The Fair Credit Reporting Act (FCRA) (continued)

(3) Conditions on use for adverse actions.  (A) In general --  Except as provided in subparagraph (B), in using a consumer report for employment purposes, before taking any adverse action based in whole or in part on the report, the person intending to take such adverse action shall provide to the consumer to whom the report relates - (i) a copy of the report; and (ii) a description in writing of the rights of the consumer under this subchapter, as prescribed by the Federal Trade Commission under section 1681g(c)(3) of this title. (B) Application by mail, telephone, computer, or other similar means -- (i)  If a consumer described in subparagraph (C) applies for employment by mail, telephone, computer, or other similar means, and if a person who has procured a consumer report on the consumer for employment purposes takes adverse action on the employment application based in whole or in part on the report, then the person must provide to the consumer to whom the report relates, in lieu of the notices required under subparagraph (A) of this section and under section 1681m(a) of this title, within 3 business days of taking such action, an oral, written or electronic notification - (I) that adverse action has been taken based in whole or in part on a consumer report received from a consumer reporting agency; (II) of the name, address and telephone number of the consumer reporting agency that furnished the consumer report (including a toll-free telephone number established by the agency if the agency compiles and maintains files on consumers on a nationwide basis); (III) that the consumer reporting agency did not make the decision to take the adverse action and is unable to provide to the consumer the specific reasons why the adverse action was taken; and (IV) that the consumer may, upon providing proper identification, request a free copy of a report and may dispute with the consumer reporting agency the accuracy or completeness of any information in a report. (ii) If, under clause (B)(i)(IV), the consumer requests a copy of a consumer report from the person who procured the report, then, within 3 business days of receiving the consumer's request, together with proper identification, the person must send or provide to the consumer a copy of a report and a copy of the consumer's rights as prescribed by the Federal Trade Commission under section 1681g(c)(3) of this title. (C) Scope.  Subparagraph (B) shall apply to a person procuring a consumer report on a consumer in connection with the consumer's application for employment only if - (i) the consumer is applying for a position over which the Secretary of Transportation has the power to establish qualifications and maximum hours of service pursuant to the provisions of section 31502 of title 49, or a position subject to safety regulation by a State transportation agency; and (ii) as of the time at which the person procures the report or causes the report to be procured the only interaction between the consumer and the person in connection with that employment application has been by mail, telephone, computer, or other similar means.

(4) Exception for national security investigations -- (A) In general.  In the case of an agency or department of the United States Government which seeks to obtain and use a consumer report for employment purposes, paragraph (3) shall not apply to any adverse action by such agency or department which is based in part on such consumer report, if the head of such agency or department makes a written finding that - (i) the consumer report is relevant to a national security investigation of such agency or department; (ii) the investigation is within the jurisdiction of such agency or department; (iii) there is reason to believe that compliance with paragraph (3) will - (I) endanger the life or physical safety of any person; (II) result in flight from prosecution; (III) result in the destruction of, or tampering with, evidence relevant to the investigation; (IV) result in the intimidation of a potential witness relevant to the investigation; (V) result in the compromise of classified information; or (VI) otherwise seriously jeopardize or unduly delay the investigation or another official proceeding. (B) Notification of consumer upon conclusion of investigation.  Upon the conclusion of a national security investigation described in subparagraph (A), or upon the determination that the exception under subparagraph (A) is no longer required for the reasons set forth in such subparagraph, the official exercising the authority in such subparagraph shall provide to the consumer who is the subject of the consumer report with regard to which such finding was made - (i) a copy of such consumer report with any classified information redacted as necessary; (ii) notice of any adverse action which is based, in part, on the consumer report; and (iii) the identification with reasonable specificity of the nature of the investigation for which the consumer report was sought. (C) Delegation by head of agency or department.  For purposes of subparagraphs (A) and (B), the head of any agency or department of the United States Government may delegate his or her authorities under this paragraph to an official of such agency or department who has personnel security responsibilities and is a member of the Senior Executive Service or equivalent civilian or military rank. (D) Report to the Congress.  Not later than January 31 of each year, the head of each agency and department of the United States Government that exercised authority under this paragraph during the preceding year shall submit a report to the Congress on the number of times the department or agency exercised such authority during the year. (E) Definitions.  For purposes of this paragraph, the following definitions shall apply: (i) Classified information -- The term ''classified information'' means information that is protected from unauthorized disclosure under Executive Order No. 12958 or successor orders. (ii) National security investigation - The term ''national security investigation'' means any official inquiry by an agency or department of the United States Government to determine the eligibility of a consumer to receive access or continued access to classified information or to determine whether classified information has been lost or compromised.


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