[Federal Register: October 26, 2006 (Volume 71, Number 207)]
[Proposed Rules]
[Page 62573-62580]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr26oc06-15]
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CORPORATION FOR NATIONAL AND COMMUNITY SERVICE
45 CFR Parts 2510, 2522, 2540, 2551, and 2552
RIN 3045-AA44
Criminal History Checks; Senior Companions, Foster Grandparents,
and AmeriCorps Program Participants
AGENCY: Corporation for National and Community Service.
ACTION: Proposed rule with request for comments.
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SUMMARY: The Corporation for National and Community Service (the
Corporation) proposes a regulation requiring grantees to conduct and
document criminal history checks on Senior Companions and Foster
Grandparents, and on AmeriCorps State/National (including Education
Award Program) participants and grant-funded staff in those programs
who, on a recurring basis, have access to children, persons age 60 and
older, or individuals with disabilities.
DATES: To be sure your comments are considered, they must reach the
Corporation on or before December 26, 2006.
ADDRESSES: You may mail or deliver your comments to Amy Borgstrom,
Corporation for National and Community Service, 1201 New York Avenue,
NW., Room 9503, Washington, DC 25025. You may also send your comments
by facsimile transmission to (202) 606-3476. Or you may send them
electronically to crimhisproposedrule@cns.gov or through the Federal
government's one-stop rulemaking Web site at http://www.regulations.gov.
Members of the public may review copies of all
communications received on this rulemaking at the Corporation's
Washington DC office. Due to continued delays in the Corporation's
receipt of mail, we strongly encourage responses via e-mail or fax.
FOR FURTHER INFORMATION CONTACT: Amy Borgstrom at (202) 606-6930
aborgstrom@cns.gov). The TDD/TTY number is (202) 606-3472. You may
request this notice in an alternative format for the visually impaired.
SUPPLEMENTARY INFORMATION:
I. Invitation To Comment
We invite you to submit comments about these proposed regulations.
To ensure that your comments have maximum value in helping us develop
the final regulations, we urge you to identify clearly the specific
section or sections of the proposed regulations that each comment
addresses and to arrange your comments in the same order as the
proposed regulations. During and after the comment period, you may
inspect all public comments about these proposed regulations in room
9503, 1201 New York Avenue, NW., Washington, DC, between the hours of 9
a.m. and 4:30 p.m., Eastern Time, Monday through Friday of each week
except Federal holidays.
In addition, the Corporation is planning two conference calls in
November, 2006, to obtain comments on this proposed rule. Please visit
the Corporation's Web site at http://www.nationalservice.gov/about/role_impact/rulemaking.asp
for information concerning the dates and
times of these calls.
Assistance to Individuals With Disabilities in Reviewing the Rulemaking
Record
On request, we will supply an appropriate aid, such as a reader or
print magnifier, to an individual with a disability who needs
assistance to review the comments or other documents in the public
rulemaking record for these proposed regulations. If you want to
schedule an appointment for this type of aid, please contact the person
listed under FOR FURTHER INFORMATION CONTACT.
II. Background
Many national and community service programs are dedicated to
helping children learn to read, giving children better opportunities to
thrive, helping older persons maintain their independence, and
otherwise serving vulnerable individuals while striving to recruit a
diverse corps of participants. With this commitment comes the
responsibility to safeguard the well-being of program beneficiaries,
including the effective screening of staff, participants, and
volunteers. This responsibility is principally determined by State law,
and the standard of care required may vary from one State to another.
Organizations carrying out national and community service programs are
well-advised to establish and regularly review their screening and
supervision practices as measured against the applicable standard of
care under State law.
There is a growing awareness of the need for programs to put
effective safeguards in place to protect children and other vulnerable
populations from abuse or harm. In developing this proposed
requirement, we benefited greatly from suggestions and other input from
Corporation grantees as well as
[[Page 62574]]
other interested organizations and individuals. The Corporation's
Inspector General has made several recommendations in this area,
prompting us to undertake a comprehensive review of our policies
concerning criminal history checks for national and community service
programs, with a particular emphasis on AmeriCorps members and Senior
Corps volunteers who serve children and other vulnerable populations.
Sections 192A, 193, and 193A of the National and Community Service
Act of 1990, 42 U.S.C. 12651b-d, give the Corporation broad authority
to establish rules to protect program beneficiaries. This authority is
reinforced by Executive Order 13331, National and Community Service
Programs (Feb. 27, 2004), 60 FR 9911 (Mar. 3, 2004), which directs the
Corporation to ``strengthen its oversight of national and community
service programs through performance and compliance standards and other
management tools.''
Rapid advances in technology are increasing the speed and breadth
of information about individuals in our society, but we have not
identified any established criminal history check process at the
national level that we can simply mandate for all grantees. The FBI
maintains the most complete criminal database in the United States. All
records are fingerprint based. A fingerprint check generally is
considered the most reliable, in part because it screens a physical
characteristic rather than a name provided by an applicant. However,
FBI-maintained records are less complete and less up-to-date than State
records, and are available only to organizations specifically
authorized by a Federal or State law. We know, from the input that we
have received from organizations operating national and community
service programs, that many do not currently have access to FBI
fingerprint checks.
The U.S. Department of Justice recently issued a report with
recommendations for broader access to FBI criminal history records for
non-criminal purposes, including screening volunteers for entities
providing services to children, the elderly, and individuals with
disabilities. The ``Attorney General's Report on Criminal History
Background Checks (June 2006)'' is available on line at http://www.usdoj.gov/olp/ag_bgchecks_report.pdf
(hereinafter ``DOJ
Report''). As such recommendations are implemented in Federal and State
law, grantees operating national and community service programs may
have better access to FBI fingerprint checks. In time, they may also
have access to State and national criminal history databases that make
use of driver's licenses incorporating fingerprint or other biometric
data as a result of the Real ID Act of 2005 (Pub. L. 109-13) and new
biometric techniques such as DNA identification. The Corporation will
continue to provide information and guidance on its Web site, as well
as through its training and technical assistance providers, to grantees
on available sources for criminal history background checks as both the
law and the technology evolve.
We are aware of Congressional interest in making accurate
information about individuals' criminal history available while
appropriately limiting the sharing of such information. For example,
the PROTECT Act (Pub. L. 108-21) authorizes the Boys & Girls Club of
America, the National Council of Youth Sports, the National Mentoring
Partnership, and nonprofit organizations that provide care, treatment,
education, training, instruction, supervision, or recreation to
children to participate in a pilot program with the National Center for
Missing and Exploited Children to obtain Federal FBI fingerprint
criminal history checks on volunteer applicants for a fixed fee of $18
per individual. Corporation grantees that provide the above types of
services to children may consider contacting the National Center for
Missing and Exploited Children (http://www.missingkids.com) to
determine if they are eligible to participate in the pilot program.
Alternatively, mentoring organizations, such as Foster Grandparent
programs and many AmeriCorps programs, may apply through the National
Mentoring Partnership (http://www.mentoring.org), a current participant
in the pilot program. The lessons learned from the ongoing PROTECT
Act's pilot program are likely to inform and spur greater and more
effective coordination across State lines. Both the Senate and the
House of Representatives are also currently considering bills that
would establish national standards for reporting sex offenses to the
National Sex Offender Registry, which could enhance the reliability and
availability of NSOR searches. Amid this changing landscape, the
Corporation seeks at this time to achieve a consistent baseline
practice among Senior Companion and Foster Grandparent programs and
among AmeriCorps State/National programs serving children, persons age
60 and older, or individuals with disabilities.
The following proposed rule establishes a baseline screening
process at the national level. The process is designed to be relatively
straightforward in terms of documenting and monitoring, so that
programs serving vulnerable populations can demonstrate that they are
making a reasonably informed decision about who they select to
participate. This screening process will be a Federal grant condition
separate and apart from any State requirement.
By requiring a baseline criminal history screening process, we do
not intend to minimize the importance of a comprehensive approach to
screening and supervising staff and volunteers based on the particular
elements of a given program. Conducting criminal history checks is but
one part of an effective risk management approach to protecting program
participants from harm as well as protecting the sponsoring
organization from liability. Organizations serving children and other
vulnerable populations need to be mindful that no screening process is
foolproof. Sponsoring organizations should be alert to best practices,
not only in screening participants and staff, but also to elements of
program design and operation that provide additional safeguards.
Examples include designing a program to minimize opportunities for
potential abuse; conducting regular child or elder abuse prevention
training; restricting one-on-one or other unsupervised contact with
vulnerable clients; controlling access to areas where vulnerable
clients are present; making unannounced observation visits; posting and
reinforcing protocols around responding to potential abuse. To that
end, we draw your attention to the ``Staff Screening Tool Kit, 3rd
Edition,'' a document prepared by the Nonprofit Risk Management Center
that contains helpful information designed to strengthen an
organization's staff and volunteer screening and supervision processes.
You may access this publication at http://www.nationalservice.gov/screeningtoolkit
.
Requiring a baseline process as a grant condition is not intended
to discourage grantees from doing more than what we require. In fact,
we strongly encourage grantees to do more, as no screening process by
itself can guarantee the safety and well-being of vulnerable
populations in any program. Indeed, the strongest programs design and
operate their programs on the assumption that the screening process is
not foolproof. We will promote and support well-informed risk
management decisions of our grantees through training and technical
assistance designed to promote the sharing of best practices.
[[Page 62575]]
Similarly, as part of the baseline process we require fairness and
confidentiality in handling criminal history information, and we will
offer guidance and share best practices in implementing these general
requirements. These fairness and confidentiality requirements are
congruent with the Attorney General's privacy recommendation and
discussion of ``fair information practices'' as applied to criminal
history records in the recent DOJ Report to Congress. As the DOJ Report
points out, we also have an interest, as a society, in rehabilitating
individuals with a criminal history and in avoiding unlawful
discrimination. The Corporation has also reviewed comments and public
statements submitted to DOJ by privacy, civil liberties, and ex-
offender advocates concerning the impact of criminal background checks
and sex offender registries on privacy, rehabilitation, and
discrimination. We considered such interests in drafting the proposed
rule, which limits the screening and disqualification requirements to
positions serving the most vulnerable individuals while providing
fairness and confidentiality protections to applicants. In addition, we
remind grantees that criminal history searches and results often
include other potentially sensitive identifying data, such as Social
Security number, date of birth, driver's license number, and home
address, which should be handled carefully to protect the individuals
concerned from identity theft, physical threats, or other injury.
Fairness and confidentiality procedures can help ensure that qualified
prospective volunteers and employees are not discouraged from seeking
to be involved in national and community service programs.
Closely related to privacy requirements are Federal and State laws
that prohibit discrimination in employment, such as Title VII of the
Civil Rights Act of 1964 (42 U.S.C. 2000e et seq.). This can be an
issue, for example, if employment decisions are attributed to the
results of criminal history checks, but those are actually used as a
pretext for excluding individuals based on their race, religion,
gender, age, or age. The recently-revised EEOC Compliance Manual,
Section 15: Race and Color Discrimination (April 19, 2006), refers to
court rulings on the potential ``disparate impact'' of a hiring policy
based on arrests or convictions. The EEOC suggests that prospective
employers should weigh the following factors in each case to ensure
that their decisions to disqualify applicants based on criminal history
results are grounded on defensible ``business needs,'' despite any
differential impact:
The nature and gravity of the offense;
The time that has passed since the conviction or
completion of the sentence; and
The nature of the job held or sought.
These considerations apply directly to preventing unlawful
discrimination in the employment of persons for covered grant-funded
staff positions, and may be relevant to a national and community
service program's evaluation of applicants to a position as a member or
participant. The EEOC Compliance Manual is available online at: http://www.eeoc.gov/policy/docs/race-color.html
.
III. Covered Positions
This proposed rule covers Senior Companions and Foster
Grandparents, and participant positions in AmeriCorps State/National
and other programs that provide a Corporation-funded living allowance,
stipend, education award, or other remuneration to individuals who have
recurring access to children, persons age 60 and older, or individuals
with disabilities. We define ``children'' as individuals 17 years of
age and younger, consistent with the PROTECT Act. Sixty years of age-
the lowest age commonly used by Congress to define elderly persons-is
the threshold age for protecting elderly persons. ``Individuals with
disabilities'' has the same meaning given the term in the
Rehabilitation Act in 29 U.S.C. 705(20)(B) and covers any person who
has a physical or mental impairment which substantially limits one or
more major life activities, has a record of such an impairment, or is
regarded as having such an impairment. The proposed rule also covers
grant-funded staff with access to the identified vulnerable populations
in these programs. Grantees, therefore, must establish the age and
disability status of program participants.
Currently, AmeriCorps State and National grant programs, including
the Education Awards Program, have a criminal background check
requirement in their grant provisions. In light of the Corporation's
substantial support for AmeriCorps members (or ``participants'', in
statutory terms), all of whom are eligible to receive a Corporation-
funded education award upon successful completion of service, we
believe that baseline screening requirements are appropriate. This
proposed rule adds details to the required search elements, establishes
procedures to assure fairness and confidentiality, and disqualifies
registered sex offenders from AmeriCorps positions with recurring
access to children, persons age 60 and older, or individuals with
disabilities.
The proposed rule covers the SCP and FGP programs because we
believe that their focus on serving vulnerable populations through
participants who receive Corporation-funded stipends also warrants
baseline screening provisions at the national level. It gives more
specific direction to SCP and FGP sponsoring organizations in carrying
out an important aspect of their current responsibility to establish
risk management policies and procedures, and disqualifies registered
sex offenders from serving as Senior Companions or Foster Grandparents.
The proposed rule also applies to other Corporation-supported grant
programs in which service participants receive a Corporation-funded
living allowance, stipend, or education award and, on a recurring
basis, have access to children, persons age 60 and older, or
individuals with disabilities. For example, the rule would cover a
Challenge Grant program that provides a stipend to participants who
tutor children in an after-school program.
The proposed rule's requirements do not cover the RSVP or Learn and
Serve America programs, or unaffiliated volunteers recruited by
national and community service programs. We believe that, given the
relatively attenuated connection between the Corporation and individual
participants in those programs--and unaffiliated volunteers generated
by any of our programs--we may reasonably defer to pre-existing duties
of care under State law. We wish to emphasize the importance of
ascertaining and meeting the applicable standards of care under State
law for all Corporation-supported programs and activities.
The proposed rule does not cover the AmeriCorps National Civilian
Community Corps or the AmeriCorps VISTA programs, as the selection of
participants in those programs is made by Federal personnel rather than
by grantee organizations. We are strengthening our internal screening
practices in both those programs through an arrangement with the U.S.
Office of Personnel Management, but outside the scope of this
rulemaking.
IV. Content of Proposed Rule
We have focused on a criminal history review that reflects a set of
information that should be reasonably accessible to grantees, with the
following required elements.
[[Page 62576]]
1. Required searches. Unless the Corporation approves an
alternative screening protocol and unless prohibited by State law, a
covered grantee must, in selecting an individual for participation,
conduct and document two searches: (A) A criminal history records
search (by name or fingerprint) of the State criminal registry for the
State in which the program operates and the State in which the
applicant resides at the time of application; and (B) a search of the
Department of Justice (DOJ) National Sex Offender Registry (NSOR) at
http://www.nsopr.gov.
Requiring a check of State criminal registries is supported by data
obtained as a result of the PROTECT Act pilot program. According to the
DOJ Report, of the volunteers with criminal records identified through
a FBI check during the first part of the pilot program, 71 percent
would have been identified at the State level.
The NSOR is a nationwide, Internet-based, searchable Web site that
provides one-stop access to registries from all 50 States, Guam, Puerto
Rico, and the District of Columbia. A grantee operating in, or
recruiting an applicant from, a State that discontinues participating
in the NSOR must conduct and document a search of the sexual offender
registry for the State in which the program operates and the State in
which the applicant resides at the time of application. In addition,
grantees should know that the NSOR compiles but does not independently
verify or analyze data that is provided by each State, and even if
current legislative proposals to establish national reporting standards
are adopted there may continue to be differences in the content and
currency of data held respectively in the NSOR and State sex offender
registries. In addition, States may have different sex offender
registration requirements, depending on the status of the offender and
the level of an offense in a specific State. To assist the public, the
FBI has a link on its Web site to each State's sexual offender
registry. The FBI Web site can be accessed at http://www.fbi.gov/hq/cid/cac/states.htm
.
A grantee may ascertain and assess an individual's criminal history
or sex offender status directly from the applicable government agency
or indirectly through a duly authorized intermediary such as a
commercial entity or nonprofit organization.
2. Required procedures. Procedures must include: (a) Verification
of the applicant's identity by examining a government-issued photo
identification card; (b) prior, written authorization by the applicant;
(c) documentation of the applicant's understanding that selection into
the program is contingent upon the organization's review of the
applicant's criminal history, if any; (d) an opportunity for the
applicant to review and challenge the factual accuracy of a result
before action is taken to exclude the applicant from the position; and
(e) safeguards to ensure the confidentiality of any information
relating to the criminal history check, consistent with the
authorization provided by the applicant. (Grantees may find a useful
model in considering confidentiality safeguards in the Federal Trade
Commission's Standards for Safeguarding Customer Information, 16 CFR
Part 314, posted at http://www.ftc.gov/os/2002/05/67fr36585.pdf.) An
applicant who refuses to authorize a program to conduct a criminal
history check may not serve in a covered position.
3. Required documentation. A grantee must document in writing that
it (or its designee) verified the identity of the applicant by
examining the applicant's government-issued photo identification card,
conducted the required check, and considered the result in selecting an
individual for a covered position. There is no requirement under the
proposed rule that the grantee maintain the result itself.
A Senior Companion or Foster Grandparent sponsoring organization
must demonstrate that the required check is conducted at least once for
any Senior Companion or Foster Grandparent who begins serving with the
program on or after the effective date of this rule. An AmeriCorps
grantee must document that the required check is conducted the first
time an individual applies for a covered position in its program on or
after the rule's effective date.
To the extent consistent with Federal or State law, a covered
grantee may, by written agreement, arrange for any of these
requirements to be completed by another organization. If a grantee
demonstrates that, for good cause including a conflict with State law,
it is unable to comply with the required searches or that it can obtain
equivalent or better information through an alternative process, the
Corporation will consider approving an alternative search protocol
proposed in writing by the grantee. The grantee should submit the
alternative protocol in writing to the Corporation's Office of Grants
Management. The Office of Grants Management will review the alternative
protocol to ensure that it: (1) Verifies the identity of the applicant;
and (2) includes a search of an alternative criminal database that is
sufficient to identify the existence, or absence of, a criminal
offense.
In addition, a grantee that conducts and documents a fingerprint-
based criminal history check through the FBI or through a national
name-based check that, at a minimum, includes a search of the State
criminal repository registry in the State in which the program is
operating, as well as in the State in which the applicant resides, will
be deemed to have satisfied the criminal history check requirement and
does not need separate approval by the Corporation.
Establishing a baseline process as a grant condition is in no way
intended to discourage grantees from undertaking additional measures to
screen applicants. For example, grantees should be aware that an
individual might provide a false name during the application process.
Consequently, while the Corporation proposes, pursuant to this rule, to
require grantees to verify an applicant's identity with a government-
issued photo identification card, such as a driver's license, the
Corporation also strongly encourages grantees to take other
precautionary steps such as consistently checking references or past
employment. Additional screening practices include conducting a
personal interview or examining driving records for an individual whose
program assignment will include driving a vehicle. In addition, some
programs have access to State-based child abuse or elder abuse
registries. A grantee's decision to take any of these additional steps
reflects the organization's own judgment about appropriate screening
and is not considered a requirement under the Corporation grant.
By policy, eligible AmeriCorps programs that have fully enrolled
their awarded member slots are allowed to replace any member who
terminates service before completing a required minimum (currently 15
percent) of his or her term. If the background screening results in the
member being ineligible to serve and the member has already served more
than 15 percent of the required term of service, a grantee may seek an
exception to the re-fill policy by submitting a written request for an
exception to the Corporation's Office of Grants Management. The Office
of Grants Management will review the request for an exception to
determine if the delay in obtaining the criminal history check for the
member was a result of the grantee's lack of due diligence, or was for
a reason that was beyond the grantee's control. The Office will reply
to all such requests within 30 days of receipt of such requests.
[[Page 62577]]
V. Costs
The proposed rule requires grantees to obtain and document a
baseline criminal history check for covered individuals. The
Corporation considers the cost of this required criminal history check
a reasonable and necessary program grant expense, such costs being
presumptively eligible for reimbursement. In any event, a grantee
should include the costs associated with its screening process in the
grant budget it submits for approval to the Corporation.
A grantee may not charge an individual for the cost of a criminal
history check. In addition, because criminal history checks are
inherently attributable to operating a program, such costs may not be
charged to a State commission administrative grant.
We will monitor the screening and documentation requirement as a
material condition of receiving a Corporation grant. A grantee's
failure to comply with this requirement may adversely affect the
grantee's access to grant funds or ability to obtain future grants from
the Corporation. In addition, a grantee jeopardizes eligibility for
reimbursement of costs related to a disqualified individual if it fails
to perform or document the required check.
VI. Disqualification of Registered Sex Offenders
States have developed sexual offender registries to inform the
public concerning the presence and location of individuals who have
been convicted of certain sex-related offenses, either committed within
that State, or in another State. Depending on the severity of the
convicted offense, individuals are required to register as sex
offenders either for a specified number of years (e.g., 10 years) or
for life.
An individual who, while under consideration for a covered
position, is subject to a State sex offender registration requirement,
is deemed unsuitable for, and may not serve in the position.
A grantee is not precluded under this proposed rule from adopting
additional grounds for disqualification if it decides that is
appropriate or necessary for a particular program. Grantees should,
however, be aware that State law may specifically prohibit the
consideration of conviction or arrest records under certain
circumstances. Finally, grantees should look at criminal history checks
as but one of many sources of information to assess whether an
individual is suitable for a program.
A grantee may not select an individual for a position that has
recurring access to children, persons age 60 and older, or individuals
with disabilities prior to determining whether the individual is
subject to a State sex offender registration requirement, which is
readily ascertainable through an on-line search. Because the
additionally-required search of State criminal registries, or an
approved alternative search, may take more time, a grantee may select
or place an individual contingent upon obtaining these additional
results subsequently. A grantee should take reasonable precautions to
ensure that safeguards are in place while the results are pending.
These safeguards could include adjusting an individual's duties to
minimize access to vulnerable persons, additional monitoring, or other
risk mitigation steps as determined by the grantee.
VII. Relationship to State Laws
To the extent that any element of the proposed rule is not
permitted under State law, the Corporation's Office of Grants
Management is prepared to approve an alternative that is consistent
with State law, within 30 days of receiving such notice.
VIII. Effective Dates
The Corporation intends to make any final rule based on this
proposal effective no sooner than 90 days after the final rule is
published in the Federal Register. The requirement will apply
prospectively, to the selection of individuals who begin to participate
on or after the effective date.
IX. Regulatory Procedures
Executive Order 12866
The Corporation has determined that the proposed rule is not an
``economically significant'' rule within the meaning of E.O. 12866
because it is not likely to result in: (1) An annual effect on the
economy of $100 million or more, or an adverse and material effect on a
sector of the economy, productivity, competition, jobs, the
environment, public health or safety, or State, local, or tribal
government or communities; (2) the creation of a serious inconsistency
or interference with an action taken or planned by another agency; (3)
a material alteration in the budgetary impacts of entitlement, grants,
user fees, or loan programs or the rights and obligations of recipients
thereof; or (4) the raising of novel legal or policy issues arising out
of legal mandates, the President's priorities, or the principles set
forth in E.O. 12866. It is, however, a significant rule and has been
reviewed by the Office of Management and Budget in accordance with EO
12866.
Regulatory Flexibility Act
As required by the Regulatory Flexibility Act of 1980 (5 U.S.C. 605
(b)), the Corporation certifies that this rule, if adopted, will not
have a significant economic impact on a substantial number of small
entities. This regulatory action will not result in (1) an annual
effect on the economy of $100 million or more; (2) a major increase in
costs or prices for consumers, individual industries, Federal, State,
or local government agencies, or geographic regions; or (3) significant
adverse effects on competition, employment, investment, productivity,
innovation, or on the ability of United States-based enterprises to
compete with foreign-based enterprises in domestic and export markets.
Therefore, the Corporation has not performed the initial regulatory
flexibility analysis that is required under the Regulatory Flexibility
Act (5 U.S.C. 601 et seq.) for major rules that are expected to have
such results.
Unfunded Mandates
For purposes of Title II of the Unfunded Mandates Reform Act of
1995, 2 U.S.C. 1531-1538, as well as Executive Order 12875, this
regulatory action does not contain any Federal mandate that may result
in increased expenditures in either Federal, State, local, or tribal
governments in the aggregate, or impose an annual burden exceeding $100
million on the private sector.
Paperwork Reduction Act
This proposed rule contains no information collection requirements
and is therefore not subject to the requirements of the Paperwork
Reduction Act of 1980 (44 U.S.C. 3501 et seq.).
Executive Order 13132, Federalism
Executive Order 13132, Federalism, prohibits an agency from
publishing any rule that has Federalism implications if the rule either
imposes substantial direct compliance costs on State and local
governments and is not required by statute, or the rule preempts State
law, unless the agency meets the consultation and funding requirements
of section 6 of the Executive Order. The proposed rule does not have
any Federalism implications, as described above.
[[Page 62578]]
List of Subjects
45 CFR Part 2510
Grant programs--social programs, Volunteers.
45 CFR Part 2522
Grant programs--social programs, Reporting and recordkeeping
requirements, Volunteers.
45 CFR Part 2540
Administrative practice and procedure, Grant programs--social
programs, Reporting and recordkeeping requirements, Volunteers.
45 CFR Part 2551
Aged, Grant programs--social programs, Volunteers.
45 CFR Part 2552
Aged, Grant programs--social programs, Volunteers.
For the reasons stated in the preamble, the Corporation for
National and Community Service proposes to amend chapter XXV, title 45
of the Code of Federal Regulations as follows:
PART 2510--OVERALL PURPOSES AND DEFINITIONS
1. The authority citation for part 2510 continues to read as
follows:
Authority: 42 U.S.C. 12501 et seq.
2. Amend Sec. 2510.20 by adding the definitions of ``children,''
and ``recurring access'' in alphabetical order to read as follows:
Sec. 2510.20 Definitions.
* * * * *
Children. The term children means individuals 17 years of age and
younger.
* * * * *
Recurring access. The term recurring access means the ability on
more than one occasion to approach, observe, or communicate with, an
individual, through physical proximity or other means, including but
not limited to, electronic or telephonic communication.
* * * * *
PART 2522--AMERICORPS PARTICIPANTS, PROGRAMS, AND APPLICANTS
1. The authority citation for part 2522 is revised to read as
follows:
Authority: 42 U.S.C. 12571-12595; 12651b-12651d; E.O. 13331, 69
FR 9911.
2. Add the following new sections: Sec. 2522.205, Sec. 2522.206,
and Sec. 2522.207 to read as follows:
Sec. 2522.205 When must I apply suitability criteria relating to
criminal history?
You must apply suitability criteria relating to criminal history to
a participant or staff position that provides a Corporation-funded
living allowance, stipend, education award, salary, or other
remuneration, and which involves recurring access to children, persons
age 60 and older, or individuals with disabilities.
Sec. 2522.206 What suitability criteria must I apply to a covered
position?
Any individual who is registered, or required to be registered, on
a State sex offender registry is deemed unsuitable for, and may not
serve in, a covered position.
Sec. 2522.207 What are the requirements to conduct criminal history
checks when I select an individual for a covered position?
In selecting an individual for a covered position, you must follow
the procedures in part 2540 of this title.
PART 2540--GENERAL ADMINISTRATIVE PROVISIONS
1. The authority citation for part 2540 is revised to read as
follows:
Authority: 42 U.S.C. 12651b-12651d; E.O. 13331, 69 FR 9911.
2. Redesignate Sec. 2540.200 as Sec. 2540.208 and add the
following sections: Sec. 2540.200, Sec. 2540.201, Sec. 2540.202,
Sec. 2540.203, Sec. 2540.204, Sec. 2540.205 and Sec. 2540.206.
Sec. 2540.200 When must I apply suitability criteria relating to
criminal history?
You must apply suitability criteria relating to criminal history to
a position that provides a Corporation-funded living allowance,
stipend, education award, salary, or other remuneration, and which
involves recurring access to children, persons age 60 and older, or
individuals with disabilities.
Sec. 2540.201 What suitability criteria must I apply to a covered
position?
Any individual who is registered, or required to be registered, on
a State sex offender registry is deemed unsuitable for, and may not
serve in, a position covered by suitability criteria.
Sec. 2540.202 What types of criminal history checks must I conduct in
selecting an individual for a covered position?
Unless the Corporation approves an alternative screening protocol,
in selecting an individual for participation in a stipended position
that has recurring access to children, persons age 60 and older, or
individuals with disabilities, you are responsible, unless prohibited
by State law, for conducting and documenting the following:
(a) State criminal registry search. A search (by name or
fingerprint) of the State criminal registry for the State in which your
program operates and the State in which the applicant resides at the
time of application;
(b) Sex Offender Registry. A name-based search of the Department of
Justice (DOJ) National Sex Offender Registry (NSOR).
Sec. 2540.203 What procedures must I follow in conducting a criminal
history check for a covered position?
You are responsible for following these procedures:
(a) Verify the applicant's identity by examining the applicant's
government-issued photo identification card, such as a driver's
license;
(b) Obtain prior, written authorization for the criminal history
check from the applicant;
(c) Document the applicant's understanding that selection into the
program is contingent upon the organization's review of the applicant's
criminal history, if any;
(d) Provide a reasonable opportunity for the applicant to review
and challenge the factual accuracy of a result before action is taken
to exclude the applicant from the position; and
(e) Provide safeguards to ensure the confidentiality of any
information relating to the criminal history check, consistent with
authorization provided by the applicant.
Sec. 2540.204 What documentation must I maintain regarding a criminal
history check for a covered position?
You are responsible for documenting in writing that you (or your
designee) verified the identity of the applicant for a covered position
by examining the applicant's government-issued photo identification
card, conducted the required check for a covered position, and
considered the result in selecting the individual.
Sec. 2540.205 Under what circumstances may I follow alternative
procedures in conducting a criminal history check for a covered
position?
(a) FBI fingerprint-based check. If you conduct and document a
fingerprint-based criminal history check through the Federal Bureau of
Investigation, you will be deemed to have satisfied the criminal
history check requirement and do not need separate approval by the
Corporation.
(b) Name-based search. If you conduct and document a name-based
criminal history check through a source other than the FBI that,
includes a check of the criminal records repository, in the State in
which your program is
[[Page 62579]]
operating, as well as in the State in which the applicant lives, you
will be deemed to have satisfied the criminal history check requirement
and do not need separate approval by the Corporation.
(c) Alternative search approval. If you demonstrate that, for good
cause including a conflict with State law, you are unable to comply
with a requirement relating to criminal history checks or that you can
obtain equivalent or better information through an alternative process,
the Corporation will consider approving an alternative search protocol
that you submit in writing to your program officer at the Corporation's
Office of Grants Management. The Office of Grants Management will
review the alternative protocol to ensure that it:
(1) Verifies the identity of the applicant; and
(2) Includes a search of an alternative criminal database that is
sufficient to identify the existence, or absence of, a criminal
offense.
Sec. 2540.206 How often must I conduct a criminal history check on an
individual in a covered position?
(a) You must conduct a criminal history check when an individual in
a covered position initially enrolls in, or is hired by, your program.
(b) For an individual who serves consecutive terms of service in
your program, no additional check is required after the first term.
PART 2551--SENIOR COMPANION PROGRAM
1. The authority citation for part 2551 is revised to read as
follows:
Authority: 42 U.S.C. 4950 et seq.; 42 U.S.C. 12651b-12651d; E.O.
13331, 69 FR 9911.
Subpart C of Part 2551--[Amended]
2. Amend subpart C by redesignating Sec. 2551.31 as Sec. 2551.32.
Subpart B of Part 2551--[Amended]
3. Amend subpart B of part 2551 as follows:
a. By redesignating Sec. 2551.26 as Sec. 2551.31 of subpart B and
adding the following sections: Sec. 2551.26, Sec. 2551.27, Sec.
2551.28, Sec. 2551.29 and Sec. 2551.30.
Sec. 2551.26 To whom does this Part apply?
This part applies to Senior Companion Sponsors in selecting Senior
Companions and in selecting Senior Companion grant-funded employees
who, on a recurring basis, have access to children, persons age 60 and
older, or individuals with disabilities.
Sec. 2551.27 What criminal history checks must I conduct?
Unless the Corporation approves an alternative screening protocol,
in selecting an individual as a Senior Companion or as a covered grant-
funded employee, you are responsible for ensuring, unless prohibited by
State law, that the following screening activities are conducted and
documented in writing:
(a) State criminal registry search. A search (by name or
fingerprint) of the State criminal registry for the State in which the
program operates and the State in which the applicant resides at the
time of application;
(b) Sex Offender Registry. A name-based search of the Department of
Justice (DOJ) National Sex Offender Registry (NSOR).
Sec. 2551.28 What procedures must I follow in conducting a criminal
history check?
You are responsible for ensuring that the following procedures are
satisfied:
(a) Verify the applicant's identity by examining the applicant's
government-issued photo identification card, such as a driver's
license;
(b) Obtain prior, written authorization for the criminal history
check from the applicant;
(c) Document the individual's understanding that selection into the
program is contingent upon the organization's review of the applicant's
criminal history, if any;
(d) Provide a reasonable opportunity for the applicant to review
and challenge the factual accuracy of a result before action is taken
to exclude the applicant from the position; and
(e) Provide safeguards to ensure the confidentiality of any
information relating to the criminal history check, consistent with
authorization provided by the applicant.
Sec. 2551.29 What documentation must I maintain regarding a criminal
history check?
You are responsible for documenting in writing that you (or your
designee) verified the identity of the applicant for a covered position
by examining the applicant's government-issued photo identification
card, conducted the required check for a covered position, and
considered the result in selecting the individual.
Sec. 2551.30 Under what circumstances may I follow alternative
procedures in conducting a criminal history check?
(a) FBI fingerprint-based check. If you or your designee conduct
and document a fingerprint-based criminal history check through the
Federal Bureau of Investigation, you will be deemed to have satisfied
the criminal history check requirement and do not need separate
approval by the Corporation.
(b) Name-based search. If you conduct and document a name-based
criminal history check through a source other than the FBI that,
includes a check of the criminal records repository, in the State in
which your program is operating, as well as in the State in which the
applicant lives, you will be deemed to have satisfied the criminal
history check requirement and do not need separate approval by the
Corporation.
(c) Alternative search approval. If you demonstrate that, for good
cause including a conflict with State law, you are unable to comply
with a requirement relating to criminal history checks or that you can
obtain equivalent or better information through an alternative process,
the Corporation will consider approving an alternative search protocol
that you submit in writing to the Office of Grants Management. The
Office of Grants Management will review the alternative protocol to
ensure that it:
(1) Verifies the identity of the applicant; and
(2) Includes a search of an alternative criminal database that is
sufficient to identify the existence, or absence of, a criminal
offense.
4. Redesignate Sec. Sec. 2551.42, 2551.43, 2551.44, 2551.45,
2551.46 as Sec. Sec. 2551.43, 2551.44, 2551.45, 2551.46, 2551.47,
respectively, and
b. Add the following new section: Sec. 2551.42.
Sec. 2551.42 May an individual who is subject to a State sex offender
registration requirement serve as a Senior Companion or as a Senior
Companion grant-funded employee?
Any individual who is registered, or who is required to be
registered, on a State sex offender registry is deemed unsuitable for,
and may not serve in, a position as a Senior Companion or as a Senior
Companion grant-funded employee.
PART 2552--FOSTER GRANDPARENT PROGRAM
1. The authority citation for part 2552 is revised to read as
follows:
Authority: 42 U.S.C. 4950 et seq.; 42 U.S.C. 12651b-12651d; E.O.
13331, 69 FR 9911.
Subpart C of Part 2552--[Amended]
2. Amend subpart C by redesignating Sec. 2552.31 as Sec. 2552.32.
3. Amend Subpart B by redesignating Sec. 2552.26 as Sec. 2552.31
of subpart B and adding the following sections:
[[Page 62580]]
Sec. 2552.26, Sec. 2552.27, Sec. 2552.28, Sec. 2552.29, and Sec.
2552.30.
Sec. 2552.26 To whom does this Part apply?
This part applies to Foster Grandparent Sponsors in selecting
Foster Grandparents and in selecting Foster Grandparent grant-funded
employees who, on a recurring basis, have access to children, persons
age 60 and older, or individuals with disabilities.
Sec. 2552.27 What criminal history checks must I conduct?
Unless the Corporation approves an alternative screening protocol,
in selecting an individual as a Foster Grandparent or as a covered
grant-funded employee, you are responsible for ensuring, unless
prohibited by State law, that the following screening activities are
conducted and documented in writing:
(a) State criminal registry search. A search (by name or
fingerprint) of the State criminal registry for the State in which the
program operates and the State in which the applicant resides at the
time of application;
(b) Sex Offender Registry. A name-based search of either the
Department of Justice (DOJ) National Sex Offender Registry (NSOR) or a
sex offender registry that provides results concerning individuals who
are registered as sex offenders in the State in which your program
operates and the State in which the applicant resides at the time of
application.
Sec. 2552.28 What procedures must I follow in conducting criminal
history checks?
You are responsible for ensuring that the following procedures are
satisfied:
(a) Verify the applicant's identity by examining the applicant's
government-issued photo identification card, such as a driver's
license;
(b) Obtain prior, written authorization for the criminal history
check from the applicant;
(c) Document the individual's understanding that selection into
program is contingent upon the organization's review of the applicant's
criminal history, if any;
(d) Provide a reasonable opportunity for the applicant to challenge
the factual accuracy of a result before action is taken to exclude the
applicant from the position; and
(e) Provide safeguards to ensure the confidentiality of any
information relating to the criminal history check, consistent with
authorization provided by the applicant.
Sec. 2552.29 What documentation must I maintain regarding a criminal
history check?
You are responsible for documenting in writing that you (or your
designee) verified the identity of the applicant for a covered position
by examining the applicant's government-issued photo identification
card, conducted the required check for a covered position, and
considered the result in selecting the individual.
Sec. 2552.30 Under what circumstances may I follow alternative
procedures in conducting a criminal history check?
(a) FBI fingerprint-based check. If you or your designee conduct
and document a fingerprint-based criminal history check through the
Federal Bureau of Investigation, you will be deemed to have satisfied
the criminal history check requirement and do not need separate
approval by the Corporation.
(b) Name-based search. If you conduct and document a name-based
criminal history check through a source other than the FBI that,
includes a check of the criminal records repository, in the State in
which your program is operating, as well as in the State in which the
applicant lives, you will be deemed to have satisfied the criminal
history check requirement and do not need separate approval by the
Corporation.
(c) Alternative search approval. If you demonstrate that, for good
cause including a conflict with State law, you are unable to comply
with a requirement relating to criminal history checks or that you can
obtain equivalent or better information through an alternative process,
the Corporation will consider approving an alternative search protocol
that you submit in writing to the Office of Grants Management. The
Office of Grants Management will review the alternative protocol to
ensure that it:
(1) Verifies the identity of the applicant; and
(2) Includes a search of an alternative criminal database that is
sufficient to identify the existence, or absence of, a criminal
offense.
4. Amend subpart D of part 2552 as follows:
a. By redesignating Sec. 2552.42, Sec. 2552.43, Sec. 2552.44,
Sec. 2552.45, Sec. 2552.46 as Sec. 2552.43 Sec. 2552.44, Sec.
2552.45, Sec. 2552.46, Sec. 2552.47, respectively, and
b. By adding the following new section: Sec. 2552.42.
Sec. 2552.42 May an individual who is subject to a State sex offender
registration requirement serve as a Foster Grandparent or as a Foster
Grandparent grant-funded employee?
Any individual who is registered, or required to be registered, on
a State sex offender registry is deemed unsuitable for, and may not
serve in, a position as a Foster Grandparent or as a Foster Grandparent
grant-funded employee.
Dated: October 20, 2006.
Frank R. Trinity,
General Counsel.
[FR Doc. E6-17912 Filed 10-25-06; 8:45 am]
BILLING CODE 6050-28-P