking disposition data, shall conduct research in whatever State and local recordkeeping systems are available in order to obtain complete data;

(3)

that an authorized agency or designated entity, as applicable,,3

3 So in original.
upon receipt of a background check report lacking disposition data, shall conduct research in whatever State and local recordkeeping systems are available in order to obtain complete data;

(4)

that the authorized agency or designated entity, as applicable, shall make a determination whether the covered individual has been convicted of, or is under pending indictment for, a crime that bears upon the covered individual’s fitness to have responsibility for the safety and well-being of children, the elderly, or individuals with disabilities and shall convey that determination to the qualified entity; and

(5)

that any background check under subsection (a) and the results thereof shall be handled in accordance with the requirements of Public Law 92–544, except that this paragraph does not apply to any request by a qualified entity for a national criminal fingerprint background check pursuant to subsection (a)(3).

(c)

Regulations

(1)

The Attorney General may by regulation prescribe such other measures as may be required to carry out the purposes of this chapter, including measures relating to the security, confidentiality, accuracy, use, misuse, and dissemination of information, and audits and recordkeeping.

(2)

The Attorney General shall, to the maximum extent possible, encourage the use of the best technology available in conducting background checks.

(d)

Liability

A qualified entity shall not be liable in an action for damages solely for failure to conduct a criminal background check on a covered individual, nor shall a State or political subdivision thereof nor any agency, officer or employee thereof,,3 nor shall any designated entity nor any officer or employee thereof, be liable in an action for damages for the failure of a qualified entity (other than itself) to take action adverse to a covered individual who was the subject of a background check.

(e)

Fees

(1)

State program

In the case of a background check conducted pursuant to a State requirement adopted after
December 20, 1993
, conducted with fingerprints on a covered individual, the fees collected by authorized State agencies and the Federal Bureau of Investigation may not exceed the actual cost of the background check conducted with fingerprints.

(2)

Federal program

In the case of a national criminal history background check and criminal history review conducted pursuant to the procedures established pursuant to subsection (a)(3), the fees collected by a designated entity shall be set at a level that will ensure the recovery of the full costs of providing all such services. The designated entity shall remit the appropriate portion of such fee to the Attorney General, which amount is in accordance with the amount published in the Federal Register to be collected for the provision of a criminal history background check by the Federal Bureau of Investigation.

(3)

Ensuring fees do not discourage volunteers

A fee system under this subsection shall be established in a manner that ensures that fees to qualified entities for background checks do not discourage volunteers from participating in programs to care for children, the elderly, or individuals with disabilities. A fee charged to a qualified entity that is not organized under section 501(c)(3) of title 26 may not be less than the total sum of the costs of the Federal Bureau of Investigation and the designated entity.

(f)

National criminal history background check and criminal history review program

(1)

National criminal history background check

Upon a designated entity receiving notice of a request submitted by a qualified entity pursuant to subsection (a)(3), the designated entity shall forward the request to the Attorney General, who shall, acting through the Director of the Federal Bureau of Investigation, complete a fingerprint-based check of the national criminal history background check system, and provide the information received in response to such national criminal history background check to the appropriate designated entity. The designated entity may, upon request from a qualified entity, complete a check of a State criminal history database.

(2)

Criminal history review

(A)
Designated entities

The Attorney General shall designate, and enter into an agreement with, one or more entities to make determinations described in subparagraph (B). The Attorney General may not designate and enter into an agreement with a Federal agency under this subparagraph.

(B)
Determinations

A designated entity shall, upon the receipt of the information described in paragraph (1), make a determination of fitness described in subsection (b)(4), using the criteria described in subparagraph (C).

(C)
Criminal history review criteria

The Attorney General shall, by rule, establish the criteria for use by designated entities in making a determination of fitness described in subsection (b)(4). Such criteria shall be based on the criteria established pursuant to section 108(a)(3)(G)(i) of the Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today Act of 2003 (34 U.S.C. 40102 note) and section 9858f of title 42.

Source(Pub. L. 103–209, § 3,
Dec. 20, 1993
, 107 Stat. 2491; Pub. L. 103–322, title XXXII, § 320928(a)(1), (2), (c), (e),
Sept. 13, 1994
, 108 Stat. 2131, 2132; Pub. L. 105–251, title II, § 222(a), (b),
Oct. 9, 1998
, 112 Stat. 1885; Pub. L. 115–141, div. S, title I, § 101(a)(1),
Mar. 23, 2018
, 132 Stat. 1123.)
Notes

References in Text

The effective date of this subparagraph, referred to in subsec. (a)(3)(A), probably means the date of enactment of Pub. L. 115–141, which was approved
Mar. 23, 2018
.
The Civil Rights Act of 1964, referred to in subsec. (b)(2)(C)(iv), is Pub. L. 88–352,
July 2, 1964
, 78 Stat. 241. Title VII of the Act is classified generally to subchapter VI (§ 2000e et seq.) of chapter 21 of Title 42, The Public Health and Welfare. For complete classification of this Act to the Code, see Short Title note set out under section 2000a of Title 42 and Tables.
Public Law 92–544, referred to in subsec. (b)(5), is Pub. L. 92–544,
Oct. 25, 1972
, 86 Stat. 1109. Provisions relating to use of funds for the exchange of identification records are in title II of Pub. L. 92–544, formerly set out as a note under section 534 of Title 28, Judiciary and Judicial Procedure, prior to editorial reclassification and renumbering as section 41101 of this title. For complete classification of this Act to the Code, see Tables.
Section 108(a)(3)(G)(i) of the Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today Act of 2003, referred to in subsec. (f)(2)(C), is section 108(a)(3)(G)(i) of Pub. L. 108–21, which is set out as a note below.

Codification

Section was formerly classified to section 5119a of Title 42, The Public Health and Welfare, prior to editorial reclassification and renumbering as this section.

Amendments

2018—Pub. L. 115–141, § 101(a)(1)(A), (B), substituted “covered individual” for “provider” and “covered individual’s” for “provider’s” wherever appearing.
Subsec. (a)(3). Pub. L. 115–141, § 101(a)(1)(C), amended par. (3) generally. Prior to amendment, par. (3) read as follows: “In the absence of State procedures referred to in paragraph (1), a qualified entity designated under paragraph (1) may contact an authorized agency of the State to request national criminal fingerprint background checks. Qualified entities requesting background checks under this paragraph shall comply with the guidelines set forth in subsection (b) and with procedures for requesting national criminal fingerprint background checks, if any, established by the State.”
Subsec. (b)(1)(E). Pub. L. 115–141, § 101(a)(1)(D)(i), struck out “unsupervised” before “access”.
Subsec. (b)(2). Pub. L. 115–141, § 101(a)(1)(D)(ii), amended par. (2) generally. Prior to amendment, par. (2) read as follows: “that each provider who is the subject of a background check is entitled—
“(A) to obtain a copy of any background check report; and
“(B) to challenge the accuracy and completeness of any information contained in any such report and obtain a prompt determination as to the validity of such challenge before a final determination is made by the authorized agency;”.
Subsec. (b)(3), (4). Pub. L. 115–141, § 101(a)(1)(D)(iii), (iv), inserted “or designated entity, as applicable,” after “authorized agency”.
Subsec. (d). Pub. L. 115–141, § 101(a)(1)(E), inserted “, nor shall any designated entity nor any officer or employee thereof,” after “officer or employee thereof,”.
Subsec. (e). Pub. L. 115–141, § 101(a)(1)(F), amended subsec. (e) generally. Prior to amendment, text read as follows: “In the case of a background check pursuant to a State requirement adopted after
December 20, 1993
, conducted with fingerprints on a person who volunteers with a qualified entity, the fees collected by authorized State agencies and the Federal Bureau of Investigation may not exceed eighteen dollars, respectively, or the actual cost, whichever is less, of the background check conducted with fingerprints. The States shall establish fee systems that insure that fees to non-profit entities for background checks do not discourage volunteers from participating in child care programs.”
Subsec. (f). Pub. L. 115–141, § 101(a)(1)(G), added subsec. (f).
1998—Subsec. (a)(3). Pub. L. 105–251, § 222(a), added par. (3).
Subsec. (b)(5). Pub. L. 105–251, § 222(b), inserted before period at end “, except that this paragraph does not apply to any request by a qualified entity for a national criminal fingerprint background check pursuant to subsection (a)(3)”.
1994—Subsec. (a)(1). Pub. L. 103–322, § 320928(a)(1), substituted “the provider’s fitness to have responsibility for the safety and well-being of children, the elderly, or individuals with disabilities” for “an individual’s fitness to have responsibility for the safety and well-being of children”.
Subsec. (b)(1)(E). Pub. L. 103–322, § 320928(a)(2)(A), substituted “to a person to whom the qualified entity provides care” for “to a child to whom the qualified entity provides child care”.
Subsec. (b)(4). Pub. L. 103–322, § 320928(a)(2)(B), substituted “the provider’s fitness to have responsibility for the safety and well-being of children, the elderly, or individuals with disabilities” for “an individual’s fitness to have responsibility for the safety and well-being of children”.
Subsec. (d). Pub. L. 103–322, § 320928(c), inserted “(other than itself)” after “failure of a qualified entity”.
Subsec. (e). Pub. L. 103–322, § 320928(e), substituted “eighteen dollars, respectively, or the actual cost, whichever is less,” for “the actual cost”.

Implementation

Pub. L. 115–141, div. S, title I, § 101(b),
Mar. 23, 2018
, 132 Stat. 1126, provided that:
“The Attorney General shall ensure that this section [amending this section and section 40104 of this title] and the amendments made by this section are fully implemented not later than 1 year after the date of enactment of this section [
Mar. 23, 2018
].”

Pilot Program for National Criminal History Background Checks and Feasibility Study

Pub. L. 108–21, title I, § 108,
Apr. 30, 2003
, 117 Stat. 655, as amended by Pub. L. 108–68, § 1,
Aug. 1, 2003
, 117 Stat. 883; Pub. L. 108–458, title VI, § 6401,
Dec. 17, 2004
, 118 Stat. 3755; Pub. L. 109–162, title XI, § 1197,
Jan. 5, 2006
, 119 Stat. 3131; Pub. L. 110–296, § 2,
July 30, 2008
, 122 Stat. 2974; Pub. L. 110–408, § 2,
Oct. 13, 2008
, 122 Stat. 4301; Pub. L. 111–143, § 2,
Mar. 1, 2010
, 124 Stat. 41; Pub. L. 111–341, § 2,
Dec. 22, 2010
, 124 Stat. 3606, provided that:
“(a)

Establishment of Pilot Program.—

“(1)

In general.—

Not later than 90 days after the date of the enactment of this Act [

Apr. 30, 2003
], the Attorney General shall establish a pilot program for volunteer groups to obtain national and State criminal history background checks through a 10-fingerprint check to be conducted utilizing State criminal records and the Integrated Automated Fingerprint Identification System of the Federal Bureau of Investigation.

“(2)

State pilot program.—

“(A)
In general.—

The Attorney General shall designate 3 States as participants in a 30-month State pilot program.

“(B)
Volunteer organization requests.—

A volunteer organization in one of the 3 States participating in the State pilot program under this paragraph that is part of the Boys and Girls Clubs of America, the National Mentoring Partnerships, or the National Council of Youth Sports may submit a request for a 10-fingerprint check from the participating State.

“(C)
State check.—

The participating State under this paragraph after receiving a request under subparagraph (B) shall conduct a State background check and submit a request that a Federal check be performed through the Integrated Automated Fingerprint Identification System of the Federal Bureau of Investigation, to the Attorney General, in a manner to be determined by the Attorney General.

“(D)
Information provided.—

Under procedures established by the Attorney General, any criminal history record information resulting from the State and Federal check under subparagraph (C) shall be provided to the State or National Center for Missing and Exploited Children consistent with the National Child Protection Act [of 1993, 34 U.S.C. 40101 et seq.].

“(E)
Costs.—

A State may collect a fee to perform a criminal background check under this paragraph which may not exceed the actual costs to the State to perform such a check.

“(F)
Timing.—

For any background check performed under this paragraph, the State shall provide the State criminal record information to the Attorney General within 7 days after receiving the request from the organization, unless the Attorney General determines during the feasibility study that such a check cannot reasonably be performed within that time period. The Attorney General shall provide the criminal history records information to the National Center for Missing and Exploited Children within 7 business days after receiving the request from the State.

“(3)

Child safety pilot program.—

“(A)
In general.—

The Attorney General shall establish a 104-month Child Safety Pilot Program that shall provide for the processing of 200,000 10-fingerprint check requests from organizations described in subparagraph (B) conducted through the Integrated Automated Fingerprint Identification System of the Federal Bureau of Investigation.

“(B)
Participating organizations.—
“(i)
Eligible organizations.—

Eligible organizations include—

     “(I)

the Boys and Girls Clubs of America;

     “(II)

the MENTOR/National Mentoring Partnership;

     “(III)

the National Council of Youth Sports; and

     “(IV)

any nonprofit organization that provides care, as that term is defined in section 5 of the National Child Protection Act of 1993 (42 U.S.C. 5119c) [now 34 U.S.C. 40104], for children.

“(ii)
Pilot program.—

The eligibility of an organization described in clause (i)(IV) to participate in the pilot program established under this section shall be determined by the National Center for Missing and Exploited Children, with the rejection or concurrence within 30 days of the Attorney General, according to criteria established by such Center, including the potential number of applicants and suitability of the organization to the intent of this section. If the Attorney General fails to reject or concur within 30 days, the determination of the National Center for Missing and Exploited Children shall be conclusive.

“(C)
Applicants from participating organizations.—

Participating organizations may request background checks on applicants for positions as volunteers and employees who will be working with children or supervising volunteers.

“(D)
Procedures.—

The Attorney General shall notify participating organizations of a process by which the organizations may provide fingerprint cards to the Attorney General.

“(E)
Volunteer information required.—

An organization authorized to request a background check under this paragraph shall—

“(i)

forward to the Attorney General the volunteer’s fingerprints; and

“(ii)

obtain a statement completed and signed by the volunteer that—

     “(I)

sets out the provider or volunteer’s name, address, date of birth appearing on a valid identification document as defined in section 1028 of title 18, United States Code, and a photocopy of the valid identifying document;

     “(II)

states whether the volunteer has a criminal record, and, if so, sets out the particulars of such record;

     “(III)

notifies the volunteer that the Attorney General may perform a criminal history background check and that the volunteer’s signature to the statement constitutes an acknowledgment that such a check may be conducted;

     “(IV)

notifies the volunteer that prior to and after the completion of the background check, the organization may choose to deny the provider access to children; and

     “(V)

notifies the volunteer of his right to correct an erroneous record held by the Attorney General.

“(F)
Timing.—

For any background checks performed under this paragraph, the Attorney General shall provide the criminal history records information to the National Center for Missing and Exploited Children within 10 business days after receiving the request from the organization.

“(G)
Determinations of fitness.—
“(i)
In general.—

Consistent with the privacy protections delineated in the National Child Protection Act [of 1993] (42 U.S.C. 5119 [et seq.]) [now 34 U.S.C. 40101 et seq.], the National Center for Missing and Exploited Children may make a determination whether the criminal history record information received in response to the criminal history background checks conducted under this paragraph indicates that the provider or volunteer has a criminal history record that renders the provider or volunteer unfit to provide care to children based upon criteria established jointly by, the National Center for Missing and Exploited Children, the Boys and Girls Clubs of America, the National Mentoring Partnership, and the National Council of Youth Sports.

“(ii)
Child safety pilot program.—

The National Center for Missing and Exploited Children shall convey that determination to the organizations making requests under this paragraph.

“(4)

Fees collected by attorney general.—

The Attorney General may collect a fee which may not exceed $18 to cover the cost to the Federal Bureau of Investigation to conduct the background check under paragraph (2) or (3).

“(b)

Rights of Volunteers.—

Each volunteer who is the subject of a criminal history background check under this section is entitled to contact the Attorney General to initiate procedures to—

“(1)

obtain a copy of their criminal history record report; and

“(2)

challenge the accuracy and completeness of the criminal history record information in the report.

“(c)

Authorization of Appropriations.—

“(1)

In general.—

There is authorized to be appropriated such sums as may be necessary to the National Center for Missing and Exploited Children for fiscal years 2004 through 2008 to carry out the requirements of this section.

“(2)

State program.—

There is authorized to be appropriated such sums as may be necessary to the Attorney General for the States designated in subsection (a)(1) for fiscal years 2004 and 2005 to establish and enhance fingerprint technology infrastructure of the participating State.

“(d)

Feasibility Study for a System of Background Checks for Employees and Volunteers.—

“(1)

Study required.—

The Attorney General shall conduct a feasibility study within 180 days after the date of the enactment of this Act [

Apr. 30, 2003
]. The study shall examine, to the extent discernible, the following:

“(A)

The current state of fingerprint capture and processing at the State and local level, including the current available infrastructure, State system capacities, and the time for each State to process a civil or volunteer print from the time of capture to submission to the Federal Bureau of Investigation (FBI).

“(B)

The intent of the States concerning participation in a nationwide system of criminal background checks to provide information to qualified entities.

“(C)

The number of volunteers, employees, and other individuals that would require a fingerprint-based criminal background check.

“(D)

The impact on the Integrated Automated Fingerprint Identification System (IAFIS) of the Federal Bureau of Investigation in terms of capacity and impact on other users of the system, including the effect on Federal Bureau of Investigation work practices and staffing levels.

“(E)

The current fees charged by the Federal Bureau of Investigation, States and local agencies, and private companies to process fingerprints and conduct background checks.

“(F)

The existence of ‘model’ or best practice programs which could easily be expanded and duplicated in other States.

“(G)

The extent to which private companies are currently performing background checks and the possibility of using private companies in the future to perform any of the background check process, including, but not limited to, the capture and transmission of fingerprints and fitness determinations.

“(H)

The cost of development and operation of the technology and the infrastructure necessary to establish a nationwide fingerprint-based and other criminal background check system.

“(I)

The extent of State participation in the procedures for background checks authorized in the National Child Protection Act [of 1993] (Public Law 103–209), as amended by the Volunteers for Children Act (sections 221 and 222 of Public Law 105–251).

“(J)

The extent to which States currently provide access to nationwide criminal history background checks to organizations that serve children.

“(K)

The extent to which States currently permit volunteers to appeal adverse fitness determinations, and whether similar procedures are required at the Federal level.

“(L)

The implementation of the 2 pilot programs created in subsection (a).

“(M)

Any privacy concerns that may arise from nationwide criminal background checks.

“(N)

Any other information deemed relevant by the Department of Justice.

“(O)

The extent of participation by eligible organizations in the state pilot program.

“(2)

Interim report.—

Based on the findings of the feasibility study under paragraph (1), the Attorney General shall, not later than 180 days after the date of the enactment of this Act [

Apr. 30, 2003
], submit to Congress an interim report, which may include recommendations for a pilot project to develop or improve programs to collect fingerprints and perform background checks on individuals that seek to volunteer with organizations that work with children, the elderly, or the disabled.

“(3)

Final report.—

Based on the findings of the pilot project, the Attorney General shall, not later than 60 days after completion of the pilot project under this section, submit to Congress a final report, including recommendations, which may include a proposal for grants to the States to develop or improve programs to collect fingerprints and perform background checks on individuals that seek to volunteer with organizations that work with children, the elderly, or the disabled, and which may include recommendations for amendments to the National Child Protection Act [of 1993] and the Volunteers for Children Act [see Short Title of 1998 Act note set out under section 10101 of this title] so that qualified entities can promptly and affordably conduct nationwide criminal history background checks on their employees and volunteers.

“(e)

Limitation on Liability.—

In connection with the Pilot Programs established under this section, in reliance upon the fitness criteria established under section 108(a)(3)(G)(i), and except upon proof of actual malice or intentional misconduct, the National Center for Missing and Exploited Children, or a director, officer, employee, or agent of the Center shall not be liable in any civil action for damages—

“(1)

arising from any act or communication by the Center, the director, officer, employee, or agent that results in or contributes to a decision that an individual is unfit to serve as a volunteer for any volunteer organization;

“(2)

alleging harm arising from a decision based on the information in an individual’s criminal history record that an individual is fit to serve as a volunteer for any volunteer organization unless the Center, the director, officer, employee, or agent is furnished with an individual’s criminal history records which they know to be inaccurate or incomplete, or which they know reflect a lesser crime than that for which the individual was arrested; and

“(3)

alleging harm arising from a decision that, based on the absence of criminal history information, an individual is fit to serve as a volunteer for any volunteer organization unless the Center, the director, officer, employee, or agent knows that criminal history records exist and have not been furnished as required under this section.”

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