34 USC 40102 - Background checks

U.S Code last checked for updates: May 04, 2024

§ 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

 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

 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

 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

(e)

Fees

(1)

State program

(2)

Federal program

(3)

Ensuring fees do not discourage volunteers

(f)

National criminal history background check and criminal history review program

(1)

National criminal history background check

(2)

Criminal history review

(A)

Designated entities

(B)

Determinations

(C)

Criminal history review criteria

(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.)

cite as: 34 USC 40102