59168 Federal Register / Vol. 79, No. 190 / Wednesday, October 1, 2014 / Proposed Rules 

National Institute for Occupational 

Safety and Health and other information 

that bear on issues raised in the RFI. 

Authority: 30 U.S.C. 811. 

Dated: September 25, 2014. 

Joseph A. Main, 

Assistant Secretary of Labor for Mine Safety 

and Health. 

[FR Doc. 2014–23301 Filed 9–30–14; 8:45 am] 

BILLING CODE 4510–43–P 

DEPARTMENT OF DEFENSE 

Office of the Secretary 

32 CFR Part 86 

[Docket ID: DOD–2013–OS–0009] 

RIN 0790–AJ19 

Background Checks on Individuals in 

DoD Child Care Services Programs 

AGENCY: Under Secretary of Defense for 

Personnel and Readiness, DoD. 

ACTION: Proposed rule. 

SUMMARY: This rule establishes and 

updates policy, assigns responsibilities, 

and provides procedures to conduct 

criminal history checks on individuals 

involved in the provision of child care 

services for children under the age of 18 

in DoD programs. Public Law 101–647, 

also known as the Crime Control Act of 

1990 (Act), requires all individuals 

involved with the provision of child 

care services to children under the age 

of 18 undergo a criminal background 

check. ‘‘Child care services’’ include, 

but are not limited to, social services, 

health and mental health care, child 

(day) care, education (whether or not 

directly involved in teaching), and 

rehabilitative programs. Any conviction 

for a sex crime, an offense involving a 

child victim, or a drug felony, may be 

grounds for denying employment or for 

dismissal of an employee providing any 

of the services discussed above 

DATES: Comments must be received by 

December 1, 2014. 

ADDRESSES: You may submit comments, 

identified by docket number and/or 

Regulatory Information Number (RIN) 

number and title, by any of the 

following methods: 

• Federal Rulemaking Portal: http://

www.regulations.gov. Follow the 

instructions for submitting comments. 

• Mail: Federal Docket Management 

System Office, 4800 Mark Center Drive, 

East Tower, Suite 02G09, Alexandria, 

VA 22350–3100. 

Instructions: All submissions received 

must include the agency name 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 http://

www.regulations.gov as they are 

received without change, including any 

personal identifiers or contact 

information. 

FOR FURTHER INFORMATION CONTACT: 

Karen Morgan, 571–372–0859 

SUPPLEMENTARY INFORMATION: 

Executive Summary 

The purpose of this regulatory action 

is to describe requirements for criminal 

history background checks, including 

reinvestigation, and self-reporting, for 

individuals involved with the provision 

of child care services. 

The legal authorities for this rule 

include: 5 U.S.C. 2105, 10 U.S.C. 

chapter 47, 42 U.S.C. 13041. 

The major provisions of this 

regulatory action include providing 

procedures for requirements for 

criminal history background checks 

listing the types of background checks, 

and descriptions of reinvestigation and 

self-reporting. 

This rule is intended to support the 

workforce mission of the DoD and 

implement current law that covers 

individuals expected to have regular 

contact with children in the 

performance of child care services on a 

DoD installation or DoD-sanctioned 

program. The estimated costs of the 

proposed rule are $10 million annually. 

This cost includes administration costs; 

required FBI fingerprint Investigations 

Child Care National Agency Check with 

Inquiries checks ($125/NACI); State 

Criminal History Repository checks 

($25/each state the individual resided 

in); and periodic reinvestigations. We 

do not believe that this rule will impose 

substantial direct costs on state and 

local governments. 

Regulatory Analysis 

Executive Order 12866, ‘‘Regulatory 

Planning and Review’’ and Executive 

Order 13563, ‘‘Improving Regulation 

and Regulatory Review’’ 

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, 

reducing costs, harmonizing rules, and 

promoting flexibility. This rule has been 

determined to be a significant regulatory 

action, although not economically 

significant, under section 3(f) of 

Executive Order 12866. Accordingly, 

the rule has been reviewed by the Office 

of Management and Budget (OMB). 

Section 202, Public Law 104–4, 

‘‘Unfunded Mandates Reform Act’’ 

DoD has reviewed the rule in 

accordance with the Unfunded 

Mandates Reform Act of 1995, and 

compliance with the rule would require 

no additional expenditures by either 

public or private employers. In sum, the 

final rule does not mandate that State, 

local, and tribal governments adopt 

new, unfunded regulatory obligations. 

The costs of the investigations 

conducted pursuant to this rule are 

borne by the DoD, and not by the 

individual or his or her employer. 

Public Law 96–354, ‘‘Regulatory 

Flexibility Act’’ (5 U.S.C. 601) 

We certify this rule would not have a 

significant economic impact on a 

substantial number of small entities 

because the costs for the investigation 

conducted pursuant to this rule are 

borne by the DoD, and not by the 

individual or his or her employer. 

Furthermore, any indirect costs incurred 

by small businesses as a result of this 

rule would be minimal. Accordingly, a 

regulatory flexibility analysis as 

provided in the Regulatory Flexibility 

Act, as amended, is not required. 

Public Law 96–511, ‘‘Paperwork 

Reduction Act’’ (44 U.S.C. Chapter 35) 

This rule imposes reporting and 

record keeping requirements under the 

Paperwork Reduction Act of 1995. 

These requirements have been approved 

by the Office of Management and 

Budget and assigned OMB Control 

Number 3206–0005, ‘‘Questionnaires for 

National Security Positions, Standard 

Form 86 (SF 86),’’ OMB Control Number 

3206–0261, ‘‘SF 85 Questionnaire for 

Non-Sensitive Positions,’’ OMB Control 

Number 3206–0191, ‘‘SF 85P 

Questionnaire for Public Trust 

Positions,’’ and OMB Control Number 

0704–0516, ‘‘Child Care Development 

Program (CDP) Criminal History.’’ 

Executive Order 13132, ‘‘Federalism’’ 

This rulemaking was analyzed in 

accordance with the principles and 

criteria contained in Executive Order 

13132 (‘‘Federalism’’). It has been 

determined that it does not have 

sufficient Federalism implications to 

warrant the preparation of a Federalism 

summary impact statement. This 

rulemaking has no substantial effect on 


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the States, or on the current FederalState relationship, or on the current 

distribution of power and 

responsibilities among the various local 

officials. Nothing in this document 

preempts any State law or regulation. 

Therefore, DoD did not consult with 

State and local officials because it was 

not necessary. Show citation box 

List of Subjects in 32 CFR Part 86 

Government contracts, Government 

employees, Infants and children, and 

Investigations. 

Accordingly, 32 CFR part 86 is 

proposed to be revised to read as 

follows: 

PART 86—BACKGROUND CHECKS 

ON INDIVIDUALS IN DOD CHILD CARE 

SERVICES PROGRAMS 

Secs. 

86.1 Purpose. 

86.2 Applicability. 

86.3 Definitions. 

86.4 Policy. 

86.5 Responsibilities. 

86.6 Procedures. 

Authority: 5 U.S.C. 2105, 10 U.S.C. chapter 

47, and 42 U.S.C. 13041. 

§ 86.1 Purpose. 

This part establishes policy, assigns 

responsibilities, and provides 

procedures to conduct criminal history 

checks on individuals involved in the 

provision of child care services for 

children under the age of 18 in DoD 

programs. 

§ 86.2 Applicability. 

This part applies to the Office of the 

Secretary of Defense, the Military 

Departments, the Office of the Chairman 

of the Joint Chiefs of Staff and the Joint 

Staff, the Combatant Commands, the 

Office of the Inspector General of the 

Department of Defense, the Defense 

Agencies, the DoD Field Activities, and 

all other organizational entities within 

the DoD (referred to collectively in this 

part as the ‘‘DoD Components’’). 

§ 86.3 Definitions. 

Unless otherwise noted, these terms 

and their definitions are for the 

purposes of this part. 

Adjudication. The evaluation of 

pertinent data in a background 

investigation, as well as any other 

available information that is relevant 

and reliable, to determine whether an 

individual is suitable for work. 

Adult. An individual 18 years of age 

or older regarded in the eyes of the law 

as being able to manage his or her own 

affairs. 

Applicant. A person upon whom a 

criminal history background check is, 

will be, or has been conducted, 

including individuals who have been 

selected or are being considered for a 

position subject to a criminal history 

background check, and individuals 

undergoing a recurring criminal history 

background check. Includes current 

employees. 

Child. A person under 18 years of age. 

Care provider. Current or prospective 

individuals hired with appropriated 

fund (APF) and nonappropriated fund 

(NAFs) for education, treatment or 

healthcare, child care or youth 

activities; individuals employed under 

contract who work with children; and 

those who are certified for care. 

Individuals working within programs 

that include: Child Development 

Programs, DoD dependents schools, 

DoD-operated or -sponsored activities, 

foster care, private organizations on DoD 

installations, and youth programs. 

Child care services. Care or services 

provided to children under the age of 18 

in settings including child protective 

services (including the investigation of 

child abuse and neglect reports), social 

services, health and mental health care, 

child (day) care, education (whether or 

not directly involved in teaching), foster 

care, residential care, recreational or 

rehabilitative programs, and detention, 

correctional, or treatment services, as 

defined in 42 U.S.C. 13041 

Class. With regard to the designation 

of positions, a categorical descriptor 

identifying employee, contractor, 

provider, or volunteer positions by 

group rather than by individual position 

or title (e.g., ‘‘doctors’’ or ‘‘individuals 

supervising children in a school’’). 

Contractor. Any individual, firm, 

corporation, partnership, association, or 

other legal non-Federal entity that 

enters into a contract directly with DoD 

or a DoD Component to furnish 

supplies, services, or both including 

construction. Subcontractors are 

excluded. Foreign governments or 

representatives of foreign governments 

that are engaged in selling to DoD or a 

DoD Component are defense contractors 

when acting in that context. A 

subcontractor is any supplier, 

distributor, vendor, or firm that 

furnishes supplies or services to or for 

a prime contractor or another 

subcontractor 

Covered position. Defined in volume 

731 of DoD Instruction 1400.25, ‘‘DoD 

Civilian Personnel Management 

System’’ (available at http://

www.dtic.mil/whs/directives/corres/pdf/

140025v731.pdf). Criminal history 

background checks. A review of records, 

investigative reports, and other 

investigative elements to generate 

criminal history background findings to 

be used to make fitness or suitability 

determinations. 

Derogatory information. Information 

that may reasonably justify an 

unfavorable personnel suitability or 

fitness determination because of the 

nexus between the issue or conduct and 

the core duties of the position. 

DoD affiliation. A prior or current 

association, relationship, or 

involvement with the DoD or any 

elements of DoD, including the Military 

Departments. 

DoD-sanctioned programs. Any 

program, facility, or service funded, 

operated, or officially sanctioned by the 

DoD, a Military Department or Service, 

or any agency, unit, or subdivision 

thereof. Examples include, but are not 

limited to, chapel programs, child 

development centers, family child care 

(FCC) programs, medical treatment 

facilities, Department of Defense 

Education Activity (DoDEA) schools, 

recreation and youth programs. These 

do not include programs operated by 

other State or federal government 

agencies or private organizations 

without the official sanction of a DoD 

entity. 

Duties. Those activities performed as 

an employee, contractor, provider, or 

volunteer that involve interaction with 

children, including any work performed 

in a child development program or 

DoDEA school. 

Employee. An individual, paid from 

funds appropriated by the Congress of 

the United States, or an individual 

employed by a NAF instrumentality in 

accordance with 5 U.S.C. 2105(c). 

Includes foreign nationals in accordance 

with Volume 1231 of DoD Instruction 

1400.25, ‘‘DoD Civilian Personnel 

Management System’’ (available at 

http://www.dtic.mil/whs/directives/

corres/pdf/1400.25-V1231.pdf), Military 

Service members working during their 

off-duty hours, and non-status, noncontinuing temporary positions with 

specified employment periods not to 

exceed 1 year such as summer hires, 

student interns, and seasonal hires. 

FAP. Defined in DoD Directive 6400.1, 

‘‘Family Advocacy Program (FAP)’’ 

(available at http://www.dtic.mil/whs/

directives/corres/pdf/640001p.pdf). 

FAP records check. A review of FAP 

records maintained on an individual, 

including records maintained by the 

installation office and records in the 

Service Child and Spouse Abuse Central 

Registry in accordance with DoD 

Directive 6400.1. If the individual is the 

spouse or dependent of a Service 

member, this may entail review of 

records maintained on the sponsoring 

Service member. Installation and 

Service Central Registry checks are 


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59170 Federal Register / Vol. 79, No. 190 / Wednesday, October 1, 2014 / Proposed Rules 

limited to identifying pending and met 

criteria incidents of maltreatment and 

do not include information related to 

incidents that did not meet criteria or 

any information contained in the 

clinical case record that is protected by 

section 1320d–6 or 5 U.S.C. 552a 

Federal Bureau of Investigation (FBI) 

criminal history background check. An 

FBI identification record—often referred 

to as a criminal history record or a 

‘‘rapsheet’’—is a listing of certain 

information taken from fingerprint 

submissions retained by the FBI in 

connection with arrests and, in some 

instances, federal employment, 

naturalization, or military service. The 

process of responding to an 

identification record request is generally 

known as a criminal history background 

check. 

FCC. Defined in DoD Instruction 

6060.2, ‘‘Child Development Programs 

(CDPs)’’ (available at http://

www.dtic.mil/whs/directives/corres/pdf/

606002p.pdf). 

FCC provider. Defined in DoD 

Instruction 6060.2. 

FCC adult family members. Any 

adult, 18 years of age or older, who 

resides in the home of an FCC provider 

for 30 or more consecutive days. 

Fitness. The reference to a person’s 

level of character and conduct 

determined necessary for an individual 

to perform work for, or on behalf of, a 

Federal Agency as an employee in the 

excepted service (other than in a 

position subject to suitability) or as a 

contractor employee. 

Fitness determination. A decision, 

based on review of criminal history 

background check findings, that an 

individual is fit to perform duties in a 

position subject to criminal history 

background check. Fitness 

determinations will be ‘‘favorable,’’ 

meaning that the individual is fit to 

perform the duties, or ‘‘unfavorable,’’ 

meaning that the individual is not. 

Foreign nationals. Individuals who 

are not citizens of the United States. 

Foster care providers. A voluntary or 

court-mandated program that provides 

24-hour care and supportive services in 

a family home or group facility, within 

government-owned or -leased quarters, 

for children and youth who cannot be 

properly cared for by their own family. 

Healthcare personnel. Military, 

civilian, or contract staff involved in the 

delivery of healthcare services. 

Host-government check. A criminal 

history background check conducted on 

foreign nationals in accordance with 

U.S. and host country treaties or 

agreements. 

Interim suitability or fitness 

determination. Part of the pre-screening 

process in the identification and 

resolution of suitability or fitness issues, 

which occurs prior to the initiation of 

the required investigation. It involves 

the review of applications and other 

employment related documents. A 

favorable interim suitability or fitness 

determination is a status granted on a 

temporary basis, which permits 

individuals to work under line-of-sight 

supervision (LOSS) after the return of 

the advance FBI fingerprint check, 

pending completion of full investigative 

requirements and a final suitability 

determination. 

Investigative elements. The records, 

reports, or other individual elements 

that comprise the whole of information 

collected during a criminal history 

background check and used to make a 

fitness or suitability determination. 

Installations records check (IRC). A 

query of records maintained on an 

individual by programs and entities at 

the military installation where the 

individual lives, is assigned, or works, 

including military law enforcement and 

installation security records, drug and 

alcohol records, and FAP records for a 

minimum of 2 years before the date of 

the application. 

Investigative service provider (ISP). 

The company or agency authorized to 

perform background investigations on 

personnel on behalf of the agency. 

Line of Sight Supervision (LOSS). 

Continuous visual observation and 

supervision of an individual whose 

background check has not yet cleared, 

and has a favorable interim suitability or 

fitness determination, while engaged in 

child interactive duties, or in the 

presence of children in a DoD 

sanctioned program or activity. The 

person providing supervision must have 

undergone a background check and 

received a final favorable suitability or 

fitness determination and be current on 

all periodic reinvestigations as required 

by this part. 

Met criteria. Reported incident of 

alleged maltreatment found to meet DoD 

incident determination criteria for child 

abuse or domestic abuse and entry into 

the Service FAP central registry of child 

abuse and domestic abuse reports. 

Position. An employee, contractor, 

provider, or volunteer role or function. 

Preliminary investigations. Those 

investigative elements of a criminal 

history background check, including 

those specified in § 86.6(f) of this part, 

which must be favorably completed and 

reviewed before an individual may be 

permitted to perform duties under 

LOSS. 

Providers. Individuals involved in 

child care services who have regular 

contact with children or may be alone 

with children in the performance of 

their duties. Includes FCC providers and 

individuals with overall management 

responsibility for child and youth 

programs. 

Regular contact with children. 

Recurring and more than incidental 

contact with or access to children in the 

performance of their duties on a DoD 

installation, program, or as part of a 

DoD-sanctioned activity. 

Reinvestigation. A criminal history 

background check conducted after the 

period of time prescribed by this part to 

ensure the individual remains eligible to 

provide child care services. 

Reinvestigation includes the same 

checks conducted for the initial 

investigation as outlined in paragraph 

(b) of § 86.6. 

Respite care providers. Individuals 

who provide short-term care and 

supportive services in a family home or 

group facility within government-owned 

or -leased quarters. 

State criminal history repository 

(SCHR). A repository of criminal 

information that lists past state 

convictions, current offender 

information, and criminal identification 

information (fingerprints, photographs, 

and other information or descriptions) 

that identify a person as having been the 

subject of a criminal arrest or 

prosecution. Checks of the SCHR may 

include the State child abuse and 

neglect repository and the State sex 

offender registry. 

Suitability determination. A decision 

that a person is or is not suitable for a 

covered position within the DoD. 

Supervisor. The person supervising 

individuals who are permitted to 

perform duties only under LOSS, who is 

not necessarily the same as an 

employee’s supervisor for employment 

purposes (e.g., ratings, assignment of 

duties). 

Volunteer. There are two types of 

volunteers: 

(1) Specified volunteers. Individuals 

who could have extensive or frequent 

contact with children over a period of 

time. They include, but are not limited 

to, positions involving extensive 

interaction alone, extended travel, or 

overnight activities with children or 

youth. Coaches and long-term 

instructors are among those who fall in 

this category. Specified volunteers are 

designated by the DoD Component 

head. Background checks are required 

in accordance with paragraph (b)(4) of 

§ 86.6. 

(2) Non-specified volunteers. 

Individuals who provide services that 

are shorter in duration than is required 

to perform a criminal history 

background check (e.g., one-day class 


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trip, class party). Because non-specified 

volunteers do not receive the same level 

of background checks as specified 

volunteer, non-specified volunteers 

must always be in line of sight of a staff 

member with a complete background 

check. 

Youth program. Defined in DoD 

Instruction 6060.4, ‘‘Department of 

Defense (DoD) Youth Programs (YPs)’’ 

(available at http://www.dtic.mil/whs/

directives/corres/pdf/606004p.pdf). 

§ 86.4 Policy. 

It is DoD policy that: 

(a) Individuals who have regular 

contact with children under 18 years of 

age in DoD-sanctioned child care 

services programs will undergo a 

criminal history background check. 

(b) DoD Component heads are 

delegated the authority to make 

suitability determinations and take 

subsequent actions in cases involving 

applicants and appointees to covered 

positions as defined by 5 CFR 731.101, 

subject to the conditions in 5 CFR 

731.103. This authority may be further 

delegated to authorized management 

officials, in writing, in accordance with 

volume 731 of DoD Instruction 1400.25. 

(1) The DoD Consolidated 

Adjudications Facility is responsible for 

making favorable suitability 

determinations for civilian personnel in 

accordance with Deputy Assistant 

Secretary of Defense for Civilian 

Personnel and Policy Memorandum, 

‘‘Responsibilities Under the Department 

of Defense Suitability and Fitness 

Adjudications for Civilians Employees 

Programs,’’ August 26, 2013. 

(2) Military members are not subject 

to suitability adjudication under 

Volume 731 of DoD Instruction 1400.25, 

‘‘DoD Civilian Personnel Management 

System’’ (available at http://

www.dtic.mil/whs/directives/corres/pdf/

140025v731.pdf). Military members are 

subject to the background check 

requirements of DoD Instruction 

5200.02, ‘‘Personnel Security Program’’ 

(available at http://www.dtic.mil/whs/

directives/corres/pdf/520002_2014.pdf) 

and § 86.6. 

(c) All individuals who have a current 

or prior DoD affiliation must also 

undergo an IRC. 

(d) Suitability and fitness 

determinations for individuals subject 

to this part will follow the guidance of 

Volume 731 of DoD Instruction 1400.25 

for APF employees and Subchapter 

1403 of DoD Instruction 1400.25 for 

NAF employees. Suitability and fitness 

are to be applied for the child care 

worker population in accordance with 

Volume 731 of DoD Instruction 1400.25 

for appropriated fund employees in 

covered positions as defined by 5 CFR 

part 731. 

(e) Individuals who have received a 

favorable interim suitability or fitness 

determination based on the FBI criminal 

history background check are permitted 

to work under LOSS pursuant to 42 

U.S.C. 13041(b)(3). 

§ 86.5 Responsibilities. 

(a) Under the authority, direction, and 

control of the Under Secretary of 

Defense for Personnel and Readiness 

(USD(P&R)), the Assistant Secretary of 

Defense for Readiness and Force 

Management (ASD(R&FM)): 

(1) Ensures the conduct of criminal 

history background checks complies 

with DoD policy and the Criminal 

Justice Information Services Division of 

the FBI’s operational and security 

policies and procedures. 

(2) Monitors DoD Component 

compliance with this part, applicable 

laws, and subsequent guidance issued 

by the applicable ISP. 

(b) Under the authority, direction, and 

control of the ASD(R&FM), the Deputy 

Assistant Secretary of Defense for 

Civilian Personnel Policy (DASD(CPP)) 

oversees development of DoD 

Component policies and procedures for 

the background check initiation, 

completion, adjudication, and 

suitability or fitness determination 

process for civilian employees in 

accordance with this part. 

(c) Under the authority, direction, and 

control of the ASD(R&FM), the Deputy 

Assistant Secretary of Defense for 

Military Community and Family Policy 

(DASD(MC&FP)) oversees development 

of DoD Component policies and 

procedures related to the background 

check initiation, completion, 

adjudication, and fitness determination 

process for specified volunteers, FCC 

providers and adults residing in their 

home, and others as identified in 

accordance with this part. 

(d) Under the authority, direction, and 

control of the ASD(R&FM), the Deputy 

Assistant Secretary of Defense for 

Military Personnel Policy (DASD(MPP)): 

(1) Implements this part for the 

individuals identified in paragraph 

(a)(6)(v) of § 86.6. 

(2) Institutes effective quality 

assurance and quality control systems 

for chaplains, support staff, specified 

volunteers, and contractors who provide 

support to religious programs and 

activities identified in paragraph 

(a)(6)(v) of § 86.6 and in accordance 

with this part. 

(e) The Director of Administration 

under the authority, direction, and 

control of the Deputy Chief Management 

Officer (DCMO) of the Department of 

Defense, the Director of Administration 

ensures that the adjudication of 

background investigations of 

individuals who have regular contact 

with children under 18 years of age in 

DoD-sanctioned programs considers the 

criteria for presumptive and automatic 

disqualification as specified in this part. 

(f) The Under Secretary of Defense for 

Acquisition, Technology, and Logistics 

(USD(AT&L)) establishes policies and 

procedures for the background check 

initiation, completion, adjudication, and 

fitness determination process for 

contractors in accordance with the 

requirements of this part. 

(g) The DoD Component heads: 

(1) Ensure Component compliance 

with the requirements of this part, 

applicable laws, and guidance for 

civilian employees. 

(2) Ensure compliance with suitability 

and fitness determination policies, 

requirements, and procedures for 

individuals in child care services in 

DoD programs as defined in 42 U.S.C. 

13041 and DoD Instruction 1400.25. 

(3) Ensure compliance with policies, 

requirements, and procedures for LOSS 

of individuals with a favorable interim 

suitability determination. 

(4) Provide support and resources as 

required to implement this part and any 

Component-specific policies, 

requirements, and procedures, and 

ensure implementation. 

§ 86.6 Procedures. 

(a) Requirements for Criminal History 

Background Checks. 

(1) All criminal history background 

checks required by this part must be 

initiated and overseen by properly 

trained and vetted individuals who have 

been determined to be responsible for 

personnel security pursuant to DoD 

5200.2–R or human resource functions 

pursuant to Volume 731 of DoD 

Instruction 1400.25. Program managers, 

supervisors, and others not routinely 

performing personnel security and 

human resource functions are 

prohibited from managing the criminal 

history checks. 

(2) All employment applications 

completed by individuals subject to this 

part must comply with the requirements 

of 42 U.S.C. 13041(d). 

(3) The DoD Component will ensure 

that only authorized ISPs are used. 

(4) When permitted by the host 

government, foreign government checks 

of individuals serving on DoD 

installations overseas must be requested 

directly by the employing Military 

Service or agency in accordance with 

Volume 1231 of DoD Instruction 

1400.25. As an alternative, DoD 

Components may request that overseas 


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Military Service investigative elements 

obtain appropriate host-government 

checks and accept such checks if they 

are comparable to those required by 42 

U.S.C. 13041. Where it is not possible to 

obtain criminal history checks 

comparable to those required by 42 

U.S.C. 13041, foreign nationals will not 

be eligible for employment in child care 

services. 

(5) Individuals subject to criminal 

history background checks are: 

(i) All personnel employed or 

performing duties in DoD Child and 

Youth or other sanctioned child care 

services program. 

(ii) Individuals providing in-home 

FCC. 

(iii) Personnel employed or 

performing duties in child and youth 

recreational and athletic programs (e.g., 

Morale, Welfare, and Recreation), 

including instructors and, when 

working in a facility when children and 

youth are present, custodial personnel. 

(iv) Individuals employed or 

performing duties in a DoDEA school 

(whether or not directly involved with 

teaching), including but not limited to 

teachers, administrators, other 

professional staff, aides, bus drivers, 

janitors, cafeteria workers, nurses, and 

attendants. 

(v) Chaplains, chaplains’ assistants, 

religious program specialists, and other 

individuals employed or performing 

child care services duties for children 

under 18 years of age on a DoD 

installation or as part of a militarysanctioned program. 

(vi) Foster and respite child care 

providers on a DoD installation, 

program, or as part of a militarysanctioned activity. 

(vii) Health and mental health care 

personnel, employed or performing 

child care services duties on a DoD 

installation, in a DoD sanctioned 

program, or as part of a militarysanctioned activity, including but not 

limited to physicians, dentists, nurse 

practitioners, clinical social workers, 

physical therapists, speech-language 

pathologists, clinical support staff 

(including residents), registered nurses, 

licensed practical nurses, nursing 

assistants, play therapists, and 

technicians. 

(viii) Individuals employed or 

performing child care duties in social 

services, residential care, rehabilitation 

programs, detention, and correctional 

services on a DoD installation, program, 

or as part of a military-sanctioned 

activity. 

(ix) Any other individuals reasonably 

expected to have regular contact with 

children on a DoD installation, in a DoD 

sanctioned program, or as part of a 

military-sanctioned activity, including 

specified volunteers and any person 18 

years of age or older residing in an FCC, 

foster, or respite care home. 

(6) The DoD Components will also 

determine any other classes of positions 

subject to criminal history background 

checks, taking care to ensure that all 

individuals who have regular contact 

with children when providing child 

care services are investigated and the 

requirement must pertain to the class as 

a whole. 

(7) Individuals designated in nonspecified volunteer positions must 

always be under direct LOSS in 

accordance with § 86.6(f). 

(b) Types of Background Checks. 

Procedures for conducting a background 

check on individuals in paragraphs 

(a)(6)(i) through (a)(6)(ix) of this section 

differ based on the employment status 

of the individual. Military members are 

subject to the background check 

requirements of DoD Instruction 

5200.02 and this section. The FBI 

criminal history background checks for 

all categories of individuals must be 

fingerprint-based and fingerprints must 

be captured using an FBI-approved 

system. SCHR checks may require 

hardcopy fingerprint submissions. State 

checks must include the state child 

abuse and neglect repository and the 

state sex offender registry. The 

Component must request a check of the 

state child abuse and neglect repository 

and the State sex offender registry if 

they are not automatically checked as 

part of the standard SCHR check. 

(1) Criminal History Background 

Checks for DoD Civilian and Military 

Personnel who are Investigated at the 

NACI or a Higher Level pursuant to 

DoD’s Personnel Security Program. 

(i) DoD civilian and military 

personnel required by DoD Instruction 

5200.02 to be investigated according to 

the requirements of the NACI or a 

higher level investigation and who have 

regular contact with children under 18 

years of age in DoD-sanctioned 

programs will be investigated and 

adjudicated in accordance with the 

provisions of DoD Instruction 5200.02. 

(ii) These personnel will also be 

subject to the additional requirements of 

the Child Care National Agency Check 

and Inquiries (CNACI) and the criteria 

for presumptive and automatic 

disqualification as specified in 

paragraph (c) of this section. 

(2) Criminal History Background 

Checks for Civilian Employees (APF and 

NAF). 

(i) In accordance with 42 U.S.C. 13041 

and Volume 731 and Subchapter 1403 

of DoD Instruction 1400.25, complete a 

CNACI, which includes an FBI criminal 

history background check conducted 

through the Criminal Justice 

Information Services Division of the FBI 

and SCHR checks through State 

repositories of all States that an 

employee or prospective employee lists 

as current and former residences on an 

employment application. Results of an 

advanced FBI fingerprint check must be 

provided before completion of the full 

CNACI to determine employment under 

LOSS. 

(iii) Evidence or documentation of the 

individual’s past or present dependency 

on or addiction to any controlled or 

psychoactive substances, narcotics, 

cannabis, or other dangerous drug 

without evidence of substantial 

rehabilitation. 

(iv) A conviction, including any 

general, special, or summary courtmartial conviction, or non-judicial 

punishment under Article 15 of the 

UCMJ for: 

(A) A crime of violence committed 

against an adult. 

(B) Illegal or improper use, 

possession, or addiction to any 

controlled or psychoactive substances, 

narcotics, cannabis, or other dangerous 

drug. 

(v) A civil adjudication that 

terminated the individual’s parental 

rights to his or her child, except in cases 

where the birth parent places his or her 

child for adoption. 

(2) Evaluation of Presumptively 

Disqualifying Information. The DoD 

Components will establish and oversee 

procedures for the evaluation of 

presumptively disqualifying 

information for all categories of 

individuals in paragraph (b) of this 

section. Evaluation of presumptively 

disqualifying information for APF and 

NAF personnel must be in accordance 

with Volume 731 and Subchapter 1403 

of DoD Instruction 1400.25, 

respectively. 

(3) Criteria for Disqualification Under 

LOSS. If an investigation of an 

individual who is currently working 

under LOSS subsequently results in an 

unfavorable determination, the DoD 

Components will take action to protect 

children by reassigning or removing the 

individual from employment, contract, 

or volunteer status. 

(4) Disputes and Appeals. The DoD 

Components will establish and oversee 

procedures for the communication of 

determinations and the appeal of 

unfavorable determinations for all 

categories of individuals in paragraph 

(b) of this section. The procedures for 

civilian personnel are subject to Volume 

731 of DoD Instruction 1400.25 for APF 

employees and Subchapter 1403 of DoD 

Instruction 1400.25 for NAF employees. 


wreier-aviles on DSK5TPTVN1PROD with PROPOSALS
Federal Register / Vol. 79, No. 190 / Wednesday, October 1, 2014 / Proposed Rules 59173 

(d) Reinvestigation. 

(1) All DoD civilian employees (both 

APF and NAF), contractors, military 

personnel, and any other individuals 

reasonably expected to have regular 

contact with children on a DoD 

installation, program, or as part of a 

military-sanctioned activity, including 

specified volunteers and any person 18 

years of age or older residing in an FCC, 

foster, or respite care home, who 

continue to perform duties in the 

position for which their initial 

background check was conducted, must 

undergo a reinvestigation every 5 years. 

The reinvestigation must consist of a 

check at the same level as the initial 

investigation as outlined in paragraph 

(b) of this section. 

(2) All FCC providers and adults 

residing in an FCC home must undergo 

an annual reinvestigation. The 

reinvestigation must consist of the same 

check conducted for the initial 

investigation as outlined in paragraph 

(b) of this section. 

(3) If the reinvestigation results in an 

unfavorable determination, the DoD 

Components will take action to protect 

children by reassigning or removing the 

individual from employment, contract, 

or volunteer status. 

(4) If derogatory information surfaces 

within the 5 years before the 

reinvestigation, the DoD Component 

will take action to protect children by 

reassigning or suspending the 

individual from having contact with 

children, any individual, contractor or 

volunteer until the case is resolved. 

(e) Self-Reporting. 

(1) Individuals who have regular 

contact with children under 18 years of 

age in DoD-sanctioned programs who 

have a completed background check are 

required to immediately report 

subsequent automatic disqualification 

criteria under paragraph (c)(1) of this 

section and presumptive 

disqualification criteria under 

paragraphs (c)(2)(i), (c)(2)(iv), and 

(c)(2)(v) of this section. 

(2) The DoD Components will 

establish procedures for: 

(i) Informing individuals of the 

requirement to immediately report any 

incident or conviction that may 

invalidate their prior background check 

and make them ineligible to work or 

have contact with children. 

(ii) Responding to and evaluating 

reports made by such individuals, and 

taking appropriate action until the case 

has been resolved or closed. 

Eligibility to Perform Duties Under 

LOSS. 

The DoD Components will establish 

Component-specific procedures, 

policies, and requirements, subject to 

the requirements of this section, to 

permit applicants for whom a criminal 

history background check has been 

initiated but not yet completed, to 

perform duties under LOSS upon 

favorable findings of preliminary 

investigations. 

(1) No Presumption of Right. No 

individual will be permitted to perform 

duties under LOSS in a position subject 

to criminal history background check 

without authorizing policy or other 

written permission from a DoD 

Component head. 

(2) Preliminary Investigations 

Required. No individual will be 

permitted to perform duties under LOSS 

in a position subject to criminal history 

background check unless the following 

investigative elements have been 

reviewed and determined favorably: 

(i) An IRC, including installation law 

enforcement records check, drug and 

alcohol records, and FAP records check 

for a minimum of 2 years before the date 

of the application if the individual has 

a preexisting DoD affiliation. 

(ii) Initial results from the advanced 

FBI fingerprint criminal history 

background check (not the full check). 

(3) Exception for Non-specified 

Volunteers. Due to the controlled, 

limited duration of an activity for these 

individuals, an advanced FBI 

fingerprint criminal history background 

check is not required. Non-specified 

volunteers will be permitted to perform 

duties and services under LOSS for the 

duration of the activity. 

(4) Supervisor Requirements. The 

supervisor must be a person who: 

(i) Has undergone and successfully 

completed the required background 

check. 

(ii) Has complied, as required, with 

the periodic reinvestigation requirement 

for a recurring criminal history 

background check. 

(iii) Has not previously exhibited 

reckless disregard for an obligation to 

supervise an employee, contractor, or 

volunteer. 

(5) Video Surveillance. The use of 

video surveillance equipment to provide 

temporary oversight for individuals 

whose required background checks have 

been initiated but not completed is 

acceptable provided it is continuously 

monitored by an individual who has 

undergone and successfully completed 

all required background checks. This 

provision shall meet the intent of a 

flexible and reasonable alternative for 

‘‘direct sight supervision.’’ 

(6) Conspicuous Identification of 

Individuals Subject to LOSS. 

Individuals permitted to perform duties 

solely under LOSS must be 

conspicuously marked by means of 

distinctive clothing, badges, wristbands, 

or other visible and apparent markings. 

The purpose of such markings must be 

communicated to staff, customers, 

parents, and guardians by conspicuous 

posting or printed information. 

(7) Permissible Performance of Duties 

Without Supervision. Individuals 

otherwise required to perform duties 

only under LOSS may perform duties 

without supervision if: 

(i) Interaction with a child occurs in 

the presence of the child’s parent or 

guardian; 

(ii) Interaction with children is in a 

medical facility, subject to supervisory 

policies of the facility, and in the 

presence of a mandated reporter of child 

abuse; or 

(iii) Interaction is necessary to prevent 

death or serious harm to the child, and 

supervision is impractical or unfeasible 

(e.g., response to a medical emergency, 

emergency evacuation of a child from a 

hazardous location). 

Dated: September 24, 2014. 

Aaron Siegel, 

Alternate OSD Federal Register Liaison 

Officer, Department of Defense. 

[FR Doc. 2014–23061 Filed 9–30–14; 8:45 am] 

BILLING CODE 5001–06–P 

DEPARTMENT OF HOMELAND 

SECURITY 

Coast Guard 

33 CFR Part 165 

[Docket Number USCG–2014–0813] 

RIN 1625–AA00 

Safety Zone; Navy UNDET, Outer Apra 

Harbor and Adjacent Waters, Guam 

AGENCY: Coast Guard, DHS. 

ACTION: Notice of proposed rulemaking. 

SUMMARY: The Coast Guard proposes to 

establish safety zones for underwater 

detonation operations in the waters of 

outer Apra Harbor, Guam. This rule 

would be effective from 2 p.m. on 

November 5, 2014, until 4 p.m. on 

November 6, 2014 (kilo, Local Time). 

The enforcement period for this rule 

would be from 2 p.m. to 4 p.m. on 

November 5, 2014 and from 2 p.m. to 4 

p.m. November 6, 2014. The Coast 

Guard believes this safety zone 

regulation is necessary to protect all 

persons and vessels that would 

otherwise transit or be within the 

affected area from possible safety 

hazards associated with an underwater 

detonation operation. 


wreier-aviles on DSK5TPTVN1PROD with PROPOSALS