HR 6186 Introduced – Chemical Background Checks

Last week Rep Weber (R,TX) introduced HR 6186, the Expedient Workforce Screening Act of 2020. The bill would require the FBI to establish the National Criminal History Chemical and Refining Background Check Program.

Definitions

Section 6 of the bill provides the key definitions. The terms defined include:

• Authorized agency;

• Qualified entity;

• Qualified educational entity; and

• Criminal history record information

The two ‘qualified’ definitions provide limits on who would be able to request criminal history record information from the program.

The term ‘qualified entity’ means an entity that “provides natural gas or petroleum chemical manufacturing or refining-related services, including connecting terminals and pipelines” {§6(2)(A)}. This portion of the definition also specifically states that it is not limited to facilities that are covered under the Chemical Facilities Anti-Terrorism Standards (CFATS) or Maritime Transportation Security Act (MTSA) programs. The second part of the definition provides that the entity must be approved by the FBI to submit the request.

The term ‘qualified educational entity’ describes an American owned §501(c)(3) school or industrial safety training facility that is “recognized by the Attorney General to provide assistance to qualified entities under section 3” {§6(3)(C)}, the National Criminal History Chemical and Refining Background Check Program.

The term ‘criminal history record information’ means “means information collected by criminal justice agencies on individuals, consisting of identifiable descriptions and notations of arrests, detentions, indictments, infractions, or other informal criminal charges, and any disposition arising therefrom, including acquittal, sentencing, correctional supervision, and release” {§6(5)}. The term specifically does not include identifying information, including fingerprints, if that information “does not indicate the individual’s involvement with the criminal justice system.”

The Program

Section 3 of the bill outlines the Program. The Program would “permit qualified entities to request national criminal history background checks for the purpose of obtaining identification authentication and criminal history background check information of individuals seeking access to a qualified entity” {§3(a)}. It would allow a qualified entity to “request a national criminal history background check directly through the FBI” {§3(b)}.

Qualified educational entities may assist in the “identification authentication of individuals seeking access to a qualified entity” {§3(c)(1)}. They may also assist in “setting criminal history record information standards for access to qualified entities” {§3(c)(2)}.

The FBI may recoup the cost of “the cost of building, maintaining, and enhancing an appropriate Federal and State infrastructure for the national criminal history background check system” {§3(e)} by charging qualified entities a fee to request criminal history record information.

Section 4 of the bill provides that this legislation does not require anyone to use the Program, nor does it limit anyone else from providing criminal background checks.

Moving Forward

Weber is not a member of the House Judiciary Committee to which this bill was referred for consideration. This means that it is unlikely that the bill will be considered in Committee. I suspect that the bill would be opposed by many Democrats because of the lack of privacy protections and the failure of the bill to provide a mechanism for individuals to review and appeal information held by the Program. If the bill were to be considered in Committee, it would be unlikely to be approved without substantial revision.

Commentary

This is an odd little bill. The need for a centralized criminal record database for use by employers is becoming more obvious, especially for critical infrastructure facilities. Unfortunately, I do not think that this bill meets that need.

The definition of ‘qualified entity’ is odd and convoluted. It is obviously limited to the oil and gas industry, but there is no explanation of why it is limited that way. There are any number of different industries that are required to perform criminal background checks. The CFATS program mentioned in the bill is certainly one Federal regulatory program that requires facilities outside of the oil and gas industry to conduct criminal background checks on employees and those requesting unaccompanied access to covered facilities.

Most ‘qualified entities’ do not do their own criminal background checks; they typically hire some sort of consumer reporting agency to do that as part of the employee screening process. This bill does not address the use of third-party agencies requesting criminal background checks on behalf of ‘qualified entities’ other than to mention them in passing in the §4 rules of construction as not being required to use the Program.

And this whole business of ‘qualified educational entity’ is more than a little suspect. Why would the Program need to address identification authentication standards or criminal history standards as it pertains to authorizing access to qualified entities? A criminal background check is simply an information report on data held by governmental organizations. How that information is used by qualified entities to determine who has access to their facilities is a completely separate matter that is not under the purview of the FBI.

This bill certainly deserves the quiet dusty death of legislative apathy that is the destiny of most legislation proposed in Congress.