Federal Register / Vol. 88, No. 164 / Friday, August 25, 2023 / Proposed Rules 58167 

tilt the sieve at a 17- to 20-degree angle 

to help facilitate drainage. Allow the 

tuna to drain for 2 minutes, starting 

when the product is applied to the 

sieve. The sieve containing the drained 

tuna is then reweighed, after excess 

packing media is gently removed from 

the bottom of the sieve with a paper 

towel. The drained weight is calculated 

by subtracting the difference in the 

weights as follows: 

Final weight of sieve with tuna—Empty 

weight of sieve = Drained weight of 

tuna 

If the contents of the tuna container 

weigh less than 3 pounds (1.36 

kilograms), then a sieve with an 8-inch 

(20-centimeter) diameter must be used. 

If the contents of the tuna container 

weigh 3 pounds (1.36 kilograms) or 

more, then a sieve with a 12-inch (30- 

centimeter) diameter must be used. The 

bottom of the sieve has a woven-wire 

cloth mesh complying with the 

specifications set forth for the 2.80 mm 

(No. 7) sieve in the ‘‘Official Methods of 

AOAC INTERNATIONAL,’’ 22nd Ed. 

(2023), Table 1, ‘‘Nominal Dimensions 

of Standard Test Sieves (U.S.A. 

Standard Series),’’ under the heading 

‘‘Definitions of Terms and Explanatory 

Notes,’’ (incorporated by reference, see 

paragraph (d) of this section). 

(i) Determination of free flakes: If the 

optional form of tuna ingredient is solid 

pack, determine the percent of free 

flakes. Any flakes resulting from the 

drained weight procedure described in 

paragraph (c)(2) of this section are to be 

weighed as free flakes. Only fragments 

that were broken in the canning process 

are considered to be free flakes. Using 

a spatula, scrape free flakes gently from 

the outside of the drained tuna product. 

Weigh the aggregate free flakes that were 

broken from the loin segments in the 

canning process and calculate their 

percentage of the total drained weight. 

(ii) Determination of particle size: If 

the optional form of tuna ingredient is 

chunks, flakes, or grated, the drained 

tuna product resulting from the drained 

weight procedure described in 

paragraph (c)(2) of this section, is gently 

separated by hand, care being taken to 

avoid breaking the pieces. The separated 

pieces are evenly distributed over the 

top sieve of the screen separation 

equipment described in paragraph 

(c)(2)(iii) of this section. Beginning with 

the top sieve, lift and drop each sieve by 

its open edge three times. Each time, the 

open edge of the sieve is lifted the full 

distance permitted by the device. 

Combine and weigh the material 

remaining on the top three sieves (11⁄4- 

inch (or 37.5-millimeter), 1-inch (or 

25.0-millimeter), 1⁄2-inch (or 12.5- 

millimeter) meshes) and determine the 

combined percentage retention by 

weight in relation to the total drained 

weight. 

(iii) The sieving device referred to in 

paragraph (c)(2)(ii) of this section 

consists of three sieves, each 

approximately 1 foot square, loosely 

mounted, one above another, in a metal 

frame. The mesh in the top sieve 

complies with the specifications for 1 

1⁄4-inch (or 37.5-millimeter) woven-wire 

cloth mesh as prescribed in paragraph 

(a)(7) of this section. The meshes in the 

sieve below comply with similar 

specifications for 1-inch (or 25.0- 

millimeter) and 1⁄4-inch (or 12.5- 

millimeter) mesh as set forth in AOAC 

Official Methods, Table 1, ‘‘Nominal 

Dimensions of Standard Test Sieves 

(U.S.A. Standard Series)’’ (incorporated 

by reference, see paragraph (d) of this 

section). The sides of each sieve are 

formed, in a raised rim, from 3⁄4-inch (or 

1.9-centimeters) × 1⁄8-inch (or 0.3- 

centimeter) metal strap. The frame has 

tracks made of 3⁄8-inch (or 1.0- 

centimeter) angle metal to support each 

sieve under each side. The tracks are 

positioned to permit each sieve a free 

vertical travel of 13⁄4-inches (or 4.4- 

centimeters). 

(3) If canned tuna falls below the 

applicable standard of fill of container 

prescribed in paragraph (c)(1) of this 

section, the label must bear the general 

statement of substandard fill per 

§ 130.14(b) of this chapter. 

(d) Incorporation by reference. Table 

1, Nominal Dimensions of Standard Test 

Sieves (U.S.A. Standard Series), 

Definitions of Terms and Explanatory 

Notes, Official Methods of Analysis of 

AOAC INTERNATIONAL, 22nd Ed., 

2023 is incorporated by reference into 

this section with the approval of the 

Director of the Federal Register under 5 

U.S.C. 552(a) and 1 CFR part 51. This 

incorporation by reference (IBR) 

material is available for inspection at 

the Food and Drug Administration 

(FDA) and at the National Archives and 

Records Administration (NARA). 

Contact FDA’s Dockets Management 

Staff, 5630 Fishers Lane, Rm. 1061, 

Rockville, MD 20852, 240–402–7500. 

For information on the availability of 

this material at NARA, visit 

www.archives.gov/federal-register/cfr/ 

ibr-locations.html or email 

fr.inspection@nara.gov. The material 

may be obtained from AOAC 

INTERNATIONAL, 2275 Research 

Blvd., Suite 300, Rockville, MD 20850– 

3250; 1–800–379–2622. 

Dated: August 14, 2023. 

Robert M. Califf, 

Commissioner of Food and Drugs. 

[FR Doc. 2023–17916 Filed 8–24–23; 8:45 am] 

BILLING CODE 4164–01–P 

DEPARTMENT OF JUSTICE 

Federal Bureau of Investigation 

28 CFR Part 105 

[Docket No. FBI–154; AG Order No. 5736– 

2023] 

RIN 1110–AA33 

Child Protection Improvements Act 

Criteria for Designated Entity 

Determinations 

AGENCY: Federal Bureau of 

Investigation, Department of Justice. 

ACTION: Notice of proposed rulemaking. 

SUMMARY: The Department of Justice is 

proposing to promulgate regulations 

(‘‘proposed rule’’ or ‘‘rule’’) concerning 

the Child Protection Improvements Act 

of 2018 (‘‘CPIA’’). The CPIA provides a 

means by which authorized qualified 

entities can have access to national 

criminal history background checks for 

determinations of whether covered 

individuals have been convicted of, or 

are under pending indictment for, a 

crime that bears upon their fitness to 

have responsibility for the safety and 

well-being of children, the elderly, or 

individuals with disabilities. As 

required by the CPIA, these proposed 

regulations would establish the criteria 

to be utilized by an entity designated by 

the Federal Bureau of Investigation (FBI) 

to make these determinations. 

DATES: Written comments must be 

postmarked and electronic comments 

must be submitted on or before 

September 25, 2023. Commenters 

should be aware that the electronic 

Federal Docket Management System 

will not accept comments after 11:59 

p.m. eastern time on the last day of the 

comment period. 

ADDRESSES: You may review this 

proposed rule on https://

www.regulations.gov and use the 

electronic comment form for these 

regulations to submit your comments. 

Submit written comments by U.S. Postal 

Service or other commercial delivery 

services, addressing them to FBI, CPIA 

Comments, Attention, Betsy C. Taylor, 

Office of the General Counsel (OGC), 

FBI Criminal Justice Information 

Services (CJIS) Division, 1000 Custer 

Hollow Road, Module C3, Clarksburg, 

West Virginia 26306. 


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1See U.S. Dep’t of Justice, Office of Legislative 

Affairs, Interim Report on the Feasibility of 

Performing Fingerprint-Based Criminal History 

Background Checks on Individuals That Participate 

in National Service Programs 27–30 (2009). 

FOR FURTHER INFORMATION CONTACT: 

Betsy C. Taylor, Assistant General 

Counsel, OGC, FBI CJIS Division, 1000 

Custer Hollow Road, Module C3, 

Clarksburg, West Virginia 26306; 

Telephone: (304) 625–5429. (Note: This 

is not a toll-free number). 

SUPPLEMENTARY INFORMATION: 

Electronic Access and Filing 

Electronic comments are preferred. 

For comments sent via U.S. Postal 

Service or other commercial delivery, 

please do not submit duplicate 

electronic comments. Please confine 

comments to the proposed rule. All 

submissions received must include the 

agency name (FBI) and docket number 

or RIN for this Federal Register 

document. The general policy for 

comments and other submissions from 

members of the public is to make these 

submissions available for public 

viewing on the internet at https://

www.regulations.gov as they are 

received, without change, including any 

personal identifiers or contact 

information. It is recommended that 

your comments not include any 

personal information such as social 

security numbers or medical 

information. 

Background 

The CPIA, enacted as part of the 

Consolidated Appropriations Act, 2018 

(Pub. L. 115–141) amended the National 

Child Protection Act/Volunteers for 

Children Act (‘‘NCPA/VCA’’) (34 U.S.C. 

40101 et seq.). The CPIA requires the 

Attorney General to establish a national 

program (the ‘‘CPIA Program’’) to 

provide qualified entities in States that 

do not have procedures in place to 

utilize the NCPA/VCA, or in States that 

do not prohibit the use of the CPIA 

Program, with access to national 

criminal history background checks on, 

and criminal history reviews of, covered 

individuals. 34 U.S.C. 40102(a)(3)(A). 

Under the CPIA, the FBI conducts 

fingerprint-based national criminal 

history background checks on covered 

individuals upon request of a 

designated entity and provides the 

resulting information to the designated 

entity. Reviewing that information, the 

designated entity determines whether 

the individual has been convicted of, or 

is under pending indictment for, a crime 

bearing on the individual’s fitness to 

have responsibility for the safety and 

well-being of children, the elderly, or 

individuals with disabilities. The 

designated entity then informs the 

qualified entity—such as an employer or 

volunteer organization providing care 

for children, the elderly, or individuals 

with disabilities—whether the 

designated entity’s review has 

determined that the covered 

individual’s criminal history includes a 

conviction or pending indictment for a 

crime bearing on fitness listed in 

§ 105.34 of the proposed rule. 34 U.S.C. 

40102(a)(3), (b)(4), (f)(1). 

Invoking the processes described in 

this proposed rule would not be 

mandatory. Rather, the rule will provide 

a means for a qualified entity in a State 

that does not have procedures to utilize 

the NCPA/VCA or that does not prohibit 

the CPIA Program to obtain national 

criminal history background checks of 

covered individuals. The choice 

whether to invoke the rule’s procedures 

will be left to the discretion of the 

qualified entities, subject to any other 

applicable legal requirements. 

Crimes Bearing on Fitness 

The CPIA requires the Attorney 

General to establish by rule the criteria 

for designated entities to use in making 

the determination bearing on fitness for 

covered individuals. 34 U.S.C. 

40102(f)(2)(C). The criminal history 

review criteria must be based on the 

criteria established pursuant to section 

108(a)(3)(G)(i) of the PROTECT Act, 

Public Law 108–21 (34 U.S.C. 40102 

note) and section 658H of the Child Care 

and Development Block Grant Act 

(‘‘CCDBGA’’) of 1990 (42 U.S.C. 9858f). 

A pilot project established by the 

PROTECT Act required that the 

National Center for Missing and 

Exploited Children (‘‘NCMEC’’) make a 

determination whether criminal history 

record information received in response 

to a criminal history background check 

indicated that a provider or volunteer 

had a criminal history that rendered the 

individual unfit to provide care to 

children, based upon criteria 

established jointly by the NCMEC and 

three designated nonprofit 

organizations—the Boys and Girls Clubs 

of America, the National Mentoring 

Partnership, and the National Council of 

Youth Sports. The resulting criteria 

established pursuant to the PROTECT 

Act provided that anyone who had been 

convicted or was under pending 

indictment for any of the following 

offenses would be considered unfit to 

provide care to children: (1) all felonies, 

(2) any lesser crime of which sexual 

relations is an element (including 

pornography); (3) any lesser crime 

involving cruelty to animals, (4) any 

lesser crime involving controlled 

substances, including Driving Under the 

Influence that may involve drugs; and 

(5) any lesser crime involving force or 

threat of force against a person.1

The CCDBGA provides that a child 

care staff member shall be ineligible for 

employment by a child care provider 

receiving certain federal assistance if 

such individual: 

(A) refuses to consent to the criminal 

background check; 

(B) knowingly makes a materially 

false statement in connection with such 

criminal background check; 

(C) is registered, or is required to be 

registered, on a State sex offender 

registry or repository or the National 

Sex Offender Registry established under 

the Adam Walsh Child Protection and 

Safety Act of 2006; 

(D) has been convicted of a felony 

consisting of: 

(1) murder, as described in 18 U.S.C. 

1111; 

(2) child abuse or neglect; 

(3) a crime against children, including 

child pornography; 

(4) spousal abuse; 

(5) a crime involving rape or sexual 

assault; 

(6) kidnapping; 

(7) arson; 

(8) physical assault or battery; or 

(9) a drug-related offense committed 

during the preceding five years; or 

(E) has been convicted of a violent 

misdemeanor committed as an adult 

against a child, including the following 

crimes: 

(1) child abuse; 

(2) child endangerment; 

(3) sexual assault; or 

(4) a misdemeanor involving child 

pornography. 

See 42 U.S.C. 9858f(c)(1). In addition, 

under the CCDBGA, a State may allow 

for a review process through which the 

State may determine that a child care 

staff member, including a prospective 

child care staff member, disqualified for 

a drug-related offense committed during 

the preceding five years is eligible for 

employment. See 42 U.S.C. 9858f(e)(4). 

The CPIA differs from the PROTECT 

Act pilot program and the CCDBGA in 

that it does not declare covered 

individuals to be unfit or ineligible to 

care for children, the elderly, or 

individuals with disabilities and does 

not limit the discretion of qualified 

entities as to who they will employ or 

allow to participate in their activities. 

Rather, it provides a mechanism by 

which qualified entities may obtain 

from the designated entity a 

determination whether a covered 


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individual has a conviction or is under 

pending indictment for a crime bearing 

on the covered individual’s fitness to 

have responsibility for the safety and 

well-being of children, the elderly, or 

individuals with disabilities. The CPIA 

leaves it to the qualified entities 

themselves to decide what effect they 

will give to that determination. 

Designated Entities 

Pursuant to the CPIA, the Attorney 

General is required to designate one or 

more non-federal entities to make the 

determinations bearing on fitness. 34 

U.S.C. 40102(f)(2)(A). These designated 

entities will be authorized to provide 

national criminal history background 

checks for qualified entities in States 

that do not have procedures in place to 

utilize the NCPA/VCA, or in States that 

do not prohibit the use of the CPIA 

Program. The FBI will issue a Request 

for Proposal (‘‘RFP’’) to select those to 

serve as designated entities under the 

CPIA Program. As noted above, 

participation in the CPIA Program by 

qualified entities is voluntary, and they 

are not required to conduct checks of 

their covered individuals using these 

designated entities. 

The FBI collects user fees for the 

fingerprint-based criminal history 

record information checks it conducts in 

compliance with Public Law 101–515 

(now codified at 34 U.S.C. 41104). The 

FBI’s user fees are set out in a fee 

schedule routinely published in the 

Federal Register. In accordance with 28 

CFR 20.31(e)(1), the FBI reviews its fee 

schedule at least every four years to 

determine the current cost of processing 

fingerprint identification records for 

noncriminal justice purposes. The FBI’s 

user fee schedule provides for a 

reduction in the rate it charges for 

checks of volunteers serving vulnerable 

populations, such as volunteers who 

will be covered under the CPIA 

Program. As published in the Federal 

Register, the current cost for processing 

the FBI fingerprint check is $13.25 for 

employees and $11.25 for volunteers. 

See 87 FR 47794 (Aug. 4, 2022). 

In accordance with the CPIA, 

designated entities will be required to 

adopt a fee schedule for providing their 

national criminal history background 

checks and criminal history reviews. 

See generally 34 U.S.C. 40102(e). These 

designated entities also are required by 

the CPIA to remit to the FBI its portion 

of that fee. Id. 40102(e)(2). The CPIA 

provides that fees collected by a 

designated entity must be set at a level 

that will ensure the recovery of the full 

costs of providing their services. Id. 

However, the CPIA also requires that the 

fees set by designated entities must be 

established in a manner that ensures 

that volunteers will not be discouraged 

from participating in programs to care 

for children, the elderly, or individuals 

with disabilities. Id. 40102(e)(3). In 

addition, the CPIA requires that a fee 

charged to a qualified entity that is not 

organized under section 501(c)(3) of the 

Internal Revenue Code of 1986 may not 

be less than the total sum of the costs 

of the FBI and the designated entity. Id. 

As part of the evaluation criteria in 

the RFP, a prospective designated entity 

will be required to provide information 

on the methodology it will use to 

determine the ‘‘full costs’’ of providing 

the services, how their fee structure will 

not discourage volunteers, and the profit 

margin, if any, to be collected for 

providing these services. This 

information will be considered by the 

FBI in evaluating and making decisions 

regarding prospective designated 

entities for participation in the CPIA 

Program. 

Discussion 

Crimes Bearing on Fitness 

As noted above, 34 U.S.C. 

40102(f)(2)(C) requires the Attorney 

General to establish by rule the 

criteria—based on the criteria used in a 

PROTECT Act pilot program and the 

CCDBGA—for designated entities to use 

under the CPIA in determining whether 

a covered individual’s criminal history 

includes a crime bearing on the 

individual’s fitness to have 

responsibility for the safety and wellbeing of children, the elderly, or 

individuals with disabilities. The 

PROTECT Act criteria, described earlier 

in this preamble, are in some respects 

most suitable as a model for crimes 

bearing on fitness under the CPIA 

because of their greater generality. For 

example, since the PROTECT Act 

criteria include all felonies, there is no 

need to enumerate the CCDBGA’s 

particular covered felonies, 42 U.S.C. 

9858f(c)(1)(D). However, certain features 

of the CCDBGA are helpful in defining 

the relevant offenses, including the 

CCDBGA’s greater explicitness 

regarding sex offenses and offenses 

involving abuse, neglect, or 

endangerment. In addition, both the 

PROTECT Act criteria and the CCDBGA 

criteria require some adaptation for 

purposes of the CPIA, because the CPIA 

relates to qualified entities serving the 

elderly and individuals with 

disabilities, as well as child-serving 

entities. 

The relevant crimes under the CPIA 

that bear upon the covered individual’s 

fitness to have responsibility for the 

safety and well-being of children, the 

elderly, or individuals with disabilities 

are set forth in § 105.34 of the proposed 

regulation. Those crimes are as follows: 

Section 105.34(1) refers to ‘‘[a]ny 

felony.’’ This is the same as the first 

PROTECT Act category. 

Section 105.34(2) refers to crimes 

involving abuse, neglect, or 

endangerment of children, the elderly, 

or individuals with disabilities. This is 

similar to the CCDBGA’s coverage of 

offenses of child abuse, neglect, or 

endangerment, see 42 U.S.C. 

9858f(c)(1)(D)(ii) and (E), with the 

necessary addition of such crimes 

directed against the elderly or 

individuals with disabilities for 

purposes of the CPIA. 

Section 105.34(3) refers to crimes 

involving the use, or attempted or 

threatened use, of force against a person. 

This parallels the fifth category under 

the PROTECT Act pilot program. 

Section 105.34(4) refers to crimes 

involving sexual abuse, assault, or 

exploitation, including child 

pornography crimes. This is similar to 

the second category under the 

PROTECT Act pilot program, and to 

CCDBGA provisions appearing in 42 

U.S.C. 9858f(c)(1)(D)(iii), (v), (E). 

Section 105.34(5) refers to crimes on 

the basis of which the covered 

individual is registered, or is required to 

be registered, in the sex offender registry 

of a jurisdiction, or is included in the 

National Sex Offender Registry. This 

parallels the CCDBGA provision in 42 

U.S.C. 9858f(c)(1)(C). 

Section 105.34(6) refers to crimes 

involving cruelty to animals, parallel to 

the third PROTECT Act category. 

Section 105.34(7) refers to crimes 

involving controlled substances, 

including impaired driving offenses 

involving drugs, which is similar to the 

fourth PROTECT Act category, and to 

the CCDBGA provision in 42 U.S.C. 

9858f(c)(1)(D)(ix). 

The proposed rule provides that after 

a designated entity evaluates a covered 

individual using the CPIA criteria, one 

of three determinations is to be returned 

to the qualified entity under the CPIA 

Program: (1) the covered individual has 

a conviction or is under pending 

indictment for a crime bearing on fitness 

listed in § 105.34, (2) the covered 

individual does not have a conviction 

and is not under pending indictment for 

a crime bearing on fitness listed in 

§ 105.34, or (3) the covered individual 

may have a conviction for a crime 

bearing on fitness listed in § 105.34. A 

determination that a covered individual 

‘‘may have a conviction’’ should be 

returned by the designated entity if the 

disposition is missing from an arrest for 

a crime listed in § 105.34. The ‘‘may 


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have a conviction’’ determination 

should be returned only after the 

designated entity has conducted 

research to try to locate relevant missing 

disposition data. The FBI notes that a 

designated entity’s determination that a 

covered individual ‘‘has,’’ ‘‘does not 

have,’’ or ‘‘may have’’ a conviction or 

pending indictment for a crime bearing 

on fitness pertains to the national 

criminal history background check 

information received from the FBI as 

part of the CPIA Program. A qualified 

entity is not prohibited from denying a 

covered individual an employment or 

volunteer position based on other 

evaluation criteria. 

Requests for a National Criminal History 

Background Check 

As noted above, the authorized 

qualified entities themselves will decide 

whether to invoke the procedures of this 

proposed rule in order to obtain a 

criminal history background check on 

their covered individuals regarding care 

for children, the elderly, or individuals 

with disabilities. The following 

discussion explains the intended 

process where a qualified entity is 

seeking such a criminal history 

background check pursuant to the CPIA. 

Under 34 U.S.C. 40102(b), a covered 

individual must provide to a qualified 

entity located in a State a set of 

fingerprints and complete and sign a 

statement as part of a request for a 

national criminal history background 

check, including an attestation that the 

covered individual has not been 

convicted of any crime or, if the covered 

individual has been convicted of a 

crime, a description of the crime and the 

particulars of the conviction. In 

addition, covered individuals must be 

informed by the qualified entity of the 

covered individual’s right to obtain a 

copy of any background check report by 

the designated entity and the process by 

which a covered individual may appeal 

those results. The statement provided by 

the qualified entity must also notify the 

covered individual that the qualified 

entity may elect to deny them access to 

a person to whom the qualified entity 

provides care prior to the completion of 

their background check. As noted above, 

a qualified entity also may deny a 

covered individual access to a person to 

whom the qualified entity provides care 

at any time based on other evaluation 

criteria. The designated entity must also 

have in effect procedures to ensure that 

the covered individual is notified of 

their right to obtain a copy of their 

national criminal history background 

check report and given notice of the 

opportunity to appeal and instructions 

on how to complete the appeals process, 

if the covered individual wishes to 

challenge the accuracy or completeness 

of the information contained in the 

background check report. 

The FBI is publishing this NPRM to 

allow interested parties the opportunity 

to provide comments concerning the 

criteria bearing on fitness to be 

established under the CPIA and the 

procedures for requesting and obtaining 

the results of criminal history 

background checks from a designated 

entity. 

Technical Corrections 

Finally, the FBI is proposing to 

update and correct the authority 

citations in part 105. 

Regulatory Certifications 

Executive Orders 12866 and 13563 

Executive Orders 12866 (Regulatory 

Planning and Review) and 13563 

(Improving Regulation and Regulatory 

Review) direct agencies to assess the 

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, 

distributive impacts, and equity). 

Executive Order 13563 emphasizes the 

importance of quantifying both costs 

and benefits, reducing costs, 

harmonizing rules, and promoting 

flexibility. 

This proposed rule has been drafted 

and reviewed in accordance with 

Executive Order 12866, section 1(b), 

Principles of Regulation. The Office of 

Management and Budget (OMB) has 

determined that this rule is a significant 

regulatory action under section 3(f) of 

Executive Order 12866, and 

accordingly, this rule has been reviewed 

by the OMB. The current cost of 

conducting the FBI fingerprint check, as 

published in the Federal Register (83 

FR 48335) is $13.25 for employees and 

$11.25 for volunteers. The exact impact 

of the proposed regulations on covered 

individuals and qualified entities 

cannot be calculated due to uncertainty 

concerning the number of designated 

entities that will be participating in the 

CPIA Program; the number of qualified 

entities that will choose to submit 

fingerprint-based background checks 

through the CPIA Program; the 

geographic locations of the designated 

entities and the qualified entities; 

associated costs by the designated entity 

in establishing a connection to the FBI 

for the electronic submission of the 

fingerprints and receipt of criminal 

history record information; and the 

number of background check reports on 

covered individuals lacking disposition 

data for which the designated entity 

must research. However, because the 

designated entities are required by the 

CPIA to recoup their full costs, they are 

not expected to incur any net costs. 

This rule will not have an annual 

effect on the economy of $100 million, 

nor will it adversely affect in a material 

way the economy, a sector of the 

economy, productivity, competition, 

jobs, the environment, public health or 

safety, or State, local or tribal 

governments or communities. 

Accordingly, this rule is not an 

economically significant rulemaking as 

defined by Executive Order 12866. 

Although this rule is a significant 

regulatory action under Executive Order 

12866, the fees for providing 

determinations will be set by the 

designated entities themselves, under 

the standards of the CPIA, and they will 

be collecting those fees for providing a 

service under the CPIA. There is no 

change in the fees being charged by the 

FBI. 

Executive Order 13132—Federalism 

This proposed rule will not have a 

substantial, direct effect on the States, 

on the relationship between the national 

government and the States, or on the 

distribution of power and 

responsibilities among the various 

levels of government. Therefore, in 

accordance with Executive Order 13132, 

it is determined that this proposed rule 

does not have sufficient federalism 

implications to warrant the preparation 

of a Federalism Assessment. 

Executive Order 12988—Civil Justice 

Reform 

This proposed rule meets the 

applicable standards set forth in 

sections 3(a) and 3(b)(2) of Executive 

Order 12988. 

Regulatory Flexibility Act 

The Department, in accordance with 

the Regulatory Flexibility Act, 5 U.S.C. 

605(b), has reviewed this proposed rule 

and, by approving it, certifies that this 

rule will not have a significant 

economic impact on a substantial 

number of small entities. The FBI 

charges a user fee in compliance with 

Public Law 101–515. This proposed rule 

imposes minimal costs on businesses, 

organizations, or governmental 

jurisdictions (whether large or small) 

because the submission of fingerprints 

for these national criminal background 

checks is voluntary on the part of the 

qualified entities. Additionally, any 

costs that may be borne by the current 

or prospective employee or volunteer 


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with the qualified entity is not expected 

to have a significant economic impact. 

Unfunded Mandates Reform Act of 1995 

This proposed rule does not contain 

a mandate that will result in the 

expenditure by State, local, and tribal 

governments, in the aggregate, or by the 

private sector, of $100 million or more 

in any one year, and it will not 

significantly or uniquely affect small 

governments. Further, the statute 

authorizes a designated entity through 

this Federal program to recover only the 

full costs of providing such services, 

and the fee system to be established is 

to ensure that fees to qualified entities 

do not discourage volunteers from 

participating in programs to care for 

children, the elderly, or individuals 

with disabilities. Finally, fees to 

qualified entities not organized under 

section 501(c)(3) of title 26 may not be 

less than the total sum of the costs of the 

FBI and the designated entity. 

Therefore, no action was deemed 

necessary under the provisions of the 

Unfunded Mandates Reform Act of 

1995. 

Congressional Review Act 

This proposed rule is not a major rule 

as defined by the Congressional Review 

Act, 5 U.S.C. 804. This proposed rule 

will not result in an annual effect on the 

U.S. economy of $100 million or more; 

a major increase in costs or prices; or 

have significant adverse effects on 

competition, employment, investment, 

productivity, innovation, or on the 

ability of U.S.-based companies to 

compete with foreign-based companies 

in domestic and export markets. 

Paperwork Reduction Act of 1995 

The proposed rule does not contain 

collection of information requirements. 

Therefore, clearance by the OMB under 

the Paperwork Reduction Act, 44 U.S.C. 

3501 et seq., is not required. Of note, 

information collection associated with 

the Civil Applicant Fingerprint Card has 

been approved by the OMB for review 

under the provisions of the Paperwork 

Reduction Act of 1995 (44 U.S.C. 

3507(d)). The OMB Control Number for 

this collection is 1110–0046. 

List of Subjects in 28 CFR Part 105 

Administrative practice and 

procedure, Law enforcement, Privacy. 

Accordingly, for the reasons set forth 

in the preamble, 28 CFR part 105 is 

proposed to be amended as follows: 

PART 105—CRIMINAL HISTORY 

BACKGROUND CHECKS 

■ 1. The authority citation for part 105 

is revised to read as follows: 

Authority: Section 113 of Pub. L. 107–71, 

115 Stat. 622 (49 U.S.C. 44939); Section 6402 

of Pub. L. 108–458, title VI, 118 Stat. 3755 

(28 U.S.C. 534 note; editorially reclassified as 

34 U.S.C. 41106); Division S, Title I, Section 

101 of Pub. L. 115–141, 132 Stat. 1123 (34 

U.S.C. 40101 et seq.) 

■ 2. In subpart B, add an authority 

citation to read as follows: 

Authority: Section 113 of Pub. L. 107–71, 

115 Stat. 622 (49 U.S.C. 44939). 

■ 3. Revise the authority citation in 

subpart C to read as follows: 

Authority: Section 6402 of Pub. L. 108– 

458, title VI, 118 Stat. 3755 (28 U.S.C. 534 

note; editorially reclassified as 34 U.S.C. 

41106). 

■ 4. Add a new subpart D to read as 

follows: 

Subpart D—Child Protection 

Improvements Act Criteria for 

Designated Entity Determinations 

Sec. 

105.31 Definitions. 

105.32 Request by a qualified entity for a 

national criminal history background 

check. 

105.33 Receipt by a designated entity of a 

request from a qualified entity. 

105.34 Crimes bearing on fitness. 

105.35 Criminal history lacking disposition 

data. 

105.36 Determination by a designated 

entity. 

105.37 Rights of a covered individual. 

105.38 Collection of fees. 

Authority: Child Protection Improvements 

Act (Division S, Title I, Section 101 of Pub. 

L. 115–141, 132 Stat. 1123 (34 U.S.C. 40101 

et seq.)). 

§ 105.31 Definitions. 

Authorized agency means a division 

or office of a State designated by a State 

to report, receive, or disseminate 

information under the CPIA. 

Care means the provision of care, 

treatment, education, training, 

instruction, supervision, or recreation to 

children, the elderly, or individuals 

with disabilities. 

Child means a person who is a child 

for purposes of the criminal child abuse 

law of a State. 

Covered individual means an 

individual— 

(1) Who has, seeks to have, or may 

have access to children, the elderly, or 

individuals with disabilities, served by 

a qualified entity; and 

(2) Who— 

(i) Is employed by or volunteers with, 

or seeks to be employed by or volunteer 

with, a qualified entity, or 

(ii) Owns or operates, or seeks to own 

or operate, a qualified entity. 

CPIA means the Child Protection 

Improvements Act of 2018, enacted as 

part of the Consolidated Appropriations 

Act, 2018 (Pub. L. 115–141), which 

amended the National Child Protection 

Act/Volunteers for Children Act (NCPA/ 

VCA) (34 U.S.C. 40101 et seq.). 

CPIA Program means the program 

established by the Federal Bureau of 

Investigation (FBI) that implements the 

CPIA under this subpart D. 

Designated entity means an entity 

designated to conduct determinations 

under the authority of 34 U.S.C. 

40102(f)(2)(A), through an agreement 

with the FBI. 

Individuals with disabilities means 

persons with mental or physical 

impairment who require assistance to 

perform one or more daily living tasks. 

National criminal history background 

check system means the criminal history 

record system maintained by the FBI 

based on fingerprint identification or 

any other approved method of positive 

identification. 

Qualified entity means a business or 

organization, whether public, private, 

for-profit, not-for-profit, or voluntary, 

that provides care or care placement 

services, including a business or 

organization that licenses or certifies 

others to provide care or care placement 

services. 

State means a State, the District of 

Columbia, the Commonwealth of Puerto 

Rico, American Samoa, the U.S. Virgin 

Islands, Guam, and the Commonwealth 

of the Northern Mariana Islands. 

§ 105.32 Request by a qualified entity for 

a national criminal history background 

check. 

(a) Qualified entities located in States 

that do not have in effect procedures 

described in 34 U.S.C. 40102(a)(1), or 

qualified entities located in States that 

do not prohibit the use of the program 

established under the CPIA, may be 

provided access to national criminal 

history background checks on, and 

criminal history reviews of, covered 

individuals through a designated entity 

under an agreement with the FBI. 

(b) After approval by the designated 

entity for participation in the CPIA 

Program, each participating qualified 

entity will determine which covered 

individuals will be subject to the 

background check. The covered 

individual must provide a complete set 

of fingerprints to the qualified entity. 

The covered individual also must 

provide a signed statement to the 

qualified entity containing the 

following: 


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(1) The name, address, and date of 

birth appearing on a valid identification 

document (as defined in 18 U.S.C. 1028) 

of the covered individual; 

(2) An attestation that the covered 

individual has not been convicted of a 

crime and, if the covered individual has 

been convicted of a crime, a description 

of the crime and the particulars of the 

conviction; 

(3) The statement must notify the 

covered individual that the qualified 

entity may request a national criminal 

history background check; 

(4) The statement must notify the 

covered individual of his or her right to 

obtain a copy of any background check 

report, to challenge the accuracy or 

completeness of the information 

contained in any such report, and to 

obtain a prompt determination as to the 

validity of such challenge before a final 

determination is made by the designated 

entity as provided in § 105.37; and 

(5) The statement must also notify the 

covered individual that prior to the 

completion of the background check the 

qualified entity may choose to deny the 

covered individual access to a person to 

whom the qualified entity provides care. 

(c) Based upon the qualified entity’s 

determination that the requirements 

under the CPIA are met, a qualified 

entity may submit to the appropriate 

designated entity a request, to include 

the fingerprints of the covered 

individual, for a national criminal 

history background check on, and a 

criminal history review of, a covered 

individual. 

§ 105.33 Receipt by a designated entity of 

a request from a qualified entity. 

(a) An entity will be authorized as a 

designated entity through an agreement 

with the FBI. This agreement will 

specify the respective responsibilities of 

the designated entity and the FBI, 

including that the designated entity’s 

employees receive a fingerprint-based 

national criminal history background 

check in a manner determined by the 

FBI, prior to access to criminal history 

record information. 

(b) The designated entity will 

determine if a business or organization, 

whether public, private, for-profit, notfor-profit, or voluntary, meets the 

definition of a qualified entity. 

(c) The designated entity will 

determine if a qualified entity is located 

in a State that does not have in effect 

procedures requiring qualified entities 

to contact an authorized agency of the 

State for a nationwide background 

check or if the State does not prohibit 

the use of the national program 

established under the CPIA, prior to 

providing access to a national criminal 

history background check on, and 

criminal history reviews of, covered 

individuals. A State that does not 

prohibit the use of the national program 

established under the CPIA is a State 

that does not have a statute or regulation 

prohibiting a national criminal history 

background check of a covered 

individual or a State that has 

determined it has procedures in place in 

statute or regulation but is unable to 

accommodate the qualified entity’s 

request for a national criminal history 

background check. 

(d) The designated entity national 

program established under the CPIA 

also may not be used if a Federal law 

requires use of a Federal national 

criminal history background check 

program. 

(e) Upon receipt of an authorized 

qualified entity request, a designated 

entity shall forward the request to the 

FBI and the FBI shall complete a 

fingerprint-based check of its national 

criminal history background check 

system and provide the information 

received in response to the request to 

the appropriate designated entity. 

(f) The FBI fingerprint-based check of 

its national criminal history record 

system will provide outreach to States 

that support record requests for 

employment and licensing purposes and 

will return State criminal history record 

information from the respective State 

criminal history database. Upon a 

request from a qualified entity, the 

designated entity may conduct a 

separate check of a State criminal 

history database. The request for a State 

check should be submitted by the 

designated entity to the appropriate 

State according to the applicable 

procedures of that State. 

§ 105.34 Crimes bearing on fitness. 

Upon receipt of the criminal history 

record information, the designated 

entity shall make a determination 

whether the covered individual has 

been convicted of, or is under pending 

indictment for, a crime that bears upon 

the covered individual’s fitness to have 

responsibility for the safety and wellbeing of children, the elderly, or 

individuals with disabilities. The crimes 

that bear on a covered individual’s 

fitness are: 

(a) Any felony. 

(b) Any crime involving abuse, 

neglect, or endangerment of a child, an 

elderly individual, or an individual 

with a disability. 

(c) Any crime involving the use, or 

attempted or threatened use, of force 

against a person. 

(d) Any crime involving sexual abuse, 

assault, or exploitation, including any 

crime involving child pornography. 

(e) Any crime on the basis of which 

the covered individual is registered, or 

is required to be registered, in the sex 

offender registry of a jurisdiction, or is 

included in the National Sex Offender 

Registry established by 34 U.S.C. 

20921(a). 

(f) Any crime involving cruelty to an 

animal. 

(g) Any crime involving a controlled 

substance, including any impaired 

driving offense involving a controlled 

substance. 

§ 105.35 Criminal history lacking 

disposition data. 

Upon the designated entity’s receipt 

of criminal history record information 

from the FBI regarding an arrest for a 

crime bearing on fitness described in 

§ 105.34 that is lacking disposition data, 

the designated entity shall conduct 

research in whatever Federal, State, or 

local recordkeeping systems are 

available to obtain complete data. The 

designated entity also should provide 

any source documentation containing 

missing disposition data it obtains from 

criminal justice or law enforcement 

agencies to the FBI so that the FBI may 

update or forward to the State 

Identification Bureaus for appropriate 

updating. 

§ 105.36 Determination by a designated 

entity. 

(a) The designated entity shall issue 

one of the following determinations to 

the qualified entity with respect to a 

covered individual: 

(1) The covered individual has a 

conviction or is under pending 

indictment for a crime bearing on fitness 

listed in § 105.34; 

(2) The covered individual does not 

have a conviction and is not under 

pending indictment for a crime bearing 

on fitness listed in § 105.34; or 

(3) The covered individual may have 

a conviction for a crime bearing on 

fitness listed in § 105.34. 

(b) The designated entity shall return 

a determination that the covered 

individual may have a conviction if the 

covered individual has been arrested for 

a crime bearing on fitness listed in 

§ 105.34 but the disposition information 

is missing, and there is no other 

conviction or pending indictment for a 

crime bearing on fitness listed in 

§ 105.34 in the covered individual’s 

criminal history record information. The 

‘‘may have a conviction’’ determination 

shall be returned after the designated 

entity conducts its research to try to 

locate relevant missing disposition data 

as required in § 105.35. 


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Federal Register / Vol. 88, No. 164 / Friday, August 25, 2023 / Proposed Rules 58173 

(c) The criminal history record 

information provided from the FBI to 

the designated entity shall not be 

provided to the qualified entity. 

§ 105.37 Rights of a covered individual. 

(a) Upon request to the designated 

entity, the covered individual who is 

the subject of the background check 

shall be provided with a copy of any 

background check report from the 

designated entity, including a copy of 

the criminal history record information 

that the designated entity received from 

the FBI. 

(b) Each designated entity must 

ensure that the covered individual who 

is the subject of the background check 

is provided notice of the opportunity to 

appeal and instructions on how to 

complete the appeals process. 

(1) Each covered individual may 

appeal the results of the determination 

made by the designated entity to 

challenge the accuracy or completeness 

of the information contained in the 

background check report of the covered 

individual and obtain a prompt 

determination as to the validity of such 

challenge before a final determination is 

made. 

(2) Each covered individual may 

appeal the information contained in the 

FBI criminal history record information 

through procedures the FBI has in place 

pursuant to 28 CFR part 16, subpart C, 

wherein the subject of a criminal history 

record may request production of that 

record to review it or to obtain a change, 

correction, or update of that record. 

§ 105.38 Collection of fees. 

(a) Each designated entity shall set the 

fees to be collected under the CPIA 

Program at a level that will ensure the 

recovery of the full costs of providing all 

such services under the standards of the 

CPIA. The fee schedule by the 

designated entity shall be established to 

ensure that fees to qualified entities for 

background checks of covered 

individuals do not discourage 

volunteers from participating in the 

programs of qualified entities. 

(b) The designated entity shall remit 

the appropriate portion of such fee to 

the FBI. That amount shall be the 

amount published in the Federal 

Register to be collected for the provision 

of a fingerprint-based criminal history 

background check conducted by the 

FBI. 

(c) A fee charged to a qualified entity 

not organized under 26 U.S.C. 501(c)(3) 

shall not be less than the total sum of 

the costs of the FBI and the designated 

entity. 

Dated: August 17, 2023. 

Merrick B. Garland, 

Attorney General. 

[FR Doc. 2023–18194 Filed 8–24–23; 8:45 am] 

BILLING CODE 4410–02–P 

DEPARTMENT OF THE INTERIOR 

Bureau of Ocean Energy Management 

30 CFR Parts 550, 556, and 590 

[Docket No. BOEM–2023–0027] 

RIN 1010–AE14 

Risk Management and Financial 

Assurance for OCS Lease and Grant 

Obligations; Extension of Public 

Comment Period 

AGENCY: Bureau of Ocean Energy 

Management, Interior. 

ACTION: Notice of proposed rulemaking; 

extension of public comment period. 

SUMMARY: The Bureau of Ocean Energy 

Management (BOEM) is extending the 

public comment period on our notice of 

proposed rulemaking (NPRM), ‘‘Risk 

Management and Financial Assurance 

for Outer Continental Shelf Lease and 

Grant Obligations,’’ by 10 days. 

Comments previously submitted do not 

need to be resubmitted and will be fully 

considered. 

DATES: The comment period for the 

proposed rule ‘‘Risk Management and 

Financial Assurance for Outer 

Continental Shelf [OCS] Lease and 

Grant Obligations,’’ which was 

published on June 29, 2023, at 88 FR 

42136, is extended by 10 days. Online 

comments submitted at https://

www.regulations.gov must be uploaded 

by 11:59 p.m. eastern daylight time on 

September 7, 2023. Hardcopy comments 

submitted by a parcel delivery service 

must be received by BOEM or 

postmarked on or before September 7, 

2023. 

ADDRESSES: The publicly available 

documents relevant to this action are 

available for public inspection 

electronically at https://

www.regulations.gov in Docket No. 

BOEM–2023–0027. 

Submitting Comments. You may send 

comments regarding the substance of 

this proposed rule, identified by Docket 

No. BOEM–2023–0027 or regulation 

identifier number (RIN) 1010–AE14, 

using any of the following methods: 

• Federal e-rulemaking portal: 

https://www.regulations.gov. Search for 

and submit comments on Docket No. 

BOEM–2023–0027. 

• U.S. Postal Service or other parcel 

delivery service: Address comments to 

the Office of Regulations, Bureau of 

Ocean Energy Management, Department 

of the Interior, Attention: Kelley Spence, 

45600 Woodland Road, Mailstop: DIR– 

BOEM, Sterling, VA 20166. 

Instructions: All comments submitted 

regarding this proposed rule should 

reference Docket No. BOEM–2023–0027 

or RIN 1010–AE14. All comments 

received by BOEM will be reviewed and 

may be posted to https://

www.regulations.gov, including any 

personal information provided with the 

submission. For further instructions on 

protecting personally identifiable 

information, see ‘‘Public Availability of 

Comments’’ under SUPPLEMENTARY

INFORMATION. 

FOR FURTHER INFORMATION CONTACT: 

Kelley Spence, Office of Regulations, 

BOEM, at telephone number 984–298– 

7345 or email address Kelley.Spence@

boem.gov; or Karen Thundiyil, Chief, 

Office of Regulations, BOEM, at 

telephone number 202–742–0970 or 

email address Karen.Thundiyil@

boem.gov. Individuals in the United 

States who are deaf, deafblind, hard of 

hearing, or have a speech disability may 

dial 711 (TTY, TDD, or TeleBraille) to 

access telecommunications relay 

services. Individuals outside the United 

States should use the relay services 

offered within their country to make 

international calls to the point-ofcontact in the United States. 

SUPPLEMENTARY INFORMATION: On June 

29, 2023, BOEM published the proposed 

rule ‘‘Risk Management and Financial 

Assurance for [OCS] Lease and Grant 

Obligations.’’ 88 FR 42136. That 

proposed rule would modify the criteria 

for determining whether oil, gas, and 

sulfur lessees, right-of-use and easement 

(RUE) grant holders, and pipeline rightof-way grant holders may be required to 

provide financial assurance above the 

current regulatorily prescribed base 

financial assurance to ensure 

compliance with their Outer 

Continental Shelf Lands Act obligations. 

This proposed rule would also remove 

existing restrictive provisions for thirdparty guarantees and decommissioning 

accounts and would add new criteria 

under which a bond or third-party 

guarantee that was provided as 

supplemental financial assurance may 

be canceled. Additionally, this proposed 

rule would clarify financial assurance 

requirements for RUEs serving Federal 

leases. With this notice, we are 

extending the public comment period 

on the NPRM from August 28, 2023, to 

September 7, 2023. 


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