National Service Criminal History Check

 
CONTENT
Federal Register, Volume 85 Issue 5 (Wednesday, January 8, 2020)
[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.
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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