Background Checks on Individuals in DoD Child Care Services Programs, 55752-55761 [2015-23269]

Agencies

• DEPARTMENT OF DEFENSE
• Office of the Secretary

[Federal Register Volume 80, Number 180 (Thursday, September 17, 2015)]
[Rules and Regulations]
[Pages 55752-55761]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-23269]


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DEPARTMENT OF DEFENSE

Office of the Secretary

32 CFR Part 86

[Docket ID: DOD-2014-OS-0009]
RIN 0790-AJ19


Background Checks on Individuals in DoD Child Care Services 
Programs

AGENCY: Under Secretary of Defense for Personnel and Readiness, DoD.

ACTION: Final rule.

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SUMMARY: This rule establishes and updates policy, assigns 
responsibilities, and provides procedures to conduct criminal history 
checks on individuals involved in the provision of child care services 
for children under the age of 18 in DoD programs. The Crime Control Act 
of 1990 (Act) requires all individuals involved with the provision of 
child care services to children under the age of 18 undergo a criminal 
background check. ``Child care services'' include, but are not limited 
to, social services, health and mental health care, child (day) care, 
education (whether or not directly involved in teaching), and 
rehabilitative programs. Any conviction for a sex crime, an offense 
involving a child victim, or a drug felony, may be grounds for denying 
employment or for dismissal of an employee providing any of the 
services discussed above.

DATES: This rule is effective October 19, 2015.

FOR FURTHER INFORMATION CONTACT: Karen Morgan, 571-372-0859.

SUPPLEMENTARY INFORMATION: 

Executive Summary

    The purpose of this regulatory action is to describe requirements 
for criminal history background checks, including reinvestigation, and 
self-reporting, for individuals involved with the provision of child 
care services.
    The legal authorities for this rule include: 5 U.S.C. 2105, 10 
U.S.C. chapter 47, 42 U.S.C. 13041.
    The major provisions of this regulatory action include providing 
procedures for requirements for criminal history background checks 
listing the types of background checks, and descriptions of 
reinvestigation and self-reporting.
    This rule is intended to support the workforce mission of the DoD 
and implement current law that covers individuals expected to have 
regular contact with children in the performance of child care services 
on a DoD installation or DoD-sanctioned program. The estimated costs of 
the rule are $10 million annually. This cost includes administration 
costs; required FBI fingerprint Investigations Child Care National 
Agency Check and Inquiries checks ($125/NACI); State Criminal History 
Repository checks ($25/each state the individual resided in); and 
periodic reinvestigations. We do not believe that this rule will impose 
substantial direct costs on state and local governments.
    This rule is part of DoD's retrospective plan, completed in August 
2011, under Executive Order 13563, ``Improving Regulation and 
Regulatory Review.'' DoD's full plan and updates can be accessed at: 
https://www.regulations.gov/#!docketDetail;dct=FR+PR+N+O+SR;rpp=10;po=0;D=DOD-2011-OS-0036.

Public Comments

    The Department of Defense published a proposed rule in the Federal 
Register on October 1, 2014 (79 FR 59168-59173) for a 60-day public 
comment period. We received 22 comments. Five comments expressed 
support for the rule and no response is required. One comment was 
withdrawn. The remaining comments are listed below.
    Comment ID DOD-2014-OS-0009-0003:
     The law still states that any conviction for a sex crime, 
an offense involving a child victim, or a drug felony, may be grounds 
for denying employment or for dismissal of an employee. Public Law 101-
647. The word may give too much flexibility in the decision making 
process to hiring agents in determining what to do with results of the 
background check. The review board may either bar employment based on 
the offenses listed out in the statute or excuse the background check 
results. Agency processes should spell out more specifically which 
offenses are bars and which are not.
    Response: The commenter has referenced the summary paragraph at the 
beginning of the rule, which is not the rule itself. Please see Sec.  
86.6(c) for specific criteria for automatic and presumptive 
disqualifiers, which does not use the term, ``may.''
     It is imperative that a thorough review, investigation and 
study of different systems for background checks is completed on each 
organization interacting with children.
    Response: This rule/policy was developed in collaboration with the 
Military Services, which are responsible for providing detailed 
procedures that meet the overall DoD requirements in this rule to 
ensure the rule/policy is implemented correctly.

[[Page 55753]]

    Comment ID DOD-2014-OS-0009-0004:
     This rule includes all current employees, contractors and 
specific volunteers, in addition to future applicants, which is bound 
to create a backlog for which no solution is presented, at least in the 
current rule.
    Response: This rule does not create a new system. It updates 
existing policy for background checks.
     This rule addresses foreign nationals in a way that could 
be ambiguous in its application. The definition describes a foreign 
national as not a citizen of the United States. This encompasses a fair 
amount of specific volunteers, especially in the religious ministries 
at overseas DoD facilities. These volunteers, innocent of any criminal 
wrong doing, may not fall under host country agreements and therefore 
be unable to continue their work. This would be an unfair outcome for 
those individuals and the organizations that rely on an already limited 
pool of volunteers. A similar outcome is possible for those foreign 
nationals who are military members or spouses who are not yet U.S. 
citizens that reside in the U.S. and work on DoD facilities.
    Response: There are policies and procedures in place to ensure 
foreign nationals receive appropriate background checks or work under 
line-of-sight supervision (LOSS) in order to continue their work.
     The rule seems to exclude subcontractors from its 
application. This may be due to the potential increased burden on first 
line contractors to ensure all its subs are in compliance. This is 
frankly unacceptable as a lot of what occurs on DoD facilities, 
especially overseas, is accomplished by subcontractors.
    Response: The exclusion of subcontractors has been deleted from the 
definition of contractors.
    Comment ID DOD-2014-OS-0009-0005: I'm confused by the language in 
Sec.  86.6(b), which references ``(a)(6)(i)'' and ``(a)(6)(ix)'' as 
being ``in this section.'' I can't find the quoted section. This may be 
my error, or perhaps it is a clerical oversight.
    Response: The reference should be (a)(5)(i) and (a)(5)(ix). Section 
86.6(b) has been updated with the accurate reference.
    Comment ID DOD-2014-OS-0009-0006: Why limit the background checks 
to individuals with ``regular contact with children?'' The definition 
of ``regular contact with children'' excludes those with access to 
children. The narrow reach of the proposed rule seems to leave out 
serious threats. Limited resources could be to blame.
    Response: It is beyond the scope of DoD to conduct a background 
check on any individual who has access to children. This rule/policy is 
intended to ensure appropriate checks of those who work in DoD-
sanctioned child care services programs.
    Comment ID DOD-2014-OS-0009-0007: Absent documented statistical 
research to the contrary, the Department of Defense has not established 
that individuals who are convicted drug felons are any more likely to 
threaten a child's safety than any other citizen of the United States. 
Please modify the proposed rule to omit the class ``persons with a drug 
felony'' from the screening process for federal jobs within the 
Department of Defense that serve children under the age of 18.
    Response: Inclusion of a ``felony conviction of a drug offense'' as 
an automatic disqualifier was based on careful and objective analysis 
regarding how to protect children in DoD child care services programs. 
A felony conviction of a drug offense could adversely impact the 
integrity of the position and the safety and well-being of children in 
DoD care.
    Comment ID DOD-2014-OS-0009-0008:
     Costs: $10 million annually is a large amount of money. 
How crucial are each of the checks and investigations and how necessary 
is it for reinvestigations to take place every 5 years if the surfacing 
of derogatory information will trigger a reinvestigation anyways? I 
like Executive Orders 13563, and it seems to address these questions, 
however it states that it is not economically significant, which makes 
me wonder whether alternatives ways to regulate and minimize costs are 
properly being explored and examined. The price of each component, for 
example video surveillances or conspicuous marking, should be strictly 
scrutinized. What other programs is the use of this money being 
indirectly taken away from? Additionally, what process will determine 
that the state and local governments will not be substantially affected 
financially and what does substantial mean? It is great that employers 
and a substantial number of small entities will not be significantly 
impacted under the Unfunded Mandates Reform Act and the Regulatory 
Flexibility Act, but how far do the costs extend to government 
contracts and employees within the state?
    Response: The requirements for the initial checks and regular 5 
year reinvestigations are crucial to ensuring protection of children in 
DoD child care services programs. As background check systems are 
updated to report derogatory information more immediately, this rule/
policy may be updated to revise the every 5 year requirement. The costs 
of the investigations are borne by the DoD, and not by the individual 
or his or her employer or the State. This policy update does not and 
cannot mandate that State, local, and tribal governments adopt new, 
unfunded regulatory obligations.
     Privacy and Relevancy: Those in charge of the background 
checks are about to look at any other available information that is 
relevant (listed under Adjudication). I fear that some may abuse this 
and unfairly use information that is not so relevant against an 
applicant.
    Response: Adjudicators are trained to appropriately assess 
information received as part of a background checks in accordance with 
law and policy. Individuals who abuse their access to information are 
not operating in accordance with laws, regulations and policies.
     Categorizing Care Provider, Providers, and Personnel 
performing duties in athletic programs: The definitions for these types 
of jobs can easily be stretched to many things (for example, could 
babysitting under certain circumstances count?). Child care or youth 
activities could mean so many things that do not necessarily require 
these extensive checks. My obvious hesitancy expressed in these 
comments and questions comes from my concern for costs for this rule as 
well as unfair burdens placed on individuals that may have a poor 
history, but a history that is unrelated to the wrongdoings that their 
guilt from these tests would be impliedly accusing them of, or a 
history that is simply in the past and different from their present 
state (for example a minor criminal record or drug use that has been 
overcome). It is honorable to aim to protect our children, but it is 
also important to protect our citizens and employees who are trying to 
live happy lives and contribute to the economy in the best ways that 
they can.
    Response: The categories of individuals who require a criminal 
history background check, which includes all individuals who have 
regular contact with children under 18 years of age in DoD-sanctioned 
child care services programs, was established in accordance with Public 
Law 101-647 in order to protect the health and well-being of children 
in such programs. The costs of the specific investigations required 
pursuant to this rule have been

[[Page 55754]]

budgeted and are borne by the Department of Defense and not by the 
individual or his or her employer or the state.
     Lastly, it concerns me that the DoD Components will 
evaluate the disqualifications AND ALSO oversee procedures for the 
appeal of unfavorable determinations. This system has the potential to 
be unjust.
    Response: There is an appeals process that individuals can pursue 
should they feel they have been treated unjustly. The DoD Components 
will establish and oversee procedures for the appeal of unfavorable 
determinations for all categories of individuals. The procedures for 
civilian personnel are subject to Volume 731 of DoDI 1400.25, DoD 
Civilian Personnel Management System.
    Comment ID DOD-2014-OS-0009-0009: Under Sec.  86.4(c), not only 
individuals who have current DoD affiliation but also individuals who 
have prior DoD affiliation must undergo an IRC. I am curious why this 
would be necessary. If a person no longer has an affiliation with the 
DoD and is not going to have contact with the DoD child care service, 
why go through the trouble of checking all those individuals with prior 
affiliation?
    Response: Section 86.4(a) has been modified to include this 
requirement so that it is clear the IRC is only conducted if the 
individual (who has a prior DoD affiliation) is undergoing a background 
check because he/she will have regular contact with children in DoD 
child care services programs.
    Comment ID DOD-2014-OS-0009-0010:
     Section 86.4 Policy does not contain any actual policy as 
to why these rules are being proposed. It would be helpful if the 
section included something pertaining to the importance of the 
protection of children from known child abusers, drug users etc. A 
specific policy will help when looking at what is important in 
conducting a background check (in example, a person with a forma 
addiction who has undergone rehabilitation who has had no adverse 
contact with children.) Also, the policy will help the DoD in defending 
any appeals from potential employees who were denied employment.
    Response: Section 86.4 has been updated with additional language 
indicating why the rule is being promulgated.
     A required amount of employment for a LOSS supervisor as 
an extra safeguard will also help promote the policy of the proposed 
rules.
    Response: The role of the LOSS supervisor is to ensure that an 
individual who does not yet have a completed background check remains 
in the line of sight of another individual who does have a completed 
background check. The LOSS supervisor is not necessarily supervising 
the performance of the other individual; the LOSS supervisor is only 
ensuring that individual is not left alone with children.
    Comment ID DOD-2014-OS-0009-0011: It seems as though we should 
require the caregivers themselves to pay for the background checks. It 
is not uncommon for employers to require employees to pay the costs 
associated with licensing or certifications.
    Response: Background checks should not be compared to elective 
licenses and certifications. The costs of the specific investigations 
required pursuant to this Rule have been budgeted and are borne by the 
Department of Defense and not by the individual or his or her employer 
or the state. By law, background checks are required for federal 
agencies that hire or contract for hire in the provision of care to 
children under the age of 18. Per this Rule, Office of Personnel 
Management (OPM) is the only authorized Investigative Service Provider 
(ISP) that the Military Service Components may use for background 
investigations. Contracted support must meet the intent of this Rule, 
DoD policy and the law.
    Comment ID DOD-2014-OS-0009-0012:
     Video surveillance violates a person's ``expectation of 
privacy.'' It should be re-written to comply with the 5th Amendment. 
The procedure may be ruled unconstitutional as it currently stands.
    Response: Signage and monitors are placed in highly visible 
entryways and foyers and inform individuals that video surveillance is 
being conducted. Video surveillance events occurring in public space 
for which individuals do not have reasonable expectations of privacy. 
Video surveillance does not intrude upon an individual's sphere of 
privacy; the use of video surveillance equipment (in designated 
programs) supports the law's intent for Line of Sight Supervision 
(LOSS) for individuals whose background checks have been initiated but 
not completed. Surveillance equipment is also used by staff trainers 
and managers as a training aid for staff observations and coaching.
     Procedures: Requirements for Criminal background checks. 
Foreign government background checks for employees working overseas has 
a 5th Amendment issue. How is an overseas employee challenge the 
validity of a foreign background check? There may be procedural and 
language barriers that prevent a fair opportunity to exonerate oneself.
    Response: The current rule provides basic guidance regarding 
background checks for foreign nationals as they relate to DoD child 
care services programs. See DoD Instruction 5200.46 for more detailed 
guidance on procedures for foreign nationals.
    Comment ID DOD-2014-OS-0009-00015: Of course children of any 
parentage should be protected from criminals and potential harm via 
their caretakers; however this cost will most likely be substantial. 
Please consider you taxpayers when making these choices that can seem 
frivolous at times.
    Response: The costs of the investigations are borne by the DoD, and 
not by the individual or his or her employer or the State. When 
contracting for services, the contract must ensure it meets the intent 
of this Rule and the Crime Control Act of 1990. This Rule is a top 
priority for DoD to ensure the safety and well-being of all children in 
DoD child care services programs. By law, background checks are 
required for federal agencies that hire, contract for hire or use 
volunteers for the provision of care to children under the age of 18.
    Comment ID DOD-2014-OS-0009-00016: The Unfunded Mandates Reform Act 
states there will be no additional financial expenditures required from 
the individual or employer while the regulatory act acknowledges 
potential indirect costs to small entities. If this proposed rule is 
passed, it would be beneficial to clearly outline what constitutes a 
small entity, what course of action, if any, can they take to avoid 
costs, and what kind of notice will they have if they are affected by 
this rule. When it comes to implementing the rule, if passed, there 
needs to be guidelines for how businesses that may incur costs can go 
about managing the financial change comfortably. As a DoD organization, 
can these small entities expect to qualify for additional funds to 
offset these costs (costs unspecified at this moment)? If this rule is 
passed, it should clearly state what the dollar figure will be, and a 
definite yes or no about eligibility of offsetting the expenses via 
government funds. If the proposed rule is passed, how immediate will 
the new procedures effect these small entities? The rule should be 
altered to include the time frame for implementing the policy and allow 
organizations to communicate if they need additional accommodations to 
be effective in its implementation.

[[Page 55755]]

    Response: DoD has certified that this rule would not have a 
significant economic impact on a substantial number of small entities 
because the costs for the investigation conducted pursuant to this rule 
are borne by the DoD, and not by the individual or his or her employer. 
Furthermore, any indirect costs incurred by small businesses as a 
result of this rule would be minimal.
    Comment ID DOD-2014-OS-0009-00017: Not all agencies within 
individual states make their records available to commercial databases, 
nor does the FBI make its federal or state criminal records available 
to commercial services. In addition, the information in commercial 
databases may only be updated occasionally. Some states have databases 
that have not been updated to determine if the individual has any 
arrest history, therefore when a background check is being completed on 
a federal level, the record may not be current, and in turn, invalid 
information will be received on that individual. Most states allow 
criminals who have paid their dues, to erase their criminal records. 
Currently, 12 states expunge first-time criminal offenses after ex-
convicts demonstrate a law-abiding lifestyle for 10 years.
    Response: The rule requires multiple levels of investigation in 
order to ensure the most accurate information possible is captured 
during the investigation process. The DoD uses various data sources 
from federal, state and local authorities to obtain information on 
background investigations, credentialing, suitability determination and 
security clearances. The primary investigations include the Child Care 
National Agency Check and Inquiries; the FBI Identification Records 
check; the State Criminal History Repository Check; the state sex 
offender registry; the child abuse registry and an Installations 
Records Check (IRC Derogatory information is identified through this 
multi-tier investigative process). The Department remains committed in 
its efforts to ensure those who work with children meet the highest 
standards of conduct.
    Comment ID DOD-2014-OS-0009-00018:
     Will background checks be conducted on the current staff 
on hand first? Will there be a set time frame to complete the 
background check? For example, each person attempting to gain 
employment has a 4-6 month waiting period, prior to a hire date? I know 
firsthand that some background checks can take a very long time ranging 
from 4 months to 12 months depending on the individual and their 
circumstances.
    Response: This rule does not create a new system. It updates 
existing policy for background checks. The provision to work under LOSS 
allows DoD to employ individuals while the background checks are being 
completed.
     Has the DoD considered how criminal histories are not 
always current or may have mistakes? A person may have committed a 
crime, even serious in nature, but the individual may take a plea, and 
with 12 months good behavior it may be expunged from their record. Are 
there any plans or a step to assist with this process? Has the DoD 
considered using public Web site searches to assist with this process 
such as Facebook, Instagram, YouTube, Twitter, etc. to gain more 
information on that particular individual? Using open source 
information may quickly display a person behaviors, likes, dislikes, 
etc., is a cheaper option, and may take only ten minutes depending on 
what the DoD discovers.
    Response: DoD requirements outlined in this rule make use of 
available legal sources of investigative information to make 
determinations about individuals' suitability for employment in DoD 
child care services programs.
    Comment ID DOD-2014-OS-0009-00022: I am in support of this proposed 
rule, but to accomplish greater safeguarding of children as intended, 
subcontractors should not be excluded as stated. DoD contracts are 
typically performed by subcontractors who actually perform work around 
the children, not the prime contractors.
    Response: The exclusion of subcontractors has been deleted from the 
definition of contractors.
    Comment ID DOD-2014-OS-0009-00024: The comment urges the DoD to 
update requirements for criminal background checks on individuals in 
DoD child care services programs in Sec.  86.5, Responsibilities to 
align with the provisions recently enacted by the Child Care and 
Development Block Grant Act of 2014.
    Response: We have carefully reviewed the requirements of the 
proposed rule and the requirements set forth in Public Law 113-186, the 
Child Care and Development Block Grant Act of 2014. This rule meets or 
exceeds the requirements of the Child Care and Development Block Grant 
Act of 2014. We have determined that, while the language of the rule 
differs slightly from the language of Public Law 113-186, the databases 
searched yield the same information.

Regulatory Analysis

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

Sec. 202, Public Law 104-4, ``Unfunded Mandates Reform Act''

    DoD has reviewed the rule in accordance with the Unfunded Mandates 
Reform Act of 1995, and compliance with the rule would require no 
additional expenditures by either public or private employers. In sum, 
the final rule does not mandate that State, local, and tribal 
governments adopt new, unfunded regulatory obligations. The costs of 
the investigations conducted pursuant to this rule are borne by the 
DoD, and not by the individual or his or her employer.

Public Law 96-354, ``Regulatory Flexibility Act'' (5 U.S.C. 601)

    We certify this rule would not have a significant economic impact 
on a substantial number of small entities because the costs for the 
investigation conducted pursuant to this rule are borne by the DoD, and 
not by the individual or his or her employer. Furthermore, any indirect 
costs incurred by small businesses as a result of this rule would be 
minimal. Accordingly, a regulatory flexibility analysis as provided in 
the Regulatory Flexibility Act, as amended, is not required.

Public Law 96-511, ``Paperwork Reduction Act'' (44 U.S.C. Chapter 35)

    This rule imposes reporting and record keeping requirements under 
the Paperwork Reduction Act of 1995. These requirements have been 
approved by the Office of Management and Budget and assigned OMB 
Control Number 3206-0005, ``Questionnaires for National Security 
Positions, Standard Form 86 (SF 86),'' OMB Control Number 3206-0261, 
``SF 85 Questionnaire for Non-Sensitive Positions,'' OMB Control Number 
3206-0191, ``SF 85P Questionnaire for Public Trust Positions,'' and OMB 
Control Number

[[Page 55756]]

0704-0516, ``Child Care Development Program (CDP) Criminal History.''

Executive Order 13132, ``Federalism''

    This rulemaking was analyzed in accordance with the principles and 
criteria contained in Executive Order 13132 (``Federalism''). It has 
been determined that it does not have sufficient Federalism 
implications to warrant the preparation of a Federalism summary impact 
statement. This rulemaking has no substantial effect on the States, or 
on the current Federal-State relationship, or on the current 
distribution of power and responsibilities among the various local 
officials. Nothing in this document preempts any State law or 
regulation. Therefore, DoD did not consult with State and local 
officials because it was not necessary.

List of Subjects in 32 CFR Part 86

    Government contracts, Government employees, Infants and children, 
Investigations.

    Accordingly, 32 CFR part 86 is revised to read as follows:

PART 86--BACKGROUND CHECKS ON INDIVIDUALS IN DOD CHILD CARE 
SERVICES PROGRAMS

Secs.
86.1 Purpose.
86.2 Applicability.
86.3 Definitions.
86.4 Policy.
86.5 Responsibilities.
86.6 Procedures.

    Authority:  5 U.S.C. 2105, 10 U.S.C. chapter 47, and 42 U.S.C. 
13041.


Sec.  86.1  Purpose.

    This part establishes policy, assigns responsibilities, and 
provides procedures to conduct criminal history checks on individuals 
involved in the provision of child care services for children under the 
age of 18 in DoD programs.


Sec.  86.2  Applicability.

    This part applies to the Office of the Secretary of Defense, the 
Military Departments, the Office of the Chairman of the Joint Chiefs of 
Staff and the Joint Staff, the Combatant Commands, the Office of the 
Inspector General of the Department of Defense, the Defense Agencies, 
the DoD Field Activities, and all other organizational entities within 
the DoD (referred to collectively in this part as the ``DoD 
Components'').


Sec.  86.3  Definitions.

    Unless otherwise noted, these terms and their definitions are for 
the purposes of this part.
    Adjudication. The evaluation of pertinent data in a background 
investigation, as well as any other available information that is 
relevant and reliable, to determine whether an individual is suitable 
for work.
    Adult. An individual 18 years of age or older regarded in the eyes 
of the law as being able to manage his or her own affairs.
    Applicant. A person upon whom a criminal history background check 
is, will be, or has been conducted, including individuals who have been 
selected or are being considered for a position subject to a criminal 
history background check, and individuals undergoing a recurring 
criminal history background check. Includes current employees.
    Child. A person under 18 years of age.
    Care provider. Current or prospective individuals hired with 
appropriated funds (APF) and nonappropriated funds (NAFs) for 
education, treatment or healthcare, child care or youth activities; 
individuals employed under contract who work with children; and those 
who are certified for care. Individuals working within programs that 
include: Child Development Programs, DoD dependents schools, DoD-
operated or -sponsored activities, foster care, private organizations 
on DoD installations, and youth programs.
    Child care services. Care or services provided to children under 
the age of 18 in settings including child protective services 
(including the investigation of child abuse and neglect reports), 
social services, health and mental health care, child (day) care, 
education (whether or not directly involved in teaching), foster care, 
residential care, recreational or rehabilitative programs, and 
detention, correctional, or treatment services, as defined in 42 U.S.C. 
13041.
    Class. With regard to the designation of positions, a categorical 
descriptor identifying employee, contractor, provider, or volunteer 
positions by group rather than by individual position or title (e.g., 
``doctors'' or ``individuals supervising children in a school'').
    Contractor. Any individual, firm, corporation, partnership, 
association, or other legal non-Federal entity that enters into a 
contract directly with DoD or a DoD Component to furnish supplies, 
services, or both including construction. Foreign governments or 
representatives of foreign governments that are engaged in selling to 
DoD or a DoD Component are defense contractors when acting in that 
context. A subcontractor is any supplier, distributor, vendor, or firm 
that furnishes supplies or services to or for a prime contractor or 
another subcontractor.
    Covered position. Defined in volume 731 of DoD Instruction 1400.25, 
``DoD Civilian Personnel Management System'' (available at https://www.dtic.mil/whs/directives/corres/pdf/140025v731.pdf).
    Criminal history background checks. A review of records, 
investigative reports, and other investigative elements to generate 
criminal history background findings to be used to make fitness or 
suitability determinations.
    Derogatory information. Information that may reasonably justify an 
unfavorable personnel suitability or fitness determination because of 
the nexus between the issue or conduct and the core duties of the 
position.
    DoD affiliation. A prior or current association, relationship, or 
involvement with the DoD or any elements of DoD, including the Military 
Departments.
    DoD-sanctioned programs. Any program, facility, or service funded, 
or operated by the DoD, a Military Department or Service, or any 
agency, unit, or subdivision thereof. Examples include, but are not 
limited to, chapel programs, child development centers, family child 
care (FCC) programs, medical treatment facilities, Department of 
Defense Education Activity (DoDEA) schools, recreation and youth 
programs. These do not include programs operated by other State or 
Federal government agencies or private organizations without the 
official sanction of a DoD entity.
    Duties. Those activities performed as an employee, contractor, 
provider, or volunteer that involve interaction with children, 
including any work performed in a child development program or DoDEA 
school.
    Employee. An individual, paid from funds appropriated by the 
Congress of the United States, or an individual employed by a NAF 
instrumentality in accordance with 5 U.S.C. 2105(c). Includes foreign 
nationals in accordance with Volume 1231 of DoD Instruction 1400.25, 
``DoD Civilian Personnel Management System'' (available at https://www.dtic.mil/whs/directives/corres/pdf/1400.25-V1231.pdf), Military 
Service members working during their off-duty hours, and non-status, 
non-continuing temporary positions with specified employment periods 
not to exceed 1 year such as summer hires, student interns, and 
seasonal hires.
    FAP. Defined in DoD Directive 6400.1, ``Family Advocacy Program 
(FAP)'' (available at https://www.dtic.mil/whs/directives/corres/pdf/640001p.pdf).

[[Page 55757]]

    FAP records check. A review of FAP records maintained on an 
individual, including records maintained by the installation office and 
records in the Service Child and Spouse Abuse Central Registry in 
accordance with DoD Directive 6400.1. If the individual is the spouse 
or dependent of a Service member, this may entail review of records 
maintained on the sponsoring Service member. Installation and Service 
Central Registry checks are limited to identifying pending and met 
criteria incidents of maltreatment and do not include information 
related to incidents that did not meet criteria or any information 
contained in the clinical case record that is protected by section 
1320d-6 or 5 U.S.C. 552a.
    Federal Bureau of Investigation (FBI) criminal history background 
check. An FBI identification record--often referred to as a criminal 
history record or a ``rapsheet''--is a listing of certain information 
taken from fingerprint submissions retained by the FBI in connection 
with arrests and, in some instances, federal employment, 
naturalization, or military service. The process of responding to an 
identification record request is generally known as a criminal history 
background check.
    FCC. Defined in DoD Instruction 6060.2, ``Child Development 
Programs (CDPs)'' (available at https://www.dtic.mil/whs/directives/corres/pdf/606002p.pdf).
    FCC provider. Defined in DoD Instruction 6060.2.
    FCC adult family members. Any adult, 18 years of age or older, who 
resides in the home of an FCC provider for 30 or more consecutive days.
    Fitness. The reference to a person's level of character and conduct 
determined necessary for an individual to perform work for, or on 
behalf of, a Federal Agency as an employee in the excepted service 
(other than in a position subject to suitability) or as a contractor 
employee.
    Fitness determination. A decision, based on review of criminal 
history background check findings, that an individual is fit to perform 
duties in a position subject to criminal history background check. 
Fitness determinations will be ``favorable,'' meaning that the 
individual is fit to perform the duties, or ``unfavorable,'' meaning 
that the individual is not.
    Foreign nationals. Individuals who are not citizens of the United 
States.
    Foster care providers. A voluntary or court-mandated program that 
provides 24-hour care and supportive services in a family home or group 
facility, within government-owned or -leased quarters, for children and 
youth who cannot be properly cared for by their own family.
    Healthcare personnel. Military, civilian, or contract staff 
involved in the delivery of healthcare services.
    Host-government check. A criminal history background check 
conducted on foreign nationals in accordance with U.S. and host country 
treaties or agreements.
    Interim suitability or fitness determination. Part of the pre-
screening process in the identification and resolution of suitability 
or fitness issues, which occurs prior to the initiation of the required 
investigation. It involves the review of applications and other 
employment related documents. A favorable interim suitability or 
fitness determination is a status granted on a temporary basis, which 
permits individuals to work under line-of-sight supervision (LOSS) 
after the return of the advance FBI fingerprint check, pending 
completion of full investigative requirements and a final suitability 
determination.
    Investigative elements. The records, reports, or other individual 
elements that comprise the whole of information collected during a 
criminal history background check and used to make a fitness or 
suitability determination.
    Installations records check (IRC). A query of records maintained on 
an individual by programs and entities at the military installation 
where the individual lives, is assigned, or works, including military 
law enforcement and installation security records, drug and alcohol 
records, and FAP records for a minimum of 2 years before the date of 
the application.
    Investigative service provider (ISP). The company or agency 
authorized to perform background investigations on personnel on behalf 
of the agency.
    Line of Sight Supervision (LOSS). Continuous visual observation and 
supervision of an individual whose background check has not yet 
cleared, and has a favorable interim suitability or fitness 
determination, while engaged in child interactive duties, or in the 
presence of children in a DoD-sanctioned program or activity. The 
person providing supervision must have undergone a background check and 
received a final favorable suitability or fitness determination and be 
current on all periodic reinvestigations as required by this part.
    Met criteria. Reported incident of alleged maltreatment found to 
meet DoD incident determination criteria for child abuse or domestic 
abuse and entry into the Service FAP central registry of child abuse 
and domestic abuse reports.
    Position. An employee, contractor, provider, or volunteer role or 
function.
    Preliminary investigations. Those investigative elements of a 
criminal history background check, including those specified in Sec.  
86.6(f), which must be favorably completed and reviewed before an 
individual may be permitted to perform duties under LOSS.
    Providers. Individuals involved in child care services who have 
regular contact with children or may be alone with children in the 
performance of their duties. Includes FCC providers and individuals 
with overall management responsibility for child and youth programs.
    Regular contact with children. Recurring and more than incidental 
contact with or access to children in the performance of their duties 
on a DoD installation, program, or as part of a DoD-sanctioned 
activity.
    Reinvestigation. A criminal history background check conducted 
after the period of time prescribed by this part to ensure the 
individual remains eligible to provide child care services. 
Reinvestigation includes the same checks conducted for the initial 
investigation as outlined in Sec.  86.6(b).
    Respite care providers. Individuals who provide short-term care and 
supportive services in a family home or group facility within 
government-owned or -leased quarters.
    State criminal history repository (SCHR). A repository of criminal 
information that lists past state convictions, current offender 
information, and criminal identification information (fingerprints, 
photographs, and other information or descriptions) that identify a 
person as having been the subject of a criminal arrest or prosecution. 
Checks of the SCHR may include the State child abuse and neglect 
repository and the State sex offender registry.
    Suitability determination. A decision that a person is or is not 
suitable for a covered position within the DoD.
    Supervisor. The person supervising individuals who are permitted to 
perform duties only under LOSS, who is not necessarily the same as an 
employee's supervisor for employment purposes (e.g., ratings, 
assignment of duties).
    Volunteer. There are two types of volunteers:
    (1) Specified volunteers. Individuals who could have extensive or 
frequent contact with children over a period of time. They include, but 
are not limited to, positions involving extensive interaction alone, 
extended travel, or overnight activities with children or youth. 
Coaches and long-term

[[Page 55758]]

instructors are among those who fall in this category. Specified 
volunteers are designated by the DoD Component head. Background checks 
are required in accordance with Sec.  86.6(b)(4).
    (2) Non-specified volunteers. Individuals who provide services that 
are shorter in duration than is required to perform a criminal history 
background check (e.g., one-day class trip, class party). Because non-
specified volunteers do not receive the same level of background checks 
as specified volunteers, non-specified volunteers must always be in 
line of sight of a staff member with a complete background check.
    Youth program. Defined in DoD Instruction 6060.4, ``Department of 
Defense (DoD) Youth Programs (YPs)'' (available at https://www.dtic.mil/whs/directives/corres/pdf/606004p.pdf).


Sec.  86.4  Policy.

    It is DoD policy that:
    (a) Individuals who have regular contact with children under 18 
years of age in DoD-sanctioned child care services programs will 
undergo a criminal history background check in order to protect the 
health, safety and well-being of children in such programs.
    (b) All individuals who have regular contact with children under 18 
years of age in DoD-sanctioned child care services programs and who 
also have a current or prior DoD affiliation must also undergo an IRC.
    (c) DoD Component heads are delegated the authority to make 
suitability determinations and take subsequent actions in cases 
involving applicants and appointees to covered positions as defined by 
5 CFR 731.101, subject to the conditions in 5 CFR 731.103. This 
authority may be further delegated to authorized management officials, 
in writing, in accordance with volume 731 of DoD Instruction 1400.25.
    (1) The DoD Consolidated Adjudications Facility is responsible for 
making favorable suitability determinations for civilian personnel in 
accordance with Deputy Assistant Secretary of Defense for Civilian 
Personnel and Policy Memorandum, ``Responsibilities Under the 
Department of Defense Suitability and Fitness Adjudications for 
Civilians Employees Programs,'' August 26, 2013.
    (2) Military members are not subject to suitability adjudication 
under Volume 731 of DoD Instruction 1400.25, ``DoD Civilian Personnel 
Management System'' (available at https://www.dtic.mil/whs/directives/corres/pdf/140025v731.pdf). Military members are subject to the 
background check requirements of DoD Instruction 5200.02, ``Personnel 
Security Program'' (available at https://www.dtic.mil/whs/directives/corres/pdf/520002_2014.pdf) and Sec.  86.6.
    (d) Suitability and fitness determinations for individuals subject 
to this part will follow the guidance of Volume 731 of DoD Instruction 
1400.25 for APF employees and Subchapter 1403 of DoD Instruction 
1400.25 for NAF employees. Suitability and fitness are to be applied 
for the child care worker population in accordance with Volume 731 of 
DoD Instruction 1400.25 for appropriated fund employees in covered 
positions as defined by 5 CFR part 731.
    (e) Individuals who have received a favorable interim suitability 
or fitness determination based on the FBI criminal history background 
check are permitted to work under LOSS pursuant to 42 U.S.C. 
13041(b)(3).


Sec.  86.5  Responsibilities.

    (a) Under the authority, direction, and control of the Under 
Secretary of Defense for Personnel and Readiness (USD(P&R)), the 
Assistant Secretary of Defense for Readiness and Force Management 
(ASD(R&FM)):
    (1) Ensures the conduct of criminal history background checks 
complies with DoD policy and the Criminal Justice Information Services 
Division of the FBI's operational and security policies and procedures.
    (2) Monitors DoD Component compliance with this part, applicable 
laws, and subsequent guidance issued by the applicable ISP.
    (b) Under the authority, direction, and control of the ASD(R&FM), 
the Deputy Assistant Secretary of Defense for Civilian Personnel Policy 
(DASD(CPP)) oversees development of DoD Component policies and 
procedures for the background check initiation, completion, 
adjudication, and suitability or fitness determination process for 
civilian employees in accordance with this part.
    (c) Under the authority, direction, and control of the ASD(R&FM), 
the Deputy Assistant Secretary of Defense for Military Community and 
Family Policy (DASD(MC&FP)) oversees development of DoD Component 
policies and procedures related to the background check initiation, 
completion, adjudication, and fitness determination process for 
specified volunteers, FCC providers and adults residing in their home, 
and others as identified in accordance with this part.
    (d) Under the authority, direction, and control of the ASD(R&FM), 
the Deputy Assistant Secretary of Defense for Military Personnel Policy 
(DASD(MPP)):
    (1) Implements this part for military personnel in accordance with 
DoD Instruction 5200.02.
    (2) Institutes effective quality assurance and quality control 
systems for chaplains, support staff, specified volunteers, and 
contractors who provide support to religious programs and activities 
identified in Sec.  86.6(a)(5)(v) and in accordance with this part.
    (e) Under the authority, direction, and control of the Deputy Chief 
Management Officer (DCMO) of the Department of Defense, the Director of 
Administration ensures that the adjudication of background 
investigations of individuals who have regular contact with children 
under 18 years of age in DoD-sanctioned programs considers the criteria 
for presumptive and automatic disqualification as specified in this 
part.
    (f) The Under Secretary of Defense for Acquisition, Technology, and 
Logistics (USD(AT&L)) establishes policies and procedures for the 
background check initiation, completion, adjudication, and fitness 
determination process for contractors in accordance with the 
requirements of this part.
    (g) The DoD Component heads:
    (1) Ensure Component compliance with the requirements of this part, 
applicable laws, and guidance for civilian employees.
    (2) Ensure compliance with suitability and fitness determination 
policies, requirements, and procedures for individuals in child care 
services in DoD programs as defined in 42 U.S.C. 13041 and DoD 
Instruction 1400.25.
    (3) Ensure compliance with policies, requirements, and procedures 
for LOSS of individuals with a favorable interim suitability 
determination.
    (4) Provide support and resources as required to implement this 
part and any Component-specific policies, requirements, and procedures, 
and ensure implementation.


Sec.  86.6  Procedures.

    (a) Requirements for criminal history background checks. (1) All 
criminal history background checks required by this part must be 
initiated, tracked, and overseen by properly trained and vetted 
individuals who have been determined to be responsible for personnel 
security pursuant to DoD Instruction 5200.02 or human resource 
functions pursuant to Volume 731 of DoD Instruction 1400.25. Program 
managers, supervisors, and others not routinely performing personnel 
security and human resource functions are prohibited from managing the 
criminal history checks.
    (2) All employment applications completed by individuals subject to 
this

[[Page 55759]]

part must comply with the requirements of 42 U.S.C. 13041(d).
    (3) The DoD Component will ensure that only authorized ISPs are 
used.
    (4) When permitted by the host government, foreign government 
checks of individuals serving on DoD installations overseas must be 
requested directly by the employing Military Service or agency in 
accordance with Volume 1231 of DoD Instruction 1400.25. As an 
alternative, DoD Components may request that overseas Military Service 
investigative elements obtain appropriate host-government checks and 
accept such checks if they are comparable to those required by 42 
U.S.C. 13041. Where it is not possible to obtain criminal history 
checks comparable to those required by 42 U.S.C. 13041, foreign 
nationals will not be eligible for employment in child care services.
    (5) Individuals subject to criminal history background checks are:
    (i) All personnel employed or performing duties in DoD Child and 
Youth or other sanctioned child care services programs.
    (ii) Individuals providing in-home FCC.
    (iii) Personnel employed or performing duties in child and youth 
recreational and athletic programs (e.g., Morale, Welfare, and 
Recreation), including instructors and, when working in a facility when 
children and youth are present, custodial personnel.
    (iv) Individuals employed or performing duties in a DoDEA school 
(whether or not directly involved with teaching), including but not 
limited to teachers, administrators, other professional staff, aides, 
bus drivers, janitors, cafeteria workers, nurses, and attendants.
    (v) Chaplains, chaplains' assistants, religious program 
specialists, and other individuals employed or performing child care 
services duties for children under 18 years of age on a DoD 
installation or as part of a military-sanctioned program.
    (vi) Foster and respite child care providers on a DoD installation, 
program, or as part of a military-sanctioned activity.
    (vii) Health and mental health care personnel, employed or 
performing child care services duties on a DoD installation, in a DoD 
sanctioned program, or as part of a military-sanctioned activity, 
including but not limited to physicians, dentists, nurse practitioners, 
clinical social workers, physical therapists, speech-language 
pathologists, clinical support staff (including residents), registered 
nurses, licensed practical nurses, nursing assistants, play therapists, 
and technicians.
    (viii) Individuals employed or performing child care duties in 
social services, residential care, rehabilitation programs, detention, 
and correctional services on a DoD installation, program, or as part of 
a military-sanctioned activity.
    (ix) Any other individuals reasonably expected to have regular 
contact with children on a DoD installation, in a DoD sanctioned 
program, or as part of a military-sanctioned activity, including 
specified volunteers and any person 18 years of age or older residing 
in an FCC, foster, or respite care home. Healthcare providers 
participating in TRICARE shall be governed by TRICARE policy.
    (6) The DoD Components will also determine any other classes of 
positions subject to criminal history background checks, taking care to 
ensure that all individuals who have regular contact with children when 
providing child care services are investigated and the requirement must 
pertain to the class as a whole.
    (7) Individuals designated in non-specified volunteer positions 
must always be under direct LOSS in accordance with paragraph (g) of 
this section.
    (b) Types of background checks. Procedures for conducting a 
background check on individuals in paragraphs (a)(5)(i) through (ix) of 
this section differ based on the employment status of the individual. 
Military members are subject to the background check requirements of 
DoD Instruction 5200.02 and this section. The FBI criminal history 
background checks for all categories of individuals must be 
fingerprint-based and fingerprints must be captured using an FBI-
approved system. SCHR checks may require hardcopy fingerprint 
submissions. State checks must include the state child abuse and 
neglect repository and the state sex offender registry. The Component 
must request a check of the state child abuse and neglect repository 
and the State sex offender registry if they are not automatically 
checked as part of the standard SCHR check.
    (1) Criminal history background checks for DoD civilian and 
military personnel who are investigated at the NACI or a higher level 
pursuant to DoD's personnel security program. (i) DoD civilian and 
military personnel required by DoD Instruction 5200.02 to be 
investigated according to the requirements of the National Agency Check 
and Inquiries (NACI) or a higher level investigation and who have 
regular contact with children under 18 years of age in DoD-sanctioned 
programs will be investigated and adjudicated in accordance with the 
provisions of DoD Instruction 5200.02.
    (ii) These personnel will also be subject to the additional 
requirements of the Child Care National Agency Check and Inquiries 
(CNACI) and the criteria for presumptive and automatic disqualification 
as specified in paragraph (c) of this section.
    (2) Criminal history background checks for civilian employees (APF 
and NAF). (i) In accordance with 42 U.S.C. 13041 and Volume 731 and 
Subchapter 1403 of DoD Instruction 1400.25, complete a CNACI, which 
includes an FBI criminal history background check conducted through the 
Criminal Justice Information Services Division of the FBI and SCHR 
checks through State repositories of all States that an employee or 
prospective employee lists as current and former residences on an 
employment application. Results of an advanced FBI fingerprint check 
must be provided before completion of the full CNACI to determine 
employment under LOSS.
    (ii) Individuals with a prior DoD affiliation must also complete an 
IRC, which includes an installation law enforcement check, drug and 
alcohol records check, and a check of the Family Advocacy Program (FAP) 
records for a minimum of 2 years before the date of the application.
    (3) Criminal history background checks for FCC providers and 
contractors. (i) In accordance with 42 U.S.C. 13041, complete a CNACI, 
which includes an FBI criminal history background check conducted 
through the Criminal Justice Identification Services Division of the 
FBI and SCHR checks through State repositories of all States that a 
provider or contractor or prospective provider or contractor lists as 
current and former residences in an employment application. Results of 
an advanced FBI fingerprint check must be provided before completion of 
the full CNACI. Results for contractors may be used to determine 
employment under LOSS.
    (ii) Individuals with a prior DoD affiliation must also complete an 
IRC, including an installation law enforcement check, drug and alcohol 
records check, and a check of the FAP records for a minimum of 2 years 
before the date of the application.
    (4) Criminal history background checks for others. (i) In 
accordance with 42 U.S.C. 13041, only an FBI advanced fingerprint check 
is required for criminal history background checks for volunteers and 
persons 18 years of age or older residing in an FCC, foster, or respite 
care home.

[[Page 55760]]

    (ii) Individuals with a prior DoD affiliation must also complete an 
IRC to include: an installation law enforcement check, drug and alcohol 
records check, and a check of the FAP records for a minimum of 2 years 
before the date of the application.
    (5) Timely completion. To ensure timely completion, the DoD 
Components will establish procedures to initiate or request criminal 
history background check results, follow up to ensure checks have been 
completed, and address situations where there is a delay in receiving 
results. In no event will an individual subject to this part be 
presumed to have a favorable background check merely because there has 
been a delay in receiving the results of the requisite background 
check. If no response from the state(s) is received within 60 days, 
determinations based upon the CNACI report may be made.
    (c) Criteria for disqualification based on results on criminal 
history background checks. The ultimate decision to determine how to 
use information obtained from the criminal history background checks in 
selection for positions involving the care, treatment, supervision, or 
education of children must incorporate a common sense decision based 
upon all known facts. Adverse information is evaluated by the DoD 
Component who is qualified at the appropriate level of command in 
interpreting criminal history background checks. All information of 
record both favorable and unfavorable will be assessed in terms of its 
relevance, recentness, and seriousness. Likewise, positive mitigating 
factors should be considered. Final suitability decisions shall be made 
by that commander or designee. Criteria that will result in 
disqualification of an applicant require careful screening of the data. 
A disqualifying event may be the basis for a non-selection, withdrawal 
of a tentative offer of employment, ineligibility for facility access, 
removal from a contract, a suitability action under 5 CFR part 731, a 
probationary termination, an adverse action, or other appropriate 
action.
    (1) Criteria for automatic disqualification. No person, regardless 
of circumstances, will be approved to provide child care services 
pursuant to this part if the background check discloses:
    (i) That the individual has been convicted in either a civilian or 
military court (to include any general, special or summary court-
martial conviction) or received non-judicial punishment (under Article 
15 or chapter 47 of Title 10, U.S.C., also known and referred to in 
this part as ``the Uniform Code of Military Justice (UCMJ)'') for any 
of the following:
    (A) A sexual offense.
    (B) Any criminal offense involving a child victim.
    (C) A felony drug offense.
    (ii) That the individual has been held to be negligent in a civil 
adjudication or administrative proceeding concerning the death or 
serious injury to a child or dependent person entrusted to the 
individual's care.
    (2) [Reserved]
    (d) Suitability and fitness determinations for individuals involved 
with the provision of child care services. Suitability and fitness 
determinations for individuals subject to this part will be made in 
accordance with Volume 731, Volume 1231, and Subchapter 1403 of DoD 
Instruction 1400.25, and part 1201 of 5 U.S.C., as appropriate. The 
following may be the basis for non-selection, withdrawal of a tentative 
offer of employment, ineligibility for facility access, removal from a 
contract, a suitability action under DoD Instruction 1400.25, a 
probationary termination, an adverse action, or other appropriate 
action.
    (1) Criteria for presumptive disqualification. Officials charged 
with making determinations pursuant to this part must include in the 
record a written justification for any favorable determination made 
where background check findings include any of the following 
presumptively disqualifying information:
    (i) A FAP record indicating that the individual met criteria for 
child abuse or neglect or civil adjudication that the individual 
committed child abuse or neglect.
    (ii) Evidence of an act or acts by the individual that tend to 
indicate poor judgment, unreliability, or untrustworthiness in 
providing child care services.
    (iii) Evidence or documentation of the individual's past or present 
dependency on or addiction to any controlled or psychoactive 
substances, narcotics, cannabis, or other dangerous drug without 
evidence of rehabilitation.
    (iv) A conviction, including any general, special, or summary 
court-martial conviction, or non-judicial punishment under Article 15 
of the UCMJ for:
    (A) A crime of violence committed against an adult.
    (B) Illegal or improper use, possession, or addiction to any 
controlled or psychoactive substances, narcotics, cannabis, or other 
dangerous drug.
    (v) A civil adjudication that terminated the individual's parental 
rights to his or her child, except in cases where the birth parent 
places his or her child for adoption.
    (2) Evaluation of presumptively disqualifying information. The DoD 
Components will establish and oversee procedures for the evaluation of 
presumptively disqualifying information for all categories of 
individuals in paragraph (b) of this section. Evaluation of 
presumptively disqualifying information for APF and NAF personnel must 
be in accordance with Volume 731 and Subchapter 1403 of DoD Instruction 
1400.25, respectively.
    (3) Criteria for disqualification under LOSS. If an investigation 
of an individual who is currently working under LOSS subsequently 
results in an unfavorable determination, the DoD Components will take 
action to protect children by reassigning or removing the individual 
from employment, contract, or volunteer status.
    (4) Disputes and appeals. The DoD Components will establish and 
oversee procedures for the communication of determinations and the 
appeal of unfavorable determinations for all categories of individuals 
in paragraph (b) of this section. The procedures for civilian personnel 
are subject to Volume 731 of DoD Instruction 1400.25 for APF employees 
and Subchapter 1403 of DoD Instruction 1400.25 for NAF employees.
    (e) Reinvestigation. (1) All DoD civilian employees (both APF and 
NAF), contractors, military personnel, and any other individuals 
reasonably expected to have regular contact with children on a DoD 
installation, program, or as part of a military-sanctioned activity, 
including specified volunteers and any person 18 years of age or older 
residing in an FCC, foster, or respite care home, who continue to 
perform duties in the position for which their initial background check 
was conducted, must undergo a reinvestigation every 5 years. The 
reinvestigation must consist of the same check conducted for the 
initial investigation as outlined in paragraph (b) of this section.
    (2) All FCC providers and adults residing in an FCC home must 
undergo an annual reinvestigation utilizing the Special Agreement Check 
(SAC) for childcare providers. The SAC reinvestigation consists of an 
update to the initial investigation as outlined in paragraph (b) of 
this section.
    (3) If the reinvestigation results in an unfavorable determination, 
the DoD Components will take action to protect children by reassigning 
or removing the individual from employment, contract, or volunteer 
status.

[[Page 55761]]

    (4) If derogatory information surfaces within the 5 years before 
the reinvestigation, the DoD Component will take action to protect 
children by reassigning or suspending from having contact with 
children, any individual, contractor or volunteer until the case is 
resolved.
    (f) Self-reporting. (1) Individuals who have regular contact with 
children under 18 years of age in DoD-sanctioned programs who have a 
completed background check are required to immediately report 
subsequent automatic disqualification criteria under paragraph (c)(1) 
of this section and presumptive disqualification criteria under 
paragraphs (c)(2)(i), (iv), and (v) of this section.
    (2) The DoD Components will establish procedures for:
    (i) Informing individuals of the requirement to immediately report 
any incident or conviction that may invalidate their prior background 
check and make them ineligible to work or have contact with children.
    (ii) Responding to and evaluating reports made by such individuals, 
and taking appropriate action until the case has been resolved or 
closed.
    (g) Eligibility to perform duties under LOSS. The DoD Components 
will establish Component-specific procedures, policies, and 
requirements, subject to the requirements of this paragraph, to permit 
applicants for whom a criminal history background check has been 
initiated but not yet completed, to perform duties under LOSS upon 
favorable findings of preliminary investigations.
    (1) No presumption of right. No individual will be permitted to 
perform duties under LOSS in a position subject to criminal history 
background check without authorizing policy or other written permission 
from a DoD Component head.
    (2) Preliminary investigations required. No individual will be 
permitted to perform duties under LOSS in a position subject to 
criminal history background check unless the following investigative 
elements have been reviewed and determined favorably:
    (i) An IRC, including installation law enforcement records check, 
drug and alcohol records, and FAP records check for a minimum of 2 
years before the date of the application if the individual has a 
preexisting DoD affiliation.
    (ii) Initial results from the advanced FBI fingerprint criminal 
history background check (not the full check).
    (3) Exception for non-specified volunteers. Due to the controlled, 
limited duration of an activity for these individuals, an advanced FBI 
fingerprint criminal history background check is not required. Non-
specified volunteers will be permitted to perform duties and services 
under LOSS for the duration of the activity.
    (4) Supervisor requirements. The supervisor must be a person who:
    (i) Has undergone and successfully completed the required 
background check.
    (ii) Has complied, as required, with the periodic reinvestigation 
requirement for a recurring criminal history background check.
    (iii) Has not previously exhibited reckless disregard for an 
obligation to supervise an employee, contractor, or volunteer.
    (5) Video surveillance. The use of video surveillance equipment to 
provide temporary oversight for individuals whose required background 
checks have been initiated but not completed is acceptable provided it 
is continuously monitored by an individual who has undergone and 
successfully completed all required background checks. This provision 
shall meet the intent of a flexible and reasonable alternative for 
``direct sight supervision.''
    (6) Conspicuous identification of individuals subject to LOSS. 
Individuals permitted to perform duties solely under LOSS must be 
conspicuously marked by means of distinctive clothing, badges, 
wristbands, or other visible and apparent markings. The purpose of such 
markings must be communicated to staff, customers, parents, and 
guardians by conspicuous posting or printed information.
    (7) Permissible performance of duties without supervision. 
Individuals otherwise required to perform duties only under LOSS may 
perform duties without supervision if:
    (i) Interaction with a child occurs in the presence of the child's 
parent or guardian;
    (ii) Interaction with children is in a medical facility, subject to 
supervisory policies of the facility, and in the presence of a mandated 
reporter of child abuse; or
    (iii) Interaction is necessary to prevent death or serious harm to 
the child, and supervision is impractical or unfeasible (e.g., response 
to a medical emergency, emergency evacuation of a child from a 
hazardous location).

    Dated: September 11, 2015.
Aaron Siegel,
Alternate OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 2015-23269 Filed 9-16-15; 8:45 am]
BILLING CODE 5001-06-P