Federal Register / Vol. 76, No. 129 / Wednesday, July 6, 2011 / Proposed Rules 39361 

required for the establishment of a 

tolerance exemption for inert 

ingredients. Contact: Alganesh Debesai, 

(703) 308–8353, e-mail address: 

debesai.alganesh@epa.gov. 

List of Subjects 

Environmental protection, 

Agricultural commodities, Feed 

additives, Food additives, Pesticides 

and pests, Reporting and recordkeeping 

requirements. 

Dated: June 24, 2011. 

Lois Rossi, 

Director, Registration Division, Office of 

Pesticide Programs. 

[FR Doc. 2011–16873 Filed 7–5–11; 8:45 am] 

BILLING CODE 6560–50–P 

CORPORATION FOR NATIONAL AND 

COMMUNITY SERVICE 

45 CFR Parts 2510, 2540, 2551, 2552 

RIN 3045–AA56 

AmeriCorps State/National, Senior 

Companions, Foster Grandparents, 

and Retired and Senior Volunteer 

Program 

AGENCY: Corporation for National and 

Community Service. 

ACTION: Proposed rule with request for 

comments. 

SUMMARY: The Corporation for National 

and Community Service (the 

Corporation) proposes amendments to 

its National Service Criminal History 

Check regulations to require grantees to 

conduct and document criminal history 

checks (including both state criminal 

history checks and FBI fingerprint 

checks) on Senior Companions, Foster 

Grandparents, Retired Senior Volunteer 

Program grant-funded staff, Learn and 

Serve America, AmeriCorps State/ 

National (including Education Award 

Program) participants, and other 

Corporation grant-funded participants 

and grant-funded staff in all Corporation 

programs, who, on a recurring basis, 

have access to children, persons age 60 

and older, or individuals with 

disabilities. 

DATES: To be certain your comments are 

considered, they must reach the 

Corporation on or before August 5, 

2011. 

ADDRESSES: You may send your 

comments electronically through the 

Federal government’s one-stop 

rulemaking Web site at http:// 

www.regulations.gov. You may also mail 

or deliver your comments to Amy 

Borgstrom, Docket Manager, 

Corporation for National and 

Community Service, 1201 New York 

Ave., NW., Washington, DC 20525. 

Members of the public may review 

copies of all communications received 

on this rulemaking at http:// 

www.regulations.gov or at the 

Corporation’s Washington, DC 

headquarters. 

FOR FURTHER INFORMATION CONTACT: 

Amy Borgstrom at (202) 606–6930. The 

TDD/TTY number is (202) 606–3472. 

You may request this notice in an 

alternative format for the visually 

impaired. 

SUPPLEMENTARY INFORMATION: 

List of Topics 

I. Invitation to Comment 

II. Background 

(a) Prior to Passage of the Kennedy Serve 

America Act of 2009 

(b) Expanded Definition of ‘‘Covered 

Individual’’ 

(c) Heightened Standard for Individuals 

With Recurring Access to Vulnerable 

Populations 

III. Contents of Proposed Rule 

(a) Definitions 

(b) Eligibility Criteria—AmeriCorps State 

and National 

(c) National Service Criminal History 

Checks Generally 

(d) Special Rule for Individuals With 

Recurring Access to Vulnerable 

Populations 

(e) Alternative Screening Protocol for 

Individuals With Recurring Access to 

Vulnerable Populations 

(f) Consecutive Terms 

(g) No Unaccompanied Access to 

Vulnerable Populations Pending 

Criminal History Results 

(h) Documentation Requirements 

(i) Costs 

IV. Non-Regulatory Matters 

V. Effective Dates 

VI. Regulatory Procedures 

I. Invitation To Comment 

We invite you to submit comments 

about these proposed regulations online 

at http://www.regulations.gov. To 

ensure that your comments have 

maximum value in helping us develop 

the final regulations, we urge you to 

identify clearly the specific section or 

sections of the proposed regulations that 

each comment addresses and to arrange 

your comments in the same order as the 

proposed regulations. During and after 

the comment period, you may inspect 

public comments about these proposed 

regulations submitted online at http:// 

www.regulations.gov, or in person in 

room 10615, 1201 New York Avenue, 

NW., Washington, DC, between the 

hours of 9 a.m. and 4:30 p.m., Eastern 

Time, Monday through Friday of each 

week except Federal holidays. 

Assistance to Individuals With 

Disabilities in Reviewing the 

Rulemaking Record 

On request, we will supply an 

appropriate aid, such as a reader or 

print magnifier, to an individual with a 

disability who needs assistance to 

review the comments or other 

documents in the public rulemaking 

record for these proposed regulations. If 

you want to schedule an appointment 

for this type of aid, please contact the 

person listed under FOR FURTHER

INFORMATION CONTACT. 

II. Background 

(a) Prior to Passage of the Kennedy 

Serve America Act of 2009 

The Corporation initially engaged in 

rulemaking concerning the requirement 

for grantees to conduct criminal history 

checks on national service participants 

and grant-funded staff in 2007. In that 

rule, the Corporation required programs 

to conduct National Service Criminal 

History Checks—consisting of a 

statewide search of a state’s criminal 

registry (for both the state where the 

individual resides at the time of 

application and the state where the 

individual will be serving) and a check 

of the Department of Justice’s National 

Sex Offender Public Web site 

(NSOPW)—on all ‘‘covered 

individuals.’’ Covered individuals were 

those program staff and participants 

who had recurring access to children, 

the elderly, and to individuals with 

disabilities. Recurring access was 

defined as having contact with 

individuals from one or more of the 

above groups on more than one 

occasion. The regulations did not cover 

the RSVP and Learn and Serve 

programs, nor did they cover the NCCC 

and VISTA programs, which are 

Federally operated programs that have 

their own criminal history 

requirements. 

Those regulations offered the option 

of requesting approval of an alternative 

search procedure (also known as an 

‘‘alternative screening protocol’’ or 

‘‘ASP’’), which would permit an entity 

that could demonstrate that it was 

‘‘prohibited or otherwise precluded 

under state law from complying with a 

Corporation requirement relating to 

criminal history checks or that [it] could 

obtain substantially equivalent or better 

information through an alternative 

process’’ to use a process other than the 

one outlined by the Corporation. (45 

CFR 2540.206). Under this rule, an 

entity had the option of using a national 

FBI fingerprint-based check in lieu of 

the state criminal registry check without 

obtaining prior Corporation approval. 


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39362 Federal Register / Vol. 76, No. 129 / Wednesday, July 6, 2011 / Proposed Rules 

(b) Expanded Definition of ‘‘Covered 

Individuals’’ 

In 2009, Congress passed the Kennedy 

Serve America Act of 2009 (Pub. L. 111– 

13) (SAA), which amended the National 

and Community Service Act of 1990 (42 

U.S.C. 12501 et seq.) (NCSA) by 

codifying the Corporation’s regulatory 

National Service Criminal History 

Check requirements, and by expanding 

the categories of individuals required to 

undergo criminal history checks. Under 

the new statutory requirements, as of 

October 1, 2009 (the effective date of the 

SAA), any entity selecting 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. 

Accordingly, the SAA expanded the 

definition (and consequently the 

number) of ‘‘covered individuals’’ to 

those individuals described above 

without regard to their access to 

vulnerable populations. 

As directed by the SAA, the 

Corporation issued new regulations in 

2009, expanding coverage to any 

national service participant or grantfunded employee who received one of 

the above-described payments for his or 

her service or employment. (74 FR 

46495). Now included in this group of 

covered individuals are grant-funded 

staff serving in any Corporation-funded 

national service program, including 

RSVP and Learn and Serve grant-funded 

staff, as well as participants in all 

Corporation grant programs, if the 

individual receives one of the types of 

remuneration described above. This 

includes the Non-profit Capacity 

Building and Social Innovation Fund 

grant programs. 

Pursuant to these regulations, each 

individual meeting the amended 

description of a ‘‘covered individual’’ 

hired or enrolled in a program on or 

after October 1, 2009, is required to 

undergo a full National Service Criminal 

History Check including: (a) A search of 

either (1) the state criminal registry in 

the state in which the program is 

operating and the state in which the 

individual resides at the time of 

application, or (2) a Federal Bureau of 

Investigation (FBI) fingerprint check; 

and (b) a nationwide check of the 

NSOPW. 

In addition to expanding the 

definition of ‘‘covered individuals,’’ the 

Serve America Act expanded the types 

of offenses that would render an 

individual ineligible to serve in a 

covered position to include individuals 

who had been convicted of murder. 

(c) Heightened Standard for Individuals 

With Recurring Access to Vulnerable 

Populations 

Under section 189D(d) of the NCSA, 

as amended by the SAA, beginning 

April 21, 2011, entities that select 

covered individuals over the age of 18 

who will have recurring access to 

vulnerable populations as part of their 

position must conduct both a statewide 

criminal history check and an FBI 

fingerprint-based check. As described 

herein, section 189D(d)(3) of the NCSA 

permits limited exceptions to this 

heightened requirement. 

III. Contents of Proposed Rule 

The Corporation is undertaking this 

rulemaking to implement the 

amendments made by the SAA with 

regard to heightened screening 

requirements for covered individuals 

with recurring access to vulnerable 

populations. In addition, this proposed 

rule clarifies several existing 

requirements, and makes several minor 

technical corrections for clarity. 

(a) Definitions 

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

The SAA amended the definition of 

‘‘program’’ in the NCSA to include 

newly-authorized programs such as 

Campuses of Service, Serve America 

and Encore Fellows, Silver Scholars, the 

Social Innovation Fund, and activities 

funded under programs such as the 

Volunteer Generation Fund. This 

proposed rule corrects the definition of 

‘‘program’’ in regulation to align with 

the definition in statute. 

(2) Definition of ‘‘covered individual.’’ 

(§ 2540.200) 

To clarify that it is not necessary to 

conduct checks on individuals whose 

connection to the program is tangential 

(such as an individual who provides 

training to participants and volunteers 

on occasion but is otherwise not integral 

to the operation of the program) or who 

is intended as a beneficiary (such as a 

child who receives a cash prize for 

completing a service-learning project 

hosted by the program), this rule 

proposes to amend the definition of 

‘‘covered individual’’ by removing the 

clause ‘‘or other remuneration.’’ A 

covered individual is any individual 

who receives a Corporation grantfunded living allowance, stipend, 

national service education award, or 

salary for participation in or 

employment by a program. An 

individual who receives some financial 

benefit through a national service 

program but who does not otherwise 

perform any service to implement the 

program is not a covered individual. 

(b) Eligibility Criteria—AmeriCorps 

State and National 

The Serve America Act expanded the 

list of offenses that would render an 

individual ineligible for service to 

include conviction for murder. The 

Corporation amended its regulations to 

align with this statutory change in 2009, 

but through that rulemaking 

inadvertently neglected to amend the 

regulation on eligibility to serve in an 

AmeriCorps State and National position. 

This rule amends § 2522.200 to expand 

the list of eligibility criteria to serve in 

an AmeriCorps State and National to 

include satisfaction of the National 

Service Criminal History Check 

eligibility criteria. 

(c) National Service Criminal History 

Checks Generally (§ 2540.202) 

In practice, the National Service 

Criminal History Check for covered 

individuals includes: (1) a name or 

fingerprint-based state registry check of 

the state where the program is operating 

and the state where the individual 

resides at the time of application or 

nationwide check by submitting 

fingerprints to the FBI; and (2) a check 

of the NSOPW. This proposed rule 

makes technical edits to the regulatory 

language to conform to current practice. 

Since promulgating criminal history 

check rules in 2007, the Corporation has 

applied the first prong of this test to 

programs operating in more than one 

state by requiring such programs to 

conduct the state registry check in the 

state where the covered individual will 

be primarily serving or working. This 

proposed rule would also codify this 

clarification. 

(d) Special Rule for Individuals With 

Recurring Access to Vulnerable 

Populations (§ 2540.202) 

As required by section 189D of the 

NCSA, as amended by the SAA, under 

this rule, unless the Corporation 

approves an alternative screening 

protocol under § 2540.206, for each 

covered individual a program hires or 

enrolls on or after April 21, 2011, who 

is age 18 or older and whose position 

will involve recurring access to 

vulnerable populations, in addition to a 

National Sex Offender Public Web site 

(http://www.nsopw.gov) check, the 

program must conduct: (1) 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 (2) a national search 


jlentini on DSK4TPTVN1PROD with PROPOSALS
Federal Register / Vol. 76, No. 129 / Wednesday, July 6, 2011 / Proposed Rules 39363 

by submitting fingerprints to the Federal 

Bureau of Investigation. 

‘‘Recurring access’’ is defined 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 this heightened 

requirement, current grantees have 

inquired into whether the Corporation 

would be developing a centralized 

mechanism for conducting FBI checks 

for national service participants. While 

the Corporation is committed to 

identifying ways to decrease burden on 

grantees, at this time no such 

centralized mechanism is available. 

(e) Alternative Screening Protocol for 

Individuals With Recurring Access to 

Vulnerable Populations (§ 2540.206) 

Under this proposed rule, an entity 

may apply to the Corporation for 

approval of an ASP that would relieve 

the entity from the requirement to 

conduct both the statewide and national 

checks on a covered individual with 

recurring access to vulnerable 

populations. 

The Corporation will approve an ASP 

for this requirement if the entity 

demonstrates: (1) The service provided 

by the individual serving with the entity 

to a vulnerable population is episodic in 

nature or for a 1-day period; (2) the cost 

to the program of complying with 

§ 2540.202(b) of this chapter is 

prohibitive; (3) the program 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 (4) the 

program cannot comply with the 

requirement for good cause, as 

determined and approved by the 

Corporation. 

(1) Episodic Access (§ 2540.206) 

Congress specifically exempted from 

heightened coverage those individuals 

whose access to vulnerable populations 

is ‘‘episodic in nature or for a 1-day 

period.’’ While the heightened coverage 

applies to all individuals with 

‘‘recurring access,’’ or access on more 

than one occasion, it will not apply to 

those individuals whose recurring 

access is ‘‘episodic in nature.’’ 

For the purposes of this rule, the 

Corporation proposes to define 

‘‘episodic’’ as access that is not a 

regular, scheduled, and anticipated 

component of an individual’s position 

description. If access to vulnerable 

populations is not a regular, scheduled, 

and anticipated component of the 

position description, the program is not 

required to conduct both an FBI and a 

state check on the individual. 

For example, consider an individual 

who is applying for an AmeriCorps 

position with an environmental program 

that involves volunteer coordination. If 

the program anticipates that the position 

will involve coordinating high school 

student volunteers on a regular basis, 

the individual will need the heightened 

check. However, if the program has no 

reason to expect that the position will 

involve coordinating 17-year-old and 

younger volunteers because the program 

has never operated in a youth 

environment and does not have any 

youth engagement goals, and does not 

recruit high school age volunteers, any 

contact with a child volunteer would be 

irregular, unscheduled, and 

unanticipated, and thus, episodic. 

Therefore, it would be unnecessary to 

conduct a heighted check on the 

individual. 

The Corporation does not propose a 

numeric component for the 

determination of whether or not access 

is episodic. In other words, if a program 

does not anticipate that a member will 

have access to vulnerable populations, 

the requirement would not materialize 

after a specific number of incidents of 

access occur. 

The Corporation expects that in the 

majority of cases it will be clear whether 

or not access to vulnerable populations 

is an anticipated, regular component of 

a position description. Nevertheless, the 

Corporation recommends that programs 

specifically address contact with 

vulnerable populations in each position 

description. If incidental access 

becomes unexpectedly regular or 

frequent, a program may want to take 

additional precautionary measures 

based on the circumstances. 

(2) Alternative Search Protocols 

Approved for ‘‘Good Cause’’ 

The Corporation will publish on its 

Web site those scenarios for which the 

Corporation has approved ASPs for 

‘‘good cause’’ based on requests 

received following the publication of 

this rule. This list may be expanded and 

codified in regulation in the future. 

(f) Consecutive Terms (§ 2540.203) 

Under current 45 CFR 2540.203(c), 

(redesignated as 2540.203(b) under this 

proposed rule) it is not necessary to 

perform an additional check on an 

individual who serves in consecutive 

terms of service with a program with a 

break in service of fewer than 30 days. 

This section permits a program to forego 

additional checks for individuals 

serving consecutive terms, but is based 

upon a presumption that the additional 

check would essentially replicate the 

original check. 

Each individual hired or enrolled into 

a covered position that involves 

recurring access to vulnerable 

populations after April 21, 2011, is 

required to undergo the enhanced 

criminal history check. The fact that an 

individual met the criminal history 

check requirements at the time the 

individual was hired or enrolled in a 

prior term of service does not excuse the 

individual from the enhanced 

requirements at the time the individual 

is hired or enrolled in a subsequent 

term, even if there has been a break in 

service of fewer than 30 days. 

If a program can demonstrate that the 

check performed on an individual 

during the previous term would meet 

the current requirements, it is not 

necessary to perform an additional 

check. For example, if, at the time the 

covered individual was hired or 

enrolled in a prior term, the program 

conducted the NSOPR check, a state 

check, and an FBI check, it is 

unnecessary to replicate the entire 

process for the subsequent term if there 

is a break in service of fewer than 30 

days. 

(g) No Unaccompanied Access to 

Vulnerable Populations Pending 

Criminal History Results (§ 2540.204) 

Under current rules, an individual for 

whom the results of a required state 

criminal registry check are pending is 

not permitted access to vulnerable 

populations ‘‘without being 

accompanied by an authorized program 

representative who has previously been 

cleared for such access.’’ 45 CFR 

2540.204(g). Since the initial 

promulgation of this rule, it has come to 

our attention that it is common for the 

vulnerable beneficiary in question to be 

accompanied by a parent, legal 

guardian, teacher, doctor, nurse, or 

other individual responsible for his or 

her care. 

The Corporation does not believe it is 

necessary for a selected individual with 

pending criminal history results to be 

accompanied by an authorized program 

representative who has received the 

appropriate criminal history check 

when the vulnerable individual is 

accompanied by an individual 

responsible for his or her care. Thus, 

under this proposed rule, a covered 

individual may be selected and placed 

while state or FBI criminal history 

checks are pending, so long as the 

individual is not permitted access to 

vulnerable populations without being 

accompanied by: (1) An authorized 

program representative who has 

previously been cleared for such access; 


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39364 Federal Register / Vol. 76, No. 129 / Wednesday, July 6, 2011 / Proposed Rules 

(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. 

For example, a covered individual 

who occasionally gives nature tours to 

schoolchildren as part of an 

environmental program would not be 

required to be accompanied by an 

authorized program representative on 

the tour if the students are accompanied 

by teachers or parents. 

(h) Documentation Requirements 

(§ 2540.205) 

This proposed rule clarifies that it is 

not necessary to retain the actual 

documents produced as a result of 

conducting the statewide or FBI 

criminal registry search component of 

the check. Rather, it is sufficient to 

retain a summary of the results certified 

by an authorized program 

representative, along with written 

documentation that the results were 

considered in selecting the individual. 

The program must have reviewed and 

determined that the criteria used by the 

issuing governmental body meets or 

exceeds the Corporation’s standards for 

eligibility. For example, if a program 

receives a document from the statewide 

criminal registry that indicates the 

individual has been ‘‘cleared’’ for 

service based upon an agreement that 

describes the offenses that would result 

in ineligibility, that clearance document 

may be retained as the result of the 

criminal registry check. 

(i) Costs (§ 2540.204) 

The proposed rule requires grantees to 

obtain and document a baseline 

criminal history check for covered 

individuals. The Corporation considers 

the cost of this required criminal history 

check a reasonable and necessary 

program grant expense, such costs being 

presumptively eligible for 

reimbursement. In any event, a grantee 

should include the costs associated with 

its screening process in the grant budget 

it submits for approval to the 

Corporation. 

The proposed rule codifies the 

Corporation’s guidance that, except 

where approved by the Corporation, a 

grantee may not charge an individual for 

the cost of a National Service Criminal 

History Check. In addition, because 

criminal history checks are inherently 

attributable to operating a program, such 

costs may not be charged to a state 

commission administrative grant. 

We will monitor compliance with the 

rules and requirements associated with 

National Service Criminal History 

Checks as a material condition of 

receiving a Corporation grant. A 

grantee’s failure to comply with this 

requirement may adversely affect the 

grantee’s access to grant funds or ability 

to obtain future grants from the 

Corporation. In addition, a grantee 

jeopardizes eligibility for 

reimbursement of costs related to a 

disqualified individual if it fails to 

perform or properly document (as 

described herein) the required National 

Service Criminal History Check on 

covered individuals. 

IV. Non-Regulatory Matters 

Coverage Based on Start Date 

The table below illustrates which 

requirements apply to various program 

types. 

TABLE 1 

Date individual hired or enrolled 

Recurring access to vulnerable 

populations 

Before 

November 23, 2007 * 

November 23, 2007– 

September 30, 2009 

October 1, 2009– 

April 20, 2011 

On or after 

April 21, 2011 

N S F N S F N S F N S F 

Program: 

AmeriCorps S & N ......... Yes ........ X .......... .......... X X .......... X X .......... X X X 

No ......... .......... .......... .......... .......... .......... .......... X X .......... X X ..........

FGP ............................... Yes ........ X .......... .......... X X .......... X X .......... X X X 

No ......... .......... .......... .......... .......... .......... .......... X X .......... X X ..........

Senior Companions ....... Yes ........ X .......... .......... X X .......... X X .......... X X X 

No ......... .......... .......... .......... .......... .......... .......... X X .......... X X ..........

RSVP staff ..................... Yes ........ .......... .......... .......... .......... .......... .......... X X .......... X X X 

No ......... .......... .......... .......... .......... .......... .......... X X .......... X X ..........

VISTA program grants ... Yes ........ .......... .......... .......... .......... .......... .......... X X .......... X X X 

No ......... .......... .......... .......... .......... .......... .......... X X .......... X X ..........

Learn & Serve ............... Yes ........ .......... .......... .......... .......... .......... .......... X X .......... X X X 

No ......... .......... .......... .......... .......... .......... .......... X X .......... X X ..........

Other Grant Programs ... Yes ........ .......... .......... .......... .......... .......... .......... X X .......... X X X 

No ......... .......... .......... .......... .......... .......... .......... X X .......... X X ..........

N = NSOPW; S = State registry check; F = FBI fingerprint check 

* This applies to individuals who were enrolled or employed as of November 23, 2007, but were hired or enrolled prior to that date. 

V. Effective Dates 

The Corporation intends to make any 

final rule based on this proposal 

effective no sooner than 60 days after 

the final rule is published in the Federal 

Register. The requirement applies to 

any covered individual hired or 

enrolled on or after April 21, 2011. 

However, programs have until 60 days 

after the publication of the final rule to 

complete the heightened check. 

VI. Regulatory Procedures 

Executive Order 12866 and Executive 

Order 13563 

Executive Orders 13563 and 12866 

direct agencies to assess all costs and 

benefits of available regulatory 

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. 


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Federal Register / Vol. 76, No. 129 / Wednesday, July 6, 2011 / Proposed Rules 39365 

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, the 

Corporation has not performed the 

initial regulatory flexibility analysis that 

is required under the Regulatory 

Flexibility Act (5 U.S.C. 601 et seq.) for 

major rules that are expected to have 

such results. 

Unfunded Mandates 

For purposes of Title II of the 

Unfunded Mandates Reform Act of 

1995, 2 U.S.C. 1531–1538, as well as 

Executive Order 12875, this regulatory 

action does not contain any Federal 

mandate that may result in increased 

expenditures in either Federal, state, 

local, or Tribal governments in the 

aggregate, or impose an annual burden 

exceeding $100 million on the private 

sector. 

Paperwork Reduction Act 

This proposed rule contains no 

information collection requirements and 

is therefore not subject to the 

requirements of the Paperwork 

Reduction Act of 1980 (44 U.S.C. 3501 

et seq.). 

Executive Order 13132, Federalism 

Executive Order 13132, Federalism, 

prohibits an agency from publishing any 

rule that has Federalism implications if 

the rule either imposes substantial 

direct compliance costs on state and 

local governments and is not required 

by statute, or the rule preempts state 

law, unless the agency meets the 

consultation and funding requirements 

of section 6 of the Executive Order. The 

proposed rule does not have any 

Federalism implications, as described 

above. 

List of Subjects 

45 CFR Part 2510 

Grant programs—social programs. 

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 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 

a98K, 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: 

a. Removing the period at the end of 

paragraph (a)(3) and adding a semicolon 

in its place; and 

b. Adding a new 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 § 2540.201. 

* * * * * 

3. Revise § 2522.205 to read as 

follows: 

§ 2522.205 To whom must I apply eligibility 

criteria relating to criminal history? 

You must apply eligibility criteria 

relating to criminal history to a 

participant or staff position for which an 

individual receives a Corporation grantfunded living allowance, stipend, 

education award, or salary for 

participation in or employment by a 

program as defined in § 2510.20 of this 

chapter. 

§ 2522.206 [Removed and Reserved] 

4. Remove and reserve § 2522.206. 

5. Revise § 2522.207 to read as 

follows: 

§ 2522.207 What are the procedures I must 

follow to determine an individual’s eligibility 

to serve in a covered position? 

In determining an individual’s 

eligibility to serve in a covered position, 

you must follow the procedures in part 

2540 of this title. 

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 To whom must I apply eligibility 

criteria relating to criminal history? 

You must apply eligibility criteria 

relating to criminal history to an 

individual applying for, or serving in, a 

position for which the individual 

receives a Corporation grant-funded 

living allowance, stipend, education 

award, or salary for participation in or 

employment by a program as defined in 

§ 2510.20 of this chapter. 

8. Revise § 2540.201 to read as 

follows: 

§ 2540.201 What eligibility criteria must I 

apply to a covered position in connection 

with the National Service Criminal History 

Check? 

In addition to eligibility criteria 

established by the program, an 

individual shall be ineligible to serve in 

a covered position if the individual— 

(a) Refuses to consent to a criminal 

registry check described in § 2540.202 of 


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39366 Federal Register / Vol. 76, No. 129 / Wednesday, July 6, 2011 / Proposed Rules 

this chapter or makes a false statement 

in connection with a grantee’s inquiry 

concerning the individual’s criminal 

history; 

(b) Is registered, or required to be 

registered, on a state sex offender 

registry or the National Sex Offender 

Registry; and 

(c) Has been convicted of murder, as 

defined in section 1111 of title 18, 

United States Code. 

9. Revise § 2540.202 to read as 

follows: 

§ 2540.202 What search components of 

the National Service Criminal History Check 

must I satisfy to determine an individual’s 

suitability to serve in a covered position? 

(a) In general. Unless the Corporation 

approves an alternative screening 

protocol under § 2540.206 of this 

chapter, 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: 

(1) State or FBI criminal registry 

search. 

(i) A search (by name or fingerprint) 

of the state criminal registry for 

(A) The state in which the program 

operates (for multi-state programs, the 

state where the individual will be 

primarily serving or working) and 

(B) The state in which the individual 

resides at the time of application; or 

(ii) Submitting fingerprints to the 

Federal Bureau of Investigation for a 

national criminal history background 

check; and 

(2) National Sex Offender Public 

Website. A name-based search of the 

Department of Justice (DOJ) National 

Sex Offender Public Website (NSOPW). 

(b) Special rule for individuals 

working with vulnerable populations. 

Unless the Corporation approves an 

alternative screening protocol under 

§ 2540.206, for each covered individual 

you hire or enroll on or after April 21, 

2011, who is age 18 or older and whose 

position will involve recurring access to 

vulnerable populations, in addition to 

an NSOPW check described in 

paragraph (a)(2) of this section, you 

must conduct both a state and 

nationwide FBI criminal registry search, 

consisting of— 

(1) A search (by name or fingerprint) 

of 

(A) The state criminal registry for the 

state in which your program operates 

and 

(B) The state in which the individual 

resides at the time of application; and 

(2) Submitting fingerprints to the 

Federal Bureau of Investigation for a 

national criminal history background 

check. 

10. Revise § 2540.203 to read as 

follows: 

§ 2540.203 When must I conduct a 

National Service Criminal History Check on 

an individual in a covered position? 

(a) New Staff and Participants. You 

must conduct a National Service 

Criminal History Check upon selection 

and before enrolling or hiring any new 

covered individual. You must review 

the results of the NSOPW prior to 

enrolling or hiring the covered 

individual. You may permit the covered 

individual to commence grant-funded 

work or service pending receipt of the 

state or FBI criminal registry check 

results so long as the individual is not 

permitted access to vulnerable 

populations without being accompanied 

by an appropriate individual, as 

described in § 2540.204(f) of this 

chapter. 

(b) Recurring Service. 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. 

11. Amend § 2540.204 by: 

a. Revising paragraph (f); and 

b. Adding a new paragraph (g). 

The revision and addition will read as 

follows: 

§ 2540.204 What procedures must I follow 

in conducting a National Service Criminal 

History Check for a covered position? 

* * * * * 

(f) Ensure that an individual, for 

whom the results of a required state or 

FBI 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: 

(1) An authorized program 

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 

nature of his or her profession to have 

recurring access to the vulnerable 

individual, such as an education or 

medical professional. 

(g) Unless specifically approved by 

the Corporation, a grantee may not 

charge an individual for the cost of any 

component of a National Service 

Criminal History Check. 

12. Revise § 2540.205(b) to read as 

follows: 

§ 2540.205 What documentation must I 

maintain regarding a National Service 

Criminal History Check for a covered 

position? 

* * * * * 

(b) Maintain the results of the NSOPW 

check, and the results or a summary of 

the results issued by a state or Federal 

government body of the state or FBI 

searches performed for each National 

Service Criminal History check (unless 

precluded by state law), and document 

in writing that an authorized program 

representative considered the results in 

selecting the individual. 

13. Revise § 2540.206 to read as 

follows: 

§ 2540.206 Under what circumstances may 

I follow alternative procedures in 

conducting a National Service Criminal 

History Check for a covered position? 

(a) In general. 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 

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, the 

criminal offenses listed in § 2540.208 of 

this chapter. 

(b) Alternative Procedures for 

Individuals With Recurring Access to 

Vulnerable Populations. The 

Corporation may exempt a program 

from conducting either the statewide 

and or FBI criminal history checks on 

covered individuals with recurring 

access to vulnerable populations, as 

described in § 2540.202 of this chapter, 

if the program demonstrates that: 

(1) The service provided by the 

individual serving with the entity to a 

vulnerable population is episodic in 

nature or for a 1-day period; 

(2) The cost to the program of 

complying with § 2540.202(b) of this 

chapter is prohibitive; 

(3) The program is not authorized, or 

is otherwise unable, under state or 

Federal law, to access the state registry 

or the national criminal history 

background check system of the FBI; or 

(4) The program cannot comply with 

§ 2540.202(b) of this chapter for good 

cause, as determined and approved by 

the Corporation. 

(c) Episodic Access. For the purposes 

of this section, an individual’s service to 

a vulnerable population is considered to 

be episodic in nature if the service is not 


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Federal Register / Vol. 76, No. 129 / Wednesday, July 6, 2011 / Proposed Rules 39367 

a regular, scheduled, and anticipated 

component of the individual’s position 

description. 

§ 2540.207 [Removed and reserved]. 

14. Remove and reserve § 2540.207. 

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 a new 

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 enroll in, or are hired by, your 

program after November 23, 2007, in 

accordance with the National Service 

Criminal History Check requirements in 

45 CFR §§ 2540.200–207. 

§§ 2551.26, 2551.27, 2551.28, 2551.29, 

2551.30, 2551.31, 2551.32 [Removed and 

Reserved]. 

17. Remove and reserve §§ 2551.26, 

2551.27, 2551.28, 2551.29, 2551.30, 

2551.31, 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. 

19. Amend § 2552.23 by adding a new 

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 enroll in, or are hired by, your 

program after November 23, 2007, in 

accordance with the National Service 

Criminal History Check requirements in 

45 CFR §§ 2540.200–207. 

§ 2552.26, 2552.27, 2552.28, 2552.29, 

2552.30, 2552.31, 2552.32 [Removed and 

Reserved] 

20. Remove and reserve § 2552.26, 

2552.27, 2552.28, 2552.29, 2552.30, 

2552.31, 2552.32. 

Dated: June 24, 2011. 

Valerie Green, 

General Counsel. 

[FR Doc. 2011–16509 Filed 7–5–11; 8:45 am] 

BILLING CODE 6050–28–P 

DEPARTMENT OF THE INTERIOR 

Fish and Wildlife Service 

50 CFR Part 21 

[Docket No. FWS–R9–MB–2011–0020; 

91200–1231–9BPP] 

RIN 1018–AX78 

Migratory Bird Permits; Changes in the 

Regulations Governing Raptor 

Propagation 

AGENCY: Fish and Wildlife Service, 

Interior. 

ACTION: Advance notice of proposed 

rulemaking. 

SUMMARY: We solicit recommendations 

on whether the bald eagle (Haliaeetus 

leucocephalus) and the golden eagle 

(Aquila chrysaetos) should be included 

among other raptors that may be 

propagated in captivity under Federal 

raptor propagation permits. 

DATES: We will accept comments 

received or postmarked by the end of 

the day on October 4, 2011. 

ADDRESSES: You may submit comments 

by either one of the following methods: 

• Federal eRulemaking Portal: http:// 

www.regulations.gov. Follow the 

instructions for submitting comments 

on Docket No. FWS–R9–MB–2011– 

0020. 

• U.S. mail or hand delivery: Public 

Comments Processing, Attention: FWS– 

R9–MB–2011–0020; Division of Policy 

and Directives Management; U.S. Fish 

and Wildlife Service; 4401 North Fairfax 

Drive, MS 2042–PDM; Arlington, VA 

22203–1610. 

We will not accept e-mail or faxes. We 

will post all comments on http:// 

www.regulations.gov. This generally 

means that we will post any personal 

information that you provide. See the 

Public Comments section below for 

more information. 

FOR FURTHER INFORMATION CONTACT: Dr. 

George T. Allen, 703–358–1825. 

SUPPLEMENTARY INFORMATION: 

Public Comments 

Propagation of bald eagles and golden 

eagles has not been allowed under the 

raptor propagation permit regulations at 

50 CFR 21.30. We are now considering 

whether to permit this activity. We 

request comments and suggestions on 

this topic from the public, other 

concerned governmental agencies, the 

scientific community, industry, and 

other interested parties. 

You may submit your comments and 

supporting materials only by one of the 

methods listed in the ADDRESSES

section. We will not consider comments 

sent by e-mail or fax, or written 

comments sent to an address other than 

the one listed in the ADDRESSES section. 

If you submit a comment via http:// 

www.regulations.gov, your entire 

comment—including any personal 

identifying information—will be posted 

on the Web site. If you submit a 

hardcopy comment that includes 

personal identifying information, you 

may request that we withhold this 

information from public review, but we 

cannot guarantee that we will be able to 

do so. We will post all hardcopy 

comments on http:// 

www.regulations.gov. 

Comments and materials we receive, 

as well as supporting documentation we 

used in preparing this proposed rule, 

will be available for public inspection at 

http://www.regulations.gov, or by 

appointment, during normal business 

hours, at the U.S. Fish and Wildlife 

Service (see FOR FURTHER INFORMATION

CONTACT). 

Background 

The U.S. Fish and Wildlife Service is 

the Federal agency with the primary 

responsibility for managing migratory 

birds. Our authority is based on the 

Migratory Bird Treaty Act (MBTA, 16 

U.S.C. 703 et seq.) and the Bald and 

Golden Eagle Protection Act (BGEPA, 16 

U.S.C. 668). Regulations governing the 

issuance of permits for bald eagles and 

golden eagles are in 50 CFR part 22 and 

certain sections of 50 CFR part 21. 

The MBTA allows the Secretary of the 

Interior to issue permits for take and 

possession of migratory birds for many 

purposes. The BGEPA allows bald 

eagles and golden eagles to be taken and 

possessed under more restricted 

circumstances. For example, only 

golden eagles that are depredating on 

livestock or wildlife may be taken from 

the wild by falconers, and bald eagles, 

no matter what their origin, cannot be 

held for falconry. Eagles may not be 

sold, purchased, or bartered under any 

circumstances, regardless of whether 

they are wild or captive-bred in origin. 

Bald and golden eagles are the only 

raptor species protected by the MBTA 

that are not allowed under the current 

raptor propagation permit regulations at 

50 CFR 21.30 because those regulations 

do not apply to these two species that 

are also protected under the Bald and 

Golden Eagle Protection Act (see 50 CFR 

21.2(b)). We are evaluating whether to 

amend the regulations to allow some 

holders of valid raptor propagation 

permits to propagate eagles as they can 

many other raptor species. Most eagles 

in captivity are held under permits for 

exhibition/education, eagle falconry, 

and Native American eagle aviaries. All 


jlentini on DSK4TPTVN1PROD with PROPOSALS