60922 Federal Register / Vol. 77, No. 194 / Friday, October 5, 2012 / Rules and Regulations 

CORPORATION FOR NATIONAL AND 

COMMUNITY SERVICE 

45 CFR Parts 2510, 2522, 2540, 2551, 

and 2552 

RIN 3045–AA56 

Criminal History Check Requirements 

for AmeriCorps State/National, Senior 

Companions, Foster Grandparents, the 

Retired and Senior Volunteer Program, 

and Other National Service Programs; 

Final Rule 

AGENCY: Corporation for National and 

Community Service. 

ACTION: Final rule. 

SUMMARY: To implement the Serve 

America Act, the Corporation for 

National and Community Service 

(CNCS) proposed amendments to its 

National Service Criminal History 

Check regulation on July 6, 2011. This 

final rule adopts the proposed 

amendments, clarifies several 

requirements, and makes minor 

technical corrections. The amendments 

require CNCS grantees to conduct and 

document a National Service Criminal 

History Check that includes a 

fingerprint-based FBI criminal history 

check on individuals in covered 

positions who begin work, or who start 

service, on or after April 21, 2011, and 

who have recurring access to children 

17 years of age or younger, to persons 

age 60 and older, or to individuals with 

disabilities. Individuals in covered 

positions include Senior Companions 

(SCP), Foster Grandparents (FGP), 

AmeriCorps State and National 

participants, and other participants, 

volunteers, or staff funded under a 

CNCS grant. 

DATES: This final rule is effective 

January 1, 2013. 

FOR FURTHER INFORMATION CONTACT: 

Amy Borgstrom, Corporation for 

National and Community Service, 1201 

New York Avenue NW., Washington, 

DC 25025. She may be reached 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. Background 

a. National Service Criminal History 

Check Requirements Prior to the Serve 

America Act 

In 2007, the Corporation issued rules 

requiring grantees to conduct criminal 

history checks on the members, 

volunteers, and grant-funded staff who 

had recurring access to children, 

persons age 60 or older, or individuals 

with disabilities. Recurring access 

meant having contact with individuals 

from one or more of the above groups 

on more than one occasion. These 2007 

rules only applied to the AmeriCorps 

State and National, FGP and SCP 

programs. The rules did not apply to the 

Retired and Senior Volunteer Program 

(RSVP), Learn and Serve America (LSA), 

or other CNCS-funded programs. 

Affected grantees could apply to CNCS 

for approval of an alternative search 

procedure (ASP) if state law precluded 

them from complying with the national 

service criminal history check 

requirements or if they could obtain 

substantially the same information 

using a different process. The regulation 

also permitted grantees to conduct a 

fingerprint-based FBI criminal history 

check in lieu of the required state 

criminal history registry check(s). 

b. The Serve America Act’s National 

Service Criminal History Check 

Requirements 

In 2009, Congress amended the 

National and Community Service Act of 

1990 (42 U.S.C. 12501 et seq.) (NCSA) 

with the Serve America Act (Pub. L. 

111–13) (SAA). The SAA codified 

CNCS’s regulatory National Service 

Criminal History Check requirements 

and expanded the categories of 

positions covered by the criminal 

history check requirements. Under the 

SAA, on or after October 1, 2009, any 

entity that selects an individual to serve 

in a position in which the individual 

receives a living allowance, stipend, 

national service educational award, or 

salary through a program receiving 

assistance under the national service 

laws must conduct a criminal history 

check on that individual. Individuals in 

covered positions now include grantfunded staff serving in any CNCSfunded national service program, 

including RSVP, LSA, Non-profit 

Capacity Building, and the Social 

Innovation Fund (SIF) grant programs. 

Notably, the SAA expanded the 

categories of covered positions subject 

to the National Service Criminal History 

Check requirements without regard to 

the individual’s access to vulnerable 

populations. It also prohibited 

individuals convicted of murder from 

serving in covered positions. The SAA 

also required that after April 21, 2011, 

individuals in covered positions with 

recurring access to vulnerable 

populations must have a fingerprintbased FBI criminal history check 

conducted as part of the National 

Service Criminal History Check. As 

directed by the SAA, CNCS issued new 

regulations in 2009, expanding coverage 

to any national service participant, 

volunteer or grant-funded employee 

who received one of the abovedescribed payments for his or her 

service or employment. (74 FR 46495, 

September 10, 2009). Pursuant to these 

regulations, each individual in a 

covered position who does not have 

recurring access to vulnerable 

populations who began work or started 

service with a grantee on or after 

October 1, 2009, is required to undergo 

a National Service Criminal History 

Check that includes: (1) A nationwide 

check of the National Sex Offender 

Public Web site (NSOPW); and (2) a 

search of either (a) the state criminal 

registry(ies) in the state in which the 

grantee is operating and the state in 

which the individual resides at the time 

of application, or (b) a Federal Bureau 

of Investigation (FBI) fingerprint-based 

criminal history check. 

c. Special Rule for Individuals With 

Recurring Access to Vulnerable 

Populations 

The SAA specified separate National 

Service Criminal History Check 

requirements for individuals in covered 

positions with recurring access to 

vulnerable populations. Beginning April 

21, 2011, entities that select individuals 

to serve in covered positions who are 18 

or older and who will have recurring 

access to children age 17 or younger, 

individuals age 60 or older, or 

individuals with disabilities must 

conduct for each individual: (1) A 

nationwide check of the NSOPW; (2) a 

search of the state criminal registr(ies) 

in the state in which the individual in 

a covered position will be primarily 

serving or working and the state in 

which the individual resides at the time 

of application; and (3) an FBI 

fingerprint-based criminal history 

check. The SAA created limited 

exceptions to this special rule. 

II. Discussion of the Final Rule 

To implement National Service 

Criminal History Check provisions of 

the SAA, CNCS published a notice of a 

proposed rulemaking in the Federal 

Register on July 6, 2011. (76 FR 39361). 

This final rule implements the SAA 

with regard to individuals in covered 

positions with recurring access to 

vulnerable populations. In addition, the 

final rule clarifies several requirements 

in the existing rule and makes minor 

technical corrections for clarity. 

a. Definitions and Applicability 

1. Definition of ‘‘Program’’ (§ 2510.20) 

The SAA amended the NCSA’s 

definition of program to include newlyVerDate Mar<15>2010 15:07 Oct 04, 2012 Jkt 229001 PO 00000 Frm 00040 Fmt 4700 Sfmt 4700 E:\FR\FM\05OCR1.SGM 05OCR1

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Federal Register / Vol. 77, No. 194 / Friday, October 5, 2012 / Rules and Regulations 60923 

authorized programs including 

Campuses of Service, Serve America 

Fellows, Encore Fellows, Silver 

Scholars, the Social Innovation Fund, 

and activities funded under programs 

such as the Volunteer Generation Fund. 

The final rule aligns the definition of 

program in the regulation with the 

statutory definition, corrects a 

typographical error, and corrects the 

statutory citation. 

2. Definition of ‘‘You’’ (§ 2540.200) 

Because this rule sets forth the 

National Service Criminal History 

Check provisions in one location in the 

Code of Federal Regulations, and 

because the rule applies to recipients of 

CNCS federal financial assistance who 

have individuals in covered positions, 

this final rule is written using programneutral terminology. Accordingly, 

‘‘you’’ in this final rule means a 

Corporation grantee or other entity 

subject to Corporation grant provisions. 

Unless the context otherwise requires, 

this includes, but is not limited to, 

recipients of federal financial assistance 

under grant programs defined in 

§ 2510.20 of this final rule, as well as 

SCP, FGP, and RSVP projects. 

3. Individuals in Covered Positions 

(§ 2540.201) 

The final rule clarifies that the 

National Service Criminal History 

Check eligibility criteria apply to 

individuals in covered positions and 

aligns the definition of the term 

‘‘covered position’’ with the language of 

the SAA. The reference in the proposed 

rule to the definition of program in 

§ 2510.20 was removed from the final 

rule for clarity. The SAA extended 

application of the National Service 

Criminal History Check requirements to 

entities receiving CNCS grants under the 

national service laws, which include the 

NCSA and the Domestic Volunteer 

Service Act of 1973 (DVSA), as 

amended. While the National Service 

Criminal History Check requirements 

apply to programs defined in § 2510.20, 

the applicability is not limited to those 

programs. The requirements also apply 

to individuals in covered positions in 

the SCP, FGP, and RSVP programs. It 

should be clear that a National Service 

Criminal History Check is not required 

for individuals whose connection to the 

grantee is tangential, or who are 

considered beneficiaries. For example, a 

National Service Criminal History 

Check would not be required for an 

individual contracted to provide 

occasional training to participants and 

volunteers, but is not otherwise integral 

to the operation of the program, nor 

would it be required for a child who 

receives a cash prize from a program for 

completing a service-learning project. 

b. Eligibility Criteria—AmeriCorps State 

and National Positions (§ 2522.200) 

The SAA amended the NCSA to 

prohibit an individual convicted of 

murder, as defined under 18 U.S.C. 

1111, from serving in a covered 

position. In 2009, CNCS amended the 

National Service Criminal History 

Check regulations to reflect this 

statutory change concerning eligibility. 

As the regulatory sections updated in 

2009 indicated, the change applied to 

AmeriCorps State and National. 

However, CNCS inadvertently failed to 

update the provision in the regulation 

that specifically addresses eligibility to 

serve in an AmeriCorps State and 

National position. This final rule 

corrects this oversight to reflect in this 

section that eligibility for service in an 

AmeriCorps State and National position 

includes satisfaction of the National 

Service Criminal History Check 

eligibility criteria. 

The 2009 amendments to the National 

Service Criminal History Check 

regulations created some confusion 

regarding the eligibility of individuals 

convicted of murder, as defined under 

18 U.S.C. 1111, from serving in a 

covered position. Congress declared 

that, as of October 1, 2009, individuals 

convicted of murder may not work or 

serve in covered positions. This 

Congressional mandate gave no 

discretion to CNCS to waive or modify 

this eligibility requirement. 

Consequently, grantees with 

individuals convicted of murder who 

are currently serving or working in a 

covered position, including staff, must 

remove those individuals from the 

covered positions. For those individuals 

for whom a state registry or FBI criminal 

history check was not required prior to 

this final rule (e.g., those individuals 

who began work or service before 

October 1, 2009, without a subsequent 

break in service), grantees will be 

permitted to rely on the individuals’ 

self-certification that they have never 

been convicted of murder as defined by 

18 U.S.C. 1111, in lieu of conducting a 

criminal history check. The definition 

in 18 U.S.C. 1111 is as follows: ‘‘Murder 

is the unlawful killing of a human being 

with malice aforethought. Every murder 

perpetrated by poison, lying in wait, or 

any other kind of willful, deliberate, 

malicious, and premeditated killing; or 

committed in the perpetration of, or 

attempt to perpetrate, any arson, escape, 

murder, kidnapping, treason, espionage, 

sabotage, aggravated sexual abuse or 

sexual abuse, child abuse, burglary, or 

robbery; or perpetrated as part of a 

pattern or practice of assault or torture 

against a child or children; or 

perpetrated from a premeditated design 

unlawfully and maliciously to effect the 

death of any human being other than 

him who is killed, is murder in the first 

degree. Any other murder is murder in 

the second degree.’’ 

Individuals who have been convicted 

of murder have been ineligible to serve 

as of October 1, 2009, and therefore, all 

costs associated with these individuals 

are potentially disallowable since that 

date. 

c. National Service Criminal History 

Checks Generally (§ 2540.203) 

The National Service Criminal History 

Check for individuals in covered 

positions must include (1) a nationwide 

check of the Department of Justice’s 

National Sex Offender Public Web site 

(NSOPW) and (2) either (a) a name- or 

fingerprint-based search of the official 

state criminal history registry in the 

state in which the grantee is operating 

and of the official state criminal history 

registry in the state in which the 

individual resides at the time of 

application, or (b) submission of 

fingerprints through a state central 

record repository to the Federal Bureau 

of Investigation for a national criminal 

history background check. 

Because of the importance of proper 

screening and because the NSOPW is a 

widely-available and free public 

resource, the NSOPW search must be 

nationwide (i.e., all states and 

territories) in order to meet the National 

Service Criminal History Check 

requirement. If any of the databases 

comprising the NSOPW are down, 

offline, or otherwise unavailable, the 

NSOPW check is incomplete until all 

databases are checked. The rule has 

been revised to clarify this requirement. 

Additionally, because of the availability 

of this free public resource, grantees 

must conduct an NSOPW check for any 

individual currently serving or working 

in a covered position defined under this 

rule, regardless of when the individual 

was hired or started service, and 

regardless of their access to vulnerable 

populations. Finally, as a prudential 

action, all CNCS grantees, when 

conducting a search of the name-based 

NSOPW, should include not only the 

applicant’s current legal name, but also 

any previous names or aliases by which 

the applicant may have been known. 

Since 2007, CNCS has required 

grantees operating in more than one 

state that conduct state criminal registry 

checks to conduct the checks in the 

state where the individual in a covered 

position will be primarily serving or 

working and in the state in which the 


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60924 Federal Register / Vol. 77, No. 194 / Friday, October 5, 2012 / Rules and Regulations 

individual resides at the time of 

application. The final rule codifies this 

requirement. 

Comments received by CNCS 

indicated that the formatting of the 

proposed rule made it difficult to 

determine which components of the 

National Service Criminal History 

Check are required. The rule has been 

reformatted to make the requirements 

clear. Additionally, the heading of this 

section was edited to be consistent with 

the other section headings. 

CNCS also received comments 

requesting resolution of the ambiguity 

in the proposed rule regarding the time 

at which an individual is considered of 

age for the special rule for individuals 

with recurring access to vulnerable 

populations to apply. The final rule 

establishes that the rule applies to an 

individual who will be 18 years old or 

older at any time while serving in a 

covered position. The final rule also 

replaces the broad term ‘‘vulnerable 

population’’ with the specific groups 

statutorily defined as ‘‘vulnerable 

populations,’’ where necessary, to 

resolve any ambiguity. 

This section of the final rule is the 

first section in which the words 

‘‘enrolled’’ and ‘‘hired’’ are replaced 

with ‘‘starts service’’ and ‘‘begins work,’’ 

respectively. These words are updated 

throughout the final rule because 

comments suggested that the use of 

‘‘enrolled’’ and ‘‘hired’’ created some 

confusion. For some grantees, 

‘‘enrolled’’ has a specific operational 

meaning that does not reflect the 

intended timing in the context of the 

rule. Therefore, the word, ‘‘enrolled,’’ 

has been replaced with the words, 

‘‘starts service,’’ to more clearly convey 

the intended timing requirements of the 

final rule. For the purposes of this rule, 

an individual ‘‘starts service’’ when the 

individual’s time begins to be credited 

toward their service commitment; an 

individual ‘‘begins work’’ when the 

individual engages in activities 

chargeable to the grant.’’ 

The proposed rule reflected CNCS’s 

intent to eliminate unnecessary 

replication of the National Service 

Criminal History Check provisions in 

the Code of Federal Regulations, and 

anchors the substantive provisions in 

one location. Because grantees subject to 

the National Service Criminal History 

Check provisions use different 

terminology, and comments indicated 

that the terminology may have caused 

confusion, the final rule includes a 

definitional section to eliminate 

confusion concerning the applicability 

of the provisions. Sections have been 

renumbered and citations throughout 

the rule have been updated accordingly 

to accommodate its inclusion. 

d. Special Rule for Individuals With 

Recurring Access to Vulnerable 

Populations (§ 2540.203) 

This final rule implements the 

National Service Criminal History 

Check requirements for individuals in 

covered positions with recurring access 

to vulnerable populations who began 

work or who started service on or after 

April 21, 2011. The NCSA, as amended 

by the SAA, defines vulnerable 

populations as children age 17 or 

younger, individuals age 60 or older, or 

individuals with disabilities. The final 

rule now more clearly defines 

‘‘vulnerable population.’’ Unless CNCS 

approves an alternative search 

procedure or an exception under 

§ 2540.207, for individuals in covered 

positions who will be 18 or older and 

who also have recurring access to 

vulnerable populations, grantees must 

conduct (1) a nationwide check of the 

NSOPW (http://www.nsopw.gov), (2) a 

name- or fingerprint-based search of the 

official state criminal registry in the 

state in which the grantee is operating 

and of the official state criminal registry 

in the state in which the individual 

resides at the time of application, and 

(3) submission of fingerprints through a 

state central record repository to the 

Federal Bureau of Investigation for a 

national criminal history background 

check. 

CNCS continues to define ‘‘recurring 

access’’ as ‘‘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.’’ (45 CFR 2510.20). 

In anticipation of the final rule, 

current grantees have inquired as to 

whether CNCS would develop a 

centralized mechanism for conducting 

FBI fingerprint checks for national 

service participants. CNCS is committed 

to identifying ways to decrease the 

burden on grantees; however, no such 

centralized mechanism is available at 

this time. 

e. Timing of National Service Criminal 

History Check and Consecutive Terms 

(§ 2540.204) 

Grantees must conduct and document 

the results of the nationwide NSOPW 

check before an individual begins work 

or starts service. The NSOPW is a free 

public resource available at http:// 

www.nsopw.gov/. 

Under § 2540.204(b) of this final rule, 

it is not necessary to perform an 

additional National Service Criminal 

History Check on an individual who 

serves consecutive terms of service with 

the same grantee when the break in 

service does not exceed 120 days, as 

long as the original check is a compliant 

check for the covered position in which 

the individual will be serving or 

working following the break in service. 

For example, if an individual serves an 

original term in a covered position with 

no recurring access to vulnerable 

populations, but will be serving the 

consecutive term in a covered position 

with recurring access to vulnerable 

populations, the grantee must ensure 

that any additional National Service 

Criminal History Check components 

required for the position are conducted 

(e.g. the fingerprint-based FBI check). 

This section allows, but does not 

require, a grantee to forego additional 

National Service Criminal History 

checks for individuals serving 

consecutive terms, based upon a 

presumption that the additional check 

would, in large part, replicate the 

original check and that the grantee’s 

proximity to the individual would 

increase the likelihood that the grantee 

would have knowledge of the 

individual’s activity. 

Grantees must conduct a National 

Service Criminal History Check under 

this final rule on individuals in covered 

positions who, on or after April 21, 

2011, begin work or start service (1) 

following a break in service exceeding 

120 days or (2) with a new grantee. 

(f) No Unaccompanied Access to 

Vulnerable Populations Pending 

National Service Criminal History 

Check Results (§ 2540.205) 

This final rule codifies CNCS’s 

understanding that it is common for 

vulnerable population beneficiaries to 

be accompanied by a parent, legal 

guardian, teacher, doctor, nurse, or 

other individual responsible for his or 

her care. CNCS does not believe it is 

necessary for an individual with 

pending National Service Criminal 

History Check results to be 

accompanied by an authorized grantee 

representative who has received the 

appropriate criminal history check 

when the vulnerable population 

beneficiary is accompanied by an 

individual responsible for his or her 

care. 

While results from the state or FBI 

criminal history check components of 

the National Service Criminal History 

Check are pending, grantees may allow 

individuals in covered positions with 

recurring access to vulnerable 

populations to begin work or start 

service, as long as the individual is not 

permitted access to vulnerable 


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Federal Register / Vol. 77, No. 194 / Friday, October 5, 2012 / Rules and Regulations 60925 

populations without being accompanied 

by (1) an authorized grantee 

representative who has previously been 

cleared for such access; (2) a family 

member or legal guardian of the 

vulnerable individual; or (3) an 

individual authorized by the nature of 

his or her profession to have recurring 

access to the vulnerable individual, 

such as an education or medical 

professional. Accompaniment is a 

higher standard than supervision in that 

it requires the individual with recurring 

access to vulnerable populations to be 

in the physical presence of the 

accompanying individual. For example, 

a covered individual whose criminal 

history check component results are 

pending may give nature tours to 

schoolchildren as part of an 

environmental program as long as the 

covered individual is within the 

physical presence of teachers or parents. 

The final rule has been changed based 

on comments CNCS received about the 

ambiguity in the term 

‘‘accompaniment.’’ The final rule uses 

the phrase ‘‘physical presence’’ in place 

of ‘‘accompaniment’’ to convey the 

intended meaning and specific 

requirement. 

g. Costs (§ 2540.205) 

The rule requires grantees to obtain 

and document a baseline criminal 

history check for individuals in covered 

positions. CNCS considers the cost of 

this required National Service 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 to CNCS for approval. 

This rule codifies CNCS’s guidance 

that a grantee may not charge an 

individual for the cost of a National 

Service Criminal History Check unless 

CNCS has given written permission to 

do so. In addition, because a National 

Service Criminal History Check is 

inherently attributable to operating a 

program, such costs may not be charged 

to a state commission administrative 

grant. 

h. Documentation Requirements 

(§ 2540.206) 

Grantees must retain the criminal 

history check results along with written 

documentation that they considered the 

results in selecting the individual. The 

grantee must review and determine that 

the information returned by the 

governmental body issuing criminal 

history registry results provides 

information that would allow the 

grantee to determine whether or not an 

individual was eligible to work or serve 

in a covered position under the final 

rule. For example, if a grantee receives 

a document from the statewide criminal 

history registry that indicates that the 

individual is ‘‘cleared’’ for service based 

upon an agreement that describes 

CNCS’s standards for eligibility, that 

clearance document may be retained as 

the sufficient documentation of the 

criminal history check results, along 

with written documentation that the 

grantee considered the result in 

selecting the individual. 

i. Alternative Search Procedures and 

Exceptions to the National Service 

Criminal History Check Requirements 

for Individuals in Covered Positions 

With Recurring Access to Vulnerable 

Populations (§ 2540.207) 

The headings and structure of this 

section have been modified from those 

in the proposed rule in order to clarify 

the substantive content, and to clearly 

distinguish alternative search 

procedures from the statutory 

exceptions to the fingerprint-based FBI 

criminal history check requirement for 

individuals in covered positions with 

recurring access to vulnerable 

populations. A grantee may request in 

writing that CNCS approve an 

alternative search procedure for the 

National Service Criminal History 

Check components described in 

§ 2540.203(a) or § 2540.203(b)(2)(i)–(ii), 

if the grantee (1) is prohibited under 

state law from meeting the requirements 

of § 2540.203(a) or § 2540.203(b)(2)(i)– 

(ii) or (2) demonstrates that it can obtain 

substantially equivalent or better 

information through an alternative 

search procedure. 

Grantees may also apply to CNCS for 

approval of an exception from the 

fingerprint-based FBI criminal history 

check component of the National 

Service Criminal History Check, 

described in § 2540.203(b)(2)(iii), for an 

individual in a covered position with 

recurring access to vulnerable 

populations. CNCS may approve such 

an exception if the entity demonstrates 

to CNCS’s satisfaction (1) that the cost 

to the grantee of complying with 45 CFR 

2540.203(b)(2)(iii) is prohibitive; (2) that 

the entity is not authorized, or is 

otherwise unable, under State or Federal 

law, to access the national criminal 

history background check system of the 

FBI; or (3) that there is sufficient 

justification for CNCS to exempt the 

grantee from the requirement for good 

cause. 

1. Episodic Access (§ 2540.207) 

Congress granted those individuals in 

covered positions with recurring access 

to vulnerable populations an exception 

to the FBI fingerprint-based criminal 

history check requirement when their 

access to vulnerable populations is 

‘‘episodic in nature or for a [one]-day 

period.’’ For the purpose of this final 

rule, the Corporation defines ‘‘episodic’’ 

as access that is not a regular, 

scheduled, and anticipated component 

of an individual’s service activities. If 

access to vulnerable populations is not 

a regular, scheduled, and anticipated 

component of an individual’s service 

activities, the grantee is not required to 

conduct a fingerprint-based FBI 

criminal history check. However, the 

grantee must conduct the other 

components of the National Service 

Criminal History Check, as described in 

§ 2540.203(b)(2)(i)–(ii) or under an 

approved ASP. 

For example, consider an individual 

who is applying for an AmeriCorps 

position with an environmental program 

that involves volunteer coordination. If 

the grantee anticipates that the position 

will involve coordinating high school 

student volunteers on a regular basis, 

then the grantee must conduct a 

fingerprint-based FBI criminal history 

check on that individual. However, if 

the grantee has no reason to expect that 

the position will involve coordinating 

17-year-old and younger volunteers 

because the grantee has never operated 

in a youth environment, does not have 

any youth engagement goals, and does 

not recruit high school aged volunteers, 

then any contact with a child volunteer 

would be irregular, unscheduled, 

unanticipated, and thus, episodic. 

Therefore, the grantee would not need 

to conduct a fingerprint-based FBI 

criminal history check. However, the 

grantee must conduct the other 

components of the National Service 

Criminal History Check, as described in 

§ 2540.203(b)(2)(i)–(ii) or under an 

approved ASP. 

Episodic access is not determined by 

a specific number. In other words, if a 

grantee does not anticipate that a 

member will have access to vulnerable 

populations, the need to meet the 

National Service Criminal History 

Check requirements for individuals in 

covered positions with access to 

vulnerable populations would not 

materialize after a specific number of 

incidents of access occur, but would 

once the access becomes regular, 

scheduled and anticipated. If incidental 

access becomes unexpectedly regular or 

frequent, a grantee should re-evaluate its 

initial determination of episodic access 

and take appropriate action. 

CNCS expects that in the majority of 

cases, it will be clear whether or not 

access to vulnerable populations is a 


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60926 Federal Register / Vol. 77, No. 194 / Friday, October 5, 2012 / Rules and Regulations 

regular, scheduled, and anticipated 

component of an individual’s service 

activities. Nevertheless, CNCS 

recommends that grantees specifically 

address contact with vulnerable 

populations in each position 

description, service agreement, or 

similar document describing an 

individual’s service activities. 

2. Exemptions Approved for Good 

Cause 

CNCS will publish on its Web site 

(http://www.nationalservice.gov) those 

scenarios for which CNCS has approved 

exemptions for ‘‘good cause’’ from the 

fingerprint-based FBI criminal history 

check requirement in 

§ 2540.203(b)(2)(iii). The list of 

approved ‘‘good cause’’ exemptions may 

be expanded and codified in future 

rulemakings. 

CNCS will monitor compliance with 

the rules and requirements associated 

with National Service Criminal History 

checks as a material condition of 

receiving a CNCS grant. An entity’s 

failure to comply may adversely affect 

the entity’s access to grant funds or 

ability to obtain future funding from 

CNCS. In addition, an entity jeopardizes 

its eligibility for reimbursement of costs 

and hours related to an individual if it 

fails to perform or properly document 

the required National Service Criminal 

History Check. 

III. Non-Regulatory Matters 

Coverage Based on Start Date 

The table below illustrates what 

National Service Criminal History 

Check components are required of 

individuals serving or working after 

January 1, 2013. 


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Federal Register / Vol. 77, No. 194 / Friday, October 5, 2012 / Rules and Regulations 60927 

IV. Comments and Responses 

CNCS published the proposed rule 

with a 30-day comment period in the 

Federal Register of July 6, 2011 (76 FR 

39361). We received over 150 comments 

on the proposed rule. Most of the 

commenters identified themselves as 

representatives of grantees required to 

comply with the rule. The most relevant 

comments and our responses are set 

forth below. 

Comment: The majority of 

commenters expressed disapproval with 

the rule’s requirement that individuals 

working with vulnerable populations 

must submit their fingerprints to the FBI 

for a national criminal history 

background check. The commenters 

disapproved of the requirement because 


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the process for complying with the 

requirement is time consuming, costly, 

and logistically challenging for grantees 

and participants. As a result, the 

commenters said that the increased 

administrative and financial burden the 

requirement imposes on grantees will 

significantly impact their ability to 

recruit participants and operate 

effectively. Additionally, the 

commenters considered the requirement 

unnecessarily redundant, as many of the 

grantees already require individuals to 

complete several criminal history 

background checks and that the 

additional requirement of a fingerprintbased FBI check provides very little new 

information. 

Response: We acknowledge the 

concerns expressed about the FBI 

fingerprinting process and the 

administrative impact the requirement 

may have on some grantees. We, like all 

executive agencies, may exercise 

discretion in issuing rules, but only to 

the extent discretion is granted to us by 

law. The law requires individuals 

working with vulnerable populations to 

submit their fingerprints to the FBI for 

a national criminal history check; 

however, the law also created 

exceptions to the fingerprint-based FBI 

criminal history check. Grantees may 

use the ‘‘episodic access’’ exception 

without our written approval. The other 

available exceptions require that you 

contact our Office of Grants 

Management for written approval. The 

procedure for requesting an exception is 

in 45 CFR 2540.207. 

Comment: Several of the comments 

we received indicated that the cost of 

the FBI criminal history background 

check could be a financial burden for 

the grantee and for the participants and 

volunteers. 

Response: We acknowledge the 

administrative and financial impact that 

the fingerprint-based FBI criminal 

history check could have on grantees. 

The law created exceptions to the 

fingerprint-based FBI criminal history 

check requirement for individuals in 

covered positions with recurring access 

to vulnerable populations, one of which 

is when it is cost-prohibitive for the 

grantee to comply. Grantees may request 

written approval of an exception by 

contacting our Office of Grants 

Management. 

We want to reiterate that unless we 

grant specific permission in writing, a 

grantee may not charge an individual for 

the cost of any component of a National 

Service Criminal History Check. In the 

absence of specific written permission, 

the grantee must not, even when the 

check returns unfavorable results, 

require the applicant or participant to 

ultimately bear the cost of the criminal 

history check. 

Comment: The U.S. Department of 

Justice, FBI, Criminal Justice 

Information Systems (CJIS) commented 

that the final rule did not adequately 

address the role played by the state 

central record repositories and 

requested that CNCS revise the rule to 

specify that entities must submit 

fingerprints to the FBI through the state 

central record repository. 

Response: We agree and have 

amended the rule to reflect the process 

established by FBI CJIS to process the 

fingerprint-based FBI criminal history 

checks required by the SAA. State 

central record repositories are critical to 

the infrastructure established by FBI 

CJIS for the processing of national 

criminal history background checks. In 

its October 31, 2011 memorandum to 

state central record repositories on the 

implementation of the SAA, FBI CJIS 

stated that those organizations subject to 

the SAA (and this final rule) ‘‘must 

contact the state repository in the state 

of operation to determine if the 

organization can access national 

criminal history record information.’’ In 

lieu of state statutory provisions, 

fingerprint-based state and national 

criminal history checks for CNCS 

grantees could be authorized by three 

federal legal authorities: the SAA, the 

National Child Protection Act, as 

amended by the Volunteers for Children 

Act, and Section 153 of the Adam Walsh 

Act. ‘‘Background checks conducted 

pursuant to the SAA must comply with 

certain criteria, to include fingerprints 

submitted via [a state central record 

repository], designation of a 

governmental agency to receive and 

screen the results of the record checks, 

and non-dissemination of the criminal 

history record information outside the 

receiving governmental department or 

related governmental agencies.’’ 

The FBI CJIS guidance to state 

repositories stated that ‘‘each national 

service organization must coordinate 

with the [state central records 

repository] in the states of program 

operation/residence to establish 

procedures for performing state and 

national criminal history record 

checks.’’ The guidance specified further 

that 

‘‘[e]ach [* * * repository] must request a 

unique Integrated Automated Fingerprint 

Identification System (IAFIS) originating 

agency identifier (ORI) or designate an 

existing ORI for exclusive use under the 

SAA. The repository must coordinate 

requests for ORI issuance, or use of a 

designated ORI, with FBI CJIS Division for 

programming. All fingerprints submitted to 

the FBI CJIS Division under this authority 

must include the program-designated ORI 

and be populated with ‘‘Serve America Act’’ 

or ‘‘Serve America Act-Volunteer’’ as the 

reason fingerprinted (RFP).’’ 

The full text of the memorandum is 

available at http:// 

www.nationalserviceresources.org/files/ 

fbi-memo-to-state-repositories-on-serveamerica-act-oct-31-11.pdf. 

We believe that our State Commission 

partners, as well as state Departments 

on Aging, Child Welfare Agencies, and 

Education Agencies can be instrumental 

in engaging the state central record 

repositories to streamline the National 

Service Criminal History Check process 

for national service grantees operating 

in their states and ensure proper 

screening of individuals in covered 

positions and the full implementation of 

the SAA. 

Comment: We received comments 

regarding the potential discriminatory 

effects that the use of criminal history 

checks by grantee organizations may 

have on individuals’ ability to 

participate in National Service. 

Response: The commenters identify 

an important issue. The use of criminal 

history records to exclude members and 

staff from Corporation-funded programs 

and activities may, in some 

circumstances, run afoul of federal civil 

rights laws. Grantees should recognize 

that they have a dual status under the 

Civil Rights Act of 1964, depending on 

the nature of their relationship with an 

individual. Grantees, as recipients of 

federal financial assistance, must 

comply with Title VI of the Civil Rights 

Act of 1964, 42 U.S.C. 2000d et seq., and 

its implementing regulations, 45 CFR 

1203.1 et seq., which prohibit 

discrimination in Corporation-funded 

programs and activities, including the 

selection and placement of volunteers 

and members, on the basis of race, color, 

and national origin. Grantees, as 

employers, must also comply with Title 

VII of the Civil Rights Act of 1964, 42 

U.S.C. 2000e et seq., which prohibits 

discrimination in employment 

decisions. The Equal Employment 

Opportunity Commission (EEOC) has 

issued guidance explaining when 

consideration of arrest and conviction 

records violates Title VII. See http:// 

www.eeoc.gov/laws/guidance/ 

arrest_conviction.cfm. As explained in 

the EEOC guidance, grantees should be 

mindful that arrests alone are mere 

allegations, and that actual criminal 

convictions (where there has been a 

formal adjudication by a finder of fact), 

or actual evidence of conduct 

underlying an arrest, are the relevant 

indicators of an individual’s fitness, or 

in some cases, eligibility (i.e., murder), 

to serve with, or work for, a Corporation 


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grantee. Grantees should ensure that 

their screening practices are narrowly 

tailored in a manner that complies with 

these federal nondiscrimination 

requirements, in addition to applicable 

state laws governing the consideration 

of criminal history records. 

Grantees also should be mindful that 

applicants have the right to review and 

challenge the results of the National 

Service Criminal History Check. 

Grantees are required by our regulations 

to safeguard an individual’s personal 

information and give the individual the 

opportunity to challenge any adverse 

findings that result from the National 

Service Criminal History Check. 

Comment: We received comments 

requesting clarification of when the 

results of a National Service Criminal 

History Check make an individual 

ineligible to serve in a covered position. 

Response: The law prohibits an 

individual from serving in a national 

service program in four situations: (1) 

The individual refuses to consent to the 

criminal history check; (2) the 

individual makes a false statement in 

connection with the criminal history 

check; (3) the individual is registered or 

required to be registered as a sex 

offender; or (4) the individual has been 

convicted of murder as defined by 

federal law. If the National Service 

Criminal History Check returns results 

that implicate criteria other than those 

above, the grantee has the discretion, 

subject to any federal civil rights law 

and state law requirements, to decide 

whether or not the results of a criminal 

history background check disqualify an 

individual from service with the 

grantee. Grantees should consider the 

factors set forth in the EEOC’s guidance 

under Title VII (http://www.eeoc.gov/ 

laws/guidance/arrest_conviction.cfm), 

including 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 position. 

Grantees should have written policies 

on their disqualification criteria and be 

consistent in how those criteria are 

applied to all individuals. 

In addition, grantees should be aware 

of federal reentry policy, which seeks to 

minimize unjustified collateral 

consequences on formerly incarcerated 

persons. Participation in national 

service programs funded by the 

Corporation could aid the successful 

reentry of formerly incarcerated persons 

into society. Therefore, barriers to 

participation in national service 

programs for those formerly 

incarcerated persons who are not 

statutorily ineligible to serve should be 

minimized as much as possible without 

putting program beneficiaries at genuine 

risk. 

Comment: We received comments 

expressing concern about many 

grantees’ overall level of understanding 

or ability to interpret the results of a 

National Service Criminal History 

Check. 

Response: Grantees should be aware 

that, due to pending cases, state law 

restrictions, and resource issues, the 

information contained in databases and 

reports for criminal histories may be 

missing certain arrest and disposition 

information. Accordingly, grantees 

should obtain training, and implement 

best practices, in the interpretation and 

use of criminal records for screening 

participants and staff. We have required 

grantees to conduct National Service 

Criminal History Checks since 2007, 

and have always required that they treat 

applicants fairly. We reiterate that the 

grantee is responsible for obtaining the 

level of expertise necessary to 

understand the information received in 

response to the National Service 

Criminal History Check and use it in a 

fair manner that is consistent with our 

regulations and grant conditions. 

Information obtained from a National 

Service Criminal History Check is only 

one of many sources of information that 

is available about an individual. 

Comment: We received numerous 

comments on the proposed rule’s 

requirement that National Service 

Criminal History Checks be repeated on 

individuals who serve consecutive 

terms of service with the same grantee 

when the break in service exceeds 30 

days. The comments suggested that in 

view of the time it takes to complete the 

newly-required fingerprint-based FBI 

criminal background check, a 30-day 

break in service requirement imposes an 

additional administrative burden on 

seasonal or academic-year programs or 

projects. 

Response: We agree with the 

commenters. The FBI fingerprint check 

takes longer than the process 

established under our 2007 rule and the 

SAA expands the number of individuals 

in covered positions. Balancing the 

administrative burden on grantees with 

the importance of proper screening, we 

determined that a longer break in 

service period is not unreasonable. 

Accordingly, the final rule reflects our 

decision to require that the National 

Service Criminal History Check be 

repeated if an individual’s break in 

service exceeds 120 days, and also 

allows grantees to request approval for 

a longer break in service than 120 days, 

as long as the break does not exceed 180 

days. The request must describe the 

program’s design, explain why the 

longer period is required, and 

demonstrate the establishment of 

adequate risk management controls for 

the extended break in service. We want 

to clarify that consecutive terms of 

service requires that the individual 

serves another term with the same 

grantee. Checks performed by one 

grantee on an individual may not be 

transferred to another grantee. When an 

individual begins service with a new 

grantee, that grantee is responsible for 

conducting a new National Service 

Criminal History Check. Because the 

NSOPW is a free and widely-available 

resource, we encourage grantees with 

program designs where breaks in service 

are anticipated to conduct a new 

nationwide NSOPW check after a break 

in service of any duration. 

Comment: We received comments 

seeking clarification about the status of 

individuals in covered positions who 

conducted the appropriate National 

Service Criminal History Check 

components when they began work or 

started service prior to April 21, 2011. 

Response: The National Service 

Criminal History Check components of 

this rule apply to individuals in covered 

positions who begin work, or who start 

service, on or after, April 21, 2011. 

Grantees are responsible for ensuring 

that those individuals who began work, 

or who started service, prior to, April 

21, 2011, conducted the appropriate 

National Service Criminal History 

Check components required by the 

regulation that was in effect prior to that 

date. If individuals in covered positions 

who began work, or who started service 

prior to, April 21, 2011, subsequently 

have a break in service that exceeds 120 

days, or begins work or service with a 

different grantee, they must have a 

Check required by this final rule. If an 

individual serves consecutive terms of 

service in a covered position and does 

not have a break in service that exceeds 

120 days, then no additional National 

Service Criminal History Check is 

required as long as the original check is 

a compliant check for the covered 

position in which the individual will be 

serving or working following the break 

in service. 

Comment: We received numerous 

comments on the requirement that 

individuals working with vulnerable 

populations be accompanied while the 

components of their National Service 

Criminal History Check have been 

submitted, but not yet returned. 

Commenters suggested that we clarify 

what we mean by ‘‘accompaniment’’ 

and how to document it. 

Response: The purpose of the 

National Service Criminal History 

Check is to screen out those individuals 


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who may pose a risk to the population 

being served. Accompaniment requires 

that an individual for whom the 

National Service Criminal History 

Check components are pending be, at all 

times, in the physical presence of (1) an 

authorized grantee representative who 

has been previously cleared for such 

access; (2) a family member or legal 

guardian of the vulnerable individual; 

or (3) an individual authorized by the 

nature of his or her profession to have 

recurring access to the vulnerable 

individual, such as an education or 

medical professional. Accompaniment 

provides grantees with the opportunity 

to place participants in service positions 

before the criminal history background 

check is complete. Supervision is 

insufficient because it doesn’t provide 

the immediate oversight that would 

mitigate risk of a participant’s improper 

conduct sought to be avoided by the 

National Service Criminal History 

Check. We have updated the rule to 

reflect more accurately our intent that 

accompaniment means that the 

individual must be in the physical 

presence of the accompanying 

individual. 

The Office of Grants Management will 

issue guidance to grantees prior to the 

effective date of this final rule on how 

to document compliance with the 

accompaniment requirements. 

Comment: We also received 

comments requesting clarification on 

how to apply the rule to individuals 

who reach the age of 18 during their 

service term. 

Response: A National Service 

Criminal History Check is required for 

individuals who are, or who will reach 

the age of, 18 or older at any time during 

their service term. The Check must be 

conducted in accordance with 2450.204, 

even if the individual is not yet 18 at the 

time service or work begins. The final 

rule reflects this clarification. 

Comment: Some comments identified 

areas in the proposed rule where the 

distinction between exceptions and 

alternative search procedures was 

unclear. Other commenters articulated 

specific challenges they faced in 

obtaining the required checks. 

Response: Since implementation of 

the original National Service Criminal 

History Check rule in 2007, we have 

evaluated and approved alternative 

search procedures when grantees 

submitted a written request for 

evaluation of a proposed alternative 

search procedure. This practice will 

continue under the new rule. The law 

also gives us the authority to exempt 

grantees from conducting the 

fingerprint-based FBI criminal history 

check required under the new rule for 

individuals in covered positions with 

recurring access to vulnerable 

populations. We acknowledge the 

confusion in the wording of the 

proposed rule. We have revised the final 

rule so that the requirements and 

procedures are clear. 

With respect to the comments we 

received regarding particular challenges 

grantees face under the new rule, we 

cannot address those here. Grantees 

with individual challenges that they 

believe will justify an exception from 

§ 2540.203(b)(2)(iii) should contact our 

Office of Grants Management or their 

Program Officer. 

Comment: We received comments 

requesting clarification of the ‘‘episodic 

access’’ exception from the fingerprintbased FBI criminal history background 

check requirement for individuals with 

recurring access to vulnerable 

populations. 

Response: A grantee does not need 

our approval to use the ‘‘episodic 

access’’ exception to the fingerprintbased FBI criminal history check 

requirement described in 

§ 2540.203(b)(2)(iii). This is a selfdetermination grantees will make using 

the guidance in this notice. We will 

continue to monitor grantees for 

compliance with the criminal history 

background check requirement, 

including reliance on the episodic 

access exception. 

Comment: CNCS received comments 

indicating that the proposed rule was 

unclear as to when approval from CNCS 

is required for individuals in covered 

positions with recurring access to 

vulnerable populations to be excepted 

from the fingerprint-based FBI criminal 

history check. 

Response: The final rule has been 

restructured with new headings to 

indicate clearly when CNCS approval is 

required. In the case of episodic access, 

grantees are responsible for using their 

best judgment to determine whether or 

not an individual’s access to vulnerable 

populations is episodic. Approval from 

the CNCS Office of Grants Management 

is not required. However, reliance on 

the self-determined exception for 

‘‘episodic access’’ will be monitored by 

CNCS as a material grant condition. 

Comment: We received numerous 

comments expressing concern about our 

ability to process requests for alternative 

search procedure approval and 

fingerprint-based FBI criminal history 

check exceptions in a timely manner 

and what grantees should do while their 

requests are pending. 

Response: The Office of Grants 

Management is prepared to process 

requests from grantees in a prompt 

manner. This function may not be 

delegated to a grantee, such as a State 

Commission. However, a State 

Commission may request approval for 

an alternative search procedure 

applicable to individual sub-grantees, or 

to all of their sub-grantees, if applicable. 

While results of the National Service 

Criminal History Check are pending, 

individuals in covered positions with 

recurring access to vulnerable 

populations must be accompanied. The 

final rule and preamble have been 

updated to clarify this requirement. 

V. Effective Dates and Implementation 

This final rule becomes effective 

January 1, 2013. However, the special 

rule for individuals in covered positions 

with recurring access to vulnerable 

populations will only apply to the 

selection of individuals in covered 

positions who began work or who 

started service with a grantee on, or 

after, April 21, 2011. Notwithstanding 

this date, grantees will have until 

January 1, 2013 to initiate the 

fingerprint-based FBI criminal history 

check or the state registr(ies) check(s), 

whichever has not already been 

initiated, for individuals in covered 

positions with recurring access to 

vulnerable populations. A grantee must 

be certain that it has already satisfied 

the requirement to conduct an NSOPW 

check on all individuals who are 

currently serving or working in covered 

positions. 

Because of the significant period of 

time between April 21, 2011, and the 

effective date of the regulation, CNCS 

has determined that, as a blanket good 

cause exception implemented by section 

2540.207(b)(2) of this final rule, an 

individual in a covered position with 

recurring access to vulnerable 

populations who began work or who 

started service with a grantee on or after 

April 21, 2011, and then departed the 

program or project before January 1, 

2013, must have complied with the rule 

effective on October 1, 2009 (i.e. had a 

Check that included the NSOPW 

component and either the State 

Criminal History registr(ies) component 

OR the fingerprint-based FBI national 

criminal history background check 

component, but not BOTH the State 

Criminal History registr(ies) component 

AND the fingerprint-based FBI national 

criminal history background check 

component). 

VI. Regulatory Procedures 

Executive Orders 12866 and Executive 

Order 13563 

Executive Orders 13563 and 12866 

direct agencies to assess all costs and 

benefits of available regulatory 


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alternatives and, if regulation is 

necessary, to select regulatory 

approaches that maximize net benefits 

(including potential economic, 

environmental, public health and safety 

effects, distributive impacts, and 

equity). Executive Order 13563 

emphasizes the importance of 

quantifying both costs and benefits, of 

reducing costs, of harmonizing rules, 

and of promoting flexibility. This rule 

has been designated a ‘‘significant 

regulatory action,’’ although not 

economically significant, under section 

3(f) of Executive Order 12866. 

Accordingly, the rule has been reviewed 

by the Office of Management and 

Budget. 

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 foreignbased enterprises in domestic and 

export markets. Therefore, CNCS 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 

In accordance with section 3507(j) of 

the Paperwork Reduction Act of 1995 

(44 U.S.C. 3501 et seq.), the 

recordkeeping requirements included in 

this final rule have been submitted for 

emergency approval to the Office of 

Management and Budget (OMB). Due to 

an oversight, the Paperwork Reduction 

Act information was not included in the 

proposed rule and CNCS is requesting a 

short-term emergency clearance (OMB 

Control Number 3045–0145). In order to 

fairly evaluate whether a recordkeeping 

requirement should be approved by 

OMB, section 3506(c)(2)(A) of the 

Paperwork Reduction Act of 1995 

requires that we solicit comment on the 

following issues: 

• The need for the recordkeeping 

requirement and its usefulness in 

carrying out the proper functions of our 

agency. 

• The accuracy of our estimate of the 

information collection burden. 

• The quality, utility, and clarity of 

the information to be collected. 

• Recommendations to minimize the 

information collection burden on the 

affected public, including automated 

collection techniques. 

Under a separate notice, we will 

solicit public comment on each of these 

issues for the following sections of this 

document that contain recordkeeping 

requirements: 2540.205, .206. 

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. 

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. 12511. 

■ 2. Amend § 2510.20 by revising the 

definition of ‘‘program’’ to read as 

follows: 

§ 2510.20 Definitions. 

* * * * * 

Program. The term program, unless 

the context otherwise requires, and 

except when used as part of the term 

academic program, means a program 

described in the National and 

Community Service Act of 1990, as 

amended (42 U.S.C. 12501 et seq.), in 

section 112(a) (other than a program 

referred to in paragraph (3)(B) of that 

section), 118A, or 118(b)(1), or 

subsection (a), (b), or (c) of section 122, 

or in paragraph (1) or (2) of section 

152(b), section 198B, 198C, 198H, or 

198K, or an activity that could be 

funded under section 179A, 198, 198O, 

198P, or 199N. 

* * * * * 

PART 2522—AMERICORPS 

PARTICIPANTS, PROGRAMS, AND 

APPLICANTS 

■ 1. The authority citation for Part 2522 

continues to read as follows: 

Authority: 42 U.S.C. 12571–12595; 

12651b–12651d; E.O. 13331, 69 FR 9911. 

■ 2. Amend § 2522.200 by removing the 

period at the end of paragraph (a)(3) and 

adding a semicolon in its place and 

adding paragraph (a)(4) to read as 

follows: 

§ 2522.200 What are the eligibility 

requirements for an AmeriCorps 

participant? 

(a) * * * 

(4) Satisfy the National Service 

Criminal History Check eligibility 

criteria pursuant to 45 CFR 2540.202. 

* * * * * 

■ 3. Revise § 2522.205 to read as 

follows: 

§ 2522.205 To whom must I apply the 

National Service Criminal History Check 

eligibility criteria? 

You must apply the National Service 

Criminal History Check eligibility 

criteria to individuals serving in 

covered positions. A covered position is 

a position in which the individual 

receives an education award or a 

Corporation grant-funded living 

allowance, stipend, or salary. 


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60932 Federal Register / Vol. 77, No. 194 / Friday, October 5, 2012 / Rules and Regulations 

§ 2522.206 [Removed and Reserved] 

■ 4. Remove and reserve § 2522.206. 

■ 5. Revise § 2522.207 to read as 

follows: 

§ 2522.207 How do I determine an 

individual’s eligibility to serve in a covered 

position? 

To determine an individual’s 

eligibility to serve in a covered position, 

you must follow the procedures in part 

2540 of this chapter. 

PART 2540—GENERAL 

ADMINISTRATIVE PROVISIONS 

■ 6. The authority citation for part 2540 

continues to read as follows: 

Authority: E.O. 13331, 69 FR 9911; 18 

U.S.C. 506, 701, 1017; 42 U.S.C. 12653, 

12631–12637; 42 U.S.C. 5065. 

■ 7. Revise § 2540.200 to read as 

follows: 

§ 2540.200 What does ‘‘you’’ mean in this 

section? 

As used in this section, ‘‘you’’ means 

a Corporation grantee or other entity 

subject to Corporation grant provisions. 

Unless the context otherwise requires, 

this includes, but is not limited to, 

recipients of federal financial assistance 

under grant programs defined in 

§ 2510.20 of this chapter as well as 

projects under the Senior Companion 

Program, the Foster Grandparent 

Program, and RSVP. 

■ 8. Revise § 2540.201 to read as 

follows: 

§ 2540.201 To whom must I apply the 

National Service Criminal History Check 

eligibility criteria? 

You must apply the National Service 

Criminal History Check eligibility 

criteria to individuals serving in 

covered positions. A covered position is 

a position in which the individual 

receives an education award or a 

Corporation grant-funded living 

allowance, stipend, or salary. 

■ 9. Revise § 2540.202 to read as 

follows: 

§ 2540.202 What eligibility criteria must I 

apply to a covered position in connection 

with the National Service Criminal History 

Check? 

In addition to the eligibility criteria 

you establish, an individual shall be 

ineligible to serve in a covered position 

if the individual— 

(a) Refuses to consent to a criminal 

history check described in § 2540.203 of 

this chapter; 

(b) Makes a false statement in 

connection with a criminal history 

check described in § 2540.203 of this 

chapter; 

(c) Is registered, or is required to be 

registered, on a state sex offender 

registry or the National Sex Offender 

Registry; or 

(d) Has been convicted of murder, as 

defined in 18 U.S.C. 1111. 

■ 10. Revise § 2540.203 to read as 

follows: 

§ 2540.203 What search components of 

the National Service Criminal History Check 

must I satisfy to determine an individual’s 

eligibility to serve in a covered position? 

(a) Search procedure for individuals 

in covered positions who do not have 

recurring access to vulnerable 

populations. Unless the Corporation 

approves an alternative search 

procedure under § 2540.207 of this 

chapter, to determine an individual’s 

eligibility to serve in a covered position, 

you must conduct and document a 

National Service Criminal History 

Check that consists of the following 

components: 

(1) A nationwide name-based search 

of the Department of Justice (DOJ) 

National Sex Offender Public Web site 

(NSOPW), and 

(2) Either: 

(i) A name- or fingerprint-based 

search of the official state criminal 

history registry for the state in which 

the individual in a covered position will 

be primarily serving or working and for 

the state in which the individual resides 

at the time of application; or 

(ii) Submission of fingerprints 

through a state central record repository 

for a fingerprint-based Federal Bureau of 

Investigation (FBI) national criminal 

history background check. 

(b) Search procedure for individuals 

in covered positions who have recurring 

access to vulnerable populations. (1) 

This rule applies to individuals who: 

(i) Begin working for, or who start 

service with, you on or after April 21, 

2011; 

(ii) Will be 18 years old or older at 

any time during their term of service; 

and 

(iii) Serve in a covered position that 

will involve recurring access to children 

age 17 years or younger, to individuals 

age 60 years or older, or to individuals 

with disabilities. 

(2) Unless the Corporation approves 

an alternative search procedure or an 

exception under § 2540.207 of this 

chapter, to determine the eligibility of 

an individual described in paragraph 

(b)(1) of this section you must conduct 

and document a National Service 

Criminal History Check that consists of 

the following components: 

(i) A nationwide name-based search of 

the Department of Justice (DOJ) National 

Sex Offender Public Web site (NSOPW); 

(ii) A name- or fingerprint-based 

search of the official state criminal 

history registry for the state in which 

the individual in a covered position will 

be primarily serving or working and for 

the state in which the individual resides 

at the time of application; and 

(iii) Submission of fingerprints 

through a state central record repository 

for a fingerprint-based FBI national 

criminal history background check. 

■ 11. Revise § 2540.204 to read as 

follows: 

§ 2540.204 When must I conduct a 

National Service Criminal History Check on 

an individual in a covered position? 

(a) Timing of the National Service 

Criminal History Check Components. (1) 

You must conduct and review the 

results of the nationwide NSOPW check 

required under § 2540.203 before an 

individual in a covered position begins 

work or starts service. 

(2) You must initiate state registry or 

FBI criminal history checks required 

under § 2540.203 before an individual 

in a covered position begins work or 

starts service. You may permit an 

individual in a covered position to 

begin work or start service pending the 

receipt of results from state registry or 

FBI criminal history checks as long as 

the individual is not permitted access to 

children age 17 years or younger, to 

individuals age 60 years or older, or to 

individuals with disabilities, without 

being in the physical presence of an 

appropriate individual, as described in 

§ 2540.205(g) of this chapter. 

(b) Consecutive terms. If an individual 

serves consecutive terms of service in a 

covered position and does not have a 

break in service that exceeds 120 days, 

then no additional National Service 

Criminal History Check is required, as 

long as the original check is a compliant 

check for the covered position in which 

the individual will be serving or 

working following the break in service. 

If your program or project is designed 

with breaks in service over 120 days, 

but less than 180 days between 

consecutive terms, you may request 

approval for a break in service of up to 

180 days before a new National Service 

Criminal History Check is required. 

Your request must describe the overall 

program design, explain why the longer 

period is reasonable, and demonstrate 

that you have established adequate risk 

management controls for the extended 

break in service. 

■ 12. Revise § 2540.205 to read as 

follows: 


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Federal Register / Vol. 77, No. 194 / Friday, October 5, 2012 / Rules and Regulations 60933 

§ 2540.205 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 governmentissued photo identification card, such as 

a driver’s license; 

(b) Obtain prior, written authorization 

from the individual for the State registry 

check, for the FBI criminal history 

check, and for the appropriate sharing of 

the results of the checks within the 

program. Prior written authorization 

from the individual is not required to 

conduct the nationwide NSOPW check; 

(c) Document the individual’s 

understanding that selection into the 

program is contingent upon the 

organization’s review of the individual’s 

National Service Criminal History 

Check component results, if any; 

(d) Ensure that screening practices 

comply with federal civil rights laws, 

including Titles VI and VII of the Civil 

Rights Act of 1964 (and the 

Corporation’s implementing regulations 

under Title VI); 

(e) 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; 

(f) Provide safeguards to ensure the 

confidentiality of any information 

relating to the criminal history check, 

consistent with authorization provided 

by the applicant; and 

(g) Ensure that an individual, for 

whom the results of a required state or 

FBI criminal history registry check are 

pending, is not permitted to have access 

to children age 17 years or younger, to 

individuals age 60 years or older, or to 

individuals with disabilities without 

being in the physical presence of: 

(1) Your authorized representative 

who has previously been cleared for 

such access; 

(2) A family member or legal guardian 

of the vulnerable individual; or 

(3) An individual authorized, because 

of his or her profession, to have 

recurring access to the vulnerable 

individual, such as an education or 

medical professional. 

(h) Unless specifically approved by 

the Corporation, you may not charge an 

individual for the cost of any 

component of a National Service 

Criminal History Check. 

■ 13. Revise § 2540.206 to read as 

follows: 

§ 2540.206 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, or a results 

summary issued by a State or Federal 

government body, of the NSOPW check 

and the other components of each 

National Service Criminal History 

Check, unless precluded from doing so 

by State or Federal law or regulation. 

You must also document in writing that 

an authorized grantee representative 

considered the results of the National 

Service Criminal History Check in 

selecting the individual. 

■ 14. Revise § 2540.207 to read as 

follows: 

§ 2540.207 When may I follow an 

alternative search procedure or be excepted 

from a requirement in conducting a National 

Service Criminal History Check for a 

covered position? 

(a) Alternative search procedure. (1) If 

you submit a written request to the 

Corporation’s Office of Grants 

Management, the Corporation will 

consider approving an alternative search 

procedure: 

(i) If you demonstrate that you are 

prohibited or otherwise precluded 

under state law from complying with a 

Corporation requirement relating to the 

National Service Criminal History 

Check, or 

(ii) If you can obtain substantially 

equivalent or better information through 

an alternative search procedure. 

(2) The Office of Grants Management 

will review the alternative search 

procedure to ensure that it: 

(i) Verifies the identity of the 

individual; and 

(ii) Includes a search of an alternative 

criminal database that is sufficient to 

identify the existence or absence of 

criminal offenses. 

(b) Exceptions to Criminal History 

Check requirements for individuals with 

recurring access to vulnerable 

populations. (1) Exception that does not 

require prior Corporation approval— 

Episodic Access. (i) For the purposes of 

this section, an individual’s access to a 

vulnerable population is considered to 

be episodic in nature if the service is not 

a regular, scheduled, and anticipated 

component of the individual’s position 

description. 

(ii) You are not required to conduct 

the fingerprint-based FBI criminal 

history check on individuals in covered 

positions with recurring access to 

vulnerable populations, as described in 

§ 2540.203 of this chapter, when the 

individual’s access to a vulnerable 

population is episodic in nature or for 

a 1-day period. 

(iii) No prior approval is required 

from the Corporation for you to apply 

this exception. You must make and 

document a determination that the 

individual’s access to vulnerable 

populations is episodic, as defined by 

paragraphs (b)(1)(i) and (ii) of this 

section. 

(2) Exceptions that require prior 

approval of the Corporation. You are 

not required to conduct the fingerprintbased FBI criminal history check on 

individuals in covered positions with 

recurring access to vulnerable 

populations, as described in § 2540.203 

of this chapter, if you demonstrate and 

the Corporation determines in writing 

that: 

(i) Complying with 

§ 2540.203(b)(2)(iii) of this chapter is 

cost-prohibitive; 

(ii) You are not authorized, or are 

otherwise unable, under state or federal 

law, to access the national criminal 

history background check system of the 

FBI; or 

(iii) That you are exempt from the 

requirement in § 2540.203(b)(2)(iii) of 

this chapter for good cause. 

PART 2551—SENIOR COMPANION 

PROGRAM 

■ 15. The authority citation for part 

2551 continues to read as follows: 

Authority: 42 U.S.C. 4950 et seq.; 42 U.S.C. 

12651b–12651d; E.O. 13331, 69 FR 9911. 

■ 16. Amend § 2551.23 by adding 

paragraph (l) to read as follows: 

§ 2551.23 What are the sponsor’s program 

responsibilities? 

* * * * * 

(l) Conduct criminal history checks on 

all Senior Companions and Senior 

Companion grant-funded employees 

who start service, or begin work, in your 

program after November 23, 2007, in 

accordance with the National Service 

Criminal History Check requirements in 

45 CFR 2540.200 through 2540.207. 

§§ 2551.26 through 2551.32 [Removed and 

Reserved]. 

■ 17. Remove and reserve §§ 2551.26 

through 2551.32. 

PART 2552—FOSTER GRANDPARENT 

PROGRAM 

■ 18. The authority citation for Part 

2552 continues to read as follows: 

Authority: 42 U.S.C. 4950 et seq., 42 

U.S.C. 12651b–12651d; E.O. 13331, 69 FR 

9911 


pmangrum on DSK3VPTVN1PROD with RULES
60934 Federal Register / Vol. 77, No. 194 / Friday, October 5, 2012 / Rules and Regulations 

■ 19. Amend § 2552.23 by adding 

paragraph (l) to read as follows: 

§ 2552.23 What are a sponsor’s program 

responsibilities? 

* * * * * 

(l) Conduct criminal history checks on 

all Foster Grandparents and Foster 

Grandparent grant-funded employees 

who start service, or begin work, in your 

program after November 23, 2007, in 

accordance with the National Service 

Criminal History Check requirements in 

45 CFR 2540.200 through 2540.207. 

§§ 2552.26 through 2552.32 [Removed and 

Reserved] 

■ 20. Remove and reserve §§ 2552.26 

through 2552.32. 

Dated: September 28, 2012. 

Valerie Green, 

General Counsel. 

[FR Doc. 2012–24467 Filed 10–4–12; 8:45 am] 

BILLING CODE 6050–28–P 

FEDERAL COMMUNICATIONS 

COMMISSION 

47 CFR Part 0 

[CG Docket No. 12–39; DA 12–1545] 

Termination of Certain Proceedings as 

Dormant 

AGENCY: Federal Communications 

Commission. 

ACTION: Final rule; termination of 

proceedings. 

SUMMARY: In this document, the 

Commission, via the Consumer and 

Governmental Affairs Bureau (CGB) 

terminates, as dormant, certain docketed 

Commission proceedings. Termination 

of these inactive proceedings furthers 

the Commission’s organizational goals 

of increasing the efficiency of its 

decision-making, modernizing the 

agency’s processes in the digital age, 

and enhancing the openness and 

transparency of Commission 

proceedings for practitioners and the 

public. 

DATES: Effective October 5, 2012. 

ADDRESSES: Federal Communications 

Commission, 445 12th Street SW., 

Washington, DC 20554. 

FOR FURTHER INFORMATION CONTACT: 

Deborah Broderson, Consumer and 

Governmental Affairs Bureau at (202) 

418–0652, or email: 

Deborah.Broderson@fcc.gov. 

SUPPLEMENTARY INFORMATION: This is a 

synopsis of the Commission’s Order, 

Termination of Certain Proceedings as 

Dormant, document DA 12–1545, 

adopted September 27, 2012 and 

released on September 27, 2012, in CG 

Docket No. 12–39. On June 3, 2011, the 

Commission sought comment on 

whether certain listed docketed 

Commission proceedings should be 

terminated as dormant. See 76 FR 

35892, June 20, 2011. On September 30, 

2011, in a subsequent action, the 

Commission terminated, as dormant, 

certain docketed Commission 

proceedings. See 76 FR 70902, 

November 16, 2011. On February 15, 

2012, the Commission sought comment 

on whether additional docketed 

Commission proceedings should be 

terminated as dormant. See 77 FR 

13322, March 6, 2012. The full text of 

document DA 12–1545 and copies of 

any subsequently filed documents in 

this matter will be available for public 

inspection and copying during regular 

business hours at the FCC Reference 

Information Center, Portals II, 445 12th 

Street SW., Room CY–A257, 

Washington, DC 20554. Document DA 

12–1545 and copies of subsequently 

filed documents in this matter may also 

be purchased from the Commission’s 

duplicating contractor, Best Copying 

and Printing, Inc. (BCPI), at Portals II, 

445 12th Street SW., Room CY–B402, 

Washington, DC 20554. Customers may 

contact BCPI at its Web site, 

www.bcpiweb.com, or by calling (202) 

488–5300. Document DA 12–1545 can 

also be downloaded in Word or Portable 

Document Format (PDF) at: http:// 

hraunfoss.fcc.gov/edocs_public/ 

attachmatch/DA-12-1545A1.doc, or 

http://hraunfoss.fcc.gov/edocs_public/ 

attachmatch/DA-12-1545A1.pdf. 

To request materials in accessible 

formats for people with disabilities 

(Braille, large print, electronic files, 

audio format), send an email to 

fcc504@fcc.gov or call the Consumer 

and Governmental Affairs Bureau at 

(202) 418–0530 (voice), (202) 418–0432 

(TTY). 

Final Paperwork Reduction Act of 1995 

Analysis 

This document does not contain 

information collection requirements 

subject to the Paperwork Reduction Act 

of 1995, Public Law 104–13. In addition, 

therefore, it does not contain any 

information collection burden for small 

business concerns with fewer than 25 

employees, pursuant to the Small 

Business Paperwork Relief Act of 2002, 

Public Law 107–198, see 44 U.S.C. 

3506(c)(4). 

Synopsis 

1. On February 4, 2011, the 

Commission released Amendment of 

Certain of the Commission’s Part 1 

Rules of Practice and Procedure and 

Part 0 Rules of Commission 

Organization, Report and Order, FCC 

11–16, in CG Docket No. 11–44, 

published at 76 FR 24383, May 2, 2011 

(Procedure Order), which revised 

portions of its Part 1—Practice and 

Procedures and Part 0—Organizational 

rules. The amendment of § 0.141 of the 

Commission’s organizational rules 

delegated authority to the Chief, CGB to 

conduct periodic review of all open 

dockets with the objective of 

terminating those that were inactive. 

The Commission stated that termination 

of such proceedings also will include 

the dismissal as moot of any pending 

petition, motion, or other request for 

relief in the terminated proceeding that 

is procedural in nature or otherwise 

does not address the merits of the 

proceeding. On February 15, 2012, the 

Commission released Termination of 

Certain Proceedings as Dormant, Public 

Notice, DA 12–220, CG Docket No. 12– 

39, published at 77 FR 13322, March 6, 

2011 (Termination Public Notice), 

which identified those dockets that 

could potentially be terminated and 

provided interested parties the 

opportunity to file comments on these 

proposed terminations. Based upon 

CGB’s review of the two comments 

received in response to the Termination 

Public Notice, and for the reasons given 

below, CGB hereby terminates the 

proceedings that are listed in the 

Attachment to DA 12–1545, which were 

previously listed in DA 12–220. See 

http://hraunfoss.fcc.gov/edocs_public/ 

attachmatch/DA-12-220A1.doc. 

2. CGB received two comments 

requesting that particular proceedings 

noted in the Termination Public Notice 

remain open. Based upon CGB’s review 

of these comments, for the reasons 

noted below, CGB rejects the request of 

the New Jersey Broadcasters Association 

(NJBA) to retain RM–11099. Based on 

the request of the Office of 

Communication of the United Church of 

Christ, Inc., National Hispanic Media 

Coalition, Campaign Legal Center, 

Media Access Project, Benton 

Foundation, and Free Press 

(collectively, UCC), and our further 

evaluation, MB Docket No. 05–6 will 

remain open and will not be terminated 

at this time. On our own motion as 

described below, CGB has also 

determined not to terminate two 

additional proceedings listed in the 

Termination Public Notice. 

3. NJBA asks that we maintain as 

active RM–11099, which had been 

initiated by the May 27, 2004 filing of 

NJBA’s Petition entitled ‘‘In the Matter 

of the Commissions’ Rules to Protect 

New Jersey Listeners from FM 


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