National Service Criminal History Checks, 48574-48585 [E7-16681]

Download as PDF rfrederick on PROD1PC67 with RULES 48574 Federal Register / Vol. 72, No. 164 / Friday, August 24, 2007 / Rules and Regulations (i) Make reasonable attempts to notify the patient, or to notify the attending physician or the physician who ordered the blood or blood component and ask the physician to notify the patient, or other individual as permitted under paragraph (b)(10) of this section, that potentially HIV or HCV infectious blood or blood components were transfused to the patient and that there may be a need for HIV or HCV testing and counseling. (ii) If the physician is unavailable or declines to make the notification, make reasonable attempts to give this notification to the patient, legal guardian, or relative. (iii) Document in the patient’s medical record the notification or attempts to give the required notification. (7) Timeframe for notification—(i) For donors tested on or after February 20, 2008. For notifications resulting from donors tested on or after February 20, 2008 as set forth at 21 CFR 610.46 and 21 CFR 610.47 the notification effort begins when the blood collecting establishment notifies the hospital that it received potentially HIV or HCV infectious blood and blood components. The hospital must make reasonable attempts to give notification over a period of 12 weeks unless— (A) The patient is located and notified; or (B) The hospital is unable to locate the patient and documents in the patient’s medical record the extenuating circumstances beyond the hospital’s control that caused the notification timeframe to exceed 12 weeks. (ii) For donors tested before February 20, 2008. For notifications resulting from donors tested before February 20, 2008 as set forth at 21 CFR 610.48(b) and (c), the notification effort begins when the blood collecting establishment notifies the hospital that it received potentially HCV infectious blood and blood components. The hospital must make reasonable attempts to give notification and must complete the actions within 1 year of the date on which the hospital received notification from the outside blood collecting establishment. (8) Content of notification. The notification must include the following information: (i) A basic explanation of the need for HIV or HCV testing and counseling; (ii) Enough oral or written information so that an informed decision can be made about whether to obtain HIV or HCV testing and counseling; and (iii) A list of programs or places where the person can obtain HIV or HCV testing and counseling, including any VerDate Aug<31>2005 12:50 Aug 23, 2007 Jkt 211001 requirements or restrictions the program may impose. (9) Policies and procedures. The hospital must establish policies and procedures for notification and documentation that conform to Federal, State, and local laws, including requirements for the confidentiality of medical records and other patient information. (10) Notification to legal representative or relative. If the patient has been adjudged incompetent by a State court, the physician or hospital must notify a legal representative designated in accordance with State law. If the patient is competent, but State law permits a legal representative or relative to receive the information on the patient’s behalf, the physician or hospital must notify the patient or his or her legal representative or relative. For possible HIV infectious transfusion recipients that are deceased, the physician or hospital must inform the deceased patient’s legal representative or relative. If the patient is a minor, the parents or legal guardian must be notified. (11) Applicability. HCV notification requirements resulting from donors tested before February 20, 2008 as set forth at 21 CFR 610.48 will expire on August 24, 2015. (c) General blood safety issues. For lookback activities only related to new blood safety issues that are identified after August 24, 2007, hospitals must comply with FDA regulations as they pertain to blood safety issues in the following areas: (1) Appropriate testing and quarantining of infectious blood and blood components. (2) Notification and counseling of recipients that may have received infectious blood and blood components. (Catalog of Federal Domestic Assistance Program No. 93.778, Medical Assistance Program) (Catalog of Federal Domestic Assistance Program No. 93.773, Medicare—Hospital Insurance; and Program No. 93.774, Medicare—Supplementary Medical Insurance Program) Dated: July 22, 2005. Mark B. McClellan, Administrator, Centers for Medicare & Medicaid Services. Approved: December 18, 2006. Michael O. Leavitt, Secretary. Editorial Note: This document was received at the Office of the Federal Register on August 17, 2007. [FR Doc. E7–16647 Filed 8–23–07; 8:45 am] BILLING CODE 4120–01–P PO 00000 Frm 00028 Fmt 4700 Sfmt 4700 CORPORATION FOR NATIONAL AND COMMUNITY SERVICE 45 CFR Parts 2510, 2522, 2540, 2551, and 2552 RIN 3045–AA44 National Service Criminal History Checks Corporation for National and Community Service. ACTION: Final rule. AGENCY: SUMMARY: The Corporation for National and Community Service (Corporation) is issuing a regulation requiring grantees to conduct and document National Service Criminal History Checks on Senior Companions and Foster Grandparents, as well as on AmeriCorps State and National (including Education Award Program) participants and grantfunded staff in those programs who, on a recurring basis, have access to children, persons age 60 and older, or individuals with disabilities. A National Service Criminal History Check consists of a State criminal registry check; and a National Sex Offender Public Registry (NSOPR) check. DATES: This final rule is effective November 23, 2007. FOR FURTHER INFORMATION CONTACT: Amy Borgstrom at (202) 606–6930 (aborgstrom@cns.gov). The TDD/TTY number is (202) 606–3472. You may request this rule in an alternative format for the visually impaired. I. Background—The October 26, 2006, Proposed Rule On October 26, 2006, the Corporation published a proposed rule (71 FR 62573) to require its grantees to conduct and document criminal history checks on Senior Companions and Foster Grandparents, as well as on AmeriCorps State and National (including Education Awards Program) participants and grant-funded staff in those programs who, on a recurring basis, have access to children, persons age 60 and older, or individuals with disabilities. The objective of this rule is to help protect vulnerable individuals who are beneficiaries of programs that are funded by the Corporation. This update to the Corporation’s criminal history check policies was prompted by a recommendation by the Corporation’s Acting Inspector General in an advisory letter to the Corporation’s Chief Executive Officer in January 2005. Emphasis on Protecting Vulnerable Populations Many national and community service programs are dedicated to E:\FR\FM\24AUR1.SGM 24AUR1 Federal Register / Vol. 72, No. 164 / Friday, August 24, 2007 / Rules and Regulations helping children learn to read, giving children better opportunities to thrive, helping older persons maintain their independence, and otherwise serving vulnerable individuals while striving to recruit diverse participants. With this commitment comes the responsibility to safeguard the well-being of program beneficiaries, including the effective screening of staff, participants, and volunteers. This responsibility is principally determined by State law, and the standard of care required may vary from one State to another. Organizations carrying out national and community service programs should establish and regularly review their screening and supervision practices as measured against the applicable standard of care under State law. The Corporation’s Authority Sections 192A, 193, and 193A of the National and Community Service Act of 1990, 42 U.S.C. 12651b-d, give the Corporation broad authority to establish rules to protect program beneficiaries. This authority is reinforced by Executive Order 13331, National and Community Service Programs (Feb. 27, 2004), 60 FR. 9911 (Mar. 3, 2004), which directs the Corporation to ‘‘strengthen its oversight of national and community service programs through performance and compliance standards and other management tools.’’ rfrederick on PROD1PC67 with RULES FBI Fingerprint Checks Rapid advances in technology are increasing the availability and accessibility of information about individuals in our society. However, we have not yet identified any established criminal history check process at the national level that we can mandate for all grantees. The FBI maintains the most complete criminal database in the United States, with records that are fingerprint-based. A fingerprint check of this database is generally considered the most reliable, in part because it screens a physical characteristic rather than a name provided by an applicant. However, FBI-maintained records can sometimes be less complete and less upto-date than State records, and are available only to organizations specifically authorized by a Federal or State law. Many organizations operating national and community service programs do not currently have access to FBI fingerprint checks. The Attorney General’s Report on Criminal History Background Checks In 2006, the U.S. Attorney General issued a report with recommendations for broader access to FBI criminal history records for non-criminal VerDate Aug<31>2005 12:50 Aug 23, 2007 Jkt 211001 purposes, including screening volunteers for entities providing services to children, the elderly, and individuals with disabilities. The Attorney General’s Report on Criminal History Background Checks (June 2006) is available on-line at http:// www.usdoj.gov/olp/ ag_bgchecks_report.pdf (hereinafter The Attorney General’s Report). As such recommendations are implemented in Federal and State law, grantees operating national and community service programs may have better access to FBI fingerprint checks. In time, they may also have access to State and national criminal history databases that make use of driver’s licenses incorporating fingerprint or other biometric data as a result of the Real ID Act of 2005 (Pub. L. 109–13) and new biometric techniques such as DNA identification. The PROTECT Act We are aware of Congressional interest in making accurate information about individuals’ criminal history available while appropriately limiting the sharing of such information. For example, the PROTECT Act (Pub. L. 108–21) authorizes the Boys & Girls Club of America, the National Council of Youth Sports, the National Mentoring Partnership, and nonprofit organizations that provide care, treatment, education, training, instruction, supervision, or recreation to children to participate in a pilot program with the National Center for Missing and Exploited Children to obtain FBI fingerprint criminal history checks on volunteer applicants for a fixed fee of $18.00 per individual. Corporation grantees that provide the above types of services to children may consider contacting the National Center for Missing and Exploited Children (http://www.missingkids.com) to determine if they are eligible to participate in the pilot program. Alternatively, mentoring organizations, such as Foster Grandparent programs and many AmeriCorps programs, may request to participate through the National Mentoring Partnership (http:// www.mentoring.org), a current participant in the pilot program. The lessons learned from the ongoing PROTECT Act’s pilot program are likely to inform and spur greater and more effective coordination across State lines. For example, in January, 2007, Senators McCain and Schumer introduced legislation (S.431, Keeping the Internet Devoid of Sexual Predators Act of 2007, or KIDS Act) to strengthen national reporting requirements (including the requirement to register online Internet identifiers) for sex offenders. Also, in PO 00000 Frm 00029 Fmt 4700 Sfmt 4700 48575 January, 2007, Congressman Pomeroy introduced legislation (H.R. 719) to establish a National Sex Offender Risk Classification Task Force to create guidelines for a risk-based sex offender classification system for use in sex offender registries. Amid this changing landscape, the Corporation seeks at this time to achieve a consistent baseline practice among Senior Companion and Foster Grandparent programs, and among AmeriCorps State and National programs serving children, persons age 60 and older, or individuals with disabilities. The Requirement for Grantees To Establish a Baseline Screening Process This rule establishes a baseline screening process at the national level. This screening requirement will be a Federal grant condition separate and apart from any State requirement. The Need for a Comprehensive Screening Process This baseline screening requirement does not, however, preclude grantees from conducting a more thorough evaluation of supervising staff and participants if they choose to do so. Criminal history checks are one part of an effective risk management approach to protecting program participants from harm as well as protecting the sponsoring organization from liability. Organizations serving children and other vulnerable populations need to be mindful that no screening process is foolproof. Sponsoring organizations should also note that the design and operation of programs can provide additional safeguards. Examples include programs designed to minimize opportunities for potential abuse; regular child or elder abuse prevention training; restricted one-on-one and other unsupervised contact with vulnerable clients; controlled access to areas where vulnerable clients are present; unannounced observation visits; and the posting and reinforcement of protocols on how to respond to suspected or reported abuse. To assist our grantees, the Corporation has distributed and also made available on our Web site the Staff Screening Tool Kit, 3rd Edition, a publication prepared by the Nonprofit Risk Management Center that contains helpful information designed to strengthen an organization’s staff and volunteer screening and supervision processes. You can access this resource at http://www.nationalservice.gov/ screeningtoolkit. E:\FR\FM\24AUR1.SGM 24AUR1 48576 Federal Register / Vol. 72, No. 164 / Friday, August 24, 2007 / Rules and Regulations Fairness and Confidentially The National Service Criminal History Check also seeks to ensure fairness and confidentiality in handling criminal history information. Such fairness and confidentiality considerations are congruent with the Attorney General’s privacy recommendation and discussion of ‘‘fair information practices’’ as applied to criminal history records in The Attorney General’s Report. As the Attorney General points out, we also have an interest, as a society, in rehabilitating individuals with a criminal history and in avoiding unlawful discrimination. In developing the rule, the Corporation reviewed comments and public statements submitted to DOJ by privacy, civil liberties, and ex-offender advocates concerning the impact of criminal background checks and sex offender registries on privacy, rehabilitation, and discrimination. Because criminal history searches and results often disclose other potentially sensitive identifying data, such as Social Security number, date of birth, driver’s license number, and home address, grantees need to protect the individuals concerned from identity theft, physical threats, or other injury. Fairness and confidentiality procedures can also help ensure that qualified prospective program volunteers, participants, and employees are not discouraged from seeking to be involved in national and community service programs. rfrederick on PROD1PC67 with RULES Laws That Prohibit Employment Discrimination Closely related to privacy requirements are Federal and State laws that prohibit discrimination in employment, such as Title VII of the Civil Rights Act of 1964 (42 U.S.C. 2000e et seq.). This can be an issue, for example, if employment decisions are attributed to the results of criminal history checks, but the results are actually used as a pretext for excluding individuals based on their race, religion, gender, or age. The recently-revised Equal Employment Opportunity Commission (EEOC) Compliance Manual, Section 15: Race and Color Discrimination (April 19, 2006), refers to court rulings on the potential ‘‘disparate impact’’ of a hiring policy based on arrests or convictions. The EEOC suggests that prospective employers should weigh the following factors in each case to ensure their decisions to disqualify applicants based on criminal history results are grounded on defensible ‘‘business needs,’’ despite any differential impact: VerDate Aug<31>2005 12:50 Aug 23, 2007 Jkt 211001 • 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 job held or sought. These considerations apply directly to preventing unlawful discrimination in the employment of persons for covered grant-funded staff positions, and may be relevant to a national and community service program’s evaluation of applicants to a position as a staff member or participant. The EEOC Compliance Manual is available online at: http://www.eeoc.gov/policy/docs/ race-color.html. Preliminary Public Input On October 17, 2005, the Corporation published a notice in the Federal Register inviting informal preliminary public input in advance of rulemaking (70 FR 60257). The Corporation also held two conference calls following the notice. The Corporation considered the input received in drafting its proposed rule. 60-Day Comment Period In the Federal Register of October 26, 2006 (71 FR 62573), the Corporation published the proposed rule, with a 60day comment period. In addition to accepting comments in writing, the Corporation held two conference calls in November, 2006. The Corporation received over 70 comments concerning the proposed rule, including those in writing and those received through the conference calls. Comments are discussed in detail in Part III. In general, almost all of the comments supported the requirement that criminal history background and NSOPR checks be conducted on individuals working with vulnerable populations in the positions designated in the proposed rule. II. Discussion of the Final Rule Covered Positions This final rule covers Senior Companions and Foster Grandparents, and participant positions in AmeriCorps State and National and other programs that provide a Corporation-funded living allowance, stipend, education award, or other remuneration to individuals who have recurring access to children, persons age 60 and older, or individuals with disabilities. We define ‘‘children’’ as individuals 17 years of age and younger, consistent with the PROTECT Act. Sixty years of age—the lowest age commonly used by Congress to define elderly persons—is the PO 00000 Frm 00030 Fmt 4700 Sfmt 4700 threshold age for protecting elderly persons. ‘‘Individuals with disabilities’’ has the same meaning given the term in the Rehabilitation Act in 29 U.S.C. 705(20)(B), and includes any person who has a physical or mental impairment which substantially limits one or more major life activities, has a record of such an impairment, or is regarded as having such an impairment. The final rule also covers grant-funded staff with access to the identified vulnerable populations in these programs. Grantees, therefore, must establish the age and disability status of program participants, including beneficiaries. The rule covers the Senior Companion and Foster Grandparent programs because their focus on serving vulnerable populations warrants baseline screening provisions that meet a national standard. The requirement includes specific search elements, as well as fairness considerations. It gives more specific direction to Senior Companion and Foster Grandparent sponsoring organizations in carrying out an important part of their responsibility to establish risk management policies and procedures, and disqualifies registered sex offenders from serving as Senior Companions or Foster Grandparents. Currently, AmeriCorps State and National grant programs, including the Education Awards Program, have a criminal background check requirement in their grant provisions. In light of the Corporation’s substantial support for AmeriCorps participants, all of whom are eligible to receive a Corporationfunded education award upon successful completion of service, we believe that baseline screening requirements are appropriate. This rule adds details to the required search elements, establishes procedures to assure fairness and confidentiality, and disqualifies registered sex offenders from AmeriCorps positions with recurring access to children, persons age 60 and older, or individuals with disabilities. The rule also applies to other Corporation-supported grant programs in which service participants receive a Corporation-funded living allowance, stipend, or education award and, on a recurring basis, have access to children, persons age 60 and older, or individuals with disabilities. For example, the rule would also cover a non-AmeriCorps program that provides a stipend to participants who tutor children in an after-school program. E:\FR\FM\24AUR1.SGM 24AUR1 Federal Register / Vol. 72, No. 164 / Friday, August 24, 2007 / Rules and Regulations Programs Not Covered Under Final Rule The rule’s requirements do not cover individuals in the RSVP or Learn and Serve America programs, or unaffiliated volunteers recruited by national and community service programs. Those individuals have an attenuated connection to the Corporation, and the Federal government does not directly facilitate unsupervised contact between vulnerable persons and individuals through those programs. The Corporation therefore defers to existing duties of care under State law. For example, participants in Learn and Serve K–12 programs seldom serve in unsupervised settings. In addition, participants in Learn and Serve Higher Education programs, who concentrate primarily on curriculum development, as well as participants in CommunityBased programs who usually serve in supervised, group settings, generally do not have unsupervised access to vulnerable populations. The Corporation emphasizes, however, the importance of ascertaining and meeting the applicable standards of care under State law for all Corporation-supported programs and activities. The final rule also does not cover the AmeriCorps National Civilian Community Corps or the AmeriCorps VISTA programs, as the selection of participants in those programs is made by Federal personnel rather than by grantee organizations. While the Corporation has strengthened our internal screening practices in both of those federally-operated programs through an arrangement with the U.S. Office of Personnel Management, these programs are outside the scope of this rulemaking. Specifics of the Final Rule The rule requires a criminal history review that reflects information that should be reasonably accessible to grantees. The following elements are required: rfrederick on PROD1PC67 with RULES Components of the National Service Criminal History Check Unless the Corporation approves an alternative screening protocol and unless prohibited or otherwise precluded by State law, a covered grantee must, in selecting an individual for participation, conduct and document two searches: (A) A search (by name or fingerprint) of the State criminal registry for the State in which the program operates and the State in which the applicant resides at the time of application; and (B) a search of the Department of Justice (DOJ) National Sex Offender Public Registry (NSOPR) at http://www.nsopr.gov. The term VerDate Aug<31>2005 12:50 Aug 23, 2007 Jkt 211001 ‘‘State,’’ when used in this rule, also includes U.S. Territories, as defined in 45 CFR 2510.20; 2551.12 (u); and 2552.12 (x). Required Procedures Procedures must include: (a) Verification of the applicant’s identity by examining a government-issued photo identification card; (b) prior, written authorization by the applicant authorizing the program to conduct State criminal registry checks (not required for NSOPR checks), as well as authorization to share the results of that check within the program, as appropriate; (c) documentation of the applicant’s understanding that selection into the program is contingent upon the organization’s review of the applicant’s criminal history, if any; (d) an opportunity for the applicant to review and challenge the factual accuracy of a result before action is taken to exclude the applicant from the position; (e) safeguards to ensure the confidentiality of any information relating to the criminal history check, consistent with the authorization provided by the applicant (grantees may find a useful model in considering confidentiality safeguards in the Federal Trade Commission’s Standards for Safeguarding Customer Information, 16 CFR Part 314, posted at http:// www.ftc.gov/os/2002/05/ 67fr36585.pdf.); and (f) ensuring that an individual, for whom the results of a required State criminal registry check are pending, is not permitted to have access to vulnerable beneficiaries without being accompanied by an authorized program representative who has previously been cleared for such access. An individual who refuses to authorize a program to conduct a criminal history State registry check, or who makes a false statement in connection with a grantee’s inquiry concerning the individual’s criminal history, may not serve in a covered position. Required Documentation Frm 00031 Fmt 4700 Sfmt 4700 NSOPR Checks Required on All Covered Positions, Including Those Currently Serving The NSOPR is a DOJ-sponsored Internet-based, searchable Web site that provides one-stop access to registries from all 50 States, Guam, Puerto Rico, and the District of Columbia. To assist the public, the FBI also has a link on its Web site to each State’s sexual offender registry. The FBI Web site can be accessed at http://www.fbi.gov/hq/cid/ cac/States.htm. The NSOPR check must be conducted on any applicant for a covered position, as well as on any individual currently serving in a covered position at the time this rule becomes effective. Grantees should know that the NSOPR compiles, but does not independently verify or analyze, data that is provided by each State, and even if current legislative proposals to establish national reporting standards are adopted, there may continue to be differences in the content and currency of data held respectively in the NSOPR and State sex offender registries. Effective Dates for Conducting State Criminal Registry and NSOPR Checks A Senior Companion or Foster Grandparent sponsoring organization must demonstrate that any required State criminal registry check is conducted at least once for any Senior Companion or Foster Grandparent who begins serving with the program on or after the effective date of this rule. An AmeriCorps grantee must document that the required State criminal registry check is conducted the first time an individual applies for a covered position in its program on or after the rule’s effective date. NSOPR checks must, however, be conducted for all Senior Companion, Foster Grandparent, and AmeriCorps covered positions, including those currently serving at the time this final rule becomes effective. Programs must complete the NSOPR check on their current participants and grant-funded employees in covered positions within 90 days from the publication date of the final rule. Alternative Search Procedures A grantee must document in writing that it (or its designee) verified the identity of the individual by examining the individual’s government-issued photo identification card, conducted the required checks, maintained the results of the National Service Criminal History Check (unless precluded by State law), and considered the results in selecting or retaining an individual for a covered position. PO 00000 48577 If a grantee demonstrates that, for good cause, including a conflict with State law, it is unable to conduct the required searches or that it can obtain substantially equivalent or better information through an alternative process, the Corporation will consider approving an alternative search protocol proposed in writing by the grantee. This includes, but is not limited to, situations where a State or local government body E:\FR\FM\24AUR1.SGM 24AUR1 48578 Federal Register / Vol. 72, No. 164 / Friday, August 24, 2007 / Rules and Regulations rfrederick on PROD1PC67 with RULES has established screening and documentation requirements designed to protect one or more vulnerable populations covered by the final rule. A school board, for example, acting pursuant to State legislation, may have set requirements for screening staff and volunteers that provide substantially equivalent protections to the vulnerable populations identified in this rule. Consequently, a teacher corps, whose members are all school district employees screened pursuant to a requirement imposed by a school board or other governing body, would satisfy the criteria for an approved alternative search procedure. In determining whether an alternative process results in substantially equivalent or better information, the Corporation will review the nature of the sources included in the alternative process, as well as the reliability of the information obtained. A current grantee can submit a written request within 90 days after the publication of this rule to the Corporation for approval of an alternative search protocol. A grantee qualifying for an exception must still conduct NSOPR checks on its participants and grant-funded employees, if not already required under State or local authority. Grantees must submit any applicable alternative protocol requests for approval in writing to the Corporation’s Office of Grants Management. The Office of Grants Management will review the alternative protocol and will consider factors including, but not limited to: (1) That it sufficiently verifies the identity of the applicant; and (2) that it includes a search of an alternative criminal database that is sufficient to identify the existence, or absence of, a criminal offense. In addition, a grantee that conducts and documents a criminal history check through the FBI or through a national name-based check that, at a minimum, includes a search of the State criminal registry in the State in which the program is operating, as well as in the State in which the applicant resides, will be deemed to have satisfied the required State criminal registry check and does not need separate approval by the Corporation. Additional Safeguards Establishing a baseline process as a grant condition is in no way intended to discourage grantees from undertaking additional measures to screen applicants. For example, grantees should be aware that individuals might provide a false name during the application process. Consequently, while a grantee must verify an VerDate Aug<31>2005 12:50 Aug 23, 2007 Jkt 211001 applicant’s identity with a governmentissued photo identification card, such as a driver’s license, the Corporation also strongly encourages grantees to take other precautionary steps such as consistently checking references or past employment. Additional screening practices include conducting a personal interview or, for an individual whose program assignment will include driving a vehicle, examining driving records. In addition, some programs have access to State-based child abuse or elder abuse registries. A grantee’s decision to take any of these additional steps reflects the organization’s own judgment about appropriate screening and is not considered a requirement under the Corporation grant. Terminations and the Corporation’s Refill Policy The Corporation’s refill policy may enable AmeriCorps program grantees that have fully enrolled their awarded slots to replace a participant who terminates service before completing a required minimum (currently 30 percent) of his or her term and without having receiving a pro-rated education award. If the background screening results in the participant being ineligible to serve and the participant has already served more than the term of service specified under the refill policy, a grantee may seek an exception to the refill policy by submitting a written request for an exception to the Corporation’s Office of Grants Management. The Office of Grants Management will review the request based on factors including, but not limited to, whether the delay in obtaining the criminal history check for the participant was a result of the grantee’s lack of due diligence, or was for a reason that was beyond the grantee’s control, and will reply within 30 days of receipt of such requests. Disqualification of Registered Sex Offenders States have developed sexual offender registries to inform the public concerning the presence and location of individuals who have been convicted of certain sex-related offenses, either committed within that State, or in another State. Depending on the severity of the convicted offense, individuals are required to register as sex offenders either for a specified number of years (e.g., 10 years) or for life. An individual who is subject to a State sex offender registration requirement is deemed unsuitable for, and may not serve in, a covered position. The disqualification includes individuals who are applicants for PO 00000 Frm 00032 Fmt 4700 Sfmt 4700 covered positions, as well as individuals who are currently serving with the organization in a covered position. Grantees not Precluded From Adopting Other Disqualifying Offenses In developing the proposed rule, the Corporation considered other disqualifying factors and offenses, such as convictions for serious and violent felonies, but ultimately determined that the selection criteria for covered positions—beyond any statutory eligibility criteria and the disqualification of registered sex offenders—should continue to be the responsibility of each grantee organization. Therefore, this rule does not preclude a grantee from adopting additional grounds for disqualification if it decides that it is appropriate or necessary for a particular program. Grantees should, however, be aware that State law may specifically prohibit the consideration of conviction or arrest records under certain circumstances. Finally, grantees should look at criminal history checks as but one of many sources of information to assess whether an individual is suitable for a program. Selection of Applicants Pending Criminal History Results A grantee may not select an individual for a position that has recurring access to children, persons age 60 and older, or individuals with disabilities prior to determining whether the individual is subject to a State sex offender registration requirement, which is readily ascertainable through an on-line search. Because the additionally-required search of State criminal registries, or an approved alternative search, may take more time, a grantee is not precluded under this rule from selecting or placing an individual contingent upon obtaining these additional results subsequently. However, until all required State criminal registry check results are received and reviewed by the grantee, an applicant may not have access to a vulnerable beneficiary without being accompanied by an authorized program representative who has previously been cleared to have such access. A grantee should take other reasonable precautions to ensure that safeguards are in place while the results are pending, including additional monitoring, and other risk mitigation steps, as determined by the grantee. The Corporation again emphasizes that the NSOPR check must be conducted before the individual begins to serve, as it is a no-cost, almost instantaneous search that can be conducted by accessing the DOJ Web site. E:\FR\FM\24AUR1.SGM 24AUR1 Federal Register / Vol. 72, No. 164 / Friday, August 24, 2007 / Rules and Regulations Use of Intermediary Permitted A grantee may ascertain and assess an individual’s criminal history or sex offender status directly from the applicable government agency, or indirectly through a duly authorized intermediary selected by the grantee such as a commercial entity or nonprofit organization. However, as a prudential matter, grantees should routinely review the intermediary’s criminal history check procedures and practices to ensure that they are in compliance with the Corporation’s requirements. In addition, because the amount of time from application until actual enrollment can be substantial, grantees should ensure that the criminal history result that it reviews before selecting the applicant is as current as possible. rfrederick on PROD1PC67 with RULES Costs The final rule requires grantees (or their designees) to obtain and document a National Service Criminal History Check for covered individuals. The Corporation considers the cost of this required criminal history check a reasonable and necessary program grant expense, such costs being presumptively eligible for reimbursement. A grantee should include the costs associated with its screening process in the grant budget it submits for approval to the Corporation. Unless specifically approved by the Corporation, a grantee may not charge an individual for the cost of a criminal history check required under this rule. The Corporation will consider approving, for example, a long-standing school district policy of charging staff, volunteers, and others who work or serve in schools for the cost of criminal history checks, provided the income is treated in accordance with applicable grant conditions. In addition, because criminal history checks are inherently attributable to operating a program, such costs may not be charged to a State commission administrative grant. We will monitor the screening and documentation requirement as a material condition of receiving a Corporation grant. A grantee’s material failure to comply with this requirement (including the NSOPR check) will result in the Corporation taking appropriate action, up to and including denial of the grantee’s claim for reimbursements, suspending the grantee’s access to grant funds, or restricting (or denying) the grantee’s eligibility to obtain future grants from the Corporation. And specifically, a grantee jeopardizes eligibility for reimbursement of costs related to a disqualified individual if it VerDate Aug<31>2005 12:50 Aug 23, 2007 Jkt 211001 fails to perform or document the required check. III. Comments and Response Of the more than 70 comments received, the vast majority of the comments supported the requirement that national service programs conduct and document criminal history checks on individuals in covered positions. The comments and our responses are set forth below. Comment: Several commenters inquired as to why the Corporation was not including the RSVP or Learn and Serve programs under this rule. Response: The Corporation’s connections with individual participants in the RSVP and Learn and Serve programs are sufficiently attenuated to rely on existing duties of care under State law. At the same time, the Corporation recognizes the importance of protecting all Corporation-supported program beneficiaries; therefore, we wish to emphasize the importance and need for all programs to ascertain and meet the applicable duties of care under State law. Comment: Several commenters asked for clarification concerning the term ‘‘recurring access,’’ expressing concern that it may be too broad in its scope. Response: The term is defined in the final rule at § 2510.20 Definitions. The Corporation believes that the definition of recurring access in the proposed rule is appropriate, and that it is prudent to include more applicants under this requirement than to exclude them by limiting the definition to a narrower category of individuals. A definition other than ‘‘more than once’’ would be likely to result in additional documentation requirements and collateral disputes about the adequacy of such documentation. Note that the definition does not apply to Senior Companions and Foster Grandparents, all of whom are covered by the requirements. Comment: Some commenters expressed concern that including persons age 60 and older as vulnerable individuals may offend individuals in this age category. Response: While we acknowledge that many individuals, age 60 and older, would not consider themselves vulnerable, we thought it would be prudent, from a policy and safety perspective, to be more inclusive than exclusive on this point. In addition, we have determined that sixty years of age appears to be the lowest age commonly used by Congress to define elderly persons in legislation that establishes a threshold age for elderly persons (e.g., PO 00000 Frm 00033 Fmt 4700 Sfmt 4700 48579 Older Americans Act; Food Stamp Act) (§§ 2522.205; 2540.200; 2551.26; 2552.26)). Comment: One commenter asked us to clarify which State criminal registry checks are required for a program that operates in more than one State. Response: The final rule requires a search of the criminal registry for the State in which a program operates and the State in which the applicant resides at the time of application. ‘‘State in which your program operates’’ refers to the actual geographic location where an individual will be serving on a permanent basis while participating in the program. For example, if the program’s headquarters is in Florida, but the individual is applying to serve in an operating site in another State, the program must conduct a criminal history check in the State in which the operating site is located. If a program is unsure where an applicant is going to serve at the time that the applicant submits an application, the program must check each State in which the applicant could be assigned to serve on a permanent basis. (§§ 2540.202 (a); 2551.27 (a); 2552.27 (a)). Comment: One commenter asked for clarification as to what has to be documented when conducting the NSOPR check. Response: The program must document in writing that it conducted the NSOPR check on all covered positions, and considered the results in determining the individual’s suitability. Any individual who is registered, or who is required to be registered, on a State sex offender registry is deemed unsuitable for, and may not serve in, a covered position (§§ 2540.202(b); 2551.27(b); 2552.27(b)); (§§ 2522.206; 2540.201; 2551.42; 2552.42). Comment: Another commenter asked us to clarify the term ‘‘consecutive terms of service’’ as it relates to a grantee’s requirement to conduct a separate criminal history check for a subsequent term of service. There is an exception to this requirement if an individual is serving ‘‘consecutive terms of service.’’ Response: A consecutive term of service means that there is no intervening break in service of more than 30 days during which the applicant did not serve in that specific program. Consequently, if there is no break in service, there is no requirement that a grantee conduct a new State criminal registry and NSOPR check (§ 2540.203). Notwithstanding this exception, any AmeriCorps participant who is serving in a covered position at the time this rule becomes effective will be required to submit to a criminal registry check if the participant decides to serve another E:\FR\FM\24AUR1.SGM 24AUR1 rfrederick on PROD1PC67 with RULES 48580 Federal Register / Vol. 72, No. 164 / Friday, August 24, 2007 / Rules and Regulations term, even if it is with the same program and there is no 30-day break in service. Comment: We were asked to clarify when the requirement takes effect and to whom it applies. Response: Both the State criminal registry check and NSOPR requirements take effect 90 days after publication of the Final Rule in the Federal Register. The State criminal registry check requirement applies only to those covered individuals who apply after the effective date of the final rule. The NSOPR check, however, applies to all covered individuals who apply to serve, or who are currently serving with, or working in, the affected programs (See paragraph V, Effective Dates). Comment: One commenter asked if costs (such as a living allowance) attributable to an individual under a grant were allowable if the grantee subsequently determines that the individual must leave the program as a result of a criminal history check. Response: The costs are allowable unless the delay in determining that an individual is ineligible to serve is caused by non-compliance or unreasonable delay by the grantee (e.g., failure to conduct the NSOPR check before enrolling or hiring the individual). Comment: Some commenters asked whether staff members of a grantee whose salaries are paid with matching funds are included under this requirement. Response: If the staff members are included in the grantee’s proposed budget as grant-funded employees, whether supported by Corporation or matching funds, they are included under this requirement (§§ 2522.205; 2540.200; 2551.26; 2552.26). Comment: A commenter asked for clarification as to which States’ criminal registry must be checked for a college student who is attending college in a State that is not his or her home of record. Response: For the purpose of this rule, a student who is attending college in a State that is not the student’s ‘‘home of record’’ (i.e., where the student’s parent(s) reside) is deemed to be residing in the State in which the college is located. The final rule requires programs to conduct a criminal registry check in the State in which the program is operating, as well as in the State in which the applicant is residing at the time the application is submitted. There is nothing, however, to preclude a program from including additional States (i.e., the applicant’s home of record or other States in which the student has lived) in its criminal VerDate Aug<31>2005 12:50 Aug 23, 2007 Jkt 211001 registry check (§§ 2540.202(a); 2551.27(a); 2552.27(a)). Comment: One commenter expressed concern that the prospective nature of the rule would leave unchecked potentially unsuitable participants who are currently in the programs. Response: In establishing this new requirement as a grant condition, we were mindful of the costs associated with retrospective application. Because the criminal history State registry check requirement is prospective, grantees should design their programs’ applications in a manner that appropriately reflects their screening practices. Programs with relatively less stringent screening practices are well advised to build in compensating controls to minimize the risks to their program beneficiaries. In addition, because an NSOPR check is cost-free and relatively easy to conduct, we are requiring all programs subject to this rule to conduct NSOPR checks on all applicants for covered positions, as well as on all individuals who are currently serving in covered positions (See paragraph V, Effective Dates). Comment: One individual submitted a written comment asking why the final rule disqualifies registered sex offenders, but not those individuals convicted of other offenses. Response: Disqualifying registered sex offenders from positions with recurring access to children, older persons, or individuals with disabilities takes advantage of the newly established national registry of sex offenders, accessible online across the country, and is consistent with our objective of establishing by rule an achievable baseline set of screening practices. Advances in information sharing at the national level may make it possible to strengthen this baseline in the future. To this end, the Corporation intends, at a later date, to consider adding other disqualifying factors, including specific offenses. Accordingly, we invite grantees and other interested parties to provide input on additional disqualifying factors. Input should be submitted to the individual listed at, FOR FURTHER INFORMATION CONTACT (§§ 2522.206; 2540.201; 2551.42; 2552.42). Comment: One commenter asked for clarification concerning the eligibility of an individual who refuses to consent to a State criminal registry check. Response: We have added language in the final rule clarifying that an individual who refuses to consent to a State criminal registry check, or who makes a false statement in connection with a grantee’s inquiry concerning the individual’s criminal history, is not PO 00000 Frm 00034 Fmt 4700 Sfmt 4700 eligible to serve in a covered position (§§ 2540.207; 2551.32; 2552.32). Comment: One commenter asked for clarification concerning an individual’s right to review and challenge the factual accuracy of a criminal history check before any action is taken to exclude the individual from serving in, or working with, the program. Response: We believe that the ability of an applicant to review and challenge the results of State criminal registry and NSOPR checks is a basic right that all programs must give to each individual. With the potential for false positives, it is essential that all Corporation programs safeguard an individual’s personal information and give the individual the opportunity to challenge any adverse findings that may surface (§§ 2540.204 (d); 2551.29 (d); 2552.29 (d)). Comment: Several commenters expressed concern that their individual States may not permit them to conduct criminal history checks without specific statutory authority to conduct the search. Response: We are prepared to approve an alternative search protocol if a program is prohibited or otherwise precluded from complying with the Corporation’s criminal history check requirement (§§ 2540.206(c); 2551.31(c); 2552.31(c)). Comment: Several commenters expressed that the Corporation’s criminal history requirement could be redundant if a program is already required to comply with a State or local government-mandated criminal history check that is equivalent to the Corporation’s requirement. Response: Based upon these comments, we have included preamble language making clear that a program that is required to comply with a State or local government-mandated criminal history check that parallels the Corporation’s requirement may request that the Corporation approve this alternative search protocol. A program qualifying for this exception must, however, in addition to satisfying State criminal history check requirements, conduct NSOPR checks on its participants and grant-funded employees, if not already required (§§ 2540.206(c); 2551.31(c); 2552.31(c)). Comment: Several commenters thought the criminal history requirement was necessary and prudent but were concerned about the cost of conducting the criminal history checks. They asked whether the Corporation would provide more funding to pay for the checks. Response: Although there are no additional funds designated for these E:\FR\FM\24AUR1.SGM 24AUR1 Federal Register / Vol. 72, No. 164 / Friday, August 24, 2007 / Rules and Regulations checks, these costs are allowable. In addition, the NSOPR check is a no-cost Internet search. While the Corporation will provide guidance to assist grantees on effective and economic ways to reduce costs in this area, we remind our grantees that it is their responsibility when operating programs that serve vulnerable populations to ensure that they establish appropriate safeguards to meet their respective States’ existing duties of care. It should also be noted that many programs are already managing within their budgets to secure the types of criminal history checks that we are requiring. For example, many local law enforcement agencies offer inkind support to non-profit organizations that require this type of assistance. IV. Relationship to State Laws To the extent that any element of the final rule is prohibited, or is otherwise precluded under State law, the Corporation’s Office of Grants Management is prepared to approve an alternative that is consistent with State law, within 30 days of receiving such notice. V. Effective Dates The final rule takes effect November 23, 2007. The State criminal registry search requirement applies prospectively to the selection of any individual who applies on or after the effective date. However, an AmeriCorps participant who is serving in a covered position at the time this rule becomes effective will be required to submit to a criminal registry check if the participant desires to serve another term, even if it is with the same program. The NSOPR requirement applies: (1) To any applicant for a covered position beginning on or after the effective date, as well as (2) to an individual who is serving as a participant or grant-funded employee in a covered position on the effective date. VI. Regulatory Procedures rfrederick on PROD1PC67 with RULES Executive Order 12866 The Corporation has determined that this rule is not an ‘‘economically significant’’ rule within the meaning of E.O. 12866 because it is not likely to result in: (1) An annual effect on the economy of $100 million or more, or an adverse and material effect on a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal government or communities; (2) the creation of a serious inconsistency or interference with an action taken or planned by another agency; (3) a material alteration in the budgetary VerDate Aug<31>2005 14:18 Aug 23, 2007 Jkt 211001 impacts of entitlement, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or (4) the raising of novel legal or policy issues arising out of legal mandates, the President’s priorities, or the principles set forth in E.O. 12866. It is, however, a significant rule and has been reviewed by the Office of Management and Budget in accordance with E.O. 12866. Regulatory Flexibility Act As required by the Regulatory Flexibility Act of 1980, 5 U.S.C. 605(b), the Corporation certifies that this rule will not have a significant economic impact on a substantial number of small entities. This regulatory action will not result in (1) An annual effect on the economy of $100 million or more; (2) a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions; or (3) significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based enterprises to compete with foreignbased enterprises in domestic and export markets. Therefore, the Corporation has not performed the initial regulatory flexibility analysis that is required under the Regulatory Flexibility Act, 5 U.S.C. 601 et seq., for major rules that are expected to have such results. Unfunded Mandates For purposes of Title II of the Unfunded Mandates Reform Act of 1995, 2 U.S.C. § 1531–1538, as well as Executive Order 12875, this regulatory action does not contain any Federal mandate that may result in increased expenditures in either Federal, State, local, or tribal governments in the aggregate, or impose an annual burden exceeding $100 million on the private sector. Paperwork Reduction Act This rule contains no information collection requirements and is therefore not subject to the requirements of the Paperwork Reduction Act of 1980 (44 U.S.C. 3501 et seq.). Executive Order 13132, Federalism Executive Order 13132, Federalism, prohibits an agency from publishing any rule that has Federalism implications if the rule either imposes substantial direct compliance costs on State and local governments and is not required by statute, or the rule preempts State law, unless the agency meets the consultation and funding requirements of section 6 of the Executive Order. The PO 00000 Frm 00035 Fmt 4700 Sfmt 4700 48581 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 amends chapter XXV, title 45 of the Code of Federal Regulations as follows: I PART 2510—OVERALL PURPOSES AND DEFINITIONS 1. The authority citation for part 2510 continues to read as follows: I Authority: 42 U.S.C. 12501 et seq. 2. Amend § 2510.20 by adding the definitions of ‘‘children,’’ and ‘‘recurring access’’ in alphabetical order to read as follows: I § 2510.20 Definitions. * * * * * Children. The term children means individuals 17 years of age and younger. * * * * * Recurring access. The term recurring access means 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. * * * * * PART 2522—AMERICORPS PARTICIPANTS, PROGRAMS, AND APPLICANTS 1. The authority citation for part 2522 is revised to read as follows: I Authority: 42 U.S.C. 12571–12595; 12651b–12651d; E.O. 13331, 69 FR 9911. E:\FR\FM\24AUR1.SGM 24AUR1 48582 Federal Register / Vol. 72, No. 164 / Friday, August 24, 2007 / Rules and Regulations 2. Add the following new sections: § 2522.205, § 2522.206, and § 2522.207 to read as follows: I § 2522.205 To whom must I apply suitability criteria relating to criminal history? You must apply suitability criteria relating to criminal history to a participant or staff position for which an individual receives a Corporation grantfunded living allowance, stipend, education award, salary, or other remuneration, and which involves recurring access to children, persons age 60 and older, or individuals with disabilities. § 2522.206 What suitability criteria must I apply to a covered position? Any individual who is registered, or required to be registered, on a State sex offender registry is deemed unsuitable for, and may not serve in, a covered position. § 2522.207 What are the procedures I must follow to determine an individual’s suitability to serve in a covered position? In determining an individual’s suitability to serve in a covered position, you must follow the procedures in part 2540 of this title. PART 2540–GENERAL ADMINISTRATIVE PROVISIONS 1. The authority citation for part 2540 is revised to read as follows: I Authority: 42 U.S.C. 12651b–12651d; E.O. 13331, 69 FR 9911. § 2540.200 [Redesignated as § 2540.208] for, and may not serve in, a position covered by suitability criteria. § 2540.202 What two search components of the National Service Criminal History Check must I satisfy to determine an individual’s suitability to serve in a covered position? Unless the Corporation approves an alternative screening protocol, in determining an individual’s suitability to serve in a covered position, you are responsible for conducting and documenting a National Service Criminal History Check, which consists of the following two search components: (a) State criminal registry search. A search (by name or fingerprint) of the State criminal registry for the State in which your program operates and the State in which the individual resides at the time of application; and (b) National Sex Offender Public Registry. A name-based search of the Department of Justice (DOJ) National Sex Offender Public Registry (NSOPR). § 2540.203 When must I conduct a State criminal registry check and a NSOPR check on an individual in a covered position? (a) The State criminal registry check must be conducted on an individual who enrolls in, or is hired by, your program after November 23, 2007. (b) The NSOPR check must be conducted on an individual who is serving, or applies to serve, in a covered position on or after November 23, 2007. (c) For an individual who serves consecutive terms of service in your program with a break in service of no more than 30 days, no additional check is required after the first term. 2. Redesignate § 2540.200 as § 2540.208. § 2540.204 What procedures must I follow in conducting a National Service Criminal History Check for a covered position? 3. Add the following sections: §§ 2540.200, 2540.201, 2540.202, 2540.203, 2540.204, 2540.205, 2540.206, and 2540.207. You are responsible for following these procedures: (a) Verify the individual’s identity by examining the individual’s governmentissued photo identification card, such as a driver’s license; (b) Obtain prior, written authorization for the State criminal registry check and the appropriate sharing of the results of that check within the program from the individual (but not for the NSOPR check); (c) Document the individual’s understanding that selection into the program is contingent upon the organization’s review of the individual’s criminal history, if any; (d) 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; (e) Provide safeguards to ensure the confidentiality of any information I I § 2540.200 To whom must I apply suitability criteria relating to criminal history? rfrederick on PROD1PC67 with RULES You must apply suitability criteria relating to criminal history to an individual applying for, or serving in, a position for which an individual receives a Corporation grant-funded living allowance, stipend, education award, salary, or other remuneration, and which involves recurring access to children, persons age 60 and older, or individuals with disabilities. § 2540.201 What suitability criteria must I apply to a covered position? Any individual who is registered, or required to be registered, on a State sex offender registry is deemed unsuitable VerDate Aug<31>2005 12:50 Aug 23, 2007 Jkt 211001 PO 00000 Frm 00036 Fmt 4700 Sfmt 4700 relating to the criminal history check, consistent with authorization provided by the applicant; and (f) Ensure that an individual, for whom the results of a required State criminal registry check are pending, is not permitted to have access to children, persons age 60 and older, or individuals with disabilities without being accompanied by an authorized program representative who has previously been cleared for such access. § 2540.205 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 of the National Service Criminal History check (unless precluded by State law) and document in writing that you considered the results in selecting the individual. § 2540.206 Under what circumstances may I follow alternative procedures in conducting a State criminal registry check for a covered position? (a) FBI fingerprint-based check. If you conduct and document a fingerprintbased criminal history check through the Federal Bureau of Investigation, you will be deemed to have satisfied the State criminal registry check requirement and do not need separate approval by the Corporation. (b) Name-based search. If you conduct and document a name-based criminal history check through a source other than the FBI that includes a check of the criminal records repository in the State in which your program is operating, as well as in the State in which the applicant lives, you will be deemed to have satisfied the State criminal registry check requirement and do not need separate approval by the Corporation. (c) Alternative search approval. If you demonstrate that you are prohibited or otherwise precluded under State law from complying with a Corporation requirement relating to criminal history checks or that you can obtain substantially equivalent or better information through an alternative process, the Corporation will consider approving an alternative search protocol that you submit in writing to the Corporation’s Office of Grants Management. The Office of Grants E:\FR\FM\24AUR1.SGM 24AUR1 Federal Register / Vol. 72, No. 164 / Friday, August 24, 2007 / Rules and Regulations Management will review the alternative protocol to ensure that it: (1) Verifies the identity of the individual; and (2) Includes a search of an alternative criminal database that is sufficient to identify the existence, or absence of, criminal offenses. § 2540.207 Is an individual who refuses to consent to a State criminal registry check, or who makes a false statement in connection with a grantee’s inquiry concerning the individual’s criminal history, eligible to serve in a covered position? An individual who refuses to consent to a State criminal registry check, or who makes a false statement in connection with a grantee’s inquiry concerning the individual’s criminal history, is not eligible to serve in a covered position. PART 2551—SENIOR COMPANION PROGRAM 1. The authority citation for part 2551 is revised to read as follows: I Check, which consists of the following two search components: (a) State criminal registry search. A search (by name or fingerprint) of the State criminal registry for the State in which the program operates and the State in which the individual resides at the time of application; and (b) National Sex Offender Public Registry. A name-based search of the Department of Justice (DOJ) National Sex Offender Public Registry (NSOPR). § 2551.28 When must I conduct a State criminal registry check and a NSOPR check on an individual in a covered position? (a) The State criminal registry check must be conducted on an individual who enrolls in, or is hired by, your program after the effective date of this regulation. (b) The NSOPR check must be conducted on an individual who is serving, or applies to serve, in a covered position on or after the effective date of this regulation. Authority: 42 U.S.C. 4950 et seq.; 42 U.S.C. 12651b–12651d; E.O. 13331, 69 FR 9911. § 2551.29 What procedures must I follow in conducting a National Service Criminal History Check? Subpart C of Part 2551—[Amended] You are responsible for ensuring that the following procedures are satisfied: (a) Verify the individual’s identity by examining the individual’s governmentissued photo identification card, such as a driver’s license; (b) Obtain prior, written authorization for the State criminal registry check and the appropriate sharing of the results of that check within the program from the individual (but not for the NSOPR check); (c) Document the individual’s understanding that selection into the program is contingent upon the organization’s review of the individual’s criminal history, if any; (d) 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; (e) Provide safeguards to ensure the confidentiality of any information relating to the criminal history check, consistent with authorization provided by the individual; and (f) Ensure that an individual, for whom the results of a required State criminal registry check are pending, is not permitted to have access to children, persons age 60 and older, or individuals with disabilities without being accompanied by an authorized program representative who has previously been cleared for such access. § 2551.31 [Redesignated as § 2551.34] 2. Amend subpart C by redesignating § 2551.31 as § 2551.34. I Subpart B of Part 2551—[Amended] § 2551.26 [Redesignated as § 2551.33] 3. Amend subpart B of part 2551 by redesignating § 2551.26 as § 2551.33. I 4. Add the following sections to subpart B: §§ 2551.26, 2551.27, 2551.28, 2551.29, 2551.30, 2551.31, and 2551.32. I § 2551.26 To whom does this part apply? This part applies to Senior Companion Sponsors when determining the suitability of Senior Companions, as well as to Senior Companion grantfunded employees who, on a recurring basis, have access to children, persons age 60 and older, or individuals with disabilities. rfrederick on PROD1PC67 with RULES § 2551.27 What two search components of the National Service Criminal History Check must I satisfy to determine an individual’s suitability to serve in a covered position? Unless the Corporation approves an alternative screening protocol, in determining the suitability of an individual to serve as a Senior Companion or as a covered grant-funded employee, you are responsible for ensuring, unless prohibited by State law, that you conduct and document a National Service Criminal History VerDate Aug<31>2005 12:50 Aug 23, 2007 Jkt 211001 PO 00000 Frm 00037 Fmt 4700 Sfmt 4700 48583 § 2551.30 What documentation must I maintain regarding a National Service Criminal History Check? 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 of the National Service Criminal History check (unless precluded by State law) and document in writing that you considered the results in selecting the individual. § 2551.31 Under what circumstances may I follow alternative procedures in conducting a State criminal registry check? (a) FBI fingerprint-based check. If you or your designee conduct and document a fingerprint-based criminal history check through the Federal Bureau of Investigation, you will be deemed to have satisfied the State criminal registry check requirement and do not need separate approval by the Corporation. (b) Name-based search. If you conduct and document a name-based criminal history check through a source other than the FBI that, includes a check of the criminal records repository, in the State in which your program is operating, as well as in the State in which the individual lives, you will be deemed to have satisfied the State criminal registry check requirement and do not need separate approval by the Corporation. (c) Alternative search approval. If you demonstrate that you are prohibited or otherwise precluded under State law from complying with a Corporation requirement relating to criminal history checks or that you can obtain substantially equivalent or better information through an alternative process, the Corporation will consider approving an alternative search protocol that you submit in writing to the Office of Grants Management. The Office of Grants Management will review the alternative protocol to ensure that it: (1) Verifies the identity of the individual; and (2) Includes a search of an alternative criminal database that is sufficient to identify the existence, or absence of, criminal offenses. § 2551.32 Is an individual who refuses to consent to a State criminal registry check, or who makes a false statement in connection with a grantee’s inquiry concerning the individual’s criminal history, eligible to serve in a covered position? An individual who refuses to consent to a State criminal registry check, or E:\FR\FM\24AUR1.SGM 24AUR1 48584 Federal Register / Vol. 72, No. 164 / Friday, August 24, 2007 / Rules and Regulations who makes a false statement in connection with a grantee’s inquiry concerning the individual’s criminal history, is not eligible to serve in a covered position. §§ 2551.42, 2551.43, 2551.44, 2551.45, and 2551.46 [Redesignated as §§ 2551.43, 2551.44, 2551.45, 2551.46, and 2551.47] 5. Amend subpart D of part 2551 by redesignating §§ 2551.42, 2551.43, 2551.44, 2551.45, 2551.46 as §§ 2551.43, 2551.44, 2551.45, 2551.46, 2551.47, respectively. I 6. Add the following new section to subpart D: § 2551.42. I § 2551.42 May an individual who is subject to a State sex offender registration requirement serve as a Senior Companion or as a Senior Companion grant-funded employee? Grandparent or as a covered grantfunded employee, you are responsible for ensuring, unless prohibited by State law, that you conduct and document a National Service Criminal History Check, which consists of the following two search components: (a) State criminal registry search. A search (by name or fingerprint) of the State criminal registry for the State in which the program operates and the State in which the individual resides at the time of application; and (b) National Sex Offender Public Registry. A name-based search of the Department of Justice (DOJ) National Sex Offender Public Registry (NSOPR). § 2552.30 What documentation must I maintain regarding a National Service Criminal History Check? § 2552.28 When must I conduct a State criminal registry check and a NSOPR check on an individual in a covered position? § 2552.31 Under what circumstances may I follow alternative procedures in conducting a State criminal registry check? Any individual who is registered, or who is required to be registered, on a State sex offender registry is deemed unsuitable for, and may not serve in, a position as a Senior Companion or as a Senior Companion grant-funded employee. (a) The State criminal registry check must be conducted on an individual who enrolls in, or is hired by, your program after November 23, 2007. (b) The NSOPR check must be conducted on an individual who is serving, or applies to serve, in a covered position on or after November 23, 2007. PART 2552—FOSTER GRANDPARENT PROGRAM § 2552.29 What procedures must I follow in conducting a National Service Criminal History Check? 1. The authority citation for part 2552 is revised to read as follows: You are responsible for ensuring that the following procedures are satisfied: (a) Verify the individual’s identity by examining the individual’s governmentissued photo identification card, such as a driver’s license; (b) Obtain prior, written authorization for the State criminal registry check and the appropriate sharing of the results of that check within the program from the individual (but not for the NSOPR check); (c) Document the individual’s understanding that selection into program is contingent upon the organization’s review of the individual’s criminal history, if any; (d) Provide a reasonable opportunity for the individual to challenge the factual accuracy of a result before action is taken to exclude the individual from the position; (e) Provide safeguards to ensure the confidentiality of any information relating to the criminal history check, consistent with authorization provided by the individual; and (f) Ensure that an individual, for whom the results of a required State criminal registry check are pending, is not permitted to have access to children, persons age 60 and older, or individuals with disabilities without being accompanied by an authorized program representative who has previously been cleared for such access. I Authority: 42 U.S.C. 4950 et seq.; 42 U.S.C. 12651b–12651d; E.O. 13331, 69 FR 9911. Subpart C of Part 2552—[Amended] § 2552.31 [Redesignated as § 2552.34] 2. Amend subpart C by redesignating § 2552.31 as § 2552.34. I Subpart B of Part 2552—[Amended] § 2552.26 [Redesignated as § 2552.33] 3. Amend subpart B of part 2552 by redesignating § 2552.26 as § 2552.33. I 4. Add the following sections to subpart B: §§ 2552.26, 2552.27, 2552.28, 2552.29, 2552.30, 2552.31, and 2552.32. I § 2552.26 To whom does this part apply? rfrederick on PROD1PC67 with RULES This part applies to Foster Grandparent Sponsors in determining the suitability of Foster Grandparents, as well as to Foster Grandparent grantfunded employees who, on a recurring basis, have access to children, persons age 60 and older, or individuals with disabilities. § 2552.27 What two search components of the National Service Criminal History Check must I satisfy to determine an individual’s suitability to serve in a covered position? Unless the Corporation approves an alternative screening protocol, in selecting an individual as a Foster VerDate Aug<31>2005 12:50 Aug 23, 2007 Jkt 211001 PO 00000 Frm 00038 Fmt 4700 Sfmt 4700 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 of the National Service Criminal History check (unless precluded by State law) and document in writing that you considered the results in selecting the individual. (a) FBI fingerprint-based check. If you or your designee conduct and document a fingerprint-based criminal history check through the Federal Bureau of Investigation, you will be deemed to have satisfied the State criminal registry check requirement and do not need separate approval by the Corporation. (b) Name-based search. If you conduct and document a name-based criminal history check through a source other than the FBI that, includes a check of the criminal records repository, in the State in which your program is operating, as well as in the State in which the individual lives, you will be deemed to have satisfied the State criminal registry check requirement and do not need separate approval by the Corporation. (c) Alternative search approval. If you demonstrate that you are prohibited or otherwise precluded under State law from complying with a Corporation requirement relating to criminal history checks or that you can obtain substantially equivalent or better information through an alternative process, the Corporation will consider approving an alternative search protocol that you submit in writing to the Office of Grants Management. The Office of Grants Management will review the alternative protocol to ensure that it: (1) Verifies the identity of the individual; and (2) Includes a search of an alternative criminal database that is sufficient to identify the existence, or absence of, criminal offenses. § 2552.32 Is an individual who refuses to consent to a State criminal registry check, or who makes a false statement in connection with a grantee’s inquiry concerning the individual’s criminal history, eligible to serve in a covered position? An individual who refuses to consent to a State criminal registry check, or E:\FR\FM\24AUR1.SGM 24AUR1 Federal Register / Vol. 72, No. 164 / Friday, August 24, 2007 / Rules and Regulations received, go to http://dms.dot.gov at any time or to U.S. Department of Transportation, Room W12–140, 1200 New Jersey Ave., SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. SUPPLEMENTARY INFORMATION: who makes a false statement in connection with a grantee’s inquiry concerning the individual’s criminal history, is not eligible to serve in a covered position. §§ 2552.42, 2552.43, 2552.44, 2552.45, and 2552.46 [Redesignated as §§ 2552.43, 2552.44, 2552.45, 2552.46, and 2552.47] 5. Amend subpart D of part 2552 by redesignating §§ 2552.42, 2552.43, 2552.44, 2552.45, and 2552.46 as §§ 2552.43, 2552.44, 2552.45, 2552.46, and 2552.47, respectively. I 6. Add adding the following new section to subpart D: § 2552.42. I § 2552.42 May an individual who is subject to a State sex offender registration requirement serve as a Foster Grandparent or as a Foster Grandparent grant-funded employee? Any individual who is registered, or required to be registered, on a State sex offender registry is deemed unsuitable for, and may not serve in, a position as a Foster Grandparent or as a Foster Grandparent grant-funded employee. Dated: August 16, 2007. Frank R. Trinity, General Counsel. [FR Doc. E7–16681 Filed 8–23–07; 8:45 am] BILLING CODE 6050–28–P DEPARTMENT OF TRANSPORTATION Federal Motor Carrier Safety Administration 49 CFR Part 367 [Docket No. FMCSA–2007–27871] RIN 2126–AB09 Fees for Unified Carrier Registration Plan and Agreement Federal Motor Carrier Safety Administration (FMCSA), DOT. ACTION: Final rule. rfrederick on PROD1PC67 with RULES AGENCY: SUMMARY: This rule establishes initial fees for 2007 and a fee bracket structure for the Unified Carrier Registration Agreement. This action is required under the Uniform Carrier Registration Act of 2005, enacted as Subtitle C of the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users. EFFECTIVE DATE: August 24, 2007. FOR FURTHER INFORMATION CONTACT: Mr. David Miller, Regulatory Development Division, (202) 366–5370, or by e-mail at: FMCSAregs@dot.gov. Availability of Rulemaking Documents For access to the docket to read background documents and comments VerDate Aug<31>2005 12:50 Aug 23, 2007 Jkt 211001 I. Legal Basis for the Rulemaking This rule involves the fees to be set for the Unified Carrier Registration Agreement established by 49 U.S.C. 14504a, enacted by section 4305(b) of the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA–LU) (119 Stat. 1144, 1764 (2005)). Section 14504a states that the ‘‘Unified Carrier Registration Plan * * * mean[s] the organization * * * responsible for developing, implementing, and administering the unified carrier registration agreement’’ (49 U.S.C. 14504a(a)(9)) (UCR Plan). The Unified Carrier Registration Agreement (UCR Agreement) developed by the UCR Plan is the ‘‘interstate agreement governing the collection and distribution of registration and financial responsibility information provided and fees paid by motor carriers, motor private carriers, brokers, freight forwarders and leasing companies * * *’’ (49 U.S.C. 14504a(a)(8)). Congress also repealed the statutory provisions of 49 U.S.C. 14504 governing the Single State Registration System (SSRS) (SAFETEA–LU section 4305(a)).1 The legislative history indicates that the purpose of the UCR Plan and Agreement is both to ‘‘replace the existing outdated system [SSRS]’’ for registration of interstate motor carrier entities with the States and to ‘‘ensure that States don’t lose current revenues derived from SSRS’’ (S. Rep. 109–120, at 2 (2005)).2 The statute provides for a 15-member Board of Directors for the UCR Plan and Agreement (Board) appointed by the Secretary of Transportation. The statute specified that the Board should consist of one individual (either the FMCSA Deputy Administrator or another Presidential appointee) from the Department of Transportation; four directors, including one from each of the four FMCSA service areas, selected from among the chief administrative officers of the State agencies responsible for administering the UCR Agreement; five directors from among the professional staffs of State agencies 1 This repeal became effective on January 1, 2007, in accordance with section 4305(a). 2 The Senate bill’s provisions were enacted ‘‘with modifications.’’ H. Conf. Rep. No. 109–203, at 1020 (2005). PO 00000 Frm 00039 Fmt 4700 Sfmt 4700 48585 responsible for administering the UCR Agreement, to be nominated by the National Conference of State Transportation Specialists (NCSTS); and five directors representing the motor carrier industry, of whom at least one must be from a national trade association representing the general motor carrier of property industry and one from a motor carrier that falls within the smallest fleet fee bracket. The establishment of the Board was announced in the Federal Register on May 12, 2006 (71 FR 27777). Among its responsibilities, the Board was required to submit to the Secretary of Transportation 3 a recommendation for the initial annual fees to be assessed on motor carriers, motor private carriers, freight forwarders, brokers and leasing companies under the UCR Agreement (49 U.S.C. 14504a(d)(7)(A)). The FMCSA then was directed to set the fees within 90 days after receiving the Board’s recommendation and after notice and opportunity for public comment (49 U.S.C. 14504a(d)(7)(B)). II. Statutory Requirements for UCR Fees The statute specifies several relevant factors that must be considered by the Board and FMCSA in setting the fees (see 49 U.S.C. 14504a(d)(7)(A), (f)(1) and (g)). It specifies that fees are to be determined by FMCSA based upon the recommendation of the Board. The FMCSA described the statutory requirements in detail in a Notice of Proposed Rulemaking (NPRM) published on May 29, 2007 (72 FR 29472). Section 14504a(f)(1) also stipulates that for the purpose of charging fees the Board shall develop no less than 4 and no more than 6 brackets of carriers based on the size of the fleet, i.e. the number of commercial motor vehicles owned or operated. Finally, the fee scale is required to be progressive in the amount of the fee. Overall, the fees assessed under the UCR Agreement must produce a level of revenues established by the statute. Section 14504a(g) establishes the revenue entitlements for States that choose to participate in the UCR Plan. That section provides that a participating State, which participated in the SSRS in the registration year prior to the enactment of the Unified Carrier Registration Act of 2005 (i.e., the 2004 registration year), is entitled to receive revenues under the UCR Agreement 3 The Secretary’s functions under section 14504a have been delegated to the Administrator of the Federal Motor Carrier Safety Administration. 49 CFR 1.73(a)(7), as amended, 71 FR 30833 (May 31, 2006). E:\FR\FM\24AUR1.SGM 24AUR1

Agencies

[Federal Register Volume 72, Number 164 (Friday, August 24, 2007)]
[Rules and Regulations]
[Pages 48574-48585]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E7-16681]


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CORPORATION FOR NATIONAL AND COMMUNITY SERVICE

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

RIN 3045-AA44


National Service Criminal History Checks

AGENCY: Corporation for National and Community Service.

ACTION: Final rule.

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SUMMARY: The Corporation for National and Community Service 
(Corporation) is issuing a regulation requiring grantees to conduct and 
document National Service Criminal History Checks on Senior Companions 
and Foster Grandparents, as well as on AmeriCorps State and National 
(including Education Award Program) participants and grant-funded staff 
in those programs who, on a recurring basis, have access to children, 
persons age 60 and older, or individuals with disabilities. A National 
Service Criminal History Check consists of a State criminal registry 
check; and a National Sex Offender Public Registry (NSOPR) check.

DATES: This final rule is effective November 23, 2007.

FOR FURTHER INFORMATION CONTACT: Amy Borgstrom at (202) 606-6930 
(aborgstrom@cns.gov). The TDD/TTY number is (202) 606-3472. You may 
request this rule in an alternative format for the visually impaired.

I. Background--The October 26, 2006, Proposed Rule

    On October 26, 2006, the Corporation published a proposed rule (71 
FR 62573) to require its grantees to conduct and document criminal 
history checks on Senior Companions and Foster Grandparents, as well as 
on AmeriCorps State and National (including Education Awards Program) 
participants and grant-funded staff in those programs who, on a 
recurring basis, have access to children, persons age 60 and older, or 
individuals with disabilities. The objective of this rule is to help 
protect vulnerable individuals who are beneficiaries of programs that 
are funded by the Corporation. This update to the Corporation's 
criminal history check policies was prompted by a recommendation by the 
Corporation's Acting Inspector General in an advisory letter to the 
Corporation's Chief Executive Officer in January 2005.

Emphasis on Protecting Vulnerable Populations

    Many national and community service programs are dedicated to

[[Page 48575]]

helping children learn to read, giving children better opportunities to 
thrive, helping older persons maintain their independence, and 
otherwise serving vulnerable individuals while striving to recruit 
diverse participants. With this commitment comes the responsibility to 
safeguard the well-being of program beneficiaries, including the 
effective screening of staff, participants, and volunteers. This 
responsibility is principally determined by State law, and the standard 
of care required may vary from one State to another. Organizations 
carrying out national and community service programs should establish 
and regularly review their screening and supervision practices as 
measured against the applicable standard of care under State law.

The Corporation's Authority

    Sections 192A, 193, and 193A of the National and Community Service 
Act of 1990, 42 U.S.C. 12651b-d, give the Corporation broad authority 
to establish rules to protect program beneficiaries. This authority is 
reinforced by Executive Order 13331, National and Community Service 
Programs (Feb. 27, 2004), 60 FR. 9911 (Mar. 3, 2004), which directs the 
Corporation to ``strengthen its oversight of national and community 
service programs through performance and compliance standards and other 
management tools.''

FBI Fingerprint Checks

    Rapid advances in technology are increasing the availability and 
accessibility of information about individuals in our society. However, 
we have not yet identified any established criminal history check 
process at the national level that we can mandate for all grantees. The 
FBI maintains the most complete criminal database in the United States, 
with records that are fingerprint-based. A fingerprint check of this 
database is generally considered the most reliable, in part because it 
screens a physical characteristic rather than a name provided by an 
applicant. However, FBI-maintained records can sometimes be less 
complete and less up-to-date than State records, and are available only 
to organizations specifically authorized by a Federal or State law. 
Many organizations operating national and community service programs do 
not currently have access to FBI fingerprint checks.

The Attorney General's Report on Criminal History Background Checks

    In 2006, the U.S. Attorney General issued a report with 
recommendations for broader access to FBI criminal history records for 
non-criminal purposes, including screening volunteers for entities 
providing services to children, the elderly, and individuals with 
disabilities. The Attorney General's Report on Criminal History 
Background Checks (June 2006) is available on-line at http://
www.usdoj.gov/olp/ag_bgchecks_report.pdf (hereinafter The Attorney 
General's Report). As such recommendations are implemented in Federal 
and State law, grantees operating national and community service 
programs may have better access to FBI fingerprint checks. In time, 
they may also have access to State and national criminal history 
databases that make use of driver's licenses incorporating fingerprint 
or other biometric data as a result of the Real ID Act of 2005 (Pub. L. 
109-13) and new biometric techniques such as DNA identification.

The PROTECT Act

    We are aware of Congressional interest in making accurate 
information about individuals' criminal history available while 
appropriately limiting the sharing of such information. For example, 
the PROTECT Act (Pub. L. 108-21) authorizes the Boys & Girls Club of 
America, the National Council of Youth Sports, the National Mentoring 
Partnership, and nonprofit organizations that provide care, treatment, 
education, training, instruction, supervision, or recreation to 
children to participate in a pilot program with the National Center for 
Missing and Exploited Children to obtain FBI fingerprint criminal 
history checks on volunteer applicants for a fixed fee of $18.00 per 
individual. Corporation grantees that provide the above types of 
services to children may consider contacting the National Center for 
Missing and Exploited Children (http://www.missingkids.com) to 
determine if they are eligible to participate in the pilot program. 
Alternatively, mentoring organizations, such as Foster Grandparent 
programs and many AmeriCorps programs, may request to participate 
through the National Mentoring Partnership (http://www.mentoring.org), 
a current participant in the pilot program. The lessons learned from 
the ongoing PROTECT Act's pilot program are likely to inform and spur 
greater and more effective coordination across State lines. For 
example, in January, 2007, Senators McCain and Schumer introduced 
legislation (S.431, Keeping the Internet Devoid of Sexual Predators Act 
of 2007, or KIDS Act) to strengthen national reporting requirements 
(including the requirement to register online Internet identifiers) for 
sex offenders. Also, in January, 2007, Congressman Pomeroy introduced 
legislation (H.R. 719) to establish a National Sex Offender Risk 
Classification Task Force to create guidelines for a risk-based sex 
offender classification system for use in sex offender registries. Amid 
this changing landscape, the Corporation seeks at this time to achieve 
a consistent baseline practice among Senior Companion and Foster 
Grandparent programs, and among AmeriCorps State and National programs 
serving children, persons age 60 and older, or individuals with 
disabilities.

The Requirement for Grantees To Establish a Baseline Screening Process

    This rule establishes a baseline screening process at the national 
level. This screening requirement will be a Federal grant condition 
separate and apart from any State requirement.

The Need for a Comprehensive Screening Process

    This baseline screening requirement does not, however, preclude 
grantees from conducting a more thorough evaluation of supervising 
staff and participants if they choose to do so. Criminal history checks 
are one part of an effective risk management approach to protecting 
program participants from harm as well as protecting the sponsoring 
organization from liability. Organizations serving children and other 
vulnerable populations need to be mindful that no screening process is 
foolproof.
    Sponsoring organizations should also note that the design and 
operation of programs can provide additional safeguards. Examples 
include programs designed to minimize opportunities for potential 
abuse; regular child or elder abuse prevention training; restricted 
one-on-one and other unsupervised contact with vulnerable clients; 
controlled access to areas where vulnerable clients are present; 
unannounced observation visits; and the posting and reinforcement of 
protocols on how to respond to suspected or reported abuse. To assist 
our grantees, the Corporation has distributed and also made available 
on our Web site the Staff Screening Tool Kit, 3rd Edition, a 
publication prepared by the Nonprofit Risk Management Center that 
contains helpful information designed to strengthen an organization's 
staff and volunteer screening and supervision processes. You can access 
this resource at http://www.nationalservice.gov/screeningtoolkit.

[[Page 48576]]

Fairness and Confidentially

    The National Service Criminal History Check also seeks to ensure 
fairness and confidentiality in handling criminal history information. 
Such fairness and confidentiality considerations are congruent with the 
Attorney General's privacy recommendation and discussion of ``fair 
information practices'' as applied to criminal history records in The 
Attorney General's Report. As the Attorney General points out, we also 
have an interest, as a society, in rehabilitating individuals with a 
criminal history and in avoiding unlawful discrimination. In developing 
the rule, the Corporation reviewed comments and public statements 
submitted to DOJ by privacy, civil liberties, and ex-offender advocates 
concerning the impact of criminal background checks and sex offender 
registries on privacy, rehabilitation, and discrimination. Because 
criminal history searches and results often disclose other potentially 
sensitive identifying data, such as Social Security number, date of 
birth, driver's license number, and home address, grantees need to 
protect the individuals concerned from identity theft, physical 
threats, or other injury. Fairness and confidentiality procedures can 
also help ensure that qualified prospective program volunteers, 
participants, and employees are not discouraged from seeking to be 
involved in national and community service programs.

Laws That Prohibit Employment Discrimination

    Closely related to privacy requirements are Federal and State laws 
that prohibit discrimination in employment, such as Title VII of the 
Civil Rights Act of 1964 (42 U.S.C. 2000e et seq.). This can be an 
issue, for example, if employment decisions are attributed to the 
results of criminal history checks, but the results are actually used 
as a pretext for excluding individuals based on their race, religion, 
gender, or age. The recently-revised Equal Employment Opportunity 
Commission (EEOC) Compliance Manual, Section 15: Race and Color 
Discrimination (April 19, 2006), refers to court rulings on the 
potential ``disparate impact'' of a hiring policy based on arrests or 
convictions. The EEOC suggests that prospective employers should weigh 
the following factors in each case to ensure their decisions to 
disqualify applicants based on criminal history results are grounded on 
defensible ``business needs,'' despite any differential impact:
     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 job held or sought.

    These considerations apply directly to preventing unlawful 
discrimination in the employment of persons for covered grant-funded 
staff positions, and may be relevant to a national and community 
service program's evaluation of applicants to a position as a staff 
member or participant. The EEOC Compliance Manual is available online 
at: http://www.eeoc.gov/policy/docs/race-color.html.

Preliminary Public Input

    On October 17, 2005, the Corporation published a notice in the 
Federal Register inviting informal preliminary public input in advance 
of rulemaking (70 FR 60257). The Corporation also held two conference 
calls following the notice. The Corporation considered the input 
received in drafting its proposed rule.

60-Day Comment Period

    In the Federal Register of October 26, 2006 (71 FR 62573), the 
Corporation published the proposed rule, with a 60-day comment period. 
In addition to accepting comments in writing, the Corporation held two 
conference calls in November, 2006. The Corporation received over 70 
comments concerning the proposed rule, including those in writing and 
those received through the conference calls. Comments are discussed in 
detail in Part III.
    In general, almost all of the comments supported the requirement 
that criminal history background and NSOPR checks be conducted on 
individuals working with vulnerable populations in the positions 
designated in the proposed rule.

II. Discussion of the Final Rule

Covered Positions

    This final rule covers Senior Companions and Foster Grandparents, 
and participant positions in AmeriCorps State and National and other 
programs that provide a Corporation-funded living allowance, stipend, 
education award, or other remuneration to individuals who have 
recurring access to children, persons age 60 and older, or individuals 
with disabilities. We define ``children'' as individuals 17 years of 
age and younger, consistent with the PROTECT Act. Sixty years of age--
the lowest age commonly used by Congress to define elderly persons--is 
the threshold age for protecting elderly persons. ``Individuals with 
disabilities'' has the same meaning given the term in the 
Rehabilitation Act in 29 U.S.C. 705(20)(B), and includes any person who 
has a physical or mental impairment which substantially limits one or 
more major life activities, has a record of such an impairment, or is 
regarded as having such an impairment. The final rule also covers 
grant-funded staff with access to the identified vulnerable populations 
in these programs. Grantees, therefore, must establish the age and 
disability status of program participants, including beneficiaries.
    The rule covers the Senior Companion and Foster Grandparent 
programs because their focus on serving vulnerable populations warrants 
baseline screening provisions that meet a national standard. The 
requirement includes specific search elements, as well as fairness 
considerations. It gives more specific direction to Senior Companion 
and Foster Grandparent sponsoring organizations in carrying out an 
important part of their responsibility to establish risk management 
policies and procedures, and disqualifies registered sex offenders from 
serving as Senior Companions or Foster Grandparents.
    Currently, AmeriCorps State and National grant programs, including 
the Education Awards Program, have a criminal background check 
requirement in their grant provisions. In light of the Corporation's 
substantial support for AmeriCorps participants, all of whom are 
eligible to receive a Corporation-funded education award upon 
successful completion of service, we believe that baseline screening 
requirements are appropriate. This rule adds details to the required 
search elements, establishes procedures to assure fairness and 
confidentiality, and disqualifies registered sex offenders from 
AmeriCorps positions with recurring access to children, persons age 60 
and older, or individuals with disabilities.
    The rule also applies to other Corporation-supported grant programs 
in which service participants receive a Corporation-funded living 
allowance, stipend, or education award and, on a recurring basis, have 
access to children, persons age 60 and older, or individuals with 
disabilities. For example, the rule would also cover a non-AmeriCorps 
program that provides a stipend to participants who tutor children in 
an after-school program.

[[Page 48577]]

Programs Not Covered Under Final Rule

    The rule's requirements do not cover individuals in the RSVP or 
Learn and Serve America programs, or unaffiliated volunteers recruited 
by national and community service programs. Those individuals have an 
attenuated connection to the Corporation, and the Federal government 
does not directly facilitate unsupervised contact between vulnerable 
persons and individuals through those programs. The Corporation 
therefore defers to existing duties of care under State law. For 
example, participants in Learn and Serve K-12 programs seldom serve in 
unsupervised settings. In addition, participants in Learn and Serve 
Higher Education programs, who concentrate primarily on curriculum 
development, as well as participants in Community-Based programs who 
usually serve in supervised, group settings, generally do not have 
unsupervised access to vulnerable populations. The Corporation 
emphasizes, however, the importance of ascertaining and meeting the 
applicable standards of care under State law for all Corporation-
supported programs and activities. The final rule also does not cover 
the AmeriCorps National Civilian Community Corps or the AmeriCorps 
VISTA programs, as the selection of participants in those programs is 
made by Federal personnel rather than by grantee organizations. While 
the Corporation has strengthened our internal screening practices in 
both of those federally-operated programs through an arrangement with 
the U.S. Office of Personnel Management, these programs are outside the 
scope of this rulemaking.

Specifics of the Final Rule

    The rule requires a criminal history review that reflects 
information that should be reasonably accessible to grantees. The 
following elements are required:

Components of the National Service Criminal History Check

    Unless the Corporation approves an alternative screening protocol 
and unless prohibited or otherwise precluded by State law, a covered 
grantee must, in selecting an individual for participation, conduct and 
document two searches: (A) A search (by name or fingerprint) of the 
State criminal registry for the State in which the program operates and 
the State in which the applicant resides at the time of application; 
and (B) a search of the Department of Justice (DOJ) National Sex 
Offender Public Registry (NSOPR) at http://www.nsopr.gov. The term 
``State,'' when used in this rule, also includes U.S. Territories, as 
defined in 45 CFR 2510.20; 2551.12 (u); and 2552.12 (x).

Required Procedures

    Procedures must include: (a) Verification of the applicant's 
identity by examining a government-issued photo identification card; 
(b) prior, written authorization by the applicant authorizing the 
program to conduct State criminal registry checks (not required for 
NSOPR checks), as well as authorization to share the results of that 
check within the program, as appropriate; (c) documentation of the 
applicant's understanding that selection into the program is contingent 
upon the organization's review of the applicant's criminal history, if 
any; (d) an opportunity for the applicant to review and challenge the 
factual accuracy of a result before action is taken to exclude the 
applicant from the position; (e) safeguards to ensure the 
confidentiality of any information relating to the criminal history 
check, consistent with the authorization provided by the applicant 
(grantees may find a useful model in considering confidentiality 
safeguards in the Federal Trade Commission's Standards for Safeguarding 
Customer Information, 16 CFR Part 314, posted at http://www.ftc.gov/os/
2002/05/67fr36585.pdf.); and (f) ensuring that an individual, for whom 
the results of a required State criminal registry check are pending, is 
not permitted to have access to vulnerable beneficiaries without being 
accompanied by an authorized program representative who has previously 
been cleared for such access.
    An individual who refuses to authorize a program to conduct a 
criminal history State registry check, or who makes a false statement 
in connection with a grantee's inquiry concerning the individual's 
criminal history, may not serve in a covered position.

Required Documentation

    A grantee must document in writing that it (or its designee) 
verified the identity of the individual by examining the individual's 
government-issued photo identification card, conducted the required 
checks, maintained the results of the National Service Criminal History 
Check (unless precluded by State law), and considered the results in 
selecting or retaining an individual for a covered position.

NSOPR Checks Required on All Covered Positions, Including Those 
Currently Serving

    The NSOPR is a DOJ-sponsored Internet-based, searchable Web site 
that provides one-stop access to registries from all 50 States, Guam, 
Puerto Rico, and the District of Columbia. To assist the public, the 
FBI also has a link on its Web site to each State's sexual offender 
registry. The FBI Web site can be accessed at http://www.fbi.gov/hq/
cid/cac/States.htm. The NSOPR check must be conducted on any applicant 
for a covered position, as well as on any individual currently serving 
in a covered position at the time this rule becomes effective. Grantees 
should know that the NSOPR compiles, but does not independently verify 
or analyze, data that is provided by each State, and even if current 
legislative proposals to establish national reporting standards are 
adopted, there may continue to be differences in the content and 
currency of data held respectively in the NSOPR and State sex offender 
registries.

Effective Dates for Conducting State Criminal Registry and NSOPR Checks

    A Senior Companion or Foster Grandparent sponsoring organization 
must demonstrate that any required State criminal registry check is 
conducted at least once for any Senior Companion or Foster Grandparent 
who begins serving with the program on or after the effective date of 
this rule. An AmeriCorps grantee must document that the required State 
criminal registry check is conducted the first time an individual 
applies for a covered position in its program on or after the rule's 
effective date. NSOPR checks must, however, be conducted for all Senior 
Companion, Foster Grandparent, and AmeriCorps covered positions, 
including those currently serving at the time this final rule becomes 
effective. Programs must complete the NSOPR check on their current 
participants and grant-funded employees in covered positions within 90 
days from the publication date of the final rule.

Alternative Search Procedures

    If a grantee demonstrates that, for good cause, including a 
conflict with State law, it is unable to conduct the required searches 
or that it can obtain substantially equivalent or better information 
through an alternative process, the Corporation will consider approving 
an alternative search protocol proposed in writing by the grantee. This 
includes, but is not limited to, situations where a State or local 
government body

[[Page 48578]]

has established screening and documentation requirements designed to 
protect one or more vulnerable populations covered by the final rule. A 
school board, for example, acting pursuant to State legislation, may 
have set requirements for screening staff and volunteers that provide 
substantially equivalent protections to the vulnerable populations 
identified in this rule. Consequently, a teacher corps, whose members 
are all school district employees screened pursuant to a requirement 
imposed by a school board or other governing body, would satisfy the 
criteria for an approved alternative search procedure. In determining 
whether an alternative process results in substantially equivalent or 
better information, the Corporation will review the nature of the 
sources included in the alternative process, as well as the reliability 
of the information obtained. A current grantee can submit a written 
request within 90 days after the publication of this rule to the 
Corporation for approval of an alternative search protocol. A grantee 
qualifying for an exception must still conduct NSOPR checks on its 
participants and grant-funded employees, if not already required under 
State or local authority.
    Grantees must submit any applicable alternative protocol requests 
for approval in writing to the Corporation's Office of Grants 
Management. The Office of Grants Management will review the alternative 
protocol and will consider factors including, but not limited to: (1) 
That it sufficiently verifies the identity of the applicant; and (2) 
that it includes a search of an alternative criminal database that is 
sufficient to identify the existence, or absence of, a criminal 
offense.
    In addition, a grantee that conducts and documents a criminal 
history check through the FBI or through a national name-based check 
that, at a minimum, includes a search of the State criminal registry in 
the State in which the program is operating, as well as in the State in 
which the applicant resides, will be deemed to have satisfied the 
required State criminal registry check and does not need separate 
approval by the Corporation.

Additional Safeguards

    Establishing a baseline process as a grant condition is in no way 
intended to discourage grantees from undertaking additional measures to 
screen applicants. For example, grantees should be aware that 
individuals might provide a false name during the application process. 
Consequently, while a grantee must verify an applicant's identity with 
a government-issued photo identification card, such as a driver's 
license, the Corporation also strongly encourages grantees to take 
other precautionary steps such as consistently checking references or 
past employment. Additional screening practices include conducting a 
personal interview or, for an individual whose program assignment will 
include driving a vehicle, examining driving records. In addition, some 
programs have access to State-based child abuse or elder abuse 
registries. A grantee's decision to take any of these additional steps 
reflects the organization's own judgment about appropriate screening 
and is not considered a requirement under the Corporation grant.

Terminations and the Corporation's Refill Policy

    The Corporation's refill policy may enable AmeriCorps program 
grantees that have fully enrolled their awarded slots to replace a 
participant who terminates service before completing a required minimum 
(currently 30 percent) of his or her term and without having receiving 
a pro-rated education award. If the background screening results in the 
participant being ineligible to serve and the participant has already 
served more than the term of service specified under the refill policy, 
a grantee may seek an exception to the refill policy by submitting a 
written request for an exception to the Corporation's Office of Grants 
Management. The Office of Grants Management will review the request 
based on factors including, but not limited to, whether the delay in 
obtaining the criminal history check for the participant was a result 
of the grantee's lack of due diligence, or was for a reason that was 
beyond the grantee's control, and will reply within 30 days of receipt 
of such requests.

Disqualification of Registered Sex Offenders

    States have developed sexual offender registries to inform the 
public concerning the presence and location of individuals who have 
been convicted of certain sex-related offenses, either committed within 
that State, or in another State. Depending on the severity of the 
convicted offense, individuals are required to register as sex 
offenders either for a specified number of years (e.g., 10 years) or 
for life.
    An individual who is subject to a State sex offender registration 
requirement is deemed unsuitable for, and may not serve in, a covered 
position. The disqualification includes individuals who are applicants 
for covered positions, as well as individuals who are currently serving 
with the organization in a covered position.

Grantees not Precluded From Adopting Other Disqualifying Offenses

    In developing the proposed rule, the Corporation considered other 
disqualifying factors and offenses, such as convictions for serious and 
violent felonies, but ultimately determined that the selection criteria 
for covered positions--beyond any statutory eligibility criteria and 
the disqualification of registered sex offenders--should continue to be 
the responsibility of each grantee organization. Therefore, this rule 
does not preclude a grantee from adopting additional grounds for 
disqualification if it decides that it is appropriate or necessary for 
a particular program. Grantees should, however, be aware that State law 
may specifically prohibit the consideration of conviction or arrest 
records under certain circumstances. Finally, grantees should look at 
criminal history checks as but one of many sources of information to 
assess whether an individual is suitable for a program.

 Selection of Applicants Pending Criminal History Results

    A grantee may not select an individual for a position that has 
recurring access to children, persons age 60 and older, or individuals 
with disabilities prior to determining whether the individual is 
subject to a State sex offender registration requirement, which is 
readily ascertainable through an on-line search. Because the 
additionally-required search of State criminal registries, or an 
approved alternative search, may take more time, a grantee is not 
precluded under this rule from selecting or placing an individual 
contingent upon obtaining these additional results subsequently. 
However, until all required State criminal registry check results are 
received and reviewed by the grantee, an applicant may not have access 
to a vulnerable beneficiary without being accompanied by an authorized 
program representative who has previously been cleared to have such 
access. A grantee should take other reasonable precautions to ensure 
that safeguards are in place while the results are pending, including 
additional monitoring, and other risk mitigation steps, as determined 
by the grantee. The Corporation again emphasizes that the NSOPR check 
must be conducted before the individual begins to serve, as it is a no-
cost, almost instantaneous search that can be conducted by accessing 
the DOJ Web site.

[[Page 48579]]

Use of Intermediary Permitted

    A grantee may ascertain and assess an individual's criminal history 
or sex offender status directly from the applicable government agency, 
or indirectly through a duly authorized intermediary selected by the 
grantee such as a commercial entity or nonprofit organization. However, 
as a prudential matter, grantees should routinely review the 
intermediary's criminal history check procedures and practices to 
ensure that they are in compliance with the Corporation's requirements. 
In addition, because the amount of time from application until actual 
enrollment can be substantial, grantees should ensure that the criminal 
history result that it reviews before selecting the applicant is as 
current as possible.

Costs

    The final rule requires grantees (or their designees) to obtain and 
document a National Service Criminal History Check for covered 
individuals. The Corporation considers the cost of this required 
criminal history check a reasonable and necessary program grant 
expense, such costs being presumptively eligible for reimbursement. A 
grantee should include the costs associated with its screening process 
in the grant budget it submits for approval to the Corporation.
    Unless specifically approved by the Corporation, a grantee may not 
charge an individual for the cost of a criminal history check required 
under this rule. The Corporation will consider approving, for example, 
a long-standing school district policy of charging staff, volunteers, 
and others who work or serve in schools for the cost of criminal 
history checks, provided the income is treated in accordance with 
applicable grant conditions. In addition, because criminal history 
checks are inherently attributable to operating a program, such costs 
may not be charged to a State commission administrative grant.
    We will monitor the screening and documentation requirement as a 
material condition of receiving a Corporation grant. A grantee's 
material failure to comply with this requirement (including the NSOPR 
check) will result in the Corporation taking appropriate action, up to 
and including denial of the grantee's claim for reimbursements, 
suspending the grantee's access to grant funds, or restricting (or 
denying) the grantee's eligibility to obtain future grants from the 
Corporation. And specifically, a grantee jeopardizes eligibility for 
reimbursement of costs related to a disqualified individual if it fails 
to perform or document the required check.

III. Comments and Response

    Of the more than 70 comments received, the vast majority of the 
comments supported the requirement that national service programs 
conduct and document criminal history checks on individuals in covered 
positions. The comments and our responses are set forth below.
    Comment: Several commenters inquired as to why the Corporation was 
not including the RSVP or Learn and Serve programs under this rule.
    Response: The Corporation's connections with individual 
participants in the RSVP and Learn and Serve programs are sufficiently 
attenuated to rely on existing duties of care under State law. At the 
same time, the Corporation recognizes the importance of protecting all 
Corporation-supported program beneficiaries; therefore, we wish to 
emphasize the importance and need for all programs to ascertain and 
meet the applicable duties of care under State law.
    Comment: Several commenters asked for clarification concerning the 
term ``recurring access,'' expressing concern that it may be too broad 
in its scope.
    Response: The term is defined in the final rule at Sec.  2510.20 
Definitions. The Corporation believes that the definition of recurring 
access in the proposed rule is appropriate, and that it is prudent to 
include more applicants under this requirement than to exclude them by 
limiting the definition to a narrower category of individuals. A 
definition other than ``more than once'' would be likely to result in 
additional documentation requirements and collateral disputes about the 
adequacy of such documentation. Note that the definition does not apply 
to Senior Companions and Foster Grandparents, all of whom are covered 
by the requirements.
    Comment: Some commenters expressed concern that including persons 
age 60 and older as vulnerable individuals may offend individuals in 
this age category.
    Response: While we acknowledge that many individuals, age 60 and 
older, would not consider themselves vulnerable, we thought it would be 
prudent, from a policy and safety perspective, to be more inclusive 
than exclusive on this point. In addition, we have determined that 
sixty years of age appears to be the lowest age commonly used by 
Congress to define elderly persons in legislation that establishes a 
threshold age for elderly persons (e.g., Older Americans Act; Food 
Stamp Act) (Sec. Sec.  2522.205; 2540.200; 2551.26; 2552.26)).
    Comment: One commenter asked us to clarify which State criminal 
registry checks are required for a program that operates in more than 
one State.
    Response: The final rule requires a search of the criminal registry 
for the State in which a program operates and the State in which the 
applicant resides at the time of application. ``State in which your 
program operates'' refers to the actual geographic location where an 
individual will be serving on a permanent basis while participating in 
the program. For example, if the program's headquarters is in Florida, 
but the individual is applying to serve in an operating site in another 
State, the program must conduct a criminal history check in the State 
in which the operating site is located. If a program is unsure where an 
applicant is going to serve at the time that the applicant submits an 
application, the program must check each State in which the applicant 
could be assigned to serve on a permanent basis. (Sec. Sec.  2540.202 
(a); 2551.27 (a); 2552.27 (a)).
    Comment: One commenter asked for clarification as to what has to be 
documented when conducting the NSOPR check.
    Response: The program must document in writing that it conducted 
the NSOPR check on all covered positions, and considered the results in 
determining the individual's suitability. Any individual who is 
registered, or who is required to be registered, on a State sex 
offender registry is deemed unsuitable for, and may not serve in, a 
covered position (Sec. Sec.  2540.202(b); 2551.27(b); 2552.27(b)); 
(Sec. Sec.  2522.206; 2540.201; 2551.42; 2552.42).
    Comment: Another commenter asked us to clarify the term 
``consecutive terms of service'' as it relates to a grantee's 
requirement to conduct a separate criminal history check for a 
subsequent term of service. There is an exception to this requirement 
if an individual is serving ``consecutive terms of service.''
    Response: A consecutive term of service means that there is no 
intervening break in service of more than 30 days during which the 
applicant did not serve in that specific program. Consequently, if 
there is no break in service, there is no requirement that a grantee 
conduct a new State criminal registry and NSOPR check (Sec.  2540.203). 
Notwithstanding this exception, any AmeriCorps participant who is 
serving in a covered position at the time this rule becomes effective 
will be required to submit to a criminal registry check if the 
participant decides to serve another

[[Page 48580]]

term, even if it is with the same program and there is no 30-day break 
in service.
    Comment: We were asked to clarify when the requirement takes effect 
and to whom it applies.
    Response: Both the State criminal registry check and NSOPR 
requirements take effect 90 days after publication of the Final Rule in 
the Federal Register. The State criminal registry check requirement 
applies only to those covered individuals who apply after the effective 
date of the final rule. The NSOPR check, however, applies to all 
covered individuals who apply to serve, or who are currently serving 
with, or working in, the affected programs (See paragraph V, Effective 
Dates).
    Comment: One commenter asked if costs (such as a living allowance) 
attributable to an individual under a grant were allowable if the 
grantee subsequently determines that the individual must leave the 
program as a result of a criminal history check.
    Response: The costs are allowable unless the delay in determining 
that an individual is ineligible to serve is caused by non-compliance 
or unreasonable delay by the grantee (e.g., failure to conduct the 
NSOPR check before enrolling or hiring the individual).
    Comment: Some commenters asked whether staff members of a grantee 
whose salaries are paid with matching funds are included under this 
requirement.
    Response: If the staff members are included in the grantee's 
proposed budget as grant-funded employees, whether supported by 
Corporation or matching funds, they are included under this requirement 
(Sec. Sec.  2522.205; 2540.200; 2551.26; 2552.26).
    Comment: A commenter asked for clarification as to which States' 
criminal registry must be checked for a college student who is 
attending college in a State that is not his or her home of record.
    Response: For the purpose of this rule, a student who is attending 
college in a State that is not the student's ``home of record'' (i.e., 
where the student's parent(s) reside) is deemed to be residing in the 
State in which the college is located. The final rule requires programs 
to conduct a criminal registry check in the State in which the program 
is operating, as well as in the State in which the applicant is 
residing at the time the application is submitted. There is nothing, 
however, to preclude a program from including additional States (i.e., 
the applicant's home of record or other States in which the student has 
lived) in its criminal registry check (Sec. Sec.  2540.202(a); 
2551.27(a); 2552.27(a)).
    Comment: One commenter expressed concern that the prospective 
nature of the rule would leave unchecked potentially unsuitable 
participants who are currently in the programs.
    Response: In establishing this new requirement as a grant 
condition, we were mindful of the costs associated with retrospective 
application. Because the criminal history State registry check 
requirement is prospective, grantees should design their programs' 
applications in a manner that appropriately reflects their screening 
practices. Programs with relatively less stringent screening practices 
are well advised to build in compensating controls to minimize the 
risks to their program beneficiaries. In addition, because an NSOPR 
check is cost-free and relatively easy to conduct, we are requiring all 
programs subject to this rule to conduct NSOPR checks on all applicants 
for covered positions, as well as on all individuals who are currently 
serving in covered positions (See paragraph V, Effective Dates).
    Comment: One individual submitted a written comment asking why the 
final rule disqualifies registered sex offenders, but not those 
individuals convicted of other offenses.
    Response: Disqualifying registered sex offenders from positions 
with recurring access to children, older persons, or individuals with 
disabilities takes advantage of the newly established national registry 
of sex offenders, accessible online across the country, and is 
consistent with our objective of establishing by rule an achievable 
baseline set of screening practices. Advances in information sharing at 
the national level may make it possible to strengthen this baseline in 
the future. To this end, the Corporation intends, at a later date, to 
consider adding other disqualifying factors, including specific 
offenses. Accordingly, we invite grantees and other interested parties 
to provide input on additional disqualifying factors. Input should be 
submitted to the individual listed at, FOR FURTHER INFORMATION CONTACT 
(Sec. Sec.  2522.206; 2540.201; 2551.42; 2552.42).
    Comment: One commenter asked for clarification concerning the 
eligibility of an individual who refuses to consent to a State criminal 
registry check.
    Response: We have added language in the final rule clarifying that 
an individual who refuses to consent to a State criminal registry 
check, or who makes a false statement in connection with a grantee's 
inquiry concerning the individual's criminal history, is not eligible 
to serve in a covered position (Sec. Sec.  2540.207; 2551.32; 2552.32).
    Comment: One commenter asked for clarification concerning an 
individual's right to review and challenge the factual accuracy of a 
criminal history check before any action is taken to exclude the 
individual from serving in, or working with, the program.
    Response: We believe that the ability of an applicant to review and 
challenge the results of State criminal registry and NSOPR checks is a 
basic right that all programs must give to each individual. With the 
potential for false positives, it is essential that all Corporation 
programs safeguard an individual's personal information and give the 
individual the opportunity to challenge any adverse findings that may 
surface (Sec. Sec.  2540.204 (d); 2551.29 (d); 2552.29 (d)).
    Comment: Several commenters expressed concern that their individual 
States may not permit them to conduct criminal history checks without 
specific statutory authority to conduct the search.
    Response: We are prepared to approve an alternative search protocol 
if a program is prohibited or otherwise precluded from complying with 
the Corporation's criminal history check requirement (Sec. Sec.  
2540.206(c); 2551.31(c); 2552.31(c)).
    Comment: Several commenters expressed that the Corporation's 
criminal history requirement could be redundant if a program is already 
required to comply with a State or local government-mandated criminal 
history check that is equivalent to the Corporation's requirement.
    Response: Based upon these comments, we have included preamble 
language making clear that a program that is required to comply with a 
State or local government-mandated criminal history check that 
parallels the Corporation's requirement may request that the 
Corporation approve this alternative search protocol. A program 
qualifying for this exception must, however, in addition to satisfying 
State criminal history check requirements, conduct NSOPR checks on its 
participants and grant-funded employees, if not already required 
(Sec. Sec.  2540.206(c); 2551.31(c); 2552.31(c)).
    Comment: Several commenters thought the criminal history 
requirement was necessary and prudent but were concerned about the cost 
of conducting the criminal history checks. They asked whether the 
Corporation would provide more funding to pay for the checks.
    Response: Although there are no additional funds designated for 
these

[[Page 48581]]

checks, these costs are allowable. In addition, the NSOPR check is a 
no-cost Internet search. While the Corporation will provide guidance to 
assist grantees on effective and economic ways to reduce costs in this 
area, we remind our grantees that it is their responsibility when 
operating programs that serve vulnerable populations to ensure that 
they establish appropriate safeguards to meet their respective States' 
existing duties of care. It should also be noted that many programs are 
already managing within their budgets to secure the types of criminal 
history checks that we are requiring. For example, many local law 
enforcement agencies offer in-kind support to non-profit organizations 
that require this type of assistance.

IV. Relationship to State Laws

    To the extent that any element of the final rule is prohibited, or 
is otherwise precluded under State law, the Corporation's Office of 
Grants Management is prepared to approve an alternative that is 
consistent with State law, within 30 days of receiving such notice.

V. Effective Dates

    The final rule takes effect November 23, 2007. The State criminal 
registry search requirement applies prospectively to the selection of 
any individual who applies on or after the effective date. However, an 
AmeriCorps participant who is serving in a covered position at the time 
this rule becomes effective will be required to submit to a criminal 
registry check if the participant desires to serve another term, even 
if it is with the same program. The NSOPR requirement applies: (1) To 
any applicant for a covered position beginning on or after the 
effective date, as well as (2) to an individual who is serving as a 
participant or grant-funded employee in a covered position on the 
effective date.

VI. Regulatory Procedures

Executive Order 12866

    The Corporation has determined that this rule is not an 
``economically significant'' rule within the meaning of E.O. 12866 
because it is not likely to result in: (1) An annual effect on the 
economy of $100 million or more, or an adverse and material effect on a 
sector of the economy, productivity, competition, jobs, the 
environment, public health or safety, or State, local, or tribal 
government or communities; (2) the creation of a serious inconsistency 
or interference with an action taken or planned by another agency; (3) 
a material alteration in the budgetary impacts of entitlement, grants, 
user fees, or loan programs or the rights and obligations of recipients 
thereof; or (4) the raising of novel legal or policy issues arising out 
of legal mandates, the President's priorities, or the principles set 
forth in E.O. 12866. It is, however, a significant rule and has been 
reviewed by the Office of Management and Budget in accordance with E.O. 
12866.

Regulatory Flexibility Act

    As required by the Regulatory Flexibility Act of 1980, 5 U.S.C. 
605(b), the Corporation certifies that this rule 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, the Corporation has not performed the initial regulatory 
flexibility analysis that is required under the Regulatory Flexibility 
Act, 5 U.S.C. 601 et seq., for major rules that are expected to have 
such results.

Unfunded Mandates

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

Paperwork Reduction Act

    This rule contains no information collection requirements and is 
therefore not subject to the requirements of the Paperwork Reduction 
Act of 1980 (44 U.S.C. 3501 et seq.).

Executive Order 13132, Federalism

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

0
For the reasons stated in the preamble, the Corporation for National 
and Community Service amends 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. 12501 et seq.


0
2. Amend Sec.  2510.20 by adding the definitions of ``children,'' and 
``recurring access'' in alphabetical order to read as follows:


Sec.  2510.20  Definitions.

* * * * *
    Children. The term children means individuals 17 years of age and 
younger.
* * * * *
    Recurring access. The term recurring access means 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.
* * * * *

PART 2522--AMERICORPS PARTICIPANTS, PROGRAMS, AND APPLICANTS

0
1. The authority citation for part 2522 is revised to read as follows:

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


[[Page 48582]]



0
2. Add the following new sections: Sec.  2522.205, Sec.  2522.206, and 
Sec.  2522.207 to read as follows:


Sec.  2522.205  To whom must I apply suitability criteria relating to 
criminal history?

    You must apply suitability criteria relating to criminal history to 
a participant or staff position for which an individual receives a 
Corporation grant-funded living allowance, stipend, education award, 
salary, or other remuneration, and which involves recurring access to 
children, persons age 60 and older, or individuals with disabilities.


Sec.  2522.206  What suitability criteria must I apply to a covered 
position?

    Any individual who is registered, or required to be registered, on 
a State sex offender registry is deemed unsuitable for, and may not 
serve in, a covered position.


Sec.  2522.207  What are the procedures I must follow to determine an 
individual's suitability to serve in a covered position?

    In determining an individual's suitability to serve in a covered 
position, you must follow the procedures in part 2540 of this title.

PART 2540-GENERAL ADMINISTRATIVE PROVISIONS

0
1. The authority citation for part 2540 is revised to read as follows:

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

Sec.  2540.200  [Redesignated as Sec.  2540.208]

0
2. Redesignate Sec.  2540.200 as Sec.  2540.208.


0
3. Add the following sections: Sec. Sec.  2540.200, 2540.201, 2540.202, 
2540.203, 2540.204, 2540.205, 2540.206, and 2540.207.


Sec.  2540.200  To whom must I apply suitability criteria relating to 
criminal history?

    You must apply suitability criteria relating to criminal history to 
an individual applying for, or serving in, a position for which an 
individual receives a Corporation grant-funded living allowance, 
stipend, education award, salary, or other remuneration, and which 
involves recurring access to children, persons age 60 and older, or 
individuals with disabilities.


Sec.  2540.201  What suitability criteria must I apply to a covered 
position?

    Any individual who is registered, or required to be registered, on 
a State sex offender registry is deemed unsuitable for, and may not 
serve in, a position covered by suitability criteria.


Sec.  2540.202  What two search components of the National Service 
Criminal History Check must I satisfy to determine an individual's 
suitability to serve in a covered position?

    Unless the Corporation approves an alternative screening protocol, 
in determining an individual's suitability to serve in a covered 
position, you are responsible for conducting and documenting a National 
Service Criminal History Check, which consists of the following two 
search components:
    (a) State criminal registry search. A search (by name or 
fingerprint) of the State criminal registry for the State in which your 
program operates and the State in which the individual resides at the 
time of application; and
    (b) National Sex Offender Public Registry. A name-based search of 
the Department of Justice (DOJ) National Sex Offender Public Registry 
(NSOPR).


Sec.  2540.203  When must I conduct a State criminal registry check and 
a NSOPR check on an individual in a covered position?

    (a) The State criminal registry check must be conducted on an 
individual who enrolls in, or is hired by, your program after November 
23, 2007.
    (b) The NSOPR check must be conducted on an individual who is 
serving, or applies to serve, in a covered position on or after 
November 23, 2007.
    (c) For an individual who serves consecutive terms of service in 
your program with a break in service of no more than 30 days, no 
additional check is required after the first term.


Sec.  2540.204  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 for the State criminal 
registry check and the appropriate sharing of the results of that check 
within the program from the individual (but not for the NSOPR check);
    (c) Document the individual's understanding that selection into the 
program is contingent upon the organization's review of the 
individual's criminal history, if any;
    (d) 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;
    (e) Provide safeguards to ensure the confidentiality of any 
information relating to the criminal history check, consistent with 
authorization provided by the applicant; and
    (f) Ensure that an individual, for whom the results of a required 
State criminal registry check are pending, is not permitted to have 
access to children, persons age 60 and older, or individuals with 
disabilities without being accompanied by an authorized program 
representative who has previously been cleared for such access.


Sec.  2540.205  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 of the National Service Criminal History 
check (unless precluded by State law) and document in writing that you 
considered the results in selecting the individual.


Sec.  2540.206  Under what circumstances may I follow alternative 
procedures in conducting a State criminal registry check for a covered 
position?

    (a) FBI fingerprint-based check. If you conduct and document a 
fingerprint-based criminal history check through the Federal Bureau of 
Investigation, you will be deemed to have satisfied the State criminal 
registry check requirement and do not need separate approval by the 
Corporation.
    (b) Name-based search. If you conduct and document a name-based 
criminal history check through a source other than the FBI that 
includes a check of the criminal records repository in the State in 
which your program is operating, as well as in the State in which the 
applicant lives, you will be deemed to have satisfied the State 
criminal registry check requirement and do not need separate approval 
by the Corporation.
    (c) Alternative search approval. If you demonstrate that you are 
prohibited or otherwise precluded under State law from complying with a 
Corporation requirement relating to criminal history checks or that you 
can obtain substantially equivalent or better information through an 
alternative process, the Corporation will consider approving an 
alternative search protocol that you submit in writing to the 
Corporation's Office of Grants Management. The Office of Grants

[[Page 48583]]

Management will review the alternative protocol to ensure that it:
    (1) Verifies the identity of the individual; and
    (2) Includes a search of an alternative criminal database that is 
sufficient to identify the existence, or absence of, criminal offenses.


Sec.  2540.207  Is an individual who refuses to consent to a State 
criminal registry check, or who makes a false statement in connection 
with a grantee's inquiry concerning the individual's criminal history, 
eligible to serve in a covered position?

    An individual who refuses to consent to a State criminal registry 
check, or who makes a false statement in connection with a grantee's 
inquiry concerning the individual's criminal history, is not eligible 
to serve in a covered position.

PART 2551--SENIOR COMPANION PROGRAM

0
1. The authority citation for part 2551 is revised to read as follows:

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

Subpart C of Part 2551--[Amended]


Sec.  2551.31  [Redesignated as Sec.  2551.34]

0
2. Amend subpart C by redesignating Sec.  2551.31 as Sec.  2551.34.

Subpart B of Part 2551--[Amended]


Sec.  2551.26  [Redesignated as Sec.  2551.33]

0
3. Amend subpart B of part 2551 by redesignating Sec.  2551.26 as Sec.  
2551.33.


0
4. Add the following sections to subpart B: Sec. Sec.  2551.26, 
2551.27, 2551.28, 2551.29, 2551.30, 2551.31, and 2551.32.


Sec.  2551.26  To whom does this part apply?

    This part applies to Senior Companion Sponsors when determining the 
suitability of Senior Companions, as well as to Senior Companion grant-
funded employees who, on a recurring basis, have access to children, 
persons age 60 and older, or individuals with disabilities.


Sec.  2551.27  What two search components of the National Service 
Criminal History Check must I satisfy to determine an individual's 
suitability to serve in a covered position?

    Unless the Corporation approves an alternative screening protocol, 
in determining the suitability of an individual to serve as a Senior 
Companion or as a covered grant-funded employee, you are responsible 
for ensuring, unless prohibited by State law, that you conduct and 
document a National Service Criminal History Check, which consists of 
the following two search components:
    (a) State criminal registry search. A search (by name or 
fingerprint) of the State criminal registry for the State in which the 
program operates and the State in which the individual resides at the 
time of application; and
    (b) National Sex Offender Public Registry. A name-based search of 
the Department of Justice (DOJ) National Sex Offender Public Registry 
(NSOPR).


Sec.  2551.28  When must I conduct a State criminal registry check and 
a NSOPR check on an individual in a covered position?

    (a) The State criminal registry check must be conducted on an 
individual who enrolls in, or is hired by, your program after the 
effective date of this regulation.
    (b) The NSOPR check must be conducted on an individual who is 
serving, or applies to serve, in a covered position on or after the 
effective date of this regulation.


Sec.  2551.29  What procedures must I follow in conducting a National 
Service Criminal History Check?

    You are responsible for ensuring that the following procedures are 
satisfied:
    (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 for the State criminal 
registry check and the appropriate sharing of the results of that check 
within the program from the individual (but not for the NSOPR check);
    (c) Document the individual's understanding that selection into the 
program is contingent upon the organization's review of the 
individual's criminal history, if any;
    (d) 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;
    (e) Provide safeguards to ensure the confidentiality of any 
information relating to the criminal history check, consistent with 
authorization provided by the individual; and
    (f) Ensure that an individual, for whom the results of a required 
State criminal registry check are pending, is not permitted to have 
access to children, persons age 60 and older, or individuals with 
disabilities without being accompanied by an authorized program 
representative who has previously been cleared for such access.


Sec.  2551.30  What documentation must I maintain regarding a National 
Service Criminal History Check?

    You must:
    (a) Document in writing that you verified the identity of the 
individual in a covered position by examining the individ