[Federal Register Volume 71, Number 207 (Thursday, October 26, 2006)]
[Proposed Rules]
[Pages 62573-62580]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-17912]


=======================================================================
-----------------------------------------------------------------------

CORPORATION FOR NATIONAL AND COMMUNITY SERVICE

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

RIN 3045-AA44


 Criminal History Checks; Senior Companions, Foster Grandparents, 
and AmeriCorps Program Participants

AGENCY: Corporation for National and Community Service.

ACTION: Proposed rule with request for comments.

-----------------------------------------------------------------------

SUMMARY: The Corporation for National and Community Service (the 
Corporation) proposes a regulation requiring grantees to conduct and 
document criminal history checks on Senior Companions and Foster 
Grandparents, and on AmeriCorps State/National (including Education 
Award Program) participants and grant-funded staff in those programs 
who, on a recurring basis, have access to children, persons age 60 and 
older, or individuals with disabilities.

DATES: To be sure your comments are considered, they must reach the 
Corporation on or before December 26, 2006.

ADDRESSES: You may mail or deliver your comments to Amy Borgstrom, 
Corporation for National and Community Service, 1201 New York Avenue, 
NW., Room 9503, Washington, DC 25025. You may also send your comments 
by facsimile transmission to (202) 606-3476. Or you may send them 
electronically to [email protected] or through the Federal 
government's one-stop rulemaking Web site at http://www.regulations.gov. Members of the public may review copies of all 
communications received on this rulemaking at the Corporation's 
Washington DC office. Due to continued delays in the Corporation's 
receipt of mail, we strongly encourage responses via e-mail or fax.

FOR FURTHER INFORMATION CONTACT: Amy Borgstrom at (202) 606-6930 
([email protected]). The TDD/TTY number is (202) 606-3472. You may 
request this notice in an alternative format for the visually impaired.

SUPPLEMENTARY INFORMATION:

I. Invitation To Comment

    We invite you to submit comments about these proposed regulations. 
To ensure that your comments have maximum value in helping us develop 
the final regulations, we urge you to identify clearly the specific 
section or sections of the proposed regulations that each comment 
addresses and to arrange your comments in the same order as the 
proposed regulations. During and after the comment period, you may 
inspect all public comments about these proposed regulations in room 
9503, 1201 New York Avenue, NW., Washington, DC, between the hours of 9 
a.m. and 4:30 p.m., Eastern Time, Monday through Friday of each week 
except Federal holidays.
    In addition, the Corporation is planning two conference calls in 
November, 2006, to obtain comments on this proposed rule. Please visit 
the Corporation's Web site at http://www.nationalservice.gov/about/role_impact/rulemaking.asp for information concerning the dates and 
times of these calls.

Assistance to Individuals With Disabilities in Reviewing the Rulemaking 
Record

    On request, we will supply an appropriate aid, such as a reader or 
print magnifier, to an individual with a disability who needs 
assistance to review the comments or other documents in the public 
rulemaking record for these proposed regulations. If you want to 
schedule an appointment for this type of aid, please contact the person 
listed under FOR FURTHER INFORMATION CONTACT.

II. Background

    Many national and community service programs are dedicated to 
helping children learn to read, giving children better opportunities to 
thrive, helping older persons maintain their independence, and 
otherwise serving vulnerable individuals while striving to recruit a 
diverse corps of participants. With this commitment comes the 
responsibility to safeguard the well-being of program beneficiaries, 
including the effective screening of staff, participants, and 
volunteers. This responsibility is principally determined by State law, 
and the standard of care required may vary from one State to another. 
Organizations carrying out national and community service programs are 
well-advised to establish and regularly review their screening and 
supervision practices as measured against the applicable standard of 
care under State law.
    There is a growing awareness of the need for programs to put 
effective safeguards in place to protect children and other vulnerable 
populations from abuse or harm. In developing this proposed 
requirement, we benefited greatly from suggestions and other input from 
Corporation grantees as well as

[[Page 62574]]

other interested organizations and individuals. The Corporation's 
Inspector General has made several recommendations in this area, 
prompting us to undertake a comprehensive review of our policies 
concerning criminal history checks for national and community service 
programs, with a particular emphasis on AmeriCorps members and Senior 
Corps volunteers who serve children and other vulnerable populations.
    Sections 192A, 193, and 193A of the National and Community Service 
Act of 1990, 42 U.S.C. 12651b-d, give the Corporation broad authority 
to establish rules to protect program beneficiaries. This authority is 
reinforced by Executive Order 13331, National and Community Service 
Programs (Feb. 27, 2004), 60 FR 9911 (Mar. 3, 2004), which directs the 
Corporation to ``strengthen its oversight of national and community 
service programs through performance and compliance standards and other 
management tools.''
    Rapid advances in technology are increasing the speed and breadth 
of information about individuals in our society, but we have not 
identified any established criminal history check process at the 
national level that we can simply mandate for all grantees. The FBI 
maintains the most complete criminal database in the United States. All 
records are fingerprint based. A fingerprint check generally is 
considered the most reliable, in part because it screens a physical 
characteristic rather than a name provided by an applicant. However, 
FBI-maintained records are less complete and less up-to-date than State 
records, and are available only to organizations specifically 
authorized by a Federal or State law. We know, from the input that we 
have received from organizations operating national and community 
service programs, that many do not currently have access to FBI 
fingerprint checks.
    The U.S. Department of Justice recently issued a report with 
recommendations for broader access to FBI criminal history records for 
non-criminal purposes, including screening volunteers for entities 
providing services to children, the elderly, and individuals with 
disabilities. The ``Attorney General's Report on Criminal History 
Background Checks (June 2006)'' is available on line at http://www.usdoj.gov/olp/ag_bgchecks_report.pdf (hereinafter ``DOJ 
Report''). As such recommendations are implemented in Federal and State 
law, grantees operating national and community service programs may 
have better access to FBI fingerprint checks. In time, they may also 
have access to State and national criminal history databases that make 
use of driver's licenses incorporating fingerprint or other biometric 
data as a result of the Real ID Act of 2005 (Pub. L. 109-13) and new 
biometric techniques such as DNA identification. The Corporation will 
continue to provide information and guidance on its Web site, as well 
as through its training and technical assistance providers, to grantees 
on available sources for criminal history background checks as both the 
law and the technology evolve.
    We are aware of Congressional interest in making accurate 
information about individuals' criminal history available while 
appropriately limiting the sharing of such information. For example, 
the PROTECT Act (Pub. L. 108-21) authorizes the Boys & Girls Club of 
America, the National Council of Youth Sports, the National Mentoring 
Partnership, and nonprofit organizations that provide care, treatment, 
education, training, instruction, supervision, or recreation to 
children to participate in a pilot program with the National Center for 
Missing and Exploited Children to obtain Federal FBI fingerprint 
criminal history checks on volunteer applicants for a fixed fee of $18 
per individual. Corporation grantees that provide the above types of 
services to children may consider contacting the National Center for 
Missing and Exploited Children (http://www.missingkids.com) to 
determine if they are eligible to participate in the pilot program. 
Alternatively, mentoring organizations, such as Foster Grandparent 
programs and many AmeriCorps programs, may apply through the National 
Mentoring Partnership (http://www.mentoring.org), a current participant 
in the pilot program. The lessons learned from the ongoing PROTECT 
Act's pilot program are likely to inform and spur greater and more 
effective coordination across State lines. Both the Senate and the 
House of Representatives are also currently considering bills that 
would establish national standards for reporting sex offenses to the 
National Sex Offender Registry, which could enhance the reliability and 
availability of NSOR searches. Amid this changing landscape, the 
Corporation seeks at this time to achieve a consistent baseline 
practice among Senior Companion and Foster Grandparent programs and 
among AmeriCorps State/National programs serving children, persons age 
60 and older, or individuals with disabilities.
    The following proposed rule establishes a baseline screening 
process at the national level. The process is designed to be relatively 
straightforward in terms of documenting and monitoring, so that 
programs serving vulnerable populations can demonstrate that they are 
making a reasonably informed decision about who they select to 
participate. This screening process will be a Federal grant condition 
separate and apart from any State requirement.
    By requiring a baseline criminal history screening process, we do 
not intend to minimize the importance of a comprehensive approach to 
screening and supervising staff and volunteers based on the particular 
elements of a given program. Conducting criminal history checks is but 
one part of an effective risk management approach to protecting program 
participants from harm as well as protecting the sponsoring 
organization from liability. Organizations serving children and other 
vulnerable populations need to be mindful that no screening process is 
foolproof. Sponsoring organizations should be alert to best practices, 
not only in screening participants and staff, but also to elements of 
program design and operation that provide additional safeguards. 
Examples include designing a program to minimize opportunities for 
potential abuse; conducting regular child or elder abuse prevention 
training; restricting one-on-one or other unsupervised contact with 
vulnerable clients; controlling access to areas where vulnerable 
clients are present; making unannounced observation visits; posting and 
reinforcing protocols around responding to potential abuse. To that 
end, we draw your attention to the ``Staff Screening Tool Kit, 3rd 
Edition,'' a document prepared by the Nonprofit Risk Management Center 
that contains helpful information designed to strengthen an 
organization's staff and volunteer screening and supervision processes. 
You may access this publication at http://www.nationalservice.gov/screeningtoolkit.
    Requiring a baseline process as a grant condition is not intended 
to discourage grantees from doing more than what we require. In fact, 
we strongly encourage grantees to do more, as no screening process by 
itself can guarantee the safety and well-being of vulnerable 
populations in any program. Indeed, the strongest programs design and 
operate their programs on the assumption that the screening process is 
not foolproof. We will promote and support well-informed risk 
management decisions of our grantees through training and technical 
assistance designed to promote the sharing of best practices.

[[Page 62575]]

    Similarly, as part of the baseline process we require fairness and 
confidentiality in handling criminal history information, and we will 
offer guidance and share best practices in implementing these general 
requirements. These fairness and confidentiality requirements are 
congruent with the Attorney General's privacy recommendation and 
discussion of ``fair information practices'' as applied to criminal 
history records in the recent DOJ Report to Congress. As the DOJ Report 
points out, we also have an interest, as a society, in rehabilitating 
individuals with a criminal history and in avoiding unlawful 
discrimination. The Corporation has also reviewed comments and public 
statements submitted to DOJ by privacy, civil liberties, and ex-
offender advocates concerning the impact of criminal background checks 
and sex offender registries on privacy, rehabilitation, and 
discrimination. We considered such interests in drafting the proposed 
rule, which limits the screening and disqualification requirements to 
positions serving the most vulnerable individuals while providing 
fairness and confidentiality protections to applicants. In addition, we 
remind grantees that criminal history searches and results often 
include other potentially sensitive identifying data, such as Social 
Security number, date of birth, driver's license number, and home 
address, which should be handled carefully to protect the individuals 
concerned from identity theft, physical threats, or other injury. 
Fairness and confidentiality procedures can help ensure that qualified 
prospective volunteers and employees are not discouraged from seeking 
to be involved in national and community service programs.
    Closely related to privacy requirements are Federal and State laws 
that prohibit discrimination in employment, such as Title VII of the 
Civil Rights Act of 1964 (42 U.S.C. 2000e et seq.). This can be an 
issue, for example, if employment decisions are attributed to the 
results of criminal history checks, but those are actually used as a 
pretext for excluding individuals based on their race, religion, 
gender, age, or age. The recently-revised EEOC Compliance Manual, 
Section 15: Race and Color Discrimination (April 19, 2006), refers to 
court rulings on the potential ``disparate impact'' of a hiring policy 
based on arrests or convictions. The EEOC suggests that prospective 
employers should weigh the following factors in each case to ensure 
that their decisions to disqualify applicants based on criminal history 
results are grounded on defensible ``business needs,'' despite any 
differential impact:
     The nature and gravity of the offense;
     The time that has passed since the conviction or 
completion of the sentence; and
     The nature of the job held or sought.
    These considerations apply directly to preventing unlawful 
discrimination in the employment of persons for covered grant-funded 
staff positions, and may be relevant to a national and community 
service program's evaluation of applicants to a position as a member or 
participant. The EEOC Compliance Manual is available online at: http://www.eeoc.gov/policy/docs/race-color.html.

III. Covered Positions

    This proposed rule covers Senior Companions and Foster 
Grandparents, and participant positions in AmeriCorps State/National 
and other programs that provide a Corporation-funded living allowance, 
stipend, education award, or other remuneration to individuals who have 
recurring access to children, persons age 60 and older, or individuals 
with disabilities. We define ``children'' as individuals 17 years of 
age and younger, consistent with the PROTECT Act. Sixty years of age-
the lowest age commonly used by Congress to define elderly persons-is 
the threshold age for protecting elderly persons. ``Individuals with 
disabilities'' has the same meaning given the term in the 
Rehabilitation Act in 29 U.S.C. 705(20)(B) and covers any person who 
has a physical or mental impairment which substantially limits one or 
more major life activities, has a record of such an impairment, or is 
regarded as having such an impairment. The proposed rule also covers 
grant-funded staff with access to the identified vulnerable populations 
in these programs. Grantees, therefore, must establish the age and 
disability status of program participants.
    Currently, AmeriCorps State and National grant programs, including 
the Education Awards Program, have a criminal background check 
requirement in their grant provisions. In light of the Corporation's 
substantial support for AmeriCorps members (or ``participants'', in 
statutory terms), all of whom are eligible to receive a Corporation-
funded education award upon successful completion of service, we 
believe that baseline screening requirements are appropriate. This 
proposed rule adds details to the required search elements, establishes 
procedures to assure fairness and confidentiality, and disqualifies 
registered sex offenders from AmeriCorps positions with recurring 
access to children, persons age 60 and older, or individuals with 
disabilities.
    The proposed rule covers the SCP and FGP programs because we 
believe that their focus on serving vulnerable populations through 
participants who receive Corporation-funded stipends also warrants 
baseline screening provisions at the national level. It gives more 
specific direction to SCP and FGP sponsoring organizations in carrying 
out an important aspect of their current responsibility to establish 
risk management policies and procedures, and disqualifies registered 
sex offenders from serving as Senior Companions or Foster Grandparents.
    The proposed rule also applies to other Corporation-supported grant 
programs in which service participants receive a Corporation-funded 
living allowance, stipend, or education award and, on a recurring 
basis, have access to children, persons age 60 and older, or 
individuals with disabilities. For example, the rule would cover a 
Challenge Grant program that provides a stipend to participants who 
tutor children in an after-school program.
    The proposed rule's requirements do not cover the RSVP or Learn and 
Serve America programs, or unaffiliated volunteers recruited by 
national and community service programs. We believe that, given the 
relatively attenuated connection between the Corporation and individual 
participants in those programs--and unaffiliated volunteers generated 
by any of our programs--we may reasonably defer to pre-existing duties 
of care under State law. We wish to emphasize the importance of 
ascertaining and meeting the applicable standards of care under State 
law for all Corporation-supported programs and activities.
    The proposed rule does not cover the AmeriCorps National Civilian 
Community Corps or the AmeriCorps VISTA programs, as the selection of 
participants in those programs is made by Federal personnel rather than 
by grantee organizations. We are strengthening our internal screening 
practices in both those programs through an arrangement with the U.S. 
Office of Personnel Management, but outside the scope of this 
rulemaking.

IV. Content of Proposed Rule

    We have focused on a criminal history review that reflects a set of 
information that should be reasonably accessible to grantees, with the 
following required elements.

[[Page 62576]]

    1. Required searches. Unless the Corporation approves an 
alternative screening protocol and unless prohibited by State law, a 
covered grantee must, in selecting an individual for participation, 
conduct and document two searches: (A) A criminal history records 
search (by name or fingerprint) of the State criminal registry for the 
State in which the program operates and the State in which the 
applicant resides at the time of application; and (B) a search of the 
Department of Justice (DOJ) National Sex Offender Registry (NSOR) at 
http://www.nsopr.gov.
    Requiring a check of State criminal registries is supported by data 
obtained as a result of the PROTECT Act pilot program. According to the 
DOJ Report, of the volunteers with criminal records identified through 
a FBI check during the first part of the pilot program, 71 percent 
would have been identified at the State level.
    The NSOR is a nationwide, Internet-based, searchable Web site that 
provides one-stop access to registries from all 50 States, Guam, Puerto 
Rico, and the District of Columbia. A grantee operating in, or 
recruiting an applicant from, a State that discontinues participating 
in the NSOR must conduct and document a search of the sexual offender 
registry for the State in which the program operates and the State in 
which the applicant resides at the time of application. In addition, 
grantees should know that the NSOR compiles but does not independently 
verify or analyze data that is provided by each State, and even if 
current legislative proposals to establish national reporting standards 
are adopted there may continue to be differences in the content and 
currency of data held respectively in the NSOR and State sex offender 
registries. In addition, States may have different sex offender 
registration requirements, depending on the status of the offender and 
the level of an offense in a specific State. To assist the public, the 
FBI has a link on its Web site to each State's sexual offender 
registry. The FBI Web site can be accessed at http://www.fbi.gov/hq/cid/cac/states.htm.
    A grantee may ascertain and assess an individual's criminal history 
or sex offender status directly from the applicable government agency 
or indirectly through a duly authorized intermediary such as a 
commercial entity or nonprofit organization.
    2. Required procedures. Procedures must include: (a) Verification 
of the applicant's identity by examining a government-issued photo 
identification card; (b) prior, written authorization by the applicant; 
(c) documentation of the applicant's understanding that selection into 
the program is contingent upon the organization's review of the 
applicant's criminal history, if any; (d) an opportunity for the 
applicant to review and challenge the factual accuracy of a result 
before action is taken to exclude the applicant from the position; and 
(e) safeguards to ensure the confidentiality of any information 
relating to the criminal history check, consistent with the 
authorization provided by the applicant. (Grantees may find a useful 
model in considering confidentiality safeguards in the Federal Trade 
Commission's Standards for Safeguarding Customer Information, 16 CFR 
Part 314, posted at http://www.ftc.gov/os/2002/05/67fr36585.pdf.) An 
applicant who refuses to authorize a program to conduct a criminal 
history check may not serve in a covered position.
    3. Required documentation. A grantee must document in writing that 
it (or its designee) verified the identity of the applicant by 
examining the applicant's government-issued photo identification card, 
conducted the required check, and considered the result in selecting an 
individual for a covered position. There is no requirement under the 
proposed rule that the grantee maintain the result itself.
    A Senior Companion or Foster Grandparent sponsoring organization 
must demonstrate that the required check is conducted at least once for 
any Senior Companion or Foster Grandparent who begins serving with the 
program on or after the effective date of this rule. An AmeriCorps 
grantee must document that the required check is conducted the first 
time an individual applies for a covered position in its program on or 
after the rule's effective date.
    To the extent consistent with Federal or State law, a covered 
grantee may, by written agreement, arrange for any of these 
requirements to be completed by another organization. If a grantee 
demonstrates that, for good cause including a conflict with State law, 
it is unable to comply with the required searches or that it can obtain 
equivalent or better information through an alternative process, the 
Corporation will consider approving an alternative search protocol 
proposed in writing by the grantee. The grantee should submit the 
alternative protocol in writing to the Corporation's Office of Grants 
Management. The Office of Grants Management will review the alternative 
protocol to ensure that it: (1) Verifies the identity of the applicant; 
and (2) includes a search of an alternative criminal database that is 
sufficient to identify the existence, or absence of, a criminal 
offense.
    In addition, a grantee that conducts and documents a fingerprint-
based criminal history check through the FBI or through a national 
name-based check that, at a minimum, includes a search of the State 
criminal repository registry in the State in which the program is 
operating, as well as in the State in which the applicant resides, will 
be deemed to have satisfied the criminal history check requirement and 
does not need separate approval by the Corporation.
    Establishing a baseline process as a grant condition is in no way 
intended to discourage grantees from undertaking additional measures to 
screen applicants. For example, grantees should be aware that an 
individual might provide a false name during the application process. 
Consequently, while the Corporation proposes, pursuant to this rule, to 
require grantees to verify an applicant's identity with a government-
issued photo identification card, such as a driver's license, the 
Corporation also strongly encourages grantees to take other 
precautionary steps such as consistently checking references or past 
employment. Additional screening practices include conducting a 
personal interview or examining driving records for an individual whose 
program assignment will include driving a vehicle. In addition, some 
programs have access to State-based child abuse or elder abuse 
registries. A grantee's decision to take any of these additional steps 
reflects the organization's own judgment about appropriate screening 
and is not considered a requirement under the Corporation grant.
    By policy, eligible AmeriCorps programs that have fully enrolled 
their awarded member slots are allowed to replace any member who 
terminates service before completing a required minimum (currently 15 
percent) of his or her term. If the background screening results in the 
member being ineligible to serve and the member has already served more 
than 15 percent of the required term of service, a grantee may seek an 
exception to the re-fill policy by submitting a written request for an 
exception to the Corporation's Office of Grants Management. The Office 
of Grants Management will review the request for an exception to 
determine if the delay in obtaining the criminal history check for the 
member was a result of the grantee's lack of due diligence, or was for 
a reason that was beyond the grantee's control. The Office will reply 
to all such requests within 30 days of receipt of such requests.

[[Page 62577]]

V. Costs

    The proposed rule requires grantees to obtain and document a 
baseline criminal history check for covered individuals. The 
Corporation considers the cost of this required criminal history check 
a reasonable and necessary program grant expense, such costs being 
presumptively eligible for reimbursement. In any event, a grantee 
should include the costs associated with its screening process in the 
grant budget it submits for approval to the Corporation.
    A grantee may not charge an individual for the cost of a criminal 
history check. In addition, because criminal history checks are 
inherently attributable to operating a program, such costs may not be 
charged to a State commission administrative grant.
    We will monitor the screening and documentation requirement as a 
material condition of receiving a Corporation grant. A grantee's 
failure to comply with this requirement may adversely affect the 
grantee's access to grant funds or ability to obtain future grants from 
the Corporation. In addition, a grantee jeopardizes eligibility for 
reimbursement of costs related to a disqualified individual if it fails 
to perform or document the required check.

VI. Disqualification of Registered Sex Offenders

    States have developed sexual offender registries to inform the 
public concerning the presence and location of individuals who have 
been convicted of certain sex-related offenses, either committed within 
that State, or in another State. Depending on the severity of the 
convicted offense, individuals are required to register as sex 
offenders either for a specified number of years (e.g., 10 years) or 
for life.
    An individual who, while under consideration for a covered 
position, is subject to a State sex offender registration requirement, 
is deemed unsuitable for, and may not serve in the position.
    A grantee is not precluded under this proposed rule from adopting 
additional grounds for disqualification if it decides that is 
appropriate or necessary for a particular program. Grantees should, 
however, be aware that State law may specifically prohibit the 
consideration of conviction or arrest records under certain 
circumstances. Finally, grantees should look at criminal history checks 
as but one of many sources of information to assess whether an 
individual is suitable for a program.
    A grantee may not select an individual for a position that has 
recurring access to children, persons age 60 and older, or individuals 
with disabilities prior to determining whether the individual is 
subject to a State sex offender registration requirement, which is 
readily ascertainable through an on-line search. Because the 
additionally-required search of State criminal registries, or an 
approved alternative search, may take more time, a grantee may select 
or place an individual contingent upon obtaining these additional 
results subsequently. A grantee should take reasonable precautions to 
ensure that safeguards are in place while the results are pending. 
These safeguards could include adjusting an individual's duties to 
minimize access to vulnerable persons, additional monitoring, or other 
risk mitigation steps as determined by the grantee.

VII. Relationship to State Laws

    To the extent that any element of the proposed rule is not 
permitted under State law, the Corporation's Office of Grants 
Management is prepared to approve an alternative that is consistent 
with State law, within 30 days of receiving such notice.

VIII. Effective Dates

    The Corporation intends to make any final rule based on this 
proposal effective no sooner than 90 days after the final rule is 
published in the Federal Register. The requirement will apply 
prospectively, to the selection of individuals who begin to participate 
on or after the effective date.

IX. Regulatory Procedures

Executive Order 12866

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

Regulatory Flexibility Act

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

Unfunded Mandates

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

Paperwork Reduction Act

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

Executive Order 13132, Federalism

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

[[Page 62578]]

List of Subjects

45 CFR Part 2510

    Grant programs--social programs, Volunteers.

45 CFR Part 2522

    Grant programs--social programs, Reporting and recordkeeping 
requirements, Volunteers.

45 CFR Part 2540

    Administrative practice and procedure, Grant programs--social 
programs, Reporting and recordkeeping requirements, Volunteers.

45 CFR Part 2551

    Aged, Grant programs--social programs, Volunteers.

45 CFR Part 2552

    Aged, Grant programs--social programs, Volunteers.

    For the reasons stated in the preamble, the Corporation for 
National and Community Service proposes to amend chapter XXV, title 45 
of the Code of Federal Regulations as follows:

PART 2510--OVERALL PURPOSES AND DEFINITIONS

    1. The authority citation for part 2510 continues to read as 
follows:

    Authority: 42 U.S.C. 12501 et seq.

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


Sec.  2510.20  Definitions.

* * * * *
    Children. The term children means individuals 17 years of age and 
younger.
* * * * *
    Recurring access. The term recurring access means the ability on 
more than one occasion to approach, observe, or communicate with, an 
individual, through physical proximity or other means, including but 
not limited to, electronic or telephonic communication.
* * * * *

PART 2522--AMERICORPS PARTICIPANTS, PROGRAMS, AND APPLICANTS

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

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

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


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

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


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

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


Sec.  2522.207  What are the requirements to conduct criminal history 
checks when I select an individual for a covered position?

    In selecting an individual for a covered position, you must follow 
the procedures in part 2540 of this title.

PART 2540--GENERAL ADMINISTRATIVE PROVISIONS

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

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

    2. Redesignate Sec.  2540.200 as Sec.  2540.208 and add the 
following sections: Sec.  2540.200, Sec.  2540.201, Sec.  2540.202, 
Sec.  2540.203, Sec.  2540.204, Sec.  2540.205 and Sec.  2540.206.


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

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


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

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


Sec.  2540.202  What types of criminal history checks must I conduct in 
selecting an individual for a covered position?

    Unless the Corporation approves an alternative screening protocol, 
in selecting an individual for participation in a stipended position 
that has recurring access to children, persons age 60 and older, or 
individuals with disabilities, you are responsible, unless prohibited 
by State law, for conducting and documenting the following:
    (a) State criminal registry search. A search (by name or 
fingerprint) of the State criminal registry for the State in which your 
program operates and the State in which the applicant resides at the 
time of application;
    (b) Sex Offender Registry. A name-based search of the Department of 
Justice (DOJ) National Sex Offender Registry (NSOR).


Sec.  2540.203  What procedures must I follow in conducting a criminal 
history check for a covered position?

    You are responsible for following these procedures:
    (a) Verify the applicant's identity by examining the applicant's 
government-issued photo identification card, such as a driver's 
license;
    (b) Obtain prior, written authorization for the criminal history 
check from the applicant;
    (c) Document the applicant's understanding that selection into the 
program is contingent upon the organization's review of the applicant's 
criminal history, if any;
    (d) Provide a reasonable opportunity for the applicant to review 
and challenge the factual accuracy of a result before action is taken 
to exclude the applicant from the position; and
    (e) Provide safeguards to ensure the confidentiality of any 
information relating to the criminal history check, consistent with 
authorization provided by the applicant.


Sec.  2540.204  What documentation must I maintain regarding a criminal 
history check for a covered position?

    You are responsible for documenting in writing that you (or your 
designee) verified the identity of the applicant for a covered position 
by examining the applicant's government-issued photo identification 
card, conducted the required check for a covered position, and 
considered the result in selecting the individual.


Sec.  2540.205  Under what circumstances may I follow alternative 
procedures in conducting a criminal history check for a covered 
position?

    (a) FBI fingerprint-based check. If you conduct and document a 
fingerprint-based criminal history check through the Federal Bureau of 
Investigation, you will be deemed to have satisfied the criminal 
history check requirement and do not need separate approval by the 
Corporation.
    (b) Name-based search. If you conduct and document a name-based 
criminal history check through a source other than the FBI that, 
includes a check of the criminal records repository, in the State in 
which your program is

[[Page 62579]]

operating, as well as in the State in which the applicant lives, you 
will be deemed to have satisfied the criminal history check requirement 
and do not need separate approval by the Corporation.
    (c) Alternative search approval. If you demonstrate that, for good 
cause including a conflict with State law, you are unable to comply 
with a requirement relating to criminal history checks or that you can 
obtain equivalent or better information through an alternative process, 
the Corporation will consider approving an alternative search protocol 
that you submit in writing to your program officer at the Corporation's 
Office of Grants Management. The Office of Grants Management will 
review the alternative protocol to ensure that it:
    (1) Verifies the identity of the applicant; and
    (2) Includes a search of an alternative criminal database that is 
sufficient to identify the existence, or absence of, a criminal 
offense.


Sec.  2540.206  How often must I conduct a criminal history check on an 
individual in a covered position?

    (a) You must conduct a criminal history check when an individual in 
a covered position initially enrolls in, or is hired by, your program.
    (b) For an individual who serves consecutive terms of service in 
your program, no additional check is required after the first term.

PART 2551--SENIOR COMPANION PROGRAM

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

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

Subpart C of Part 2551--[Amended]

    2. Amend subpart C by redesignating Sec.  2551.31 as Sec.  2551.32.

Subpart B of Part 2551--[Amended]

    3. Amend subpart B of part 2551 as follows:
    a. By redesignating Sec.  2551.26 as Sec.  2551.31 of subpart B and 
adding the following sections: Sec.  2551.26, Sec.  2551.27, Sec.  
2551.28, Sec.  2551.29 and Sec.  2551.30.


Sec.  2551.26  To whom does this Part apply?

    This part applies to Senior Companion Sponsors in selecting Senior 
Companions and in selecting Senior Companion grant-funded employees 
who, on a recurring basis, have access to children, persons age 60 and 
older, or individuals with disabilities.


Sec.  2551.27  What criminal history checks must I conduct?

    Unless the Corporation approves an alternative screening protocol, 
in selecting an individual as a Senior Companion or as a covered grant-
funded employee, you are responsible for ensuring, unless prohibited by 
State law, that the following screening activities are conducted and 
documented in writing:
    (a) State criminal registry search. A search (by name or 
fingerprint) of the State criminal registry for the State in which the 
program operates and the State in which the applicant resides at the 
time of application;
    (b) Sex Offender Registry. A name-based search of the Department of 
Justice (DOJ) National Sex Offender Registry (NSOR).


Sec.  2551.28  What procedures must I follow in conducting a criminal 
history check?

    You are responsible for ensuring that the following procedures are 
satisfied:
    (a) Verify the applicant's identity by examining the applicant's 
government-issued photo identification card, such as a driver's 
license;
    (b) Obtain prior, written authorization for the criminal history 
check from the applicant;
    (c) Document the individual's understanding that selection into the 
program is contingent upon the organization's review of the applicant's 
criminal history, if any;
    (d) Provide a reasonable opportunity for the applicant to review 
and challenge the factual accuracy of a result before action is taken 
to exclude the applicant from the position; and
    (e) Provide safeguards to ensure the confidentiality of any 
information relating to the criminal history check, consistent with 
authorization provided by the applicant.


Sec.  2551.29  What documentation must I maintain regarding a criminal 
history check?

    You are responsible for documenting in writing that you (or your 
designee) verified the identity of the applicant for a covered position 
by examining the applicant's government-issued photo identification 
card, conducted the required check for a covered position, and 
considered the result in selecting the individual.


Sec.  2551.30  Under what circumstances may I follow alternative 
procedures in conducting a criminal history check?

    (a) FBI fingerprint-based check. If you or your designee conduct 
and document a fingerprint-based criminal history check through the 
Federal Bureau of Investigation, you will be deemed to have satisfied 
the criminal history check requirement and do not need separate 
approval by the Corporation.
    (b) Name-based search. If you conduct and document a name-based 
criminal history check through a source other than the FBI that, 
includes a check of the criminal records repository, in the State in 
which your program is operating, as well as in the State in which the 
applicant lives, you will be deemed to have satisfied the criminal 
history check requirement and do not need separate approval by the 
Corporation.
    (c) Alternative search approval. If you demonstrate that, for good 
cause including a conflict with State law, you are unable to comply 
with a requirement relating to criminal history checks or that you can 
obtain equivalent or better information through an alternative process, 
the Corporation will consider approving an alternative search protocol 
that you submit in writing to the Office of Grants Management. The 
Office of Grants Management will review the alternative protocol to 
ensure that it:
    (1) Verifies the identity of the applicant; and
    (2) Includes a search of an alternative criminal database that is 
sufficient to identify the existence, or absence of, a criminal 
offense.
    4. Redesignate Sec. Sec.  2551.42, 2551.43, 2551.44, 2551.45, 
2551.46 as Sec. Sec.  2551.43, 2551.44, 2551.45, 2551.46, 2551.47, 
respectively, and
    b. Add the following new section: Sec.  2551.42.


Sec.  2551.42  May an individual who is subject to a State sex offender 
registration requirement serve as a Senior Companion or as a Senior 
Companion grant-funded employee?

    Any individual who is registered, or who is required to be 
registered, on a State sex offender registry is deemed unsuitable for, 
and may not serve in, a position as a Senior Companion or as a Senior 
Companion grant-funded employee.

PART 2552--FOSTER GRANDPARENT PROGRAM

    1. The authority citation for part 2552 is revised to read as 
follows:

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

Subpart C of Part 2552--[Amended]

    2. Amend subpart C by redesignating Sec.  2552.31 as Sec.  2552.32.
    3. Amend Subpart B by redesignating Sec.  2552.26 as Sec.  2552.31 
of subpart B and adding the following sections:

[[Page 62580]]

Sec.  2552.26, Sec.  2552.27, Sec.  2552.28, Sec.  2552.29, and Sec.  
2552.30.


Sec.  2552.26  To whom does this Part apply?

    This part applies to Foster Grandparent Sponsors in selecting 
Foster Grandparents and in selecting Foster Grandparent grant-funded 
employees who, on a recurring basis, have access to children, persons 
age 60 and older, or individuals with disabilities.


Sec.  2552.27  What criminal history checks must I conduct?

    Unless the Corporation approves an alternative screening protocol, 
in selecting an individual as a Foster Grandparent or as a covered 
grant-funded employee, you are responsible for ensuring, unless 
prohibited by State law, that the following screening activities are 
conducted and documented in writing:
    (a) State criminal registry search. A search (by name or 
fingerprint) of the State criminal registry for the State in which the 
program operates and the State in which the applicant resides at the 
time of application;
    (b) Sex Offender Registry. A name-based search of either the 
Department of Justice (DOJ) National Sex Offender Registry (NSOR) or a 
sex offender registry that provides results concerning individuals who 
are registered as sex offenders in the State in which your program 
operates and the State in which the applicant resides at the time of 
application.


Sec.  2552.28  What procedures must I follow in conducting criminal 
history checks?

    You are responsible for ensuring that the following procedures are 
satisfied:
    (a) Verify the applicant's identity by examining the applicant's 
government-issued photo identification card, such as a driver's 
license;
    (b) Obtain prior, written authorization for the criminal history 
check from the applicant;
    (c) Document the individual's understanding that selection into 
program is contingent upon the organization's review of the applicant's 
criminal history, if any;
    (d) Provide a reasonable opportunity for the applicant to challenge 
the factual accuracy of a result before action is taken to exclude the 
applicant from the position; and
    (e) Provide safeguards to ensure the confidentiality of any 
information relating to the criminal history check, consistent with 
authorization provided by the applicant.


Sec.  2552.29  What documentation must I maintain regarding a criminal 
history check?

    You are responsible for documenting in writing that you (or your 
designee) verified the identity of the applicant for a covered position 
by examining the applicant's government-issued photo identification 
card, conducted the required check for a covered position, and 
considered the result in selecting the individual.


Sec.  2552.30  Under what circumstances may I follow alternative 
procedures in conducting a criminal history check?

    (a) FBI fingerprint-based check. If you or your designee conduct 
and document a fingerprint-based criminal history check through the 
Federal Bureau of Investigation, you will be deemed to have satisfied 
the criminal history check requirement and do not need separate 
approval by the Corporation.
    (b) Name-based search. If you conduct and document a name-based 
criminal history check through a source other than the FBI that, 
includes a check of the criminal records repository, in the State in 
which your program is operating, as well as in the State in which the 
applicant lives, you will be deemed to have satisfied the criminal 
history check requirement and do not need separate approval by the 
Corporation.
    (c) Alternative search approval. If you demonstrate that, for good 
cause including a conflict with State law, you are unable to comply 
with a requirement relating to criminal history checks or that you can 
obtain equivalent or better information through an alternative process, 
the Corporation will consider approving an alternative search protocol 
that you submit in writing to the Office of Grants Management. The 
Office of Grants Management will review the alternative protocol to 
ensure that it:
    (1) Verifies the identity of the applicant; and
    (2) Includes a search of an alternative criminal database that is 
sufficient to identify the existence, or absence of, a criminal 
offense.
    4. Amend subpart D of part 2552 as follows:
    a. By redesignating Sec.  2552.42, Sec.  2552.43, Sec.  2552.44, 
Sec.  2552.45, Sec.  2552.46 as Sec.  2552.43 Sec.  2552.44, Sec.  
2552.45, Sec.  2552.46, Sec.  2552.47, respectively, and
    b. By adding the following new section: Sec.  2552.42.


Sec.  2552.42  May an individual who is subject to a State sex offender 
registration requirement serve as a Foster Grandparent or as a Foster 
Grandparent grant-funded employee?

    Any individual who is registered, or required to be registered, on 
a State sex offender registry is deemed unsuitable for, and may not 
serve in, a position as a Foster Grandparent or as a Foster Grandparent 
grant-funded employee.

     Dated: October 20, 2006.
Frank R. Trinity,
General Counsel.
 [FR Doc. E6-17912 Filed 10-25-06; 8:45 am]
BILLING CODE 6050-28-P