FR Doc E7-16681

[Federal Register: August 24, 2007 (Volume 72, Number 164)]
[Rules and Regulations]
[Page 48574-48585]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr24au07-10]

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CORPORATION FOR NATIONAL AND COMMUNITY SERVICE

45 CFR Parts 2510, 2522, 2540, 2551, and 2552

RIN 3045-AA44

National Service Criminal History Checks

AGENCY: Corporation for National and Community Service.

ACTION: Final rule.

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SUMMARY: The Corporation for National and Community Service
(Corporation) is issuing a regulation requiring grantees to conduct and
document National Service Criminal History Checks on Senior Companions
and Foster Grandparents, as well as on AmeriCorps State and 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. A National
Service Criminal History Check consists of a State criminal registry
check; and a National Sex Offender Public Registry (NSOPR) check.

DATES: This final rule is effective November 23, 2007.

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 rule in an alternative format for the visually impaired.

I. Background--The October 26, 2006, Proposed Rule

On October 26, 2006, the Corporation published a proposed rule (71
FR 62573) to require its grantees to conduct and document criminal
history checks on Senior Companions and Foster Grandparents, as well as
on AmeriCorps State and National (including Education Awards 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. The objective of this rule is to help
protect vulnerable individuals who are beneficiaries of programs that
are funded by the Corporation. This update to the Corporation's
criminal history check policies was prompted by a recommendation by the
Corporation's Acting Inspector General in an advisory letter to the
Corporation's Chief Executive Officer in January 2005.

Emphasis on Protecting Vulnerable Populations

Many national and community service programs are dedicated to

[[Page 48575]]

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
diverse 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 should establish
and regularly review their screening and supervision practices as
measured against the applicable standard of care under State law.

The Corporation's Authority

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.''

FBI Fingerprint Checks

Rapid advances in technology are increasing the availability and
accessibility of information about individuals in our society. However,
we have not yet identified any established criminal history check
process at the national level that we can mandate for all grantees. The
FBI maintains the most complete criminal database in the United States,
with records that are fingerprint-based. A fingerprint check of this
database is generally considered the most reliable, in part because it
screens a physical characteristic rather than a name provided by an
applicant. However, FBI-maintained records can sometimes be less
complete and less up-to-date than State records, and are available only
to organizations specifically authorized by a Federal or State law.
Many organizations operating national and community service programs do
not currently have access to FBI fingerprint checks.

The Attorney General's Report on Criminal History Background Checks

In 2006, the U.S. Attorney General 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 The Attorney

General's 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 PROTECT Act

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 FBI fingerprint criminal
history checks on volunteer applicants for a fixed fee of $18.00 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 request to participate
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. For
example, in January, 2007, Senators McCain and Schumer introduced
legislation (S.431, Keeping the Internet Devoid of Sexual Predators Act
of 2007, or KIDS Act) to strengthen national reporting requirements
(including the requirement to register online Internet identifiers) for
sex offenders. Also, in January, 2007, Congressman Pomeroy introduced
legislation (H.R. 719) to establish a National Sex Offender Risk
Classification Task Force to create guidelines for a risk-based sex
offender classification system for use in sex offender registries. 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 and National programs
serving children, persons age 60 and older, or individuals with
disabilities.

The Requirement for Grantees To Establish a Baseline Screening Process

This rule establishes a baseline screening process at the national
level. This screening requirement will be a Federal grant condition
separate and apart from any State requirement.

The Need for a Comprehensive Screening Process

This baseline screening requirement does not, however, preclude
grantees from conducting a more thorough evaluation of supervising
staff and participants if they choose to do so. Criminal history checks
are 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 also note that the design and
operation of programs can provide additional safeguards. Examples
include programs designed to minimize opportunities for potential
abuse; regular child or elder abuse prevention training; restricted
one-on-one and other unsupervised contact with vulnerable clients;
controlled access to areas where vulnerable clients are present;
unannounced observation visits; and the posting and reinforcement of
protocols on how to respond to suspected or reported abuse. To assist
our grantees, the Corporation has distributed and also made available
on our Web site the Staff Screening Tool Kit, 3rd Edition, a
publication 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 can access
this resource at http://www.nationalservice.gov/screeningtoolkit.

[[Page 48576]]

Fairness and Confidentially

The National Service Criminal History Check also seeks to ensure
fairness and confidentiality in handling criminal history information.
Such fairness and confidentiality considerations are congruent with the
Attorney General's privacy recommendation and discussion of ``fair
information practices'' as applied to criminal history records in The
Attorney General's Report. As the Attorney General points out, we also
have an interest, as a society, in rehabilitating individuals with a
criminal history and in avoiding unlawful discrimination. In developing
the rule, the Corporation 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. Because
criminal history searches and results often disclose other potentially
sensitive identifying data, such as Social Security number, date of
birth, driver's license number, and home address, grantees need to
protect the individuals concerned from identity theft, physical
threats, or other injury. Fairness and confidentiality procedures can
also help ensure that qualified prospective program volunteers,
participants, and employees are not discouraged from seeking to be
involved in national and community service programs.

Laws That Prohibit Employment Discrimination

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 the results are actually used
as a pretext for excluding individuals based on their race, religion,
gender, or age. The recently-revised Equal Employment Opportunity
Commission (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 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 staff
member or participant. The EEOC Compliance Manual is available online
at: http://www.eeoc.gov/policy/docs/race-color.html.

Preliminary Public Input

On October 17, 2005, the Corporation published a notice in the
Federal Register inviting informal preliminary public input in advance
of rulemaking (70 FR 60257). The Corporation also held two conference
calls following the notice. The Corporation considered the input
received in drafting its proposed rule.

60-Day Comment Period

In the Federal Register of October 26, 2006 (71 FR 62573), the
Corporation published the proposed rule, with a 60-day comment period.
In addition to accepting comments in writing, the Corporation held two
conference calls in November, 2006. The Corporation received over 70
comments concerning the proposed rule, including those in writing and
those received through the conference calls. Comments are discussed in
detail in Part III.
In general, almost all of the comments supported the requirement
that criminal history background and NSOPR checks be conducted on
individuals working with vulnerable populations in the positions
designated in the proposed rule.

II. Discussion of the Final Rule

Covered Positions

This final rule covers Senior Companions and Foster Grandparents,
and participant positions in AmeriCorps State and 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 includes 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 final 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, including beneficiaries.
The rule covers the Senior Companion and Foster Grandparent
programs because their focus on serving vulnerable populations warrants
baseline screening provisions that meet a national standard. The
requirement includes specific search elements, as well as fairness
considerations. It gives more specific direction to Senior Companion
and Foster Grandparent sponsoring organizations in carrying out an
important part of their responsibility to establish risk management
policies and procedures, and disqualifies registered sex offenders from
serving as Senior Companions or Foster Grandparents.
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 participants, 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 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 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 also cover a non-AmeriCorps
program that provides a stipend to participants who tutor children in
an after-school program.

[[Page 48577]]

Programs Not Covered Under Final Rule

The rule's requirements do not cover individuals in the RSVP or
Learn and Serve America programs, or unaffiliated volunteers recruited
by national and community service programs. Those individuals have an
attenuated connection to the Corporation, and the Federal government
does not directly facilitate unsupervised contact between vulnerable
persons and individuals through those programs. The Corporation
therefore defers to existing duties of care under State law. For
example, participants in Learn and Serve K-12 programs seldom serve in
unsupervised settings. In addition, participants in Learn and Serve
Higher Education programs, who concentrate primarily on curriculum
development, as well as participants in Community-Based programs who
usually serve in supervised, group settings, generally do not have
unsupervised access to vulnerable populations. The Corporation
emphasizes, however, the importance of ascertaining and meeting the
applicable standards of care under State law for all Corporation-
supported programs and activities. The final rule also 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. While
the Corporation has strengthened our internal screening practices in
both of those federally-operated programs through an arrangement with
the U.S. Office of Personnel Management, these programs are outside the
scope of this rulemaking.

Specifics of the Final Rule

The rule requires a criminal history review that reflects
information that should be reasonably accessible to grantees. The
following elements are required:

Components of the National Service Criminal History Check

Unless the Corporation approves an alternative screening protocol
and unless prohibited or otherwise precluded by State law, a covered
grantee must, in selecting an individual for participation, conduct and
document two searches: (A) 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;
and (B) a search of the Department of Justice (DOJ) National Sex
Offender Public Registry (NSOPR) at http://www.nsopr.gov. The term

``State,'' when used in this rule, also includes U.S. Territories, as
defined in 45 CFR 2510.20; 2551.12 (u); and 2552.12 (x).

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 authorizing the
program to conduct State criminal registry checks (not required for
NSOPR checks), as well as authorization to share the results of that
check within the program, as appropriate; (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; (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.
); and (f) ensuring that an individual, for whom

the results of a required State criminal registry check are pending, is
not permitted to have access to vulnerable beneficiaries without being
accompanied by an authorized program representative who has previously
been cleared for such access.
An individual who refuses to authorize a program to conduct a
criminal history State registry check, or who makes a false statement
in connection with a grantee's inquiry concerning the individual's
criminal history, may not serve in a covered position.

Required Documentation

A grantee must document in writing that it (or its designee)
verified the identity of the individual by examining the individual's
government-issued photo identification card, conducted the required
checks, maintained the results of the National Service Criminal History
Check (unless precluded by State law), and considered the results in
selecting or retaining an individual for a covered position.

NSOPR Checks Required on All Covered Positions, Including Those
Currently Serving

The NSOPR is a DOJ-sponsored Internet-based, searchable Web site
that provides one-stop access to registries from all 50 States, Guam,
Puerto Rico, and the District of Columbia. To assist the public, the
FBI also 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.
The NSOPR check must be conducted on any applicant

for a covered position, as well as on any individual currently serving
in a covered position at the time this rule becomes effective. Grantees
should know that the NSOPR 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 NSOPR and State sex offender
registries.

Effective Dates for Conducting State Criminal Registry and NSOPR Checks

A Senior Companion or Foster Grandparent sponsoring organization
must demonstrate that any required State criminal registry 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 State
criminal registry check is conducted the first time an individual
applies for a covered position in its program on or after the rule's
effective date. NSOPR checks must, however, be conducted for all Senior
Companion, Foster Grandparent, and AmeriCorps covered positions,
including those currently serving at the time this final rule becomes
effective. Programs must complete the NSOPR check on their current
participants and grant-funded employees in covered positions within 90
days from the publication date of the final rule.

Alternative Search Procedures

If a grantee demonstrates that, for good cause, including a
conflict with State law, it is unable to conduct the required searches
or that it can obtain substantially equivalent or better information
through an alternative process, the Corporation will consider approving
an alternative search protocol proposed in writing by the grantee. This
includes, but is not limited to, situations where a State or local
government body

[[Page 48578]]

has established screening and documentation requirements designed to
protect one or more vulnerable populations covered by the final rule. A
school board, for example, acting pursuant to State legislation, may
have set requirements for screening staff and volunteers that provide
substantially equivalent protections to the vulnerable populations
identified in this rule. Consequently, a teacher corps, whose members
are all school district employees screened pursuant to a requirement
imposed by a school board or other governing body, would satisfy the
criteria for an approved alternative search procedure. In determining
whether an alternative process results in substantially equivalent or
better information, the Corporation will review the nature of the
sources included in the alternative process, as well as the reliability
of the information obtained. A current grantee can submit a written
request within 90 days after the publication of this rule to the
Corporation for approval of an alternative search protocol. A grantee
qualifying for an exception must still conduct NSOPR checks on its
participants and grant-funded employees, if not already required under
State or local authority.
Grantees must submit any applicable alternative protocol requests
for approval in writing to the Corporation's Office of Grants
Management. The Office of Grants Management will review the alternative
protocol and will consider factors including, but not limited to: (1)
That it sufficiently verifies the identity of the applicant; and (2)
that it 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 criminal
history check through the FBI or through a national name-based check
that, at a minimum, includes a search of the State criminal 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
required State criminal registry check and does not need separate
approval by the Corporation.

Additional Safeguards

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
individuals might provide a false name during the application process.
Consequently, while a grantee must 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, for an individual whose program assignment will
include driving a vehicle, examining driving records. 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.

Terminations and the Corporation's Refill Policy

The Corporation's refill policy may enable AmeriCorps program
grantees that have fully enrolled their awarded slots to replace a
participant who terminates service before completing a required minimum
(currently 30 percent) of his or her term and without having receiving
a pro-rated education award. If the background screening results in the
participant being ineligible to serve and the participant has already
served more than the term of service specified under the refill policy,
a grantee may seek an exception to the refill 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
based on factors including, but not limited to, whether the delay in
obtaining the criminal history check for the participant was a result
of the grantee's lack of due diligence, or was for a reason that was
beyond the grantee's control, and will reply within 30 days of receipt
of such requests.

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 is subject to a State sex offender registration
requirement is deemed unsuitable for, and may not serve in, a covered
position. The disqualification includes individuals who are applicants
for covered positions, as well as individuals who are currently serving
with the organization in a covered position.

Grantees not Precluded From Adopting Other Disqualifying Offenses

In developing the proposed rule, the Corporation considered other
disqualifying factors and offenses, such as convictions for serious and
violent felonies, but ultimately determined that the selection criteria
for covered positions--beyond any statutory eligibility criteria and
the disqualification of registered sex offenders--should continue to be
the responsibility of each grantee organization. Therefore, this rule
does not preclude a grantee from adopting additional grounds for
disqualification if it decides that it 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.

Selection of Applicants Pending Criminal History Results

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 is not
precluded under this rule from selecting or placing an individual
contingent upon obtaining these additional results subsequently.
However, until all required State criminal registry check results are
received and reviewed by the grantee, an applicant may not have access
to a vulnerable beneficiary without being accompanied by an authorized
program representative who has previously been cleared to have such
access. A grantee should take other reasonable precautions to ensure
that safeguards are in place while the results are pending, including
additional monitoring, and other risk mitigation steps, as determined
by the grantee. The Corporation again emphasizes that the NSOPR check
must be conducted before the individual begins to serve, as it is a no-
cost, almost instantaneous search that can be conducted by accessing
the DOJ Web site.

[[Page 48579]]

Use of Intermediary Permitted

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 selected by the
grantee such as a commercial entity or nonprofit organization. However,
as a prudential matter, grantees should routinely review the
intermediary's criminal history check procedures and practices to
ensure that they are in compliance with the Corporation's requirements.
In addition, because the amount of time from application until actual
enrollment can be substantial, grantees should ensure that the criminal
history result that it reviews before selecting the applicant is as
current as possible.

Costs

The final rule requires grantees (or their designees) to obtain and
document a National Service 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. A
grantee should include the costs associated with its screening process
in the grant budget it submits for approval to the Corporation.
Unless specifically approved by the Corporation, a grantee may not
charge an individual for the cost of a criminal history check required
under this rule. The Corporation will consider approving, for example,
a long-standing school district policy of charging staff, volunteers,
and others who work or serve in schools for the cost of criminal
history checks, provided the income is treated in accordance with
applicable grant conditions. 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
material failure to comply with this requirement (including the NSOPR
check) will result in the Corporation taking appropriate action, up to
and including denial of the grantee's claim for reimbursements,
suspending the grantee's access to grant funds, or restricting (or
denying) the grantee's eligibility to obtain future grants from the
Corporation. And specifically, a grantee jeopardizes eligibility for
reimbursement of costs related to a disqualified individual if it fails
to perform or document the required check.

III. Comments and Response

Of the more than 70 comments received, the vast majority of the
comments supported the requirement that national service programs
conduct and document criminal history checks on individuals in covered
positions. The comments and our responses are set forth below.
Comment: Several commenters inquired as to why the Corporation was
not including the RSVP or Learn and Serve programs under this rule.
Response: The Corporation's connections with individual
participants in the RSVP and Learn and Serve programs are sufficiently
attenuated to rely on existing duties of care under State law. At the
same time, the Corporation recognizes the importance of protecting all
Corporation-supported program beneficiaries; therefore, we wish to
emphasize the importance and need for all programs to ascertain and
meet the applicable duties of care under State law.
Comment: Several commenters asked for clarification concerning the
term ``recurring access,'' expressing concern that it may be too broad
in its scope.
Response: The term is defined in the final rule at Sec. 2510.20
Definitions. The Corporation believes that the definition of recurring
access in the proposed rule is appropriate, and that it is prudent to
include more applicants under this requirement than to exclude them by
limiting the definition to a narrower category of individuals. A
definition other than ``more than once'' would be likely to result in
additional documentation requirements and collateral disputes about the
adequacy of such documentation. Note that the definition does not apply
to Senior Companions and Foster Grandparents, all of whom are covered
by the requirements.
Comment: Some commenters expressed concern that including persons
age 60 and older as vulnerable individuals may offend individuals in
this age category.
Response: While we acknowledge that many individuals, age 60 and
older, would not consider themselves vulnerable, we thought it would be
prudent, from a policy and safety perspective, to be more inclusive
than exclusive on this point. In addition, we have determined that
sixty years of age appears to be the lowest age commonly used by
Congress to define elderly persons in legislation that establishes a
threshold age for elderly persons (e.g., Older Americans Act; Food
Stamp Act) (Sec. Sec. 2522.205; 2540.200; 2551.26; 2552.26)).
Comment: One commenter asked us to clarify which State criminal
registry checks are required for a program that operates in more than
one State.
Response: The final rule requires a search of the criminal registry
for the State in which a program operates and the State in which the
applicant resides at the time of application. ``State in which your
program operates'' refers to the actual geographic location where an
individual will be serving on a permanent basis while participating in
the program. For example, if the program's headquarters is in Florida,
but the individual is applying to serve in an operating site in another
State, the program must conduct a criminal history check in the State
in which the operating site is located. If a program is unsure where an
applicant is going to serve at the time that the applicant submits an
application, the program must check each State in which the applicant
could be assigned to serve on a permanent basis. (Sec. Sec. 2540.202
(a); 2551.27 (a); 2552.27 (a)).
Comment: One commenter asked for clarification as to what has to be
documented when conducting the NSOPR check.
Response: The program must document in writing that it conducted
the NSOPR check on all covered positions, and considered the results in
determining the individual's suitability. 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
covered position (Sec. Sec. 2540.202(b); 2551.27(b); 2552.27(b));
(Sec. Sec. 2522.206; 2540.201; 2551.42; 2552.42).
Comment: Another commenter asked us to clarify the term
``consecutive terms of service'' as it relates to a grantee's
requirement to conduct a separate criminal history check for a
subsequent term of service. There is an exception to this requirement
if an individual is serving ``consecutive terms of service.''
Response: A consecutive term of service means that there is no
intervening break in service of more than 30 days during which the
applicant did not serve in that specific program. Consequently, if
there is no break in service, there is no requirement that a grantee
conduct a new State criminal registry and NSOPR check (Sec. 2540.203).
Notwithstanding this exception, any AmeriCorps participant who is
serving in a covered position at the time this rule becomes effective
will be required to submit to a criminal registry check if the
participant decides to serve another

[[Page 48580]]

term, even if it is with the same program and there is no 30-day break
in service.
Comment: We were asked to clarify when the requirement takes effect
and to whom it applies.
Response: Both the State criminal registry check and NSOPR
requirements take effect 90 days after publication of the Final Rule in
the Federal Register. The State criminal registry check requirement
applies only to those covered individuals who apply after the effective
date of the final rule. The NSOPR check, however, applies to all
covered individuals who apply to serve, or who are currently serving
with, or working in, the affected programs (See paragraph V, Effective
Dates).
Comment: One commenter asked if costs (such as a living allowance)
attributable to an individual under a grant were allowable if the
grantee subsequently determines that the individual must leave the
program as a result of a criminal history check.
Response: The costs are allowable unless the delay in determining
that an individual is ineligible to serve is caused by non-compliance
or unreasonable delay by the grantee (e.g., failure to conduct the
NSOPR check before enrolling or hiring the individual).
Comment: Some commenters asked whether staff members of a grantee
whose salaries are paid with matching funds are included under this
requirement.
Response: If the staff members are included in the grantee's
proposed budget as grant-funded employees, whether supported by
Corporation or matching funds, they are included under this requirement
(Sec. Sec. 2522.205; 2540.200; 2551.26; 2552.26).
Comment: A commenter asked for clarification as to which States'
criminal registry must be checked for a college student who is
attending college in a State that is not his or her home of record.
Response: For the purpose of this rule, a student who is attending
college in a State that is not the student's ``home of record'' (i.e.,
where the student's parent(s) reside) is deemed to be residing in the
State in which the college is located. The final rule requires programs
to conduct a criminal registry check in the State in which the program
is operating, as well as in the State in which the applicant is
residing at the time the application is submitted. There is nothing,
however, to preclude a program from including additional States (i.e.,
the applicant's home of record or other States in which the student has
lived) in its criminal registry check (Sec. Sec. 2540.202(a);
2551.27(a); 2552.27(a)).
Comment: One commenter expressed concern that the prospective
nature of the rule would leave unchecked potentially unsuitable
participants who are currently in the programs.
Response: In establishing this new requirement as a grant
condition, we were mindful of the costs associated with retrospective
application. Because the criminal history State registry check
requirement is prospective, grantees should design their programs'
applications in a manner that appropriately reflects their screening
practices. Programs with relatively less stringent screening practices
are well advised to build in compensating controls to minimize the
risks to their program beneficiaries. In addition, because an NSOPR
check is cost-free and relatively easy to conduct, we are requiring all
programs subject to this rule to conduct NSOPR checks on all applicants
for covered positions, as well as on all individuals who are currently
serving in covered positions (See paragraph V, Effective Dates).
Comment: One individual submitted a written comment asking why the
final rule disqualifies registered sex offenders, but not those
individuals convicted of other offenses.
Response: Disqualifying registered sex offenders from positions
with recurring access to children, older persons, or individuals with
disabilities takes advantage of the newly established national registry
of sex offenders, accessible online across the country, and is
consistent with our objective of establishing by rule an achievable
baseline set of screening practices. Advances in information sharing at
the national level may make it possible to strengthen this baseline in
the future. To this end, the Corporation intends, at a later date, to
consider adding other disqualifying factors, including specific
offenses. Accordingly, we invite grantees and other interested parties
to provide input on additional disqualifying factors. Input should be
submitted to the individual listed at, FOR FURTHER INFORMATION CONTACT
(Sec. Sec. 2522.206; 2540.201; 2551.42; 2552.42).
Comment: One commenter asked for clarification concerning the
eligibility of an individual who refuses to consent to a State criminal
registry check.
Response: We have added language in the final rule clarifying that
an individual who refuses to consent to a State criminal registry
check, or who makes a false statement in connection with a grantee's
inquiry concerning the individual's criminal history, is not eligible
to serve in a covered position (Sec. Sec. 2540.207; 2551.32; 2552.32).
Comment: One commenter asked for clarification concerning an
individual's right to review and challenge the factual accuracy of a
criminal history check before any action is taken to exclude the
individual from serving in, or working with, the program.
Response: We believe that the ability of an applicant to review and
challenge the results of State criminal registry and NSOPR checks is a
basic right that all programs must give to each individual. With the
potential for false positives, it is essential that all Corporation
programs safeguard an individual's personal information and give the
individual the opportunity to challenge any adverse findings that may
surface (Sec. Sec. 2540.204 (d); 2551.29 (d); 2552.29 (d)).
Comment: Several commenters expressed concern that their individual
States may not permit them to conduct criminal history checks without
specific statutory authority to conduct the search.
Response: We are prepared to approve an alternative search protocol
if a program is prohibited or otherwise precluded from complying with
the Corporation's criminal history check requirement (Sec. Sec.
2540.206(c); 2551.31(c); 2552.31(c)).
Comment: Several commenters expressed that the Corporation's
criminal history requirement could be redundant if a program is already
required to comply with a State or local government-mandated criminal
history check that is equivalent to the Corporation's requirement.
Response: Based upon these comments, we have included preamble
language making clear that a program that is required to comply with a
State or local government-mandated criminal history check that
parallels the Corporation's requirement may request that the
Corporation approve this alternative search protocol. A program
qualifying for this exception must, however, in addition to satisfying
State criminal history check requirements, conduct NSOPR checks on its
participants and grant-funded employees, if not already required
(Sec. Sec. 2540.206(c); 2551.31(c); 2552.31(c)).
Comment: Several commenters thought the criminal history
requirement was necessary and prudent but were concerned about the cost
of conducting the criminal history checks. They asked whether the
Corporation would provide more funding to pay for the checks.
Response: Although there are no additional funds designated for
these

[[Page 48581]]

checks, these costs are allowable. In addition, the NSOPR check is a
no-cost Internet search. While the Corporation will provide guidance to
assist grantees on effective and economic ways to reduce costs in this
area, we remind our grantees that it is their responsibility when
operating programs that serve vulnerable populations to ensure that
they establish appropriate safeguards to meet their respective States'
existing duties of care. It should also be noted that many programs are
already managing within their budgets to secure the types of criminal
history checks that we are requiring. For example, many local law
enforcement agencies offer in-kind support to non-profit organizations
that require this type of assistance.

IV. Relationship to State Laws

To the extent that any element of the final rule is prohibited, or
is otherwise precluded 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.

V. Effective Dates

The final rule takes effect November 23, 2007. The State criminal
registry search requirement applies prospectively to the selection of
any individual who applies on or after the effective date. However, an
AmeriCorps participant who is serving in a covered position at the time
this rule becomes effective will be required to submit to a criminal
registry check if the participant desires to serve another term, even
if it is with the same program. The NSOPR requirement applies: (1) To
any applicant for a covered position beginning on or after the
effective date, as well as (2) to an individual who is serving as a
participant or grant-funded employee in a covered position on the
effective date.

VI. Regulatory Procedures

Executive Order 12866

The Corporation has determined that this 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 E.O.
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 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. Sec. 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 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 rule does not have any
Federalism implications, as described above.

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.

0
For the reasons stated in the preamble, the Corporation for National
and Community Service amends chapter XXV, title 45 of the Code of
Federal Regulations as follows:

PART 2510--OVERALL PURPOSES AND DEFINITIONS

0
1. The authority citation for part 2510 continues to read as follows:

Authority: 42 U.S.C. 12501 et seq.

0
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

0
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.

[[Page 48582]]

0
2. Add the following new sections: Sec. 2522.205, Sec. 2522.206, and
Sec. 2522.207 to read as follows:

Sec. 2522.205 To whom must I apply suitability criteria relating to
criminal history?

You must apply suitability criteria relating to criminal history to
a participant or staff position for which an individual receives a
Corporation grant-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 procedures I must follow to determine an
individual's suitability to serve in a covered position?

In determining an individual's suitability to serve in a covered
position, you must follow the procedures in part 2540 of this title.

PART 2540-GENERAL ADMINISTRATIVE PROVISIONS

0
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.

Sec. 2540.200 [Redesignated as Sec. 2540.208]

0
2. Redesignate Sec. 2540.200 as Sec. 2540.208.

0
3. Add the following sections: Sec. Sec. 2540.200, 2540.201, 2540.202,
2540.203, 2540.204, 2540.205, 2540.206, and 2540.207.

Sec. 2540.200 To whom must I apply suitability criteria relating to
criminal history?

You must apply suitability criteria relating to criminal history to
an individual applying for, or serving in, a position for which an
individual receives a Corporation grant-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 two search components of the National Service
Criminal History Check must I satisfy to determine an individual's
suitability to serve in a covered position?

Unless the Corporation approves an alternative screening protocol,
in determining an individual's suitability to serve in a covered
position, you are responsible for conducting and documenting a National
Service Criminal History Check, which consists of the following two
search components:
(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 individual resides at the
time of application; and
(b) National Sex Offender Public Registry. A name-based search of
the Department of Justice (DOJ) National Sex Offender Public Registry
(NSOPR).

Sec. 2540.203 When must I conduct a State criminal registry check and
a NSOPR check on an individual in a covered position?

(a) The State criminal registry check must be conducted on an
individual who enrolls in, or is hired by, your program after November
23, 2007.
(b) The NSOPR check must be conducted on an individual who is
serving, or applies to serve, in a covered position on or after
November 23, 2007.
(c) For an individual who serves consecutive terms of service in
your program with a break in service of no more than 30 days, no
additional check is required after the first term.

Sec. 2540.204 What procedures must I follow in conducting a National
Service Criminal History Check for a covered position?

You are responsible for following these procedures:
(a) Verify the individual's identity by examining the individual's
government-issued photo identification card, such as a driver's
license;
(b) Obtain prior, written authorization for the State criminal
registry check and the appropriate sharing of the results of that check
within the program from the individual (but not for the NSOPR check);
(c) Document the individual's understanding that selection into the
program is contingent upon the organization's review of the
individual's criminal history, if any;
(d) Provide a reasonable opportunity for the individual to review
and challenge the factual accuracy of a result before action is taken
to exclude the individual from the position;
(e) Provide safeguards to ensure the confidentiality of any
information relating to the criminal history check, consistent with
authorization provided by the applicant; and
(f) Ensure that an individual, for whom the results of a required
State criminal registry check are pending, is not permitted to have
access to children, persons age 60 and older, or individuals with
disabilities without being accompanied by an authorized program
representative who has previously been cleared for such access.

Sec. 2540.205 What documentation must I maintain regarding a National
Service Criminal History Check for a covered position?

You must:
(a) Document in writing that you verified the identity of the
individual in a covered position by examining the individual's
government-issued photo identification card, and that you conducted the
required checks for the covered position; and
(b) Maintain the results of the National Service Criminal History
check (unless precluded by State law) and document in writing that you
considered the results in selecting the individual.

Sec. 2540.206 Under what circumstances may I follow alternative
procedures in conducting a State criminal registry 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 State criminal
registry 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 State
criminal registry check requirement and do not need separate approval
by the Corporation.
(c) Alternative search approval. If you demonstrate that you are
prohibited or otherwise precluded under State law from complying with a
Corporation requirement relating to criminal history checks or that you
can obtain substantially equivalent or better information through an
alternative process, the Corporation will consider approving an
alternative search protocol that you submit in writing to the
Corporation's Office of Grants Management. The Office of Grants

[[Page 48583]]

Management will review the alternative protocol to ensure that it:
(1) Verifies the identity of the individual; and
(2) Includes a search of an alternative criminal database that is
sufficient to identify the existence, or absence of, criminal offenses.

Sec. 2540.207 Is an individual who refuses to consent to a State
criminal registry check, or who makes a false statement in connection
with a grantee's inquiry concerning the individual's criminal history,
eligible to serve in a covered position?

An individual who refuses to consent to a State criminal registry
check, or who makes a false statement in connection with a grantee's
inquiry concerning the individual's criminal history, is not eligible
to serve in a covered position.

PART 2551--SENIOR COMPANION PROGRAM

0
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]

Sec. 2551.31 [Redesignated as Sec. 2551.34]

0
2. Amend subpart C by redesignating Sec. 2551.31 as Sec. 2551.34.

Subpart B of Part 2551--[Amended]

Sec. 2551.26 [Redesignated as Sec. 2551.33]

0
3. Amend subpart B of part 2551 by redesignating Sec. 2551.26 as Sec.
2551.33.

0
4. Add the following sections to subpart B: Sec. Sec. 2551.26,
2551.27, 2551.28, 2551.29, 2551.30, 2551.31, and 2551.32.

Sec. 2551.26 To whom does this part apply?

This part applies to Senior Companion Sponsors when determining the
suitability of Senior Companions, as well as to 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 two search components of the National Service
Criminal History Check must I satisfy to determine an individual's
suitability to serve in a covered position?

Unless the Corporation approves an alternative screening protocol,
in determining the suitability of an individual to serve as a Senior
Companion or as a covered grant-funded employee, you are responsible
for ensuring, unless prohibited by State law, that you conduct and
document a National Service Criminal History Check, which consists of
the following two search components:
(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 individual resides at the
time of application; and
(b) National Sex Offender Public Registry. A name-based search of
the Department of Justice (DOJ) National Sex Offender Public Registry
(NSOPR).

Sec. 2551.28 When must I conduct a State criminal registry check and
a NSOPR check on an individual in a covered position?

(a) The State criminal registry check must be conducted on an
individual who enrolls in, or is hired by, your program after the
effective date of this regulation.
(b) The NSOPR check must be conducted on an individual who is
serving, or applies to serve, in a covered position on or after the
effective date of this regulation.

Sec. 2551.29 What procedures must I follow in conducting a National
Service Criminal History Check?

You are responsible for ensuring that the following procedures are
satisfied:
(a) Verify the individual's identity by examining the individual's
government-issued photo identification card, such as a driver's
license;
(b) Obtain prior, written authorization for the State criminal
registry check and the appropriate sharing of the results of that check
within the program from the individual (but not for the NSOPR check);
(c) Document the individual's understanding that selection into the
program is contingent upon the organization's review of the
individual's criminal history, if any;
(d) Provide a reasonable opportunity for the individual to review
and challenge the factual accuracy of a result before action is taken
to exclude the individual from the position;
(e) Provide safeguards to ensure the confidentiality of any
information relating to the criminal history check, consistent with
authorization provided by the individual; and
(f) Ensure that an individual, for whom the results of a required
State criminal registry check are pending, is not permitted to have
access to children, persons age 60 and older, or individuals with
disabilities without being accompanied by an authorized program
representative who has previously been cleared for such access.

Sec. 2551.30 What documentation must I maintain regarding a National
Service Criminal History Check?

Sec. 2551.31 Under what circumstances may I follow alternative
procedures in conducting a State criminal registry 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 State criminal registry 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
individual lives, you will be deemed to have satisfied the State
criminal registry check requirement and do not need separate approval
by the Corporation.
(c) Alternative search approval. If you demonstrate that you are
prohibited or otherwise precluded under State law from complying with a
Corporation requirement relating to criminal history checks or that you
can obtain substantially 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 individual; and
(2) Includes a search of an alternative criminal database that is
sufficient to identify the existence, or absence of, criminal offenses.

Sec. 2551.32 Is an individual who refuses to consent to a State
criminal registry check, or who makes a false statement in connection
with a grantee's inquiry concerning the individual's criminal history,
eligible to serve in a covered position?

An individual who refuses to consent to a State criminal registry
check, or

[[Page 48584]]

who makes a false statement in connection with a grantee's inquiry
concerning the individual's criminal history, is not eligible to serve
in a covered position.

Sec. Sec. 2551.42, 2551.43, 2551.44, 2551.45, and
2551.46 [Redesignated as Sec. Sec. 2551.43, 2551.44, 2551.45,
2551.46, and 2551.47]

0
5. Amend subpart D of part 2551 by redesignating 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.

0
6. Add the following new section to subpart D: 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

0
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]

Sec. 2552.31 [Redesignated as Sec. 2552.34]

0
2. Amend subpart C by redesignating Sec. 2552.31 as Sec. 2552.34.

Subpart B of Part 2552--[Amended]

Sec. 2552.26 [Redesignated as Sec. 2552.33]

0
3. Amend subpart B of part 2552 by redesignating Sec. 2552.26 as Sec.
2552.33.

0
4. Add the following sections to subpart B: Sec. Sec. 2552.26,
2552.27, 2552.28, 2552.29, 2552.30, 2552.31, and 2552.32.

Sec. 2552.26 To whom does this part apply?

This part applies to Foster Grandparent Sponsors in determining the
suitability of Foster Grandparents, as well as to 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 two search components of the National Service
Criminal History Check must I satisfy to determine an individual's
suitability to serve in a covered position?

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 you conduct and document a National
Service Criminal History Check, which consists of the following two
search components:
(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 individual resides at the
time of application; and
(b) National Sex Offender Public Registry. A name-based search of
the Department of Justice (DOJ) National Sex Offender Public Registry
(NSOPR).

Sec. 2552.28 When must I conduct a State criminal registry check and
a NSOPR check on an individual in a covered position?

Sec. 2552.29 What procedures must I follow in conducting a National
Service Criminal History Check?

You are responsible for ensuring that the following procedures are
satisfied:
(a) Verify the individual's identity by examining the individual's
government-issued photo identification card, such as a driver's
license;
(b) Obtain prior, written authorization for the State criminal
registry check and the appropriate sharing of the results of that check
within the program from the individual (but not for the NSOPR check);
(c) Document the individual's understanding that selection into
program is contingent upon the organization's review of the
individual's criminal history, if any;
(d) Provide a reasonable opportunity for the individual to
challenge the factual accuracy of a result before action is taken to
exclude the individual from the position;
(e) Provide safeguards to ensure the confidentiality of any
information relating to the criminal history check, consistent with
authorization provided by the individual; and
(f) Ensure that an individual, for whom the results of a required
State criminal registry check are pending, is not permitted to have
access to children, persons age 60 and older, or individuals with
disabilities without being accompanied by an authorized program
representative who has previously been cleared for such access.

Sec. 2552.30 What documentation must I maintain regarding a National
Service Criminal History Check?

Sec. 2552.31 Under what circumstances may I follow alternative
procedures in conducting a State criminal registry check?

Sec. 2552.32 Is an individual who refuses to consent to a State
criminal registry check, or who makes a false statement in connection
with a grantee's inquiry concerning the individual's criminal history,
eligible to serve in a covered position?

An individual who refuses to consent to a State criminal registry
check, or

[[Page 48585]]

who makes a false statement in connection with a grantee's inquiry
concerning the individual's criminal history, is not eligible to serve
in a covered position.

Sec. Sec. 2552.42, 2552.43, 2552.44, 2552.45, and
2552.46 [Redesignated as Sec. Sec. 2552.43, 2552.44, 2552.45,
2552.46, and 2552.47]

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5. Amend subpart D of part 2552 by redesignating Sec. Sec. 2552.42,
2552.43, 2552.44, 2552.45, and 2552.46 as Sec. Sec. 2552.43, 2552.44,
2552.45, 2552.46, and 2552.47, respectively.

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6. Add adding the following new section to subpart D: 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: August 16, 2007.
Frank R. Trinity,
General Counsel.
[FR Doc. E7-16681 Filed 8-23-07; 8:45 am]

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