National Service Criminal History Check, 859-862 [2019-28489]
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Federal Register / Vol. 85, No. 5 / Wednesday, January 8, 2020 / Proposed Rules
We will publish an appropriate
amendment to 39 CFR part 111 to reflect
these changes.
Joshua J. Hofer,
Attorney, Federal Compliance.
[FR Doc. 2019–28505 Filed 1–7–20; 8:45 am]
FOR FURTHER INFORMATION CONTACT:
Amy Borgstrom at the Corporation for
National and Community Service, 250 E
Street SW, Washington, DC 20525,
aborgstrom@cns.gov, phone 202–422–
2781.
SUPPLEMENTARY INFORMATION:
BILLING CODE 7710–12–P
I. Background
CORPORATION FOR NATIONAL AND
COMMUNITY SERVICE
45 CFR Parts 2522 and 2540
RIN 3045–AA69
National Service Criminal History
Check
Corporation for National and
Community Service.
ACTION: Proposed rule with request for
comments.
AGENCY:
The Corporation for National
and Community Service (CNCS)
proposes changes to existing National
Service Criminal History Check
(NSCHC) regulations under the National
and Community Service Act of 1990, as
amended. These amendments will
simplify the NSCHC requirements.
DATES: Comments must reach CNCS on
or before March 9, 2020.
ADDRESSES: You may submit comments,
identified by the title of the information
collection activity, by any of the
following methods:
(1) Electronically through
www.regulations.gov.
(2) By mail sent to: Corporation for
National and Community Service;
Attention Amy Borgstrom; 250 E Street
SW, Washington, DC 20525.
(3) By hand delivery or by courier to
the CNCS mailroom at the address
above between 9:00 a.m. and 4:00 p.m.
Eastern Time, Monday through Friday,
except federal holidays.
Comments submitted in response to
this Notice will be made available to the
public through www.regulations.gov.
For this reason, please do not include in
your comments information of a
confidential nature, such as sensitive
personal information or proprietary
information. If you send an email
comment, your email address will be
automatically captured and included as
part of the comment that is placed in the
public docket and made available on the
internet. Please note that responses to
this public comment request containing
any routine notice about the
confidentiality of the communication
will be treated as public comments that
may be made available to the public
notwithstanding the inclusion of the
routine notice.
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SUMMARY:
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CNCS proposes updating its current
National Service Criminal History
Check (NSCHC) regulations. CNCS first
established its NSCHC regulation in
2007. In 2009, Congress codified
NSCHC requirements in Section 189D of
the National and Community Service
Act of 1990 (NCSA), as amended by the
Serve America Act. CNCS issued
regulations in 2009 and 2012
implementing the Serve America Act
NSCHC provisions.
Grant recipient and subrecipient
compliance with the NSCHC
requirements has been an ongoing
challenge. Successful implementation of
the NSCHC process by grant recipients
has been frustrated, in part, by access to
state sources of criminal history record
information, requirements of state law,
and restrictions on sharing information.
As such, Congressional hearings and
CNCS Office of the Inspector General
(OIG) reports have highlighted grantee
noncompliance with this important
statutory requirement.
Improving CNCS core functions—
including eliminating barriers to
compliance—is a primary goal of the
CNCS Transformation and
Sustainability Plan. In pursuit of that
goal, CNCS has approved vendors for
grant recipients to use to obtain the
required NSCHC components. Since
November 2018, CNCS grant recipients
and subrecipients have had the ability
to establish accounts and obtain the
required National Sex Offender Public
website (NSOPW), state, and FBI
components of the NSCHC, through the
approved vendors. Additionally, to help
ensure grantee compliance with NSCHC
requirements, CNCS made grant funds
available for the purpose of rechecking
individuals who needed to have an
NSCHC conducted. And for those grant
recipients who took the opportunity to
ensure compliance by rechecking
individuals in covered positions, CNCS
announced that it would not, except in
limited circumstances, take enforcement
action for past noncompliance. As of
September 25, 2019, 1,942 accounts
were established with the new vendor
resulting in 93,993 checks.
CNCS grant recipients must ensure
that they identify individuals who need
an NSCHC and ensure that it is done on
time. The NSCHC must be conducted as
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859
a matter of law, and as a condition of
receiving grant funds for individuals in
covered positions working or serving
under: Operational grants provided by
AmeriCorps State and National, Foster
Grandparent Program Grants, Retired
Senior Volunteer Program Grants,
Senior Companion Program Grants,
Senior Corps Demonstration Program
Grants that receive funding from CNCS,
Martin Luther King, Jr. Day of Service
Grants, September 11th Day of Service
Grants, Social Innovation Fund Grants,
Volunteer Generation Fund Grants,
AmeriCorps VISTA Program Grants, or
AmeriCorps VISTA Support Grants.
Section 189D of the NCSA and these
regulations do not apply to AmeriCorps
NCCC and or AmeriCorps VISTA
members, who serve in Federallyoperated programs that have separate
criminal history check requirements.
For the purpose of NSCHC, individuals
in covered positions are: The staff
working under these grants, AmeriCorps
State and National members, Foster
Grandparents, and Senior Companion
Volunteers.
II. Scope of Proposed Rule
In addition to the steps already taken
to ensure that grantees have a clear path
to obtaining the required NSCHC
components, CNCS proposes this
revision to its regulations. The intent of
this revision is to recognize the impact
of the availability of vendors and to
reduce the complexity of the
requirements. The proposed rule
requires that grant recipients establish
accounts, and conduct checks, through
the CNCS-approved vendors. By
establishing one path for obtaining
compliant checks, CNCS will simplify
the process and make use of
technological innovations that will help
CNCS and its grantees monitor and
improve NSCHC compliance. A
preliminary analysis of the agency’s FY
2019 IPERIA test transactions shows
that use of the vendor by CNCS grantees
resolved the NSCHC component of the
improper payment transactions in 88%
of the transactions for which the NSCHC
component rendered the payment
improper.
Further, the proposed rule eliminates
a distinction between the checks
required for those serving vulnerable
populations and those not serving
vulnerable populations. All individuals
in covered positions will require an
NSCHC comprised of NSOPW, state,
and FBI criminal history components
available through the CNCS-approved
vendors. In addition, the proposed rule
requires that the NSCHC be completed
before an individual works or serves in
a covered position—including any
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Federal Register / Vol. 85, No. 5 / Wednesday, January 8, 2020 / Proposed Rules
grant-funded training time. This
eliminates the need for individuals to be
accompanied while checks are pending.
The proposed rule further clarifies
which CNCS grant programs are
required to comply with the NSCHC
regulation and which individuals
associated with a grant must have an
NSCHC.
CNCS welcomes public comment on
the proposed regulations, particularly
on the scope of the proposed rule and
its applicability to staff, volunteers, and
members. CNCS’s intent is to establish
systems and requirements that allow
grant recipients to effectively
demonstrate compliance.
III. Effective Date
CNCS expects to make the final rule
effective no earlier than 30 days after
publication of the final rule.
IV. Regulatory Procedures
Executive Order 12866
CNCS has determined that the 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.
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Regulatory Flexibility Act
As required by the Regulatory
Flexibility Act of 1980 (5 U.S.C. 605
(b)), CNCS certifies that this rule, if
adopted, will not have a significant
economic impact on a substantial
number of small entities. This
regulatory action will not result in (1) an
annual effect on the economy of $100
million or more; (2) a major increase in
costs or prices for consumers,
individual industries, Federal, state, or
local government agencies, or
geographic regions; or (3) significant
adverse effects on competition,
employment, investment, productivity,
innovation, or on the ability of United
States-based enterprises to compete
with foreign-based enterprises in
domestic and export markets. Therefore,
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CNCS has not performed the initial
regulatory flexibility analysis that is
required under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.) for
major rules that are expected to have
such results.
Unfunded Mandates
For purposes of Title II of the
Unfunded Mandates Reform Act of
1995, 2 U.S.C. 1531–1538, as well as
Executive Order 12875, this regulatory
action does not contain any Federal
mandate that may result in increased
expenditures in either Federal, state,
local, or tribal governments in the
aggregate, or impose an annual burden
exceeding $100 million on the private
sector.
Paperwork Reduction Act
The rule specifies that specific pieces
of information must be obtained and
maintained in order to demonstrate
compliance with the regulatory
procedures.
This requirement constitutes one set
of information under the Paperwork
Reduction Act (PRA), 44 U.S.C. 507 et
seq. OMB, in accordance with the
Paperwork Reduction Act, has
previously approved information
collections for the NSCHC requirement.
The OMB Control Number is 3045–
0145.
Under the PRA, an agency may not
conduct or sponsor a collection of
information unless the collections of
information display valid control
numbers. This rule’s collections of
information are contained in 45 CFR
2540.204 and .206.
This information is necessary to
ensure that only eligible individuals
serve in covered positions under CNCS
grants.
The likely respondents to these
collections of information are entities
interested in or seeking to serve in
covered positions and grant recipients.
Executive Order 13132, Federalism
Executive Order 13132, Federalism,
prohibits an agency from publishing any
rule that has Federalism implications if
the rule 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. This
rule does not have any Federalism
implications, as described above.
List of Subjects
45 CFR 2522
Grant programs-social programs.
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Reporting and recordkeeping
requirements.
Volunteers.
45 CFR Part 2540
Administrative practice and
procedure.
Grant programs-social programs.
Reporting and recordkeeping
requirements.
Volunteers.
For the reasons discussed in the
preamble, under the authority of 42
U.S.C. 12651c(c), the Corporation for
National and Community Service
proposes to amend chapter XXV, title 45
of the Code of Federal Regulations as
follows:
PART 2522—AMERICORPS
PARTICIPANTS, PROGRAMS, AND
APPLICANTS
1. The authority citation for Part 2522
continues to read as follows:
■
Authority: 42 U.S.C. 12571–12595;
12651b–12651d; E.O. 13331, 69 FR 9911.
2. Revise § 2522.205 to read as
follows:
■
§ 2522.205 To whom must I apply eligibility
criteria relating to criminal history?
You must apply eligibility criteria
relating to criminal history to
individuals specified in 45 CFR
2540.201.
PART 2540—GENERAL
ADMINISTRATIVE PROVISIONS
Subpart B—REQUIREMENTS
DIRECTLY AFFECTING THE
SELECTION AND TREATMENT OF
PARTICPANTS
3. The authority citation for Part 2540
continues to read as follows:
■
Authority: E.O. 13331, 69 FR 9911; 18
U.S.C. 506, 701, 1017; 42 U.S.C. 12653,
12631–12637; 42 U.S.C. 5065.
4. Revise § 2540.200 to read as
follows:
■
§ 2540.200 Which entities are required to
comply with the National Service Criminal
History Check requirements in this part?
The National Service Criminal History
Check is a requirement for entities that
are recipients or subrecipients of the
following grants:
(a) Operational grants provided by
AmeriCorps State and National;
(b) Foster Grandparent Program
Grants
(c) Retired Senior Volunteer Program
Grants
(d) Senior Companion Program Grants
(e) Senior Corps Demonstration
Program Grants that receive funding
from CNCS
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Federal Register / Vol. 85, No. 5 / Wednesday, January 8, 2020 / Proposed Rules
(f) Martin Luther King, Jr. Day of
Service Grants
(g) September 11th Day of Service
Grants
(h) Social Innovation Fund Grants
(i) Volunteer Generation Fund Grants
(j) AmeriCorps VISTA Program Grants
(k) AmeriCorps VISTA Support
Grants
■ 5. Revise § 2540.201 to read as
follows:
§ 2540.201 Which individuals require a
National Service Criminal History Check?
(a) A National Service Criminal
History Check must be conducted for
individuals in covered positions.
Individuals in covered positions are
individuals selected, under a CNCS
grant specified in 2540.200, by the
recipient, subrecipient, or service site to
work or serve in a position under a
CNCS grant specified in § 2540.200:
(1) As an AmeriCorps State and
National member, as described in 42
U.S.C. 12511 (30)(A)(i);
(2) As a Foster Grandparent who
receives a stipend;
(3) As a Senior Companion who
receives a stipend; or
(4) In a position in which they will
receive a salary, and will be listed on
the grant budget, under a cost
reimbursement grant.
(b) A National Service Criminal
History Check is not required for those
individuals in (a) who are under the age
of 18 on the first day of work or service
in a covered position.
(c) A National Service Criminal
History Check is not required for
individuals whose activity is entirely
included in the grant recipient’s indirect
cost rate.
■ 6. Revise § 2540.202 to read as
follows:
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§ 2540.202 What eligibility criteria apply to
an individual for whom a National Service
Criminal History Check is required?
An individual shall be ineligible to
work or serve in a position specified in
§ 2540.201(a) if the individual—
(a) Refuses to consent to a criminal
history check described in § 2540.204;
(b) Makes a false statement in
connection with a criminal history
check described in § 2540.204 of this
chapter;
(c) Is registered, or is required to be
registered, on a state sex offender
registry or the National Sex Offender
Registry; or
(d) Has been convicted of murder, as
defined in 18 U.S.C. 1111.
■ 7. Revise § 2540.203 to read as
follows:
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§ 2540.203 May a grant recipient or
subrecipient or service site establish and
apply suitability criteria for individuals to
work or serve in a position specified in
§ 2540.201(a)?
Grant recipients and subrecipients, or
service sites, may establish suitability
criteria, consistent with state and
federal Civil Rights and
nondiscrimination laws, for individuals
working or serving in a position
specified in § 2540.201(a). While
members may be eligible to work or
serve in a position specified in
§ 2540.201(a) based on the eligibility
requirements of § 2540.202, a grant
recipient, subrecipient, or service site
may determine that an individual is not
suitable to work or serve in such a
position based on criteria that the grant
recipient or subrecipient or service site
establishes.
■ 8. Revise § 2540.204 to read as
follows:
§ 2540.204 How is a National Service
Criminal History Check obtained?
(a) Unless CNCS approves a waiver
under § 2540.207, grant recipients or
subrecipients must conduct and
document a National Service Criminal
History Check through CNCS-approved
vendors. For each individual in a
position specified in § 2540.201,
grantees or subgrantees must, through
the CNCS-approved vendors, obtain a
nationwide check of the National Sex
Offender Public website, a check of the
state criminal history record repository
or designated alternative for the
individual’s state of residence and state
of service, and a fingerprint-based check
of the FBI criminal history record
database.
(b) In the case that a CNCS-approved
vendor is not available to provide one
or more of the National Service Criminal
History Check components or if CNCS
discontinues use of an approved vendor,
CNCS will provide notice of such
unavailability or discontinuation, and
grant recipients or subrecipients must
obtain, as appropriate, a nationwide
check of the National Sex Offender
Public website through NSOPW.gov, a
check of the state criminal history
record repository or designated
alternative for the individual’s state of
residence and state of service, and a
fingerprint-based check of the FBI
criminal history record database
through the state criminal history record
repository.
■ 9. Revise § 2540.205 to read as
follows:
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861
§ 2540.205 By when must the National
Service Criminal History Check be
completed?
(a) The National Service Criminal
History Check must be conducted,
reviewed, and an eligibility
determination made by the grant
recipient or subrecipient based on the
results of the National Service Criminal
History Check before a person begins to
work or serve in a position specified in
§ 2540.201(a).
(b) If a person serves consecutive
terms of service with the same
organization in a position specified in
§ 2540.201(a) and does not have a break
in service longer than 180 days, then no
additional National Service Criminal
History Check is required, as long as the
original check complied with the
requirements of § 2540.204.
(c) Persons working or serving in
positions specified in § 2540.201(a) who
continue working or serving in a
position specified in § 2540.201(a) more
than 180 days after the effective date of
this rule must have a National Service
Criminal History Check conducted,
reviewed, and an eligibility
determination made by the grant
recipient or subrecipient based on the
results of the National Service Criminal
History Check completed in accordance
with this part. For these people, the
National Service Criminal History
Check must be completed no later than
180 days following the effective date of
this rule.
■ 10. Revise § 2540.206 to read as
follows:
§ 2540.206 What procedural steps are
required, in addition to conducting the
National Service Criminal History Check
described in 2540.204?
(a) Grant recipients or subrecipients
must:
(1) Obtain a person’s consent before
conducting the state and FBI
components of the National Service
Criminal History Check;
(2) Provide notice that selection for
work or service specified in
§ 2540.201(a) is contingent upon the
organization’s review of the National
Service Criminal History Check
component results;
(3) Provide a reasonable opportunity
for the person to review and challenge
the factual accuracy of a result before
action is taken to exclude the person
from the position;
(4) Take reasonable steps to protect
the confidentiality of any information
relating to the criminal history check,
consistent with authorization provided
by the applicant;
(5) Maintain the results of the
National Service Criminal History
Check components as grant records; and
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Federal Register / Vol. 85, No. 5 / Wednesday, January 8, 2020 / Proposed Rules
(6) Pay for the cost of the NSCHC.
Unless specifically approved by CNCS
under 2540.207, the person who is
serving in the covered position may not
be charged for the cost of any
component of a National Service
Criminal History Check.
(b) CNCS-approved vendors may
facilitate obtaining and documenting the
requirements of paragraphs (a)(1)
through (5) of this section.
■ 11. Revise § 2540.207 to read as
follows:
§ 2540.207
Waiver.
CNCS may waive provisions of
sections 2540.200–.206 for good cause,
or for any other lawful basis. To request
a waiver, submit a written request to
NSCHC Waiver Requests, 250 E Street
SW, Washington, DC 20525, or send
your request to NSCHCWaiverRequest@
cns.gov.
Dated: December 31, 2019.
Timothy Noelker,
General Counsel.
[FR Doc. 2019–28489 Filed 1–7–20; 8:45 am]
BILLING CODE 6050–28–P
DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS–R8–ES–2019–0006;
4500030113]
RIN 1018–BC62
Endangered and Threatened Wildlife
and Plants; Endangered Status for the
Sierra Nevada Distinct Population
Segment of the Sierra Nevada Red Fox
Fish and Wildlife Service,
Interior.
ACTION: Proposed rule.
AGENCY:
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Executive Summary
We, the U.S. Fish and
Wildlife Service (Service), propose to
list the Sierra Nevada Distinct
Population Segment (DPS) of the Sierra
Nevada red fox (Vulpes vulpes necator)
as an endangered species under the
Endangered Species Act (Act). This DPS
of the Sierra Nevada red fox occurs
along the highest elevations of the Sierra
Nevada mountain range in California. If
we finalize this rule as proposed, it
would extend the Act’s protections to
this DPS. The effect of this rule will be
to add this DPS to the List of
Endangered and Threatened Wildlife.
DATES: We will accept comments
received or postmarked on or before
March 9, 2020. Comments submitted
electronically using the Federal
eRulemaking Portal (see ADDRESSES
SUMMARY:
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16:47 Jan 07, 2020
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below) must be received by 11:59 p.m.
Eastern Time on the closing date. We
must receive requests for public
hearings, in writing, at the address
shown in FOR FURTHER INFORMATION
CONTACT by February 24, 2020.
ADDRESSES: You may submit comments
by one of the following methods:
(1) Electronically: Go to the Federal
eRulemaking Portal: https://
www.regulations.gov. In the Search box,
enter FWS–R8–ES–2019–0006, which is
the docket number for this rulemaking.
Then, click on the Search button. On the
resulting page, in the Search panel on
the left side of the screen, under the
Document Type heading, click on the
Proposed Rule box to locate this
document. You may submit a comment
by clicking on ‘‘Comment Now!’’
(2) By hard copy: Submit by U.S. mail
or hand-delivery to: Public Comments
Processing, Attn: FWS–R8–ES–2019–
0006, U.S. Fish and Wildlife Service,
MS: BPHC, 5275 Leesburg Pike, Falls
Church, VA 22041–3803.
We request that you send comments
only by the methods described above.
We will post all comments on https://
www.regulations.gov. This generally
means that we will post any personal
information you provide us (see
Information Requested, below, for more
information).
FOR FURTHER INFORMATION CONTACT:
Jennifer Norris, Field Supervisor, U.S.
Fish and Wildlife Service, Sacramento
Fish and Wildlife Office, 2800 Cottage
Way, Room W–2605, Sacramento,
California 95825; telephone 916–414–
6700. If you use a telecommunications
device for the deaf (TDD), call the
Federal Relay Service at 800–877–8339.
SUPPLEMENTARY INFORMATION:
Why we need to publish a rule. Under
the Act, if we determine that a species
may be an endangered or threatened
species throughout all or a significant
portion of its range, we are required to
promptly publish a proposal in the
Federal Register and make a
determination on our proposal within 1
year. To the maximum extent prudent
and determinable, we must designate
critical habitat for any species that we
determine to be an endangered or
threatened species under the Act.
Listing a species as an endangered or
threatened species and designation of
critical habitat can only be completed
by issuing a rule.
What this proposed rule does. This
document proposes listing the Sierra
Nevada DPS of the Sierra Nevada red
fox (Vulpes vulpes necator; hereafter
referred to as the Sierra Nevada red fox)
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as an endangered species; we
determined that designating critical
habitat is not prudent. The Sierra
Nevada red fox is a candidate species
for which we have on file sufficient
information on biological vulnerability
and threats to support preparation of a
listing proposal, but for which
development of a listing rule was
previously precluded by other higher
priority listing activities. This proposed
rule reassesses (since the 2015 12-month
finding (October 8, 2015, 80 FR 60990))
the best available information regarding
the status of and threats to the Sierra
Nevada red fox.
The basis for our action. Under the
Act, we can determine that a species is
an endangered or threatened species
based on any of five factors: (A) The
present or threatened destruction,
modification, or curtailment of its
habitat or range; (B) overutilization for
commercial, recreational, scientific, or
educational purposes; (C) disease or
predation; (D) the inadequacy of
existing regulatory mechanisms; or (E)
other natural or manmade factors
affecting its continued existence. The
Sierra Nevada red fox faces the
following threats: (1) Deleterious
impacts associated with small
population size, such as inbreeding
depression and reduced genomic
integrity (Factor E); (2) hybridization
with nonnative red fox (Factor E); and
possibly (3) reduced prey availability
and competition with coyotes (Factor E)
resulting from reduced snowpack levels.
Existing regulatory mechanisms and
conservation efforts do not address the
threats to the Sierra Nevada red fox to
the extent that listing the DPS is not
warranted.
Peer review. In accordance with our
joint policy on peer review published in
the Federal Register on July 1, 1994 (59
FR 34270) and our August 22, 2016,
memorandum updating and clarifying
the role of peer review of listing actions
under the Act, we sought the expert
opinions of five appropriate specialists
regarding the Species Status Assessment
(SSA) report, which informed the listing
portion of this proposed rule. The
purpose of peer review is to ensure that
our listing and critical habitat
determinations are based on
scientifically sound data, assumptions,
and analyses. The peer reviewers have
expertise in red fox biology, habitat, and
stressors to the species. We received
responses from two of the five peer
reviewers, which we took into account
in our SSA report and this proposed
rule.
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[Federal Register Volume 85, Number 5 (Wednesday, January 8, 2020)]
[Proposed Rules]
[Pages 859-862]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-28489]
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CORPORATION FOR NATIONAL AND COMMUNITY SERVICE
45 CFR Parts 2522 and 2540
RIN 3045-AA69
National Service Criminal History Check
AGENCY: Corporation for National and Community Service.
ACTION: Proposed rule with request for comments.
-----------------------------------------------------------------------
SUMMARY: The Corporation for National and Community Service (CNCS)
proposes changes to existing National Service Criminal History Check
(NSCHC) regulations under the National and Community Service Act of
1990, as amended. These amendments will simplify the NSCHC
requirements.
DATES: Comments must reach CNCS on or before March 9, 2020.
ADDRESSES: You may submit comments, identified by the title of the
information collection activity, by any of the following methods:
(1) Electronically through www.regulations.gov.
(2) By mail sent to: Corporation for National and Community
Service; Attention Amy Borgstrom; 250 E Street SW, Washington, DC
20525.
(3) By hand delivery or by courier to the CNCS mailroom at the
address above between 9:00 a.m. and 4:00 p.m. Eastern Time, Monday
through Friday, except federal holidays.
Comments submitted in response to this Notice will be made
available to the public through www.regulations.gov. For this reason,
please do not include in your comments information of a confidential
nature, such as sensitive personal information or proprietary
information. If you send an email comment, your email address will be
automatically captured and included as part of the comment that is
placed in the public docket and made available on the internet. Please
note that responses to this public comment request containing any
routine notice about the confidentiality of the communication will be
treated as public comments that may be made available to the public
notwithstanding the inclusion of the routine notice.
FOR FURTHER INFORMATION CONTACT: Amy Borgstrom at the Corporation for
National and Community Service, 250 E Street SW, Washington, DC 20525,
[email protected], phone 202-422-2781.
SUPPLEMENTARY INFORMATION:
I. Background
CNCS proposes updating its current National Service Criminal
History Check (NSCHC) regulations. CNCS first established its NSCHC
regulation in 2007. In 2009, Congress codified NSCHC requirements in
Section 189D of the National and Community Service Act of 1990 (NCSA),
as amended by the Serve America Act. CNCS issued regulations in 2009
and 2012 implementing the Serve America Act NSCHC provisions.
Grant recipient and subrecipient compliance with the NSCHC
requirements has been an ongoing challenge. Successful implementation
of the NSCHC process by grant recipients has been frustrated, in part,
by access to state sources of criminal history record information,
requirements of state law, and restrictions on sharing information. As
such, Congressional hearings and CNCS Office of the Inspector General
(OIG) reports have highlighted grantee noncompliance with this
important statutory requirement.
Improving CNCS core functions--including eliminating barriers to
compliance--is a primary goal of the CNCS Transformation and
Sustainability Plan. In pursuit of that goal, CNCS has approved vendors
for grant recipients to use to obtain the required NSCHC components.
Since November 2018, CNCS grant recipients and subrecipients have had
the ability to establish accounts and obtain the required National Sex
Offender Public website (NSOPW), state, and FBI components of the
NSCHC, through the approved vendors. Additionally, to help ensure
grantee compliance with NSCHC requirements, CNCS made grant funds
available for the purpose of rechecking individuals who needed to have
an NSCHC conducted. And for those grant recipients who took the
opportunity to ensure compliance by rechecking individuals in covered
positions, CNCS announced that it would not, except in limited
circumstances, take enforcement action for past noncompliance. As of
September 25, 2019, 1,942 accounts were established with the new vendor
resulting in 93,993 checks.
CNCS grant recipients must ensure that they identify individuals
who need an NSCHC and ensure that it is done on time. The NSCHC must be
conducted as a matter of law, and as a condition of receiving grant
funds for individuals in covered positions working or serving under:
Operational grants provided by AmeriCorps State and National, Foster
Grandparent Program Grants, Retired Senior Volunteer Program Grants,
Senior Companion Program Grants, Senior Corps Demonstration Program
Grants that receive funding from CNCS, Martin Luther King, Jr. Day of
Service Grants, September 11th Day of Service Grants, Social Innovation
Fund Grants, Volunteer Generation Fund Grants, AmeriCorps VISTA Program
Grants, or AmeriCorps VISTA Support Grants. Section 189D of the NCSA
and these regulations do not apply to AmeriCorps NCCC and or AmeriCorps
VISTA members, who serve in Federally-operated programs that have
separate criminal history check requirements. For the purpose of NSCHC,
individuals in covered positions are: The staff working under these
grants, AmeriCorps State and National members, Foster Grandparents, and
Senior Companion Volunteers.
II. Scope of Proposed Rule
In addition to the steps already taken to ensure that grantees have
a clear path to obtaining the required NSCHC components, CNCS proposes
this revision to its regulations. The intent of this revision is to
recognize the impact of the availability of vendors and to reduce the
complexity of the requirements. The proposed rule requires that grant
recipients establish accounts, and conduct checks, through the CNCS-
approved vendors. By establishing one path for obtaining compliant
checks, CNCS will simplify the process and make use of technological
innovations that will help CNCS and its grantees monitor and improve
NSCHC compliance. A preliminary analysis of the agency's FY 2019 IPERIA
test transactions shows that use of the vendor by CNCS grantees
resolved the NSCHC component of the improper payment transactions in
88% of the transactions for which the NSCHC component rendered the
payment improper.
Further, the proposed rule eliminates a distinction between the
checks required for those serving vulnerable populations and those not
serving vulnerable populations. All individuals in covered positions
will require an NSCHC comprised of NSOPW, state, and FBI criminal
history components available through the CNCS-approved vendors. In
addition, the proposed rule requires that the NSCHC be completed before
an individual works or serves in a covered position--including any
[[Page 860]]
grant-funded training time. This eliminates the need for individuals to
be accompanied while checks are pending. The proposed rule further
clarifies which CNCS grant programs are required to comply with the
NSCHC regulation and which individuals associated with a grant must
have an NSCHC.
CNCS welcomes public comment on the proposed regulations,
particularly on the scope of the proposed rule and its applicability to
staff, volunteers, and members. CNCS's intent is to establish systems
and requirements that allow grant recipients to effectively demonstrate
compliance.
III. Effective Date
CNCS expects to make the final rule effective no earlier than 30
days after publication of the final rule.
IV. Regulatory Procedures
Executive Order 12866
CNCS has determined that the 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.
Regulatory Flexibility Act
As required by the Regulatory Flexibility Act of 1980 (5 U.S.C. 605
(b)), CNCS certifies that this rule, if adopted, will not have a
significant economic impact on a substantial number of small entities.
This regulatory action will not result in (1) an annual effect on the
economy of $100 million or more; (2) a major increase in costs or
prices for consumers, individual industries, Federal, state, or local
government agencies, or geographic regions; or (3) significant adverse
effects on competition, employment, investment, productivity,
innovation, or on the ability of United States-based enterprises to
compete with foreign-based enterprises in domestic and export markets.
Therefore, CNCS has not performed the initial regulatory flexibility
analysis that is required under the Regulatory Flexibility Act (5
U.S.C. 601 et seq.) for major rules that are expected to have such
results.
Unfunded Mandates
For purposes of Title II of the Unfunded Mandates Reform Act of
1995, 2 U.S.C. 1531-1538, as well as Executive Order 12875, this
regulatory action does not contain any Federal mandate that may result
in increased expenditures in either Federal, state, local, or tribal
governments in the aggregate, or impose an annual burden exceeding $100
million on the private sector.
Paperwork Reduction Act
The rule specifies that specific pieces of information must be
obtained and maintained in order to demonstrate compliance with the
regulatory procedures.
This requirement constitutes one set of information under the
Paperwork Reduction Act (PRA), 44 U.S.C. 507 et seq. OMB, in accordance
with the Paperwork Reduction Act, has previously approved information
collections for the NSCHC requirement. The OMB Control Number is 3045-
0145.
Under the PRA, an agency may not conduct or sponsor a collection of
information unless the collections of information display valid control
numbers. This rule's collections of information are contained in 45 CFR
2540.204 and .206.
This information is necessary to ensure that only eligible
individuals serve in covered positions under CNCS grants.
The likely respondents to these collections of information are
entities interested in or seeking to serve in covered positions and
grant recipients.
Executive Order 13132, Federalism
Executive Order 13132, Federalism, prohibits an agency from
publishing any rule that has Federalism implications if the rule
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. This rule does not have any
Federalism implications, as described above.
List of Subjects
45 CFR 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.
For the reasons discussed in the preamble, under the authority of
42 U.S.C. 12651c(c), the Corporation for National and Community Service
proposes to amend chapter XXV, title 45 of the Code of Federal
Regulations as follows:
PART 2522--AMERICORPS PARTICIPANTS, PROGRAMS, AND APPLICANTS
0
1. The authority citation for Part 2522 continues to read as follows:
Authority: 42 U.S.C. 12571-12595; 12651b-12651d; E.O. 13331, 69
FR 9911.
0
2. Revise Sec. 2522.205 to read as follows:
Sec. 2522.205 To whom must I apply eligibility criteria relating to
criminal history?
You must apply eligibility criteria relating to criminal history to
individuals specified in 45 CFR 2540.201.
PART 2540--GENERAL ADMINISTRATIVE PROVISIONS
Subpart B--REQUIREMENTS DIRECTLY AFFECTING THE SELECTION AND
TREATMENT OF PARTICPANTS
0
3. The authority citation for Part 2540 continues to read as follows:
Authority: E.O. 13331, 69 FR 9911; 18 U.S.C. 506, 701, 1017; 42
U.S.C. 12653, 12631-12637; 42 U.S.C. 5065.
0
4. Revise Sec. 2540.200 to read as follows:
Sec. 2540.200 Which entities are required to comply with the
National Service Criminal History Check requirements in this part?
The National Service Criminal History Check is a requirement for
entities that are recipients or subrecipients of the following grants:
(a) Operational grants provided by AmeriCorps State and National;
(b) Foster Grandparent Program Grants
(c) Retired Senior Volunteer Program Grants
(d) Senior Companion Program Grants
(e) Senior Corps Demonstration Program Grants that receive funding
from CNCS
[[Page 861]]
(f) Martin Luther King, Jr. Day of Service Grants
(g) September 11th Day of Service Grants
(h) Social Innovation Fund Grants
(i) Volunteer Generation Fund Grants
(j) AmeriCorps VISTA Program Grants
(k) AmeriCorps VISTA Support Grants
0
5. Revise Sec. 2540.201 to read as follows:
Sec. 2540.201 Which individuals require a National Service Criminal
History Check?
(a) A National Service Criminal History Check must be conducted for
individuals in covered positions. Individuals in covered positions are
individuals selected, under a CNCS grant specified in 2540.200, by the
recipient, subrecipient, or service site to work or serve in a position
under a CNCS grant specified in Sec. 2540.200:
(1) As an AmeriCorps State and National member, as described in 42
U.S.C. 12511 (30)(A)(i);
(2) As a Foster Grandparent who receives a stipend;
(3) As a Senior Companion who receives a stipend; or
(4) In a position in which they will receive a salary, and will be
listed on the grant budget, under a cost reimbursement grant.
(b) A National Service Criminal History Check is not required for
those individuals in (a) who are under the age of 18 on the first day
of work or service in a covered position.
(c) A National Service Criminal History Check is not required for
individuals whose activity is entirely included in the grant
recipient's indirect cost rate.
0
6. Revise Sec. 2540.202 to read as follows:
Sec. 2540.202 What eligibility criteria apply to an individual for
whom a National Service Criminal History Check is required?
An individual shall be ineligible to work or serve in a position
specified in Sec. 2540.201(a) if the individual--
(a) Refuses to consent to a criminal history check described in
Sec. 2540.204;
(b) Makes a false statement in connection with a criminal history
check described in Sec. 2540.204 of this chapter;
(c) Is registered, or is required to be registered, on a state sex
offender registry or the National Sex Offender Registry; or
(d) Has been convicted of murder, as defined in 18 U.S.C. 1111.
0
7. Revise Sec. 2540.203 to read as follows:
Sec. 2540.203 May a grant recipient or subrecipient or service site
establish and apply suitability criteria for individuals to work or
serve in a position specified in Sec. 2540.201(a)?
Grant recipients and subrecipients, or service sites, may establish
suitability criteria, consistent with state and federal Civil Rights
and nondiscrimination laws, for individuals working or serving in a
position specified in Sec. 2540.201(a). While members may be eligible
to work or serve in a position specified in Sec. 2540.201(a) based on
the eligibility requirements of Sec. 2540.202, a grant recipient,
subrecipient, or service site may determine that an individual is not
suitable to work or serve in such a position based on criteria that the
grant recipient or subrecipient or service site establishes.
0
8. Revise Sec. 2540.204 to read as follows:
Sec. 2540.204 How is a National Service Criminal History Check
obtained?
(a) Unless CNCS approves a waiver under Sec. 2540.207, grant
recipients or subrecipients must conduct and document a National
Service Criminal History Check through CNCS-approved vendors. For each
individual in a position specified in Sec. 2540.201, grantees or
subgrantees must, through the CNCS-approved vendors, obtain a
nationwide check of the National Sex Offender Public website, a check
of the state criminal history record repository or designated
alternative for the individual's state of residence and state of
service, and a fingerprint-based check of the FBI criminal history
record database.
(b) In the case that a CNCS-approved vendor is not available to
provide one or more of the National Service Criminal History Check
components or if CNCS discontinues use of an approved vendor, CNCS will
provide notice of such unavailability or discontinuation, and grant
recipients or subrecipients must obtain, as appropriate, a nationwide
check of the National Sex Offender Public website through NSOPW.gov, a
check of the state criminal history record repository or designated
alternative for the individual's state of residence and state of
service, and a fingerprint-based check of the FBI criminal history
record database through the state criminal history record repository.
0
9. Revise Sec. 2540.205 to read as follows:
Sec. 2540.205 By when must the National Service Criminal History
Check be completed?
(a) The National Service Criminal History Check must be conducted,
reviewed, and an eligibility determination made by the grant recipient
or subrecipient based on the results of the National Service Criminal
History Check before a person begins to work or serve in a position
specified in Sec. 2540.201(a).
(b) If a person serves consecutive terms of service with the same
organization in a position specified in Sec. 2540.201(a) and does not
have a break in service longer than 180 days, then no additional
National Service Criminal History Check is required, as long as the
original check complied with the requirements of Sec. 2540.204.
(c) Persons working or serving in positions specified in Sec.
2540.201(a) who continue working or serving in a position specified in
Sec. 2540.201(a) more than 180 days after the effective date of this
rule must have a National Service Criminal History Check conducted,
reviewed, and an eligibility determination made by the grant recipient
or subrecipient based on the results of the National Service Criminal
History Check completed in accordance with this part. For these people,
the National Service Criminal History Check must be completed no later
than 180 days following the effective date of this rule.
0
10. Revise Sec. 2540.206 to read as follows:
Sec. 2540.206 What procedural steps are required, in addition to
conducting the National Service Criminal History Check described in
2540.204?
(a) Grant recipients or subrecipients must:
(1) Obtain a person's consent before conducting the state and FBI
components of the National Service Criminal History Check;
(2) Provide notice that selection for work or service specified in
Sec. 2540.201(a) is contingent upon the organization's review of the
National Service Criminal History Check component results;
(3) Provide a reasonable opportunity for the person to review and
challenge the factual accuracy of a result before action is taken to
exclude the person from the position;
(4) Take reasonable steps to protect the confidentiality of any
information relating to the criminal history check, consistent with
authorization provided by the applicant;
(5) Maintain the results of the National Service Criminal History
Check components as grant records; and
[[Page 862]]
(6) Pay for the cost of the NSCHC. Unless specifically approved by
CNCS under 2540.207, the person who is serving in the covered position
may not be charged for the cost of any component of a National Service
Criminal History Check.
(b) CNCS-approved vendors may facilitate obtaining and documenting
the requirements of paragraphs (a)(1) through (5) of this section.
0
11. Revise Sec. 2540.207 to read as follows:
Sec. 2540.207 Waiver.
CNCS may waive provisions of sections 2540.200-.206 for good cause,
or for any other lawful basis. To request a waiver, submit a written
request to NSCHC Waiver Requests, 250 E Street SW, Washington, DC
20525, or send your request to [email protected].
Dated: December 31, 2019.
Timothy Noelker,
General Counsel.
[FR Doc. 2019-28489 Filed 1-7-20; 8:45 am]
BILLING CODE 6050-28-P
