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[Federal Register Volume 77, Number 194 (Friday, October 5, 2012)]
[Rules and Regulations]
[Pages 60922-60934]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-24467]

[[Page 60922]]

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CORPORATION FOR NATIONAL AND COMMUNITY SERVICE

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

RIN 3045-AA56

Criminal History Check Requirements for AmeriCorps State/
National, Senior Companions, Foster Grandparents, the Retired and 
Senior Volunteer Program, and Other National Service Programs; Final 
Rule

AGENCY: Corporation for National and Community Service.

ACTION: Final rule.

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SUMMARY: To implement the Serve America Act, the Corporation for 
National and Community Service (CNCS) proposed amendments to its 
National Service Criminal History Check regulation on July 6, 2011. 
This final rule adopts the proposed amendments, clarifies several 
requirements, and makes minor technical corrections. The amendments 
require CNCS grantees to conduct and document a National Service 
Criminal History Check that includes a fingerprint-based FBI criminal 
history check on individuals in covered positions who begin work, or 
who start service, on or after April 21, 2011, and who have recurring 
access to children 17 years of age or younger, to persons age 60 and 
older, or to individuals with disabilities. Individuals in covered 
positions include Senior Companions (SCP), Foster Grandparents (FGP), 
AmeriCorps State and National participants, and other participants, 
volunteers, or staff funded under a CNCS grant.

DATES: This final rule is effective January 1, 2013.

FOR FURTHER INFORMATION CONTACT: Amy Borgstrom, Corporation for 
National and Community Service, 1201 New York Avenue NW., Washington, 
DC 25025. She may be reached at (202) 606-6930 (aborgstrom@cns.gov). 
The TDD/TTY number is (202) 606-3472.
    You may request this notice in an alternative format for the 
visually impaired.

SUPPLEMENTARY INFORMATION: 

I. Background

a. National Service Criminal History Check Requirements Prior to the 
Serve America Act

    In 2007, the Corporation issued rules requiring grantees to conduct 
criminal history checks on the members, volunteers, and grant-funded 
staff who had recurring access to children, persons age 60 or older, or 
individuals with disabilities. Recurring access meant having contact 
with individuals from one or more of the above groups on more than one 
occasion. These 2007 rules only applied to the AmeriCorps State and 
National, FGP and SCP programs. The rules did not apply to the Retired 
and Senior Volunteer Program (RSVP), Learn and Serve America (LSA), or 
other CNCS-funded programs. Affected grantees could apply to CNCS for 
approval of an alternative search procedure (ASP) if state law 
precluded them from complying with the national service criminal 
history check requirements or if they could obtain substantially the 
same information using a different process. The regulation also 
permitted grantees to conduct a fingerprint-based FBI criminal history 
check in lieu of the required state criminal history registry check(s).

b. The Serve America Act's National Service Criminal History Check 
Requirements

    In 2009, Congress amended the National and Community Service Act of 
1990 (42 U.S.C. 12501 et seq.) (NCSA) with the Serve America Act (Pub. 
L. 111-13) (SAA). The SAA codified CNCS's regulatory National Service 
Criminal History Check requirements and expanded the categories of 
positions covered by the criminal history check requirements. Under the 
SAA, on or after October 1, 2009, any entity that selects an individual 
to serve in a position in which the individual receives a living 
allowance, stipend, national service educational award, or salary 
through a program receiving assistance under the national service laws 
must conduct a criminal history check on that individual. Individuals 
in covered positions now include grant-funded staff serving in any 
CNCS-funded national service program, including RSVP, LSA, Non-profit 
Capacity Building, and the Social Innovation Fund (SIF) grant programs.
    Notably, the SAA expanded the categories of covered positions 
subject to the National Service Criminal History Check requirements 
without regard to the individual's access to vulnerable populations. It 
also prohibited individuals convicted of murder from serving in covered 
positions. The SAA also required that after April 21, 2011, individuals 
in covered positions with recurring access to vulnerable populations 
must have a fingerprint-based FBI criminal history check conducted as 
part of the National Service Criminal History Check. As directed by the 
SAA, CNCS issued new regulations in 2009, expanding coverage to any 
national service participant, volunteer or grant-funded employee who 
received one of the above-described payments for his or her service or 
employment. (74 FR 46495, September 10, 2009). Pursuant to these 
regulations, each individual in a covered position who does not have 
recurring access to vulnerable populations who began work or started 
service with a grantee on or after October 1, 2009, is required to 
undergo a National Service Criminal History Check that includes: (1) A 
nationwide check of the National Sex Offender Public Web site (NSOPW); 
and (2) a search of either (a) the state criminal registry(ies) in the 
state in which the grantee is operating and the state in which the 
individual resides at the time of application, or (b) a Federal Bureau 
of Investigation (FBI) fingerprint-based criminal history check.

c. Special Rule for Individuals With Recurring Access to Vulnerable 
Populations

    The SAA specified separate National Service Criminal History Check 
requirements for individuals in covered positions with recurring access 
to vulnerable populations. Beginning April 21, 2011, entities that 
select individuals to serve in covered positions who are 18 or older 
and who will have recurring access to children age 17 or younger, 
individuals age 60 or older, or individuals with disabilities must 
conduct for each individual: (1) A nationwide check of the NSOPW; (2) a 
search of the state criminal registr(ies) in the state in which the 
individual in a covered position will be primarily serving or working 
and the state in which the individual resides at the time of 
application; and (3) an FBI fingerprint-based criminal history check. 
The SAA created limited exceptions to this special rule.

II. Discussion of the Final Rule

    To implement National Service Criminal History Check provisions of 
the SAA, CNCS published a notice of a proposed rulemaking in the 
Federal Register on July 6, 2011. (76 FR 39361). This final rule 
implements the SAA with regard to individuals in covered positions with 
recurring access to vulnerable populations. In addition, the final rule 
clarifies several requirements in the existing rule and makes minor 
technical corrections for clarity.

a. Definitions and Applicability

1. Definition of ``Program'' (Sec.  2510.20)
    The SAA amended the NCSA's definition of program to include newly-

[[Page 60923]]

authorized programs including Campuses of Service, Serve America 
Fellows, Encore Fellows, Silver Scholars, the Social Innovation Fund, 
and activities funded under programs such as the Volunteer Generation 
Fund. The final rule aligns the definition of program in the regulation 
with the statutory definition, corrects a typographical error, and 
corrects the statutory citation.
2. Definition of ``You'' (Sec.  2540.200)
    Because this rule sets forth the National Service Criminal History 
Check provisions in one location in the Code of Federal Regulations, 
and because the rule applies to recipients of CNCS federal financial 
assistance who have individuals in covered positions, this final rule 
is written using program-neutral terminology. Accordingly, ``you'' in 
this final rule means a Corporation grantee or other entity subject to 
Corporation grant provisions. Unless the context otherwise requires, 
this includes, but is not limited to, recipients of federal financial 
assistance under grant programs defined in Sec.  2510.20 of this final 
rule, as well as SCP, FGP, and RSVP projects.
3. Individuals in Covered Positions (Sec.  2540.201)
    The final rule clarifies that the National Service Criminal History 
Check eligibility criteria apply to individuals in covered positions 
and aligns the definition of the term ``covered position'' with the 
language of the SAA. The reference in the proposed rule to the 
definition of program in Sec.  2510.20 was removed from the final rule 
for clarity. The SAA extended application of the National Service 
Criminal History Check requirements to entities receiving CNCS grants 
under the national service laws, which include the NCSA and the 
Domestic Volunteer Service Act of 1973 (DVSA), as amended. While the 
National Service Criminal History Check requirements apply to programs 
defined in Sec.  2510.20, the applicability is not limited to those 
programs. The requirements also apply to individuals in covered 
positions in the SCP, FGP, and RSVP programs. It should be clear that a 
National Service Criminal History Check is not required for individuals 
whose connection to the grantee is tangential, or who are considered 
beneficiaries. For example, a National Service Criminal History Check 
would not be required for an individual contracted to provide 
occasional training to participants and volunteers, but is not 
otherwise integral to the operation of the program, nor would it be 
required for a child who receives a cash prize from a program for 
completing a service-learning project.

b. Eligibility Criteria--AmeriCorps State and National Positions (Sec.  
2522.200)

    The SAA amended the NCSA to prohibit an individual convicted of 
murder, as defined under 18 U.S.C. 1111, from serving in a covered 
position. In 2009, CNCS amended the National Service Criminal History 
Check regulations to reflect this statutory change concerning 
eligibility. As the regulatory sections updated in 2009 indicated, the 
change applied to AmeriCorps State and National. However, CNCS 
inadvertently failed to update the provision in the regulation that 
specifically addresses eligibility to serve in an AmeriCorps State and 
National position. This final rule corrects this oversight to reflect 
in this section that eligibility for service in an AmeriCorps State and 
National position includes satisfaction of the National Service 
Criminal History Check eligibility criteria.
    The 2009 amendments to the National Service Criminal History Check 
regulations created some confusion regarding the eligibility of 
individuals convicted of murder, as defined under 18 U.S.C. 1111, from 
serving in a covered position. Congress declared that, as of October 1, 
2009, individuals convicted of murder may not work or serve in covered 
positions. This Congressional mandate gave no discretion to CNCS to 
waive or modify this eligibility requirement.
    Consequently, grantees with individuals convicted of murder who are 
currently serving or working in a covered position, including staff, 
must remove those individuals from the covered positions. For those 
individuals for whom a state registry or FBI criminal history check was 
not required prior to this final rule (e.g., those individuals who 
began work or service before October 1, 2009, without a subsequent 
break in service), grantees will be permitted to rely on the 
individuals' self-certification that they have never been convicted of 
murder as defined by 18 U.S.C. 1111, in lieu of conducting a criminal 
history check. The definition in 18 U.S.C. 1111 is as follows: ``Murder 
is the unlawful killing of a human being with malice aforethought. 
Every murder perpetrated by poison, lying in wait, or any other kind of 
willful, deliberate, malicious, and premeditated killing; or committed 
in the perpetration of, or attempt to perpetrate, any arson, escape, 
murder, kidnapping, treason, espionage, sabotage, aggravated sexual 
abuse or sexual abuse, child abuse, burglary, or robbery; or 
perpetrated as part of a pattern or practice of assault or torture 
against a child or children; or perpetrated from a premeditated design 
unlawfully and maliciously to effect the death of any human being other 
than him who is killed, is murder in the first degree. Any other murder 
is murder in the second degree.''
    Individuals who have been convicted of murder have been ineligible 
to serve as of October 1, 2009, and therefore, all costs associated 
with these individuals are potentially disallowable since that date.

 c. National Service Criminal History Checks Generally (Sec.  2540.203)

    The National Service Criminal History Check for individuals in 
covered positions must include (1) a nationwide check of the Department 
of Justice's National Sex Offender Public Web site (NSOPW) and (2) 
either (a) a name- or fingerprint-based search of the official state 
criminal history registry in the state in which the grantee is 
operating and of the official state criminal history registry in the 
state in which the individual resides at the time of application, or 
(b) submission of fingerprints through a state central record 
repository to the Federal Bureau of Investigation for a national 
criminal history background check.
    Because of the importance of proper screening and because the NSOPW 
is a widely-available and free public resource, the NSOPW search must 
be nationwide (i.e., all states and territories) in order to meet the 
National Service Criminal History Check requirement. If any of the 
databases comprising the NSOPW are down, offline, or otherwise 
unavailable, the NSOPW check is incomplete until all databases are 
checked. The rule has been revised to clarify this requirement. 
Additionally, because of the availability of this free public resource, 
grantees must conduct an NSOPW check for any individual currently 
serving or working in a covered position defined under this rule, 
regardless of when the individual was hired or started service, and 
regardless of their access to vulnerable populations. Finally, as a 
prudential action, all CNCS grantees, when conducting a search of the 
name-based NSOPW, should include not only the applicant's current legal 
name, but also any previous names or aliases by which the applicant may 
have been known.
    Since 2007, CNCS has required grantees operating in more than one 
state that conduct state criminal registry checks to conduct the checks 
in the state where the individual in a covered position will be 
primarily serving or working and in the state in which the

[[Page 60924]]

individual resides at the time of application. The final rule codifies 
this requirement.
    Comments received by CNCS indicated that the formatting of the 
proposed rule made it difficult to determine which components of the 
National Service Criminal History Check are required. The rule has been 
reformatted to make the requirements clear. Additionally, the heading 
of this section was edited to be consistent with the other section 
headings.
    CNCS also received comments requesting resolution of the ambiguity 
in the proposed rule regarding the time at which an individual is 
considered of age for the special rule for individuals with recurring 
access to vulnerable populations to apply. The final rule establishes 
that the rule applies to an individual who will be 18 years old or 
older at any time while serving in a covered position. The final rule 
also replaces the broad term ``vulnerable population'' with the 
specific groups statutorily defined as ``vulnerable populations,'' 
where necessary, to resolve any ambiguity.
    This section of the final rule is the first section in which the 
words ``enrolled'' and ``hired'' are replaced with ``starts service'' 
and ``begins work,'' respectively. These words are updated throughout 
the final rule because comments suggested that the use of ``enrolled'' 
and ``hired'' created some confusion. For some grantees, ``enrolled'' 
has a specific operational meaning that does not reflect the intended 
timing in the context of the rule. Therefore, the word, ``enrolled,'' 
has been replaced with the words, ``starts service,'' to more clearly 
convey the intended timing requirements of the final rule. For the 
purposes of this rule, an individual ``starts service'' when the 
individual's time begins to be credited toward their service 
commitment; an individual ``begins work'' when the individual engages 
in activities chargeable to the grant.''
    The proposed rule reflected CNCS's intent to eliminate unnecessary 
replication of the National Service Criminal History Check provisions 
in the Code of Federal Regulations, and anchors the substantive 
provisions in one location. Because grantees subject to the National 
Service Criminal History Check provisions use different terminology, 
and comments indicated that the terminology may have caused confusion, 
the final rule includes a definitional section to eliminate confusion 
concerning the applicability of the provisions. Sections have been 
renumbered and citations throughout the rule have been updated 
accordingly to accommodate its inclusion.

d. Special Rule for Individuals With Recurring Access to Vulnerable 
Populations (Sec.  2540.203)

    This final rule implements the National Service Criminal History 
Check requirements for individuals in covered positions with recurring 
access to vulnerable populations who began work or who started service 
on or after April 21, 2011. The NCSA, as amended by the SAA, defines 
vulnerable populations as children age 17 or younger, individuals age 
60 or older, or individuals with disabilities. The final rule now more 
clearly defines ``vulnerable population.'' Unless CNCS approves an 
alternative search procedure or an exception under Sec.  2540.207, for 
individuals in covered positions who will be 18 or older and who also 
have recurring access to vulnerable populations, grantees must conduct 
(1) a nationwide check of the NSOPW (http://www.nsopw.gov), (2) a name- 
or fingerprint-based search of the official state criminal registry in 
the state in which the grantee is operating and of the official state 
criminal registry in the state in which the individual resides at the 
time of application, and (3) submission of fingerprints through a state 
central record repository to the Federal Bureau of Investigation for a 
national criminal history background check.
    CNCS continues to define ``recurring access'' as ``the ability on 
more than one occasion to approach, observe, or communicate with an 
individual through physical proximity or other means, including but not 
limited to, electronic or telephonic communication.'' (45 CFR 2510.20).
    In anticipation of the final rule, current grantees have inquired 
as to whether CNCS would develop a centralized mechanism for conducting 
FBI fingerprint checks for national service participants. CNCS is 
committed to identifying ways to decrease the burden on grantees; 
however, no such centralized mechanism is available at this time.

e. Timing of National Service Criminal History Check and Consecutive 
Terms (Sec.  2540.204)

    Grantees must conduct and document the results of the nationwide 
NSOPW check before an individual begins work or starts service. The 
NSOPW is a free public resource available at http://www.nsopw.gov/.
    Under Sec.  2540.204(b) of this final rule, it is not necessary to 
perform an additional National Service Criminal History Check on an 
individual who serves consecutive terms of service with the same 
grantee when the break in service does not exceed 120 days, as long as 
the original check is a compliant check for the covered position in 
which the individual will be serving or working following the break in 
service. For example, if an individual serves an original term in a 
covered position with no recurring access to vulnerable populations, 
but will be serving the consecutive term in a covered position with 
recurring access to vulnerable populations, the grantee must ensure 
that any additional National Service Criminal History Check components 
required for the position are conducted (e.g. the fingerprint-based FBI 
check). This section allows, but does not require, a grantee to forego 
additional National Service Criminal History checks for individuals 
serving consecutive terms, based upon a presumption that the additional 
check would, in large part, replicate the original check and that the 
grantee's proximity to the individual would increase the likelihood 
that the grantee would have knowledge of the individual's activity.
    Grantees must conduct a National Service Criminal History Check 
under this final rule on individuals in covered positions who, on or 
after April 21, 2011, begin work or start service (1) following a break 
in service exceeding 120 days or (2) with a new grantee.

(f) No Unaccompanied Access to Vulnerable Populations Pending National 
Service Criminal History Check Results (Sec.  2540.205)

    This final rule codifies CNCS's understanding that it is common for 
vulnerable population beneficiaries to be accompanied by a parent, 
legal guardian, teacher, doctor, nurse, or other individual responsible 
for his or her care. CNCS does not believe it is necessary for an 
individual with pending National Service Criminal History Check results 
to be accompanied by an authorized grantee representative who has 
received the appropriate criminal history check when the vulnerable 
population beneficiary is accompanied by an individual responsible for 
his or her care.
    While results from the state or FBI criminal history check 
components of the National Service Criminal History Check are pending, 
grantees may allow individuals in covered positions with recurring 
access to vulnerable populations to begin work or start service, as 
long as the individual is not permitted access to vulnerable

[[Page 60925]]

populations without being accompanied by (1) an authorized grantee 
representative who has previously been cleared for such access; (2) a 
family member or legal guardian of the vulnerable individual; or (3) an 
individual authorized by the nature of his or her profession to have 
recurring access to the vulnerable individual, such as an education or 
medical professional. Accompaniment is a higher standard than 
supervision in that it requires the individual with recurring access to 
vulnerable populations to be in the physical presence of the 
accompanying individual. For example, a covered individual whose 
criminal history check component results are pending may give nature 
tours to schoolchildren as part of an environmental program as long as 
the covered individual is within the physical presence of teachers or 
parents.
    The final rule has been changed based on comments CNCS received 
about the ambiguity in the term ``accompaniment.'' The final rule uses 
the phrase ``physical presence'' in place of ``accompaniment'' to 
convey the intended meaning and specific requirement.

g. Costs (Sec.  2540.205)

    The rule requires grantees to obtain and document a baseline 
criminal history check for individuals in covered positions. CNCS 
considers the cost of this required National Service Criminal History 
Check a reasonable and necessary program grant expense, such costs 
being presumptively eligible for reimbursement. In any event, a grantee 
should include the costs associated with its screening process in the 
grant budget it submits to CNCS for approval.
    This rule codifies CNCS's guidance that a grantee may not charge an 
individual for the cost of a National Service Criminal History Check 
unless CNCS has given written permission to do so. In addition, because 
a National Service Criminal History Check is inherently attributable to 
operating a program, such costs may not be charged to a state 
commission administrative grant.

h. Documentation Requirements (Sec.  2540.206)

    Grantees must retain the criminal history check results along with 
written documentation that they considered the results in selecting the 
individual. The grantee must review and determine that the information 
returned by the governmental body issuing criminal history registry 
results provides information that would allow the grantee to determine 
whether or not an individual was eligible to work or serve in a covered 
position under the final rule. For example, if a grantee receives a 
document from the statewide criminal history registry that indicates 
that the individual is ``cleared'' for service based upon an agreement 
that describes CNCS's standards for eligibility, that clearance 
document may be retained as the sufficient documentation of the 
criminal history check results, along with written documentation that 
the grantee considered the result in selecting the individual.

i. Alternative Search Procedures and Exceptions to the National Service 
Criminal History Check Requirements for Individuals in Covered 
Positions With Recurring Access to Vulnerable Populations (Sec.  
2540.207)

    The headings and structure of this section have been modified from 
those in the proposed rule in order to clarify the substantive content, 
and to clearly distinguish alternative search procedures from the 
statutory exceptions to the fingerprint-based FBI criminal history 
check requirement for individuals in covered positions with recurring 
access to vulnerable populations. A grantee may request in writing that 
CNCS approve an alternative search procedure for the National Service 
Criminal History Check components described in Sec.  2540.203(a) or 
Sec.  2540.203(b)(2)(i)-(ii), if the grantee (1) is prohibited under 
state law from meeting the requirements of Sec.  2540.203(a) or Sec.  
2540.203(b)(2)(i)-(ii) or (2) demonstrates that it can obtain 
substantially equivalent or better information through an alternative 
search procedure.
    Grantees may also apply to CNCS for approval of an exception from 
the fingerprint-based FBI criminal history check component of the 
National Service Criminal History Check, described in Sec.  
2540.203(b)(2)(iii), for an individual in a covered position with 
recurring access to vulnerable populations. CNCS may approve such an 
exception if the entity demonstrates to CNCS's satisfaction (1) that 
the cost to the grantee of complying with 45 CFR 2540.203(b)(2)(iii) is 
prohibitive; (2) that the entity is not authorized, or is otherwise 
unable, under State or Federal law, to access the national criminal 
history background check system of the FBI; or (3) that there is 
sufficient justification for CNCS to exempt the grantee from the 
requirement for good cause.
1. Episodic Access (Sec.  2540.207)
    Congress granted those individuals in covered positions with 
recurring access to vulnerable populations an exception to the FBI 
fingerprint-based criminal history check requirement when their access 
to vulnerable populations is ``episodic in nature or for a [one]-day 
period.'' For the purpose of this final rule, the Corporation defines 
``episodic'' as access that is not a regular, scheduled, and 
anticipated component of an individual's service activities. If access 
to vulnerable populations is not a regular, scheduled, and anticipated 
component of an individual's service activities, the grantee is not 
required to conduct a fingerprint-based FBI criminal history check. 
However, the grantee must conduct the other components of the National 
Service Criminal History Check, as described in Sec.  
2540.203(b)(2)(i)-(ii) or under an approved ASP.
    For example, consider an individual who is applying for an 
AmeriCorps position with an environmental program that involves 
volunteer coordination. If the grantee anticipates that the position 
will involve coordinating high school student volunteers on a regular 
basis, then the grantee must conduct a fingerprint-based FBI criminal 
history check on that individual. However, if the grantee has no reason 
to expect that the position will involve coordinating 17-year-old and 
younger volunteers because the grantee has never operated in a youth 
environment, does not have any youth engagement goals, and does not 
recruit high school aged volunteers, then any contact with a child 
volunteer would be irregular, unscheduled, unanticipated, and thus, 
episodic. Therefore, the grantee would not need to conduct a 
fingerprint-based FBI criminal history check. However, the grantee must 
conduct the other components of the National Service Criminal History 
Check, as described in Sec.  2540.203(b)(2)(i)-(ii) or under an 
approved ASP.
    Episodic access is not determined by a specific number. In other 
words, if a grantee does not anticipate that a member will have access 
to vulnerable populations, the need to meet the National Service 
Criminal History Check requirements for individuals in covered 
positions with access to vulnerable populations would not materialize 
after a specific number of incidents of access occur, but would once 
the access becomes regular, scheduled and anticipated. If incidental 
access becomes unexpectedly regular or frequent, a grantee should re-
evaluate its initial determination of episodic access and take 
appropriate action.
    CNCS expects that in the majority of cases, it will be clear 
whether or not access to vulnerable populations is a

[[Page 60926]]

regular, scheduled, and anticipated component of an individual's 
service activities. Nevertheless, CNCS recommends that grantees 
specifically address contact with vulnerable populations in each 
position description, service agreement, or similar document describing 
an individual's service activities.
2. Exemptions Approved for Good Cause
    CNCS will publish on its Web site (http://www.nationalservice.gov) 
those scenarios for which CNCS has approved exemptions for ``good 
cause'' from the fingerprint-based FBI criminal history check 
requirement in Sec.  2540.203(b)(2)(iii). The list of approved ``good 
cause'' exemptions may be expanded and codified in future rulemakings.
    CNCS will monitor compliance with the rules and requirements 
associated with National Service Criminal History checks as a material 
condition of receiving a CNCS grant. An entity's failure to comply may 
adversely affect the entity's access to grant funds or ability to 
obtain future funding from CNCS. In addition, an entity jeopardizes its 
eligibility for reimbursement of costs and hours related to an 
individual if it fails to perform or properly document the required 
National Service Criminal History Check.

III. Non-Regulatory Matters

Coverage Based on Start Date

    The table below illustrates what National Service Criminal History 
Check components are required of individuals serving or working after 
January 1, 2013.

[[Page 60927]]

[GRAPHIC] [TIFF OMITTED] TR05OC12.069

IV. Comments and Responses

    CNCS published the proposed rule with a 30-day comment period in 
the Federal Register of July 6, 2011 (76 FR 39361). We received over 
150 comments on the proposed rule. Most of the commenters identified 
themselves as representatives of grantees required to comply with the 
rule. The most relevant comments and our responses are set forth below.
    Comment: The majority of commenters expressed disapproval with the 
rule's requirement that individuals working with vulnerable populations 
must submit their fingerprints to the FBI for a national criminal 
history background check. The commenters disapproved of the requirement 
because

[[Page 60928]]

the process for complying with the requirement is time consuming, 
costly, and logistically challenging for grantees and participants. As 
a result, the commenters said that the increased administrative and 
financial burden the requirement imposes on grantees will significantly 
impact their ability to recruit participants and operate effectively. 
Additionally, the commenters considered the requirement unnecessarily 
redundant, as many of the grantees already require individuals to 
complete several criminal history background checks and that the 
additional requirement of a fingerprint-based FBI check provides very 
little new information.
    Response: We acknowledge the concerns expressed about the FBI 
fingerprinting process and the administrative impact the requirement 
may have on some grantees. We, like all executive agencies, may 
exercise discretion in issuing rules, but only to the extent discretion 
is granted to us by law. The law requires individuals working with 
vulnerable populations to submit their fingerprints to the FBI for a 
national criminal history check; however, the law also created 
exceptions to the fingerprint-based FBI criminal history check. 
Grantees may use the ``episodic access'' exception without our written 
approval. The other available exceptions require that you contact our 
Office of Grants Management for written approval. The procedure for 
requesting an exception is in 45 CFR 2540.207.
    Comment: Several of the comments we received indicated that the 
cost of the FBI criminal history background check could be a financial 
burden for the grantee and for the participants and volunteers.
    Response: We acknowledge the administrative and financial impact 
that the fingerprint-based FBI criminal history check could have on 
grantees. The law created exceptions to the fingerprint-based FBI 
criminal history check requirement for individuals in covered positions 
with recurring access to vulnerable populations, one of which is when 
it is cost-prohibitive for the grantee to comply. Grantees may request 
written approval of an exception by contacting our Office of Grants 
Management.
    We want to reiterate that unless we grant specific permission in 
writing, a grantee may not charge an individual for the cost of any 
component of a National Service Criminal History Check. In the absence 
of specific written permission, the grantee must not, even when the 
check returns unfavorable results, require the applicant or participant 
to ultimately bear the cost of the criminal history check.
    Comment: The U.S. Department of Justice, FBI, Criminal Justice 
Information Systems (CJIS) commented that the final rule did not 
adequately address the role played by the state central record 
repositories and requested that CNCS revise the rule to specify that 
entities must submit fingerprints to the FBI through the state central 
record repository.
    Response: We agree and have amended the rule to reflect the process 
established by FBI CJIS to process the fingerprint-based FBI criminal 
history checks required by the SAA. State central record repositories 
are critical to the infrastructure established by FBI CJIS for the 
processing of national criminal history background checks. In its 
October 31, 2011 memorandum to state central record repositories on the 
implementation of the SAA, FBI CJIS stated that those organizations 
subject to the SAA (and this final rule) ``must contact the state 
repository in the state of operation to determine if the organization 
can access national criminal history record information.'' In lieu of 
state statutory provisions, fingerprint-based state and national 
criminal history checks for CNCS grantees could be authorized by three 
federal legal authorities: the SAA, the National Child Protection Act, 
as amended by the Volunteers for Children Act, and Section 153 of the 
Adam Walsh Act. ``Background checks conducted pursuant to the SAA must 
comply with certain criteria, to include fingerprints submitted via [a 
state central record repository], designation of a governmental agency 
to receive and screen the results of the record checks, and non-
dissemination of the criminal history record information outside the 
receiving governmental department or related governmental agencies.''
    The FBI CJIS guidance to state repositories stated that ``each 
national service organization must coordinate with the [state central 
records repository] in the states of program operation/residence to 
establish procedures for performing state and national criminal history 
record checks.'' The guidance specified further that

``[e]ach [* * * repository] must request a unique Integrated 
Automated Fingerprint Identification System (IAFIS) originating 
agency identifier (ORI) or designate an existing ORI for exclusive 
use under the SAA. The repository must coordinate requests for ORI 
issuance, or use of a designated ORI, with FBI CJIS Division for 
programming. All fingerprints submitted to the FBI CJIS Division 
under this authority must include the program-designated ORI and be 
populated with ``Serve America Act'' or ``Serve America Act-
Volunteer'' as the reason fingerprinted (RFP).''

    The full text of the memorandum is available at http://www.nationalserviceresources.org/files/fbi-memo-to-state-repositories-on-serve-america-act-oct-31-11.pdf.
    We believe that our State Commission partners, as well as state 
Departments on Aging, Child Welfare Agencies, and Education Agencies 
can be instrumental in engaging the state central record repositories 
to streamline the National Service Criminal History Check process for 
national service grantees operating in their states and ensure proper 
screening of individuals in covered positions and the full 
implementation of the SAA.
    Comment: We received comments regarding the potential 
discriminatory effects that the use of criminal history checks by 
grantee organizations may have on individuals' ability to participate 
in National Service.
    Response: The commenters identify an important issue. The use of 
criminal history records to exclude members and staff from Corporation-
funded programs and activities may, in some circumstances, run afoul of 
federal civil rights laws. Grantees should recognize that they have a 
dual status under the Civil Rights Act of 1964, depending on the nature 
of their relationship with an individual. Grantees, as recipients of 
federal financial assistance, must comply with Title VI of the Civil 
Rights Act of 1964, 42 U.S.C. 2000d et seq., and its implementing 
regulations, 45 CFR 1203.1 et seq., which prohibit discrimination in 
Corporation-funded programs and activities, including the selection and 
placement of volunteers and members, on the basis of race, color, and 
national origin. Grantees, as employers, must also comply with Title 
VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e et seq., which 
prohibits discrimination in employment decisions. The Equal Employment 
Opportunity Commission (EEOC) has issued guidance explaining when 
consideration of arrest and conviction records violates Title VII. See 
http://www.eeoc.gov/laws/guidance/arrest_conviction.cfm. As explained 
in the EEOC guidance, grantees should be mindful that arrests alone are 
mere allegations, and that actual criminal convictions (where there has 
been a formal adjudication by a finder of fact), or actual evidence of 
conduct underlying an arrest, are the relevant indicators of an 
individual's fitness, or in some cases, eligibility (i.e., murder), to 
serve with, or work for, a Corporation

[[Page 60929]]

grantee. Grantees should ensure that their screening practices are 
narrowly tailored in a manner that complies with these federal 
nondiscrimination requirements, in addition to applicable state laws 
governing the consideration of criminal history records.
    Grantees also should be mindful that applicants have the right to 
review and challenge the results of the National Service Criminal 
History Check. Grantees are required by our regulations to safeguard an 
individual's personal information and give the individual the 
opportunity to challenge any adverse findings that result from the 
National Service Criminal History Check.
    Comment: We received comments requesting clarification of when the 
results of a National Service Criminal History Check make an individual 
ineligible to serve in a covered position.
    Response: The law prohibits an individual from serving in a 
national service program in four situations: (1) The individual refuses 
to consent to the criminal history check; (2) the individual makes a 
false statement in connection with the criminal history check; (3) the 
individual is registered or required to be registered as a sex 
offender; or (4) the individual has been convicted of murder as defined 
by federal law. If the National Service Criminal History Check returns 
results that implicate criteria other than those above, the grantee has 
the discretion, subject to any federal civil rights law and state law 
requirements, to decide whether or not the results of a criminal 
history background check disqualify an individual from service with the 
grantee. Grantees should consider the factors set forth in the EEOC's 
guidance under Title VII (http://www.eeoc.gov/laws/guidance/arrest_conviction.cfm), including the nature and gravity of the offense, the 
time that has passed since the conviction or completion of the 
sentence, and the nature of the position. Grantees should have written 
policies on their disqualification criteria and be consistent in how 
those criteria are applied to all individuals.
    In addition, grantees should be aware of federal reentry policy, 
which seeks to minimize unjustified collateral consequences on formerly 
incarcerated persons. Participation in national service programs funded 
by the Corporation could aid the successful reentry of formerly 
incarcerated persons into society. Therefore, barriers to participation 
in national service programs for those formerly incarcerated persons 
who are not statutorily ineligible to serve should be minimized as much 
as possible without putting program beneficiaries at genuine risk.
    Comment: We received comments expressing concern about many 
grantees' overall level of understanding or ability to interpret the 
results of a National Service Criminal History Check.
    Response: Grantees should be aware that, due to pending cases, 
state law restrictions, and resource issues, the information contained 
in databases and reports for criminal histories may be missing certain 
arrest and disposition information. Accordingly, grantees should obtain 
training, and implement best practices, in the interpretation and use 
of criminal records for screening participants and staff. We have 
required grantees to conduct National Service Criminal History Checks 
since 2007, and have always required that they treat applicants fairly. 
We reiterate that the grantee is responsible for obtaining the level of 
expertise necessary to understand the information received in response 
to the National Service Criminal History Check and use it in a fair 
manner that is consistent with our regulations and grant conditions. 
Information obtained from a National Service Criminal History Check is 
only one of many sources of information that is available about an 
individual.
    Comment: We received numerous comments on the proposed rule's 
requirement that National Service Criminal History Checks be repeated 
on individuals who serve consecutive terms of service with the same 
grantee when the break in service exceeds 30 days. The comments 
suggested that in view of the time it takes to complete the newly-
required fingerprint-based FBI criminal background check, a 30-day 
break in service requirement imposes an additional administrative 
burden on seasonal or academic-year programs or projects.
    Response: We agree with the commenters. The FBI fingerprint check 
takes longer than the process established under our 2007 rule and the 
SAA expands the number of individuals in covered positions. Balancing 
the administrative burden on grantees with the importance of proper 
screening, we determined that a longer break in service period is not 
unreasonable. Accordingly, the final rule reflects our decision to 
require that the National Service Criminal History Check be repeated if 
an individual's break in service exceeds 120 days, and also allows 
grantees to request approval for a longer break in service than 120 
days, as long as the break does not exceed 180 days. The request must 
describe the program's design, explain why the longer period is 
required, and demonstrate the establishment of adequate risk management 
controls for the extended break in service. We want to clarify that 
consecutive terms of service requires that the individual serves 
another term with the same grantee. Checks performed by one grantee on 
an individual may not be transferred to another grantee. When an 
individual begins service with a new grantee, that grantee is 
responsible for conducting a new National Service Criminal History 
Check. Because the NSOPW is a free and widely-available resource, we 
encourage grantees with program designs where breaks in service are 
anticipated to conduct a new nationwide NSOPW check after a break in 
service of any duration.
    Comment: We received comments seeking clarification about the 
status of individuals in covered positions who conducted the 
appropriate National Service Criminal History Check components when 
they began work or started service prior to April 21, 2011.
    Response: The National Service Criminal History Check components of 
this rule apply to individuals in covered positions who begin work, or 
who start service, on or after, April 21, 2011. Grantees are 
responsible for ensuring that those individuals who began work, or who 
started service, prior to, April 21, 2011, conducted the appropriate 
National Service Criminal History Check components required by the 
regulation that was in effect prior to that date. If individuals in 
covered positions who began work, or who started service prior to, 
April 21, 2011, subsequently have a break in service that exceeds 120 
days, or begins work or service with a different grantee, they must 
have a Check required by this final rule. If an individual serves 
consecutive terms of service in a covered position and does not have a 
break in service that exceeds 120 days, then no additional National 
Service Criminal History Check is required as long as the original 
check is a compliant check for the covered position in which the 
individual will be serving or working following the break in service.
    Comment: We received numerous comments on the requirement that 
individuals working with vulnerable populations be accompanied while 
the components of their National Service Criminal History Check have 
been submitted, but not yet returned. Commenters suggested that we 
clarify what we mean by ``accompaniment'' and how to document it.
    Response: The purpose of the National Service Criminal History 
Check is to screen out those individuals

[[Page 60930]]

who may pose a risk to the population being served. Accompaniment 
requires that an individual for whom the National Service Criminal 
History Check components are pending be, at all times, in the physical 
presence of (1) an authorized grantee representative who has been 
previously cleared for such access; (2) a family member or legal 
guardian of the vulnerable individual; or (3) an individual authorized 
by the nature of his or her profession to have recurring access to the 
vulnerable individual, such as an education or medical professional. 
Accompaniment provides grantees with the opportunity to place 
participants in service positions before the criminal history 
background check is complete. Supervision is insufficient because it 
doesn't provide the immediate oversight that would mitigate risk of a 
participant's improper conduct sought to be avoided by the National 
Service Criminal History Check. We have updated the rule to reflect 
more accurately our intent that accompaniment means that the individual 
must be in the physical presence of the accompanying individual.
    The Office of Grants Management will issue guidance to grantees 
prior to the effective date of this final rule on how to document 
compliance with the accompaniment requirements.
    Comment: We also received comments requesting clarification on how 
to apply the rule to individuals who reach the age of 18 during their 
service term.
    Response: A National Service Criminal History Check is required for 
individuals who are, or who will reach the age of, 18 or older at any 
time during their service term. The Check must be conducted in 
accordance with 2450.204, even if the individual is not yet 18 at the 
time service or work begins. The final rule reflects this 
clarification.
    Comment: Some comments identified areas in the proposed rule where 
the distinction between exceptions and alternative search procedures 
was unclear. Other commenters articulated specific challenges they 
faced in obtaining the required checks.
    Response: Since implementation of the original National Service 
Criminal History Check rule in 2007, we have evaluated and approved 
alternative search procedures when grantees submitted a written request 
for evaluation of a proposed alternative search procedure. This 
practice will continue under the new rule. The law also gives us the 
authority to exempt grantees from conducting the fingerprint-based FBI 
criminal history check required under the new rule for individuals in 
covered positions with recurring access to vulnerable populations. We 
acknowledge the confusion in the wording of the proposed rule. We have 
revised the final rule so that the requirements and procedures are 
clear.
    With respect to the comments we received regarding particular 
challenges grantees face under the new rule, we cannot address those 
here. Grantees with individual challenges that they believe will 
justify an exception from Sec.  2540.203(b)(2)(iii) should contact our 
Office of Grants Management or their Program Officer.
    Comment: We received comments requesting clarification of the 
``episodic access'' exception from the fingerprint-based FBI criminal 
history background check requirement for individuals with recurring 
access to vulnerable populations.
    Response: A grantee does not need our approval to use the 
``episodic access'' exception to the fingerprint-based FBI criminal 
history check requirement described in Sec.  2540.203(b)(2)(iii). This 
is a self-determination grantees will make using the guidance in this 
notice. We will continue to monitor grantees for compliance with the 
criminal history background check requirement, including reliance on 
the episodic access exception.
    Comment: CNCS received comments indicating that the proposed rule 
was unclear as to when approval from CNCS is required for individuals 
in covered positions with recurring access to vulnerable populations to 
be excepted from the fingerprint-based FBI criminal history check.
    Response: The final rule has been restructured with new headings to 
indicate clearly when CNCS approval is required. In the case of 
episodic access, grantees are responsible for using their best judgment 
to determine whether or not an individual's access to vulnerable 
populations is episodic. Approval from the CNCS Office of Grants 
Management is not required. However, reliance on the self-determined 
exception for ``episodic access'' will be monitored by CNCS as a 
material grant condition.
    Comment: We received numerous comments expressing concern about our 
ability to process requests for alternative search procedure approval 
and fingerprint-based FBI criminal history check exceptions in a timely 
manner and what grantees should do while their requests are pending.
    Response: The Office of Grants Management is prepared to process 
requests from grantees in a prompt manner. This function may not be 
delegated to a grantee, such as a State Commission. However, a State 
Commission may request approval for an alternative search procedure 
applicable to individual sub-grantees, or to all of their sub-grantees, 
if applicable. While results of the National Service Criminal History 
Check are pending, individuals in covered positions with recurring 
access to vulnerable populations must be accompanied. The final rule 
and preamble have been updated to clarify this requirement.

V. Effective Dates and Implementation

    This final rule becomes effective January 1, 2013. However, the 
special rule for individuals in covered positions with recurring access 
to vulnerable populations will only apply to the selection of 
individuals in covered positions who began work or who started service 
with a grantee on, or after, April 21, 2011. Notwithstanding this date, 
grantees will have until January 1, 2013 to initiate the fingerprint-
based FBI criminal history check or the state registr(ies) check(s), 
whichever has not already been initiated, for individuals in covered 
positions with recurring access to vulnerable populations. A grantee 
must be certain that it has already satisfied the requirement to 
conduct an NSOPW check on all individuals who are currently serving or 
working in covered positions.
    Because of the significant period of time between April 21, 2011, 
and the effective date of the regulation, CNCS has determined that, as 
a blanket good cause exception implemented by section 2540.207(b)(2) of 
this final rule, an individual in a covered position with recurring 
access to vulnerable populations who began work or who started service 
with a grantee on or after April 21, 2011, and then departed the 
program or project before January 1, 2013, must have complied with the 
rule effective on October 1, 2009 (i.e. had a Check that included the 
NSOPW component and either the State Criminal History registr(ies) 
component OR the fingerprint-based FBI national criminal history 
background check component, but not BOTH the State Criminal History 
registr(ies) component AND the fingerprint-based FBI national criminal 
history background check component).

VI. Regulatory Procedures

Executive Orders 12866 and Executive Order 13563

    Executive Orders 13563 and 12866 direct agencies to assess all 
costs and benefits of available regulatory

[[Page 60931]]

alternatives and, if regulation is necessary, to select regulatory 
approaches that maximize net benefits (including potential economic, 
environmental, public health and safety effects, distributive impacts, 
and equity). Executive Order 13563 emphasizes the importance of 
quantifying both costs and benefits, of reducing costs, of harmonizing 
rules, and of promoting flexibility. This rule has been designated a 
``significant regulatory action,'' although not economically 
significant, under section 3(f) of Executive Order 12866. Accordingly, 
the rule has been reviewed by the Office of Management and Budget.

Regulatory Flexibility Act

    As required by the Regulatory Flexibility Act of 1980 (5 U.S.C. 605 
(b)), the Corporation certifies that this rule, if adopted, will not 
have a significant economic impact on a substantial number of small 
entities. This regulatory action will not result in (1) an annual 
effect on the economy of $100 million or more; (2) a major increase in 
costs or prices for consumers, individual industries, federal, state, 
or local government agencies, or geographic regions; or (3) significant 
adverse effects on competition, employment, investment, productivity, 
innovation, or on the ability of United States-based enterprises to 
compete with foreign-based enterprises in domestic and export markets. 
Therefore, CNCS has not performed the initial regulatory flexibility 
analysis that is required under the Regulatory Flexibility Act (5 
U.S.C. 601 et seq.) for major rules that are expected to have such 
results.

Unfunded Mandates

    For purposes of Title II of the Unfunded Mandates Reform Act of 
1995, 2 U.S.C. 1531-1538, as well as Executive Order 12875, this 
regulatory action does not contain any Federal mandate that may result 
in increased expenditures in either federal, state, local, or tribal 
governments in the aggregate, or impose an annual burden exceeding $100 
million on the private sector.

Paperwork Reduction Act

    In accordance with section 3507(j) of the Paperwork Reduction Act 
of 1995 (44 U.S.C. 3501 et seq.), the recordkeeping requirements 
included in this final rule have been submitted for emergency approval 
to the Office of Management and Budget (OMB). Due to an oversight, the 
Paperwork Reduction Act information was not included in the proposed 
rule and CNCS is requesting a short-term emergency clearance (OMB 
Control Number 3045-0145). In order to fairly evaluate whether a 
recordkeeping requirement should be approved by OMB, section 
3506(c)(2)(A) of the Paperwork Reduction Act of 1995 requires that we 
solicit comment on the following issues:
     The need for the recordkeeping requirement and its 
usefulness in carrying out the proper functions of our agency.
     The accuracy of our estimate of the information collection 
burden.
     The quality, utility, and clarity of the information to be 
collected.
     Recommendations to minimize the information collection 
burden on the affected public, including automated collection 
techniques.
    Under a separate notice, we will solicit public comment on each of 
these issues for the following sections of this document that contain 
recordkeeping requirements: 2540.205, .206.

Executive Order 13132, Federalism

    Executive Order 13132, Federalism, prohibits an agency from 
publishing any rule that has Federalism implications if the rule either 
imposes substantial direct compliance costs on State and local 
governments and is not required by statute, or the rule preempts State 
law, unless the agency meets the consultation and funding requirements 
of section 6 of the Executive Order. The proposed rule does not have 
any Federalism implications, as described above.

List of Subjects

45 CFR Part 2510

    Grant programs--social programs, Volunteers.

45 CFR Part 2522

    Grant programs--social programs, Reporting and recordkeeping 
requirements, Volunteers.

45 CFR Part 2540

    Administrative practice and procedure, Grant programs--social 
programs, Reporting and recordkeeping requirements, Volunteers.

45 CFR Part 2551

    Aged, Grant programs--social programs, Volunteers.

45 CFR Part 2552

    Aged, Grant programs--social programs, Volunteers.

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

PART 2510--OVERALL PURPOSES AND DEFINITIONS

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

    Authority: 42 U.S.C. 12511.

0
2. Amend Sec.  2510.20 by revising the definition of ``program'' to 
read as follows:

Sec.  2510.20  Definitions.

* * * * *
    Program. The term program, unless the context otherwise requires, 
and except when used as part of the term academic program, means a 
program described in the National and Community Service Act of 1990, as 
amended (42 U.S.C. 12501 et seq.), in section 112(a) (other than a 
program referred to in paragraph (3)(B) of that section), 118A, or 
118(b)(1), or subsection (a), (b), or (c) of section 122, or in 
paragraph (1) or (2) of section 152(b), section 198B, 198C, 198H, or 
198K, or an activity that could be funded under section 179A, 198, 
198O, 198P, or 199N.
* * * * *

PART 2522--AMERICORPS PARTICIPANTS, PROGRAMS, AND APPLICANTS

0
1. The authority citation for Part 2522 continues to read as follows:

    Authority: 42 U.S.C. 12571-12595; 12651b-12651d; E.O. 13331, 69 
FR 9911.

0
2. Amend Sec.  2522.200 by removing the period at the end of paragraph 
(a)(3) and adding a semicolon in its place and adding paragraph (a)(4) 
to read as follows:

Sec.  2522.200  What are the eligibility requirements for an AmeriCorps 
participant?

    (a) * * *
    (4) Satisfy the National Service Criminal History Check eligibility 
criteria pursuant to 45 CFR 2540.202.
* * * * *

0
3. Revise Sec.  2522.205 to read as follows:

Sec.  2522.205  To whom must I apply the National Service Criminal 
History Check eligibility criteria?

    You must apply the National Service Criminal History Check 
eligibility criteria to individuals serving in covered positions. A 
covered position is a position in which the individual receives an 
education award or a Corporation grant-funded living allowance, 
stipend, or salary.

[[Page 60932]]

Sec.  2522.206  [Removed and Reserved]

0
4. Remove and reserve Sec.  2522.206.

0
5. Revise Sec.  2522.207 to read as follows:

Sec.  2522.207  How do I determine an individual's eligibility to serve 
in a covered position?

    To determine an individual's eligibility to serve in a covered 
position, you must follow the procedures in part 2540 of this chapter.

PART 2540--GENERAL ADMINISTRATIVE PROVISIONS

0
6. The authority citation for part 2540 continues to read as follows:

    Authority: E.O. 13331, 69 FR 9911; 18 U.S.C. 506, 701, 1017; 42 
U.S.C. 12653, 12631-12637; 42 U.S.C. 5065.

0
7. Revise Sec.  2540.200 to read as follows:

Sec.  2540.200  What does ``you'' mean in this section?

    As used in this section, ``you'' means a Corporation grantee or 
other entity subject to Corporation grant provisions. Unless the 
context otherwise requires, this includes, but is not limited to, 
recipients of federal financial assistance under grant programs defined 
in Sec.  2510.20 of this chapter as well as projects under the Senior 
Companion Program, the Foster Grandparent Program, and RSVP.

0
8. Revise Sec.  2540.201 to read as follows:

Sec.  2540.201  To whom must I apply the National Service Criminal 
History Check eligibility criteria?

    You must apply the National Service Criminal History Check 
eligibility criteria to individuals serving in covered positions. A 
covered position is a position in which the individual receives an 
education award or a Corporation grant-funded living allowance, 
stipend, or salary.

0
9. Revise Sec.  2540.202 to read as follows:

Sec.  2540.202  What eligibility criteria must I apply to a covered 
position in connection with the National Service Criminal History 
Check?

    In addition to the eligibility criteria you establish, an 
individual shall be ineligible to serve in a covered position if the 
individual--
    (a) Refuses to consent to a criminal history check described in 
Sec.  2540.203 of this chapter;
    (b) Makes a false statement in connection with a criminal history 
check described in Sec.  2540.203 of this chapter;
    (c) Is registered, or is required to be registered, on a state sex 
offender registry or the National Sex Offender Registry; or
    (d) Has been convicted of murder, as defined in 18 U.S.C. 1111.

0
10. Revise Sec.  2540.203 to read as follows:

Sec.  2540.203  What search components of the National Service Criminal 
History Check must I satisfy to determine an individual's eligibility 
to serve in a covered position?

    (a) Search procedure for individuals in covered positions who do 
not have recurring access to vulnerable populations. Unless the 
Corporation approves an alternative search procedure under Sec.  
2540.207 of this chapter, to determine an individual's eligibility to 
serve in a covered position, you must conduct and document a National 
Service Criminal History Check that consists of the following 
components:
    (1) A nationwide name-based search of the Department of Justice 
(DOJ) National Sex Offender Public Web site (NSOPW), and
    (2) Either:
    (i) A name- or fingerprint-based search of the official state 
criminal history registry for the state in which the individual in a 
covered position will be primarily serving or working and for the state 
in which the individual resides at the time of application; or
    (ii) Submission of fingerprints through a state central record 
repository for a fingerprint-based Federal Bureau of Investigation 
(FBI) national criminal history background check.
    (b) Search procedure for individuals in covered positions who have 
recurring access to vulnerable populations. (1) This rule applies to 
individuals who:
    (i) Begin working for, or who start service with, you on or after 
April 21, 2011;
    (ii) Will be 18 years old or older at any time during their term of 
service; and
    (iii) Serve in a covered position that will involve recurring 
access to children age 17 years or younger, to individuals age 60 years 
or older, or to individuals with disabilities.
    (2) Unless the Corporation approves an alternative search procedure 
or an exception under Sec.  2540.207 of this chapter, to determine the 
eligibility of an individual described in paragraph (b)(1) of this 
section you must conduct and document a National Service Criminal 
History Check that consists of the following components:
    (i) A nationwide name-based search of the Department of Justice 
(DOJ) National Sex Offender Public Web site (NSOPW);
    (ii) A name- or fingerprint-based search of the official state 
criminal history registry for the state in which the individual in a 
covered position will be primarily serving or working and for the state 
in which the individual resides at the time of application; and
    (iii) Submission of fingerprints through a state central record 
repository for a fingerprint-based FBI national criminal history 
background check.

0
11. Revise Sec.  2540.204 to read as follows:

Sec.  2540.204  When must I conduct a National Service Criminal History 
Check on an individual in a covered position?

    (a) Timing of the National Service Criminal History Check 
Components. (1) You must conduct and review the results of the 
nationwide NSOPW check required under Sec.  2540.203 before an 
individual in a covered position begins work or starts service.
    (2) You must initiate state registry or FBI criminal history checks 
required under Sec.  2540.203 before an individual in a covered 
position begins work or starts service. You may permit an individual in 
a covered position to begin work or start service pending the receipt 
of results from state registry or FBI criminal history checks as long 
as the individual is not permitted access to children age 17 years or 
younger, to individuals age 60 years or older, or to individuals with 
disabilities, without being in the physical presence of an appropriate 
individual, as described in Sec.  2540.205(g) of this chapter.
    (b) Consecutive terms. If an individual serves consecutive terms of 
service in a covered position and does not have a break in service that 
exceeds 120 days, then no additional National Service Criminal History 
Check is required, as long as the original check is a compliant check 
for the covered position in which the individual will be serving or 
working following the break in service. If your program or project is 
designed with breaks in service over 120 days, but less than 180 days 
between consecutive terms, you may request approval for a break in 
service of up to 180 days before a new National Service Criminal 
History Check is required. Your request must describe the overall 
program design, explain why the longer period is reasonable, and 
demonstrate that you have established adequate risk management controls 
for the extended break in service.

0
12. Revise Sec.  2540.205 to read as follows:

[[Page 60933]]

Sec.  2540.205  What procedures must I follow in conducting a National 
Service Criminal History Check for a covered position?

    You are responsible for following these procedures:
    (a) Verify the individual's identity by examining the individual's 
government-issued photo identification card, such as a driver's 
license;
    (b) Obtain prior, written authorization from the individual for the 
State registry check, for the FBI criminal history check, and for the 
appropriate sharing of the results of the checks within the program. 
Prior written authorization from the individual is not required to 
conduct the nationwide NSOPW check;
    (c) Document the individual's understanding that selection into the 
program is contingent upon the organization's review of the 
individual's National Service Criminal History Check component results, 
if any;
    (d) Ensure that screening practices comply with federal civil 
rights laws, including Titles VI and VII of the Civil Rights Act of 
1964 (and the Corporation's implementing regulations under Title VI);
    (e) Provide a reasonable opportunity for the individual to review 
and challenge the factual accuracy of a result before action is taken 
to exclude the individual from the position;
    (f) Provide safeguards to ensure the confidentiality of any 
information relating to the criminal history check, consistent with 
authorization provided by the applicant; and
    (g) Ensure that an individual, for whom the results of a required 
state or FBI criminal history registry check are pending, is not 
permitted to have access to children age 17 years or younger, to 
individuals age 60 years or older, or to individuals with disabilities 
without being in the physical presence of:
    (1) Your authorized representative who has previously been cleared 
for such access;
    (2) A family member or legal guardian of the vulnerable individual; 
or
    (3) An individual authorized, because of his or her profession, to 
have recurring access to the vulnerable individual, such as an 
education or medical professional.
    (h) Unless specifically approved by the Corporation, you may not 
charge an individual for the cost of any component of a National 
Service Criminal History Check.

0
13. Revise Sec.  2540.206 to read as follows:

Sec.  2540.206  What documentation must I maintain regarding a National 
Service Criminal History Check for a covered position?

    You must:
    (a) Document in writing that you verified the identity of the 
individual in a covered position by examining the individual's 
government-issued photo identification card, and that you conducted the 
required checks for the covered position; and
    (b) Maintain the results, or a results summary issued by a State or 
Federal government body, of the NSOPW check and the other components of 
each National Service Criminal History Check, unless precluded from 
doing so by State or Federal law or regulation. You must also document 
in writing that an authorized grantee representative considered the 
results of the National Service Criminal History Check in selecting the 
individual.

0
14. Revise Sec.  2540.207 to read as follows:

Sec.  2540.207  When may I follow an alternative search procedure or be 
excepted from a requirement in conducting a National Service Criminal 
History Check for a covered position?

    (a) Alternative search procedure. (1) If you submit a written 
request to the Corporation's Office of Grants Management, the 
Corporation will consider approving an alternative search procedure:
    (i) If you demonstrate that you are prohibited or otherwise 
precluded under state law from complying with a Corporation requirement 
relating to the National Service Criminal History Check, or
    (ii) If you can obtain substantially equivalent or better 
information through an alternative search procedure.
    (2) The Office of Grants Management will review the alternative 
search procedure to ensure that it:
    (i) Verifies the identity of the individual; and
    (ii) Includes a search of an alternative criminal database that is 
sufficient to identify the existence or absence of criminal offenses.
    (b) Exceptions to Criminal History Check requirements for 
individuals with recurring access to vulnerable populations. (1) 
Exception that does not require prior Corporation approval--Episodic 
Access. (i) For the purposes of this section, an individual's access to 
a vulnerable population is considered to be episodic in nature if the 
service is not a regular, scheduled, and anticipated component of the 
individual's position description.
    (ii) You are not required to conduct the fingerprint-based FBI 
criminal history check on individuals in covered positions with 
recurring access to vulnerable populations, as described in Sec.  
2540.203 of this chapter, when the individual's access to a vulnerable 
population is episodic in nature or for a 1-day period.
    (iii) No prior approval is required from the Corporation for you to 
apply this exception. You must make and document a determination that 
the individual's access to vulnerable populations is episodic, as 
defined by paragraphs (b)(1)(i) and (ii) of this section.
    (2) Exceptions that require prior approval of the Corporation. You 
are not required to conduct the fingerprint-based FBI criminal history 
check on individuals in covered positions with recurring access to 
vulnerable populations, as described in Sec.  2540.203 of this chapter, 
if you demonstrate and the Corporation determines in writing that:
    (i) Complying with Sec.  2540.203(b)(2)(iii) of this chapter is 
cost-prohibitive;
    (ii) You are not authorized, or are otherwise unable, under state 
or federal law, to access the national criminal history background 
check system of the FBI; or
    (iii) That you are exempt from the requirement in Sec.  
2540.203(b)(2)(iii) of this chapter for good cause.

PART 2551--SENIOR COMPANION PROGRAM

0
15. The authority citation for part 2551 continues to read as follows:

    Authority: 42 U.S.C. 4950 et seq.; 42 U.S.C. 12651b-12651d; E.O. 
13331, 69 FR 9911.

0
16. Amend Sec.  2551.23 by adding paragraph (l) to read as follows:

Sec.  2551.23  What are the sponsor's program responsibilities?

* * * * *
    (l) Conduct criminal history checks on all Senior Companions and 
Senior Companion grant-funded employees who start service, or begin 
work, in your program after November 23, 2007, in accordance with the 
National Service Criminal History Check requirements in 45 CFR 2540.200 
through 2540.207.

Sec. Sec.  2551.26 through 2551.32   [Removed and Reserved].

0
17. Remove and reserve Sec. Sec.  2551.26 through 2551.32.

PART 2552--FOSTER GRANDPARENT PROGRAM

0
18. The authority citation for Part 2552 continues to read as follows:

    Authority:  42 U.S.C. 4950 et seq., 42 U.S.C. 12651b-12651d; 
E.O. 13331, 69 FR 9911

[[Page 60934]]

0
19. Amend Sec.  2552.23 by adding paragraph (l) to read as follows:

Sec.  2552.23  What are a sponsor's program responsibilities?

* * * * *
    (l) Conduct criminal history checks on all Foster Grandparents and 
Foster Grandparent grant-funded employees who start service, or begin 
work, in your program after November 23, 2007, in accordance with the 
National Service Criminal History Check requirements in 45 CFR 2540.200 
through 2540.207.

Sec. Sec.  2552.26 through 2552.32   [Removed and Reserved]

0
20. Remove and reserve Sec. Sec.  2552.26 through 2552.32.

    Dated: September 28, 2012.
Valerie Green,
General Counsel.
[FR Doc. 2012-24467 Filed 10-4-12; 8:45 am]
BILLING CODE 6050-28-P
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