National Service Criminal History Check, 11141-11148 [2021-03247]

Agencies

• Corporation for National and Community Service

[Federal Register Volume 86, Number 35 (Wednesday, February 24, 2021)]
[Rules and Regulations]
[Pages 11141-11148]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-03247]


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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: Final rule.

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SUMMARY: The Corporation for National and Community Service (CNCS) 
revised existing National Service Criminal History Check (NSCHC) 
regulations under the National and Community Service Act of 1990, as 
amended. These revisions will clarify and simplify the NSCHC 
requirements.

DATES: This rule is effective May 1, 2021.

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, which operates as AmeriCorps, is updating its National 
Service Criminal History Check (NSCHC) regulations. The agency 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. The 
agency 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

[[Page 11142]]

challenge. Successful implementation of the NSCHC process by grant 
recipients has been frustrated, in part, by variable access to state 
sources of criminal history record information, requirements of state 
law, and restrictions on sharing information. As such, Congressional 
hearings and the agency's Office of the Inspector General (OIG) reports 
have highlighted grantee noncompliance with this important statutory 
requirement.
    Improving the agency's core functions--including eliminating 
barriers to compliance--is a primary goal of the agency's 
Transformation and Sustainability Plan. In pursuit of that goal, the 
agency approved vendors that grant recipients may use to obtain the 
required NSCHC components. Since November 2018, grant recipients and 
subrecipients have been able to establish accounts and obtain the 
required National Sex Offender Public website (NSOPW.gov), state, and 
FBI components of the NSCHC through the approved vendors. Additionally, 
to help ensure grantee compliance with NSCHC requirements, the agency 
made grant funds available so that grant recipients could recheck 
persons who needed to have an NSCHC conducted. And for those grant 
recipients who took the opportunity to ensure compliance by rechecking 
persons in covered positions, the agency announced that it would not, 
except in limited circumstances, take enforcement action for past 
noncompliance. As of July 2020, grant recipients have conducted over 
233,000 check components through the agency-approved vendors.
    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 and Senior Volunteer Program 
Grants, Senior Companion Program Grants, AmeriCorps Seniors 
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 the NSCHC, individuals in covered 
positions are: The staff working under these grants, AmeriCorps State 
and National members, AmeriCorps Seniors volunteers in the Foster 
Grandparent and Senior Companion programs who receive a stipend.

II. Discussion of the Final Rule

    The agency published a notice of proposed Federal rulemaking in the 
Federal Register on January 8, 2020, 85 FR 859. The final rule reflects 
the agency's consideration of the comments received and clarifies 
several requirements. In addition, the rule reflects technical 
corrections to the proposed language.
    Agency-approved vendors provide grant recipients a path to 
obtaining the required NSCHC components. As stated in the Notice of 
Proposed Rulemaking, preliminary analysis of the agency's FY 2019 
Improper Payments Elimination and Recovery Act (IPERA) test 
transactions demonstrated that use of the CNCS-approved NSCHC vendors 
by grantees resolved the NSCHC component of the improper payment 
transactions in 88% of the transactions for which the NSCHC component 
rendered the payment improper. The intent of the final rule is to 
emphasize the impact and availability of agency-approved vendors and to 
clarify and simplify the NSCHC requirements.
    The final rule does not require grant recipients to establish 
accounts and conduct checks through the agency-approved vendors. 
However, the vendors remain a proven pathway for timely NSCHC 
compliance. Many commenters stated that they had access to affordable 
NSCHC component checks, other than those provided by the agency-
approved vendors. The agency strongly encourages the use of the agency-
approved vendors because use of the vendors allows grant recipients to 
reliably demonstrate compliance and eligibility. In addition, the final 
rule clarifies that individuals who turn 18 while working or serving in 
a covered position must get an NSCHC if they serve a consecutive term.
    The final rule retains many of the other proposed changes. As 
proposed, the final rule establishes a single set of NSCHC check 
components, regardless of whether an individual has recurring access to 
vulnerable populations. The final rule also establishes that the NSCHC 
must be completed before an individual works or serves in a covered 
position. Further, it establishes a requirement that, by November 1, 
2021, staff, members, or volunteers who remain on or after November 1, 
2021 in a position for which an NSCHC is required under the final rule 
complete an NSCHC that complies with the final rule.

III. Comments and Responses

    The agency published the proposed rule on January 8, 2020 (84 FR 
859), in the Federal Register with a 60-day comment period and received 
over 280 comments. More than 75 percent of the commenters indicated 
they were current AmeriCorps State and National or AmeriCorps Seniors 
grant recipients subject to the rule.
    Generally, the commenters opposed the proposed mandatory use of the 
agency-approved vendors to obtain the NSCHC component checks--the 
nationwide NSOPW check of all jurisdictions, including Tribes, states, 
and territories; state criminal history repository checks; and 
fingerprint-based FBI checks. While timely use of the vendor would 
ensure grant recipients' statutory compliance and, accordingly, reduce 
the agency's improper payment rate, commenters articulated how 
mandatory use of the vendors complicated their processes, and, in 
response to those comments, the agency has decided not to make agency-
approved vendors the sole option for grant recipients and subrecipients 
to obtain NSCHC components.
    Some commenters suggested that the agency decouple NSCHC from its 
Improper Payments Elimination and Recovery Act (IPERA) testing. The 
agency has never linked or targeted NSCHC compliance as a specific line 
of inquiry in its Improper Payments Elimination and Recovery Act 
(IPERA) testing. The guidance for executing IPERA is established by the 
Office of Management and Budget. Under that guidance and the IPERA 
statutes, payments to covered individuals who have incomplete or 
missing NSCHC checks when they received a payment that is included 
within an IPERA sample qualify as improper payments, as eligibility 
cannot be established at the time of payment (even if the individuals 
involved are later cleared in compliant checks). The frequency of 
NSCHC-based IPERA findings arises from the fact that a large portion of 
the agency's grant funds are used to make compensation and other 
payments to covered individuals. Nothing that the agency could write in 
its NSCHC regulations would alter the frequency that use of grant funds 
trigger NSCHC requirements, or that incomplete, incorrect or 
undocumented NSCHC checks will be considered improper payments under 
IPERA.
    Commenters generally reflected an appreciation for the value of a 
criminal

[[Page 11143]]

history background check as part of a comprehensive screening process. 
And many commenters articulated how they are subject to several 
background check requirements from various sources and have tailored 
their screening and vetting procedures to conform with those required 
by state law or best practices or site requirements. The commenters 
asserted that the agency's requirements are yet another burden and 
suggested that the agency remove the requirement or broaden exemptions. 
The agency's legislation is prescriptive and creates an obligation to 
ensure that grant recipients comply with the law. The agency wants to 
ensure that grant recipients meet the basic requirements of the rule 
and can easily document compliance with the requirements. Commenters 
expressed a desire for ease of administration and minimal duplication 
of process. However, the IPERA data reflects that many grant recipients 
could not demonstrate that they conducted the required components on 
time, and the agency does not find a sufficient basis to embrace the 
relaxed approach suggested by some commenters.
    Commenters supported elimination of the requirement for staff to 
obtain criminal history checks under planning grants, non-profit 
capacity building grants, and on fixed-award grants, again, with some 
commenters expressing support for expansion of categories of 
exemptions. In addition, commenters expressed support for the 
elimination of the requirement to conduct criminal history checks of 
individuals under the age of 18 at the time they start service or 
employment. And, commenters also expressed support for extending the 
time period for which a grant recipient must re-check a person after a 
break in service or employment with the same organization from 120 days 
to 180 days.
    The final rule has been modified in response to the comments 
provided. The comments and CNCS's responses are set forth below:
    Comment: CNCS received positive comments on eliminating the 
requirement for grant recipients to conduct criminal history checks on 
employees of organizations with planning grants and staff on fixed-
amount grants. Some commenters requested that exemptions from NSCHCs 
extend to additional CNCS grants such as the Volunteer Generation Fund, 
and the Martin Luther King and 9/11 Day of Service grants.
    Response: The agency balanced the statutory requirements 
articulated in 42 U.S.C. 12645g to protect vulnerable populations being 
served by programs, the needs of the agency to efficiently monitor 
programs, and the administration of the requirements by grant 
recipients. Fixed-amount grant recipients receive a fixed amount per 
member service year and do not identify specific staff positions on a 
grant budget. Relying on information provided in the narrative text of 
fixed-amount grant applications to identify persons for whom the NSCHC 
was required, led, at times, to requiring checks for persons who would 
never be included if the program were funded under a cost reimbursement 
grant. It also led to uncertainty in determining whether a position was 
covered or not. Fixed-amount grants are intended to optimize efficiency 
in grantmaking. Fixed-amount grant recipients are provided a sum of 
money that is significantly less than what is needed to implement the 
program. The additional resources required to implement the program are 
the responsibility of the recipient. Fixed-amount grant recipients are 
not required to track spending or a specified percentage of matching 
funds, and federal agencies focus on grant recipient performance rather 
than grant recipient accounting. To require fixed-amount grantees to 
track funds in the same manner that cost reimbursement grant recipients 
do, for the purpose of determining whether or not a person is covered 
by the rule, would disrupt the statutory scheme of fixed-amount grants. 
In order to eliminate ambiguity and create a rule that can be easily 
applied with parity, the agency determined that the staff who implement 
fixed-amount grants should be exempt from the criminal history check 
requirement, under its authority to exempt individuals from the 
requirements for good cause under section 189D. While the agency 
encourages organizations to implement criminal history checks as part 
of a comprehensive screening procedure to reduce risk to vulnerable 
populations, which could include staff who implement fixed-amount grant 
activities, the agency finds that clarifying the applicability of the 
rule resolves the current ambiguous state.
    The agency considered the comments regarding eliminating the 
applicability of the NSCHC to other grants, such as the Martin Luther 
King, Jr. and September 11th Day of Service grants and Volunteer 
Generation Fund grants. The agency declines to exempt these grants from 
the NSCHC requirements, as the grants issued are used to pay the 
salaries of persons reflected on a grant award who are implementing a 
day of service grant or otherwise covered grant program and the agency 
did not find a sufficient basis to exclude them from the statutory 
requirements.
    Comment: The agency received positive comments about not requiring 
an NSCHC for individuals under the age of 18 at the start of their 
service. Some commenters expressed a desire for the agency to expand 
exemptions to participants and employees who may already receive 
criminal history checks because of their profession.
    Response: The agency finds that good cause exists to exempt those 
under the age of 18 from the NSCHC requirements and establishes the 
person's start date as the operative date for determining the person's 
age. Congress specified that a check for those serving with vulnerable 
populations applied only for those who were 18 or older, but did not 
specify the age requirement for being subject to the NSCHC for persons 
who serve with nonvulnerable populations, leaving it subject to the 
regulations and requirements established by the agency. Because 
Congress provided language in the statute that stated additional NSCHC 
components were required only for those 18 or older, the agency finds 
the age specified in the legislation to be a reasonable basis to 
establish parity in the age at which a baseline NSCHC is required. The 
agency encourages grant recipients to ask all applicants about any 
disqualifying criminal history and conduct an NSOPW search, but in the 
interest of clarity and consistency in application of the final rule, 
finds that an NSCHC for those under 18 years of age is not required by 
the regulation.
    The agency has considered exemptions for certain professions in the 
past, and understands that there may be a reasonable basis to exempt 
certain professions from the NSCHC requirement. However, due to the 
variability of states' standards for rendering clearance decisions, and 
in pursuit of clarity in application and ease of monitoring, the agency 
has decided against including profession-based exceptions in the final 
rule. For situations where grant recipients demonstrate that an 
administrative modification to the rule is necessary, the final rule 
includes a waiver provision. Rather than codifying exemptions, the 
agency may evaluate facts and circumstances, in a particular case or in 
a class of cases, that necessitate administrative modifications to the 
process through the waiver provision.
    Comment: Some commenters expressed support for requiring programs 
to obtain criminal history check results through designated vendors 
because it simplified the process and provided a consistent, timely and 
reliable method. However,

[[Page 11144]]

many commenters expressed objections to the requirement for mandatory 
use of designated vendors based on administrative burden, geographical 
and technical challenges, asserted inadequacy of the information 
provided, challenges with the service, added costs to programs and 
challenges in establishing accounts with vendors. For commenters who 
acknowledged the benefit of the vendor, some indicated that while use 
of agency-approved vendors may satisfy the statutory requirements, 
grant recipients also use the criminal history check results to make 
determination of suitability in addition to eligibility. Agency-
approved vendor criminal history check results--which, in the case of 
the FBI check provides a ``cleared'' or ``not cleared'' recommendation 
based on whether or not the individual has been convicted of murder or 
an offense requiring registration as a sex offender, rather than 
providing a list of arrests and convictions--do not help a grant 
recipient determine suitability based on other criteria (e.g., a 
program that involves driving wanting to know if a person had recent 
DUI convictions). As a result, grant recipients must conduct duplicate 
or supplemental criminal history checks at additional expense, which is 
an allowable cost under grants, in order to meet local requirements. 
Commenters also noted that no criminal history check vendor has 
complete coverage or access to all state criminal history record 
repositories, creating coverage gaps for locations excluded from vendor 
access. In these circumstances, the vendor check may not satisfy local 
clearance requirements. In other instances, commenters noted that, for 
them, getting results through a state repository may be more economical 
and convenient than working through agency-approved vendors. Commenters 
also articulated that using agency-approved vendors required a level of 
technological savviness or accessibility that some grantee 
organizations or some people working or serving under the grants might 
not have. Commenters also noted that in some areas, vendor fingerprint 
collection locations may be prohibitively inconvenient for persons who 
do not have transportation or who need a location that is accessible to 
those with disabilities. Several commenters suggested that having both 
agency-approved vendors and state repositories as options for obtaining 
NSCHC components was satisfactory.
    Response: The agency strongly encourages use of the approved 
vendors, though use of the approved vendors is not the sole method 
through which a grant recipient or subrecipient may obtain NSCHC 
components. The grant recipient community dramatically improved NSCHC 
compliance through use of the vendors, as reflected in the agency's 
IPERA analysis. Use of the vendors allows for timely compliance 
monitoring, which reduces the risk of adverse enforcement action. 
However, after careful consideration of the comments and the expression 
by commenters that they are able to obtain NSCHC checks that more 
closely meet their specific needs using methods other than the agency-
approved vendors, the agency decided not to include the requirement to 
use the agency-approved vendors in the final rule. The agency will 
continue to implement effective enforcement to ensure grant recipients 
demonstrate timely compliance with the requirements of the final rule.
    Comment: The agency received comments on the requirement to 
conduct, review, and adjudicate a person's criminal history check 
results before the person may start service or work under a grant. Some 
commenters expressed that it was inconvenient to complete the 
background checking process before the start of service or employment 
because, at times, there may be delays or lack of responsiveness on the 
part of criminal history repositories, vendors, or because of other 
aspects of their onboarding process. Commenters stated they believe the 
new requirement would result in delayed startup and was unnecessary, as 
most programs conduct training and orientation in the first few days of 
service, which limits access to vulnerable populations. Further, some 
commenters stated that the agency's timing of grant awards makes 
compliance unduly burdensome, as they are unable to take steps to 
enroll members, including the NSCHC, under the grant until it is 
awarded.
    Response: The agency considered the challenges posed by potential 
delayed return of criminal history results and determined that 
establishing a clear requirement would eliminate longstanding confusion 
about when the NSCHC needs to be performed, how accompaniment of 
individuals with pending checks should be documented, and whether an 
individual has been determined to be eligible prior to a grant 
recipient incurring costs. Further, determining by the day before a 
person begins work or service on the grant that they do not have a 
disqualifying conviction protects program beneficiaries and the 
community from potential harm. The desire to resolve any uncertainty 
related to NSCHCs outweighs the impact on programs that desire to start 
employees or participants before they are cleared. Some of the 
commenters also suggested that because the statute does not require the 
check to be completed prior to service, the agency should not specify a 
time by which NSCHCs should be completed. The agency declines to adopt 
the proposed change because the value of the NSCHC is in knowing in 
advance whether a person has been convicted of murder or a sex offense 
requiring registration. Some commenters stated that there is not an 
ineligibility problem in the agency's programs--meaning that the rate 
at which ineligible individuals are discovered through the NSCHC 
process is so low as to make the process unnecessary. Commenters 
implied that not having a significant number of ineligible individuals 
in covered positions should be a basis to have a rule flexible enough 
for individuals in covered positions to fulfill the NSCHC requirements 
on the last day of service or even after service ends. However, the 
agency views the fact that most persons who apply to serve through the 
agency's programs are eligible as a reason to continue to ensure that 
minimal screening takes place prior to service, to ensure that 
ineligible individuals do not serve. The agency encourages grant 
recipients who have onboarding challenges related to the timing of a 
grant being awarded to contact the agency. The agency will work with 
the grantee to ensure that timing of the grant award does not 
unreasonably prevent a grant recipient from taking timely action to 
comply with the rule.
    Comment: Commenters objected to the requirement to check, within 
180 days, any covered individuals not previously cleared through the 
designated vendors. Many commenters expressed this was burdensome and 
unnecessary. Some commenters asserted that to require individuals 
cleared under a prior rule was contrary to law, as the agency had 
limited authority to change a condition of the grant after it was 
awarded.
    Response: After considering the comments, the agency decided to 
retain the requirement that within 180 days of the effective date of 
the rule, any individual who continues in a covered position must have 
an NSCHC that complies with the final rule, in order to establish 
clarity and consistency in the NSCHC requirements. That is, each person 
in a covered position who continues to work or serve on or after 
November 1, 2021 must have a check that complies with this regulation. 
They must be able to show that all three required components--the 
NSOPW, the

[[Page 11145]]

state check(s), and the FBI check--were conducted and reviewed before 
November 1, 2021. While the November 1, 2021 date is slightly more than 
180 days from the effective date, the agency believes that the 
additional three calendar days and first of the month start date will 
allow for easier administration. By providing this extended compliance 
window, it is expected that most individuals in covered positions who 
remain in work or service in a covered position who did not have a 
three-part check will be able to obtain the missing state(s) or FBI 
check, as applicable, by the deadline. This requirement is prospective 
in applicability, not retroactive. That is, no action is required by 
individuals who do not continue to work or serve in a covered position. 
The rule establishes the future condition for continued service and 
establishes a uniform set of requirements that must be met by a future 
date certain. A defined date supports clarity of applicability and 
uniformity in monitoring. For entities that participated in the 
exemption period and conducted all three component checks, additional 
action may not be required for most individuals.
    Comment: Many commenters objected to the requirement to conduct 
three-part checks for all covered individuals, regardless of their 
access to vulnerable populations. A number of commenters asserted that 
the agency had exceeded its legal authority in imposing this 
requirement and that two-part checks were satisfactory for covered 
persons who do not have access to vulnerable populations. Other 
commenters said it was excessively burdensome for covered persons and 
grantees to obtain an extra level of clearance when it is not required 
by the statute, especially since it had to be completed prior to 
service starting.
    Response: The agency declines to modify the rule to have a 
distinction between checks for those serving vulnerable populations and 
those without recurring access to vulnerable populations. The need to 
establish consistency across grant programs and to simplify the 
requirements, as well as concerns for the safety of vulnerable 
populations, outweighed concerns about grant recipient preference. 
Commenters asserted that the statutory language is plain and does not 
give the agency discretion regarding the NSCHC component checks for 
those not working with vulnerable populations; the statute, they argue, 
gives the choice of NSCHC components to the grant recipient. The agency 
does not take this view.
    Section 189D(a) of the NCSA states that entities ``shall, subject 
to the regulations and requirements established by the Corporation, 
conduct criminal history background checks'' on specified individuals. 
(Emphasis added). Section 189D(b) states that the criminal history 
background check under section (a) ``shall, except in cases approved 
for good cause by the Corporation, include'' a name-based sex offender 
check, and state checks for the state of service and state of residence 
at time of application, or a fingerprint-based FBI check.
    Section 189D(b) establishes the minimum requirements that the 
agency must consider in exercising its authority under 189D(a) and 
understands the ``or'' in 189D (b)(2) to be read as permitting the 
agency to establish an NSCHC that permits a state component, an FBI 
component, or both.
    The agency's regulatory requirement aligns with the statute. A 
check of all three components meets the statutory requirement that the 
agency not require less than a sex offender check and either the state 
or FBI checks. The operative phrase in 189D(b) is ``shall . . . 
include.'' It is permissive and, read in the context of 189D(a), vests 
implementation to the discretion of the agency.
    The scope of agency discretion would be different had the language 
said ``shall consist of'' or ``shall be limited to'' or ``shall not 
exceed,'' or other such discretion-limiting language. Section 189D(b) 
requires the agency to include the specified components, but does not 
require the agency to limit itself to those components.
    Congress similarly specified the requirements for those serving 
vulnerable populations. At minimum, all three components must be 
present in the agency's requirements for those who work with vulnerable 
populations. The agency retains discretion--that is, what is required 
for the NSCHC is still ``subject to the requirements and regulations 
established by the Corporation''--and could require additional 
components, although the agency has opted to establish a check that 
mirrors the statutory language for those who work or serve with 
vulnerable populations.
    Comment: Several commenters felt that replacing the current 
Alternative Search Procedure process with a new waiver process lacked 
clarity. They expressed concern because there has been a widespread 
history of needing Alternative Search Procedures to resolve situations 
where programs lacked access, or timely access, to criminal history 
check results and they were unsure how the proposed waiver process was 
intended to work.
    Response: The agency believes that with agency-approved vendors 
available, there should be less need for alternative procedures or to 
waive elements of the requirements for criminal history checks. 
However, the agency recognizes that circumstances change, and new 
factual situations may emerge, and expects to use the waiver process to 
address those situations. Those who would like a waiver may request it 
through the specified email address and the agency will provide a 
written response.
    Comment: The agency noted that the proposed rule may have created 
confusion about the role of the budget in determining applicability of 
the NSCHC in section 201(a)(4). That section specified that an 
individual had to be paid a salary and on the budget.
    Response: The statutory requirement to conduct an NSCHC applies to 
persons who serve under a grant award--whether they are paid directly 
from federal funds or if their time and effort are reflected on the 
grant as match under a cost reimbursement award. The budget document, 
historically, has been a strong indicator of persons who would be 
subject to the rule, but the budget document at the time of 
application, alone, does not determine who is in a position that 
requires an NSCHC. Persons whose activities are attributed to funding 
on a CNCS grant or subgrant are always covered.
    Comment: Several commenters expressed a desire for more frequent 
and impactful training for grant recipients to help them be more 
compliant. Many commenters provided suggestions for ways to improve 
training and training materials.
    Response: The agency welcomes the suggestions for improving 
training and will consider them when it develops training programs or 
supporting materials.
    Comment: The agency received several comments regarding its 
approach to enforcement. Commenters expressed disapproval of an 
enforcement scheme that required grant recipients to return grant funds 
to the agency when the grant recipients did not comply with the 
regulatory requirements.
    Response: The agency did not propose making its enforcement 
guidance part of this rulemaking, as enforcement for noncompliance with 
grants is addressed under 2 CFR 200.338. With the agency-approved 
vendors, all grant recipients have an established pathway to compliance 
and the costs of the NSCHC and any other checks required for

[[Page 11146]]

persons in covered positions remain allowable under grants. With the 
added clarity provided by the final rule, the expectation remains that 
grant recipients will obtain the required checks in a complete and 
timely manner. Accordingly, the agency appreciates the feedback 
regarding its approach to enforcement, and declines to respond to 
specific comments, as they are beyond the scope of the rulemaking.

IV. Effective Date

    The final rule is effective on May 1, 2021.

IV. Regulatory Procedures

Executive Order 12866

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

Regulatory Flexibility Act

    As required by the Regulatory Flexibility Act of 1980 (5 U.S.C. 605 
(b)), the agency 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, the agency 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 agency grants.
    The likely respondents to these collections of information are 
persons 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 
amends 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.

Subpart B--Participant Eligibility, Requirements, and Benefits

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

0
3. The authority citation for part 2540 is revised 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, 12645g; 42 U.S.C. 5065.

Subpart B--Requirements Directly Affecting the Selection and 
Treatment of Participants

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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 subpart?

    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 and Senior Volunteer Program Grants;
    (d) Senior Companion Program Grants;
    (e) Senior Demonstration Program Grants that receive funding from 
CNCS;
    (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;

[[Page 11147]]

    (k) AmeriCorps VISTA Support Grants.

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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, directly or 
reflected as match, under a cost reimbursement grant.
    (b) A National Service Criminal History Check is not required for 
those individuals listed in paragraph (a) of this section 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.

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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;
    (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.

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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 this subpart?

     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  What are the components of a National Service Criminal 
History Check?

    (a) Unless CNCS approves a waiver under Sec.  2540.207, for each 
individual in a position specified in Sec.  2540.201, grantees or 
subgrantees must, obtain:
    (1) A nationwide check of the National Sex Offender Public website 
through NSOPW.gov;
    (2) A check of the State criminal history record repository or 
agency-designated alternative for the individual's State of residence 
and State of service; and
    (3) A fingerprint-based check of the FBI criminal history record 
database through the State criminal history record repository or 
agency-approved vendor.
    (b) One way for grant recipients or subrecipients to obtain and 
document the required components of the National Service History Check 
is through the use of agency-approved vendors.

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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 or employment 
with the same organization in a position specified in Sec.  2540.201(a) 
and does not have a break in service or employment 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. If a National Service Criminal History Check was not 
conducted on a person because they were under the age of 18 at the time 
they began their prior term(s) of service or employment in a covered 
position, pursuant to Sec.  2540.201(b), a National Service Criminal 
History check must be conducted prior to the individual beginning a 
subsequent term of work or service for which the person is 18 years of 
age or older at the start of work or service.
    (c) Persons working or serving in positions specified in Sec.  
2540.201(a) prior to May 1, 2021, who continue working or serving in a 
position specified in Sec.  2540.201(a) on or after November 1, 2021, 
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 November 1, 2021.

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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 
this subpart?

    (a) In addition to conducting the National Service Criminal History 
Check described in Sec.  2540.204, 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 for a 
position 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 documentation of the National Service Criminal History 
Check as grant records; and
    (6) Pay for the cost of the NSCHC. Unless specifically approved by 
CNCS under Sec.  2540.207, the person who is serving or working 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

[[Page 11148]]

requirements in paragraphs (a)(1) through (5) of this section.

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11. Revise Sec.  2540.207 to read as follows:


Sec.  2540.207  Waiver.

    CNCS may waive provisions of Sec. Sec.  2540.200 through.2540.206 
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: February 12, 2021.
Lisa Guccione,
Deputy Chief of Staff.
[FR Doc. 2021-03247 Filed 2-23-21; 8:45 am]
BILLING CODE 6050-28-P