[Federal Register Volume 76, Number 129 (Wednesday, July 6, 2011)]
[Proposed Rules]
[Pages 39361-39367]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-16509]


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CORPORATION FOR NATIONAL AND COMMUNITY SERVICE

45 CFR Parts 2510, 2540, 2551, 2552

RIN 3045-AA56


AmeriCorps State/National, Senior Companions, Foster 
Grandparents, and Retired and Senior Volunteer Program

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 (the 
Corporation) proposes amendments to its National Service Criminal 
History Check regulations to require grantees to conduct and document 
criminal history checks (including both state criminal history checks 
and FBI fingerprint checks) on Senior Companions, Foster Grandparents, 
Retired Senior Volunteer Program grant-funded staff, Learn and Serve 
America, AmeriCorps State/National (including Education Award Program) 
participants, and other Corporation grant-funded participants and 
grant-funded staff in all Corporation programs, who, on a recurring 
basis, have access to children, persons age 60 and older, or 
individuals with disabilities.

DATES: To be certain your comments are considered, they must reach the 
Corporation on or before August 5, 2011.

ADDRESSES: You may send your comments electronically through the 
Federal government's one-stop rulemaking Web site at http://www.regulations.gov. You may also mail or deliver your comments to Amy 
Borgstrom, Docket Manager, Corporation for National and Community 
Service, 1201 New York Ave., NW., Washington, DC 20525. Members of the 
public may review copies of all communications received on this 
rulemaking at http://www.regulations.gov or at the Corporation's 
Washington, DC headquarters.

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

SUPPLEMENTARY INFORMATION:

List of Topics

I. Invitation to Comment
II. Background
    (a) Prior to Passage of the Kennedy Serve America Act of 2009
    (b) Expanded Definition of ``Covered Individual''
    (c) Heightened Standard for Individuals With Recurring Access to 
Vulnerable Populations
III. Contents of Proposed Rule
    (a) Definitions
    (b) Eligibility Criteria--AmeriCorps State and National
    (c) National Service Criminal History Checks Generally
    (d) Special Rule for Individuals With Recurring Access to 
Vulnerable Populations
    (e) Alternative Screening Protocol for Individuals With 
Recurring Access to Vulnerable Populations
    (f) Consecutive Terms
    (g) No Unaccompanied Access to Vulnerable Populations Pending 
Criminal History Results
    (h) Documentation Requirements
    (i) Costs
IV. Non-Regulatory Matters
V. Effective Dates
VI. Regulatory Procedures

I. Invitation To Comment

    We invite you to submit comments about these proposed regulations 
online at http://www.regulations.gov. 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 public comments about these proposed 
regulations submitted online at http://www.regulations.gov, or in 
person in room 10615, 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.

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

(a) Prior to Passage of the Kennedy Serve America Act of 2009

    The Corporation initially engaged in rulemaking concerning the 
requirement for grantees to conduct criminal history checks on national 
service participants and grant-funded staff in 2007. In that rule, the 
Corporation required programs to conduct National Service Criminal 
History Checks--consisting of a statewide search of a state's criminal 
registry (for both the state where the individual resides at the time 
of application and the state where the individual will be serving) and 
a check of the Department of Justice's National Sex Offender Public Web 
site (NSOPW)--on all ``covered individuals.'' Covered individuals were 
those program staff and participants who had recurring access to 
children, the elderly, and to individuals with disabilities. Recurring 
access was defined as having contact with individuals from one or more 
of the above groups on more than one occasion. The regulations did not 
cover the RSVP and Learn and Serve programs, nor did they cover the 
NCCC and VISTA programs, which are Federally operated programs that 
have their own criminal history requirements.
    Those regulations offered the option of requesting approval of an 
alternative search procedure (also known as an ``alternative screening 
protocol'' or ``ASP''), which would permit an entity that could 
demonstrate that it was ``prohibited or otherwise precluded under state 
law from complying with a Corporation requirement relating to criminal 
history checks or that [it] could obtain substantially equivalent or 
better information through an alternative process'' to use a process 
other than the one outlined by the Corporation. (45 CFR 2540.206). 
Under this rule, an entity had the option of using a national FBI 
fingerprint-based check in lieu of the state criminal registry check 
without obtaining prior Corporation approval.

[[Page 39362]]

(b) Expanded Definition of ``Covered Individuals''

    In 2009, Congress passed the Kennedy Serve America Act of 2009 
(Pub. L. 111-13) (SAA), which amended the National and Community 
Service Act of 1990 (42 U.S.C. 12501 et seq.) (NCSA) by codifying the 
Corporation's regulatory National Service Criminal History Check 
requirements, and by expanding the categories of individuals required 
to undergo criminal history checks. Under the new statutory 
requirements, as of October 1, 2009 (the effective date of the SAA), 
any entity selecting an individual to serve in a position in which the 
individual receives a living allowance, stipend, national service 
educational award or salary through a program receiving assistance 
under the national service laws must conduct a criminal history check 
on that individual. Accordingly, the SAA expanded the definition (and 
consequently the number) of ``covered individuals'' to those 
individuals described above without regard to their access to 
vulnerable populations.
    As directed by the SAA, the Corporation issued new regulations in 
2009, expanding coverage to any national service participant or grant-
funded employee who received one of the above-described payments for 
his or her service or employment. (74 FR 46495). Now included in this 
group of covered individuals are grant-funded staff serving in any 
Corporation-funded national service program, including RSVP and Learn 
and Serve grant-funded staff, as well as participants in all 
Corporation grant programs, if the individual receives one of the types 
of remuneration described above. This includes the Non-profit Capacity 
Building and Social Innovation Fund grant programs.
    Pursuant to these regulations, each individual meeting the amended 
description of a ``covered individual'' hired or enrolled in a program 
on or after October 1, 2009, is required to undergo a full National 
Service Criminal History Check including: (a) A search of either (1) 
the state criminal registry in the state in which the program is 
operating and the state in which the individual resides at the time of 
application, or (2) a Federal Bureau of Investigation (FBI) fingerprint 
check; and (b) a nationwide check of the NSOPW.
    In addition to expanding the definition of ``covered individuals,'' 
the Serve America Act expanded the types of offenses that would render 
an individual ineligible to serve in a covered position to include 
individuals who had been convicted of murder.

(c) Heightened Standard for Individuals With Recurring Access to 
Vulnerable Populations

    Under section 189D(d) of the NCSA, as amended by the SAA, beginning 
April 21, 2011, entities that select covered individuals over the age 
of 18 who will have recurring access to vulnerable populations as part 
of their position must conduct both a statewide criminal history check 
and an FBI fingerprint-based check. As described herein, section 
189D(d)(3) of the NCSA permits limited exceptions to this heightened 
requirement.

III. Contents of Proposed Rule

    The Corporation is undertaking this rulemaking to implement the 
amendments made by the SAA with regard to heightened screening 
requirements for covered individuals with recurring access to 
vulnerable populations. In addition, this proposed rule clarifies 
several existing requirements, and makes several minor technical 
corrections for clarity.

(a) Definitions

(1) Definition of ``program.'' (Sec.  2510.20)
    The SAA amended the definition of ``program'' in the NCSA to 
include newly-authorized programs such as Campuses of Service, Serve 
America and Encore Fellows, Silver Scholars, the Social Innovation 
Fund, and activities funded under programs such as the Volunteer 
Generation Fund. This proposed rule corrects the definition of 
``program'' in regulation to align with the definition in statute.
(2) Definition of ``covered individual.'' (Sec.  2540.200)
    To clarify that it is not necessary to conduct checks on 
individuals whose connection to the program is tangential (such as an 
individual who provides training to participants and volunteers on 
occasion but is otherwise not integral to the operation of the program) 
or who is intended as a beneficiary (such as a child who receives a 
cash prize for completing a service-learning project hosted by the 
program), this rule proposes to amend the definition of ``covered 
individual'' by removing the clause ``or other remuneration.'' A 
covered individual is any individual who receives a Corporation grant-
funded living allowance, stipend, national service education award, or 
salary for participation in or employment by a program. An individual 
who receives some financial benefit through a national service program 
but who does not otherwise perform any service to implement the program 
is not a covered individual.

(b) Eligibility Criteria--AmeriCorps State and National

    The Serve America Act expanded the list of offenses that would 
render an individual ineligible for service to include conviction for 
murder. The Corporation amended its regulations to align with this 
statutory change in 2009, but through that rulemaking inadvertently 
neglected to amend the regulation on eligibility to serve in an 
AmeriCorps State and National position. This rule amends Sec.  2522.200 
to expand the list of eligibility criteria to serve in an AmeriCorps 
State and National to include satisfaction of the National Service 
Criminal History Check eligibility criteria.

(c) National Service Criminal History Checks Generally (Sec.  2540.202)

    In practice, the National Service Criminal History Check for 
covered individuals includes: (1) a name or fingerprint-based state 
registry check of the state where the program is operating and the 
state where the individual resides at the time of application or 
nationwide check by submitting fingerprints to the FBI; and (2) a check 
of the NSOPW. This proposed rule makes technical edits to the 
regulatory language to conform to current practice.
    Since promulgating criminal history check rules in 2007, the 
Corporation has applied the first prong of this test to programs 
operating in more than one state by requiring such programs to conduct 
the state registry check in the state where the covered individual will 
be primarily serving or working. This proposed rule would also codify 
this clarification.

(d) Special Rule for Individuals With Recurring Access to Vulnerable 
Populations (Sec.  2540.202)

    As required by section 189D of the NCSA, as amended by the SAA, 
under this rule, unless the Corporation approves an alternative 
screening protocol under Sec.  2540.206, for each covered individual a 
program hires or enrolls on or after April 21, 2011, who is age 18 or 
older and whose position will involve recurring access to vulnerable 
populations, in addition to a National Sex Offender Public Web site 
(http://www.nsopw.gov) check, the program must conduct: (1) 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 individual 
resides at the time of application; and (2) a national search

[[Page 39363]]

by submitting fingerprints to the Federal Bureau of Investigation.
    ``Recurring access'' is defined as ``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.'' (45 CFR 2510.20).
    In anticipation of this heightened requirement, current grantees 
have inquired into whether the Corporation would be developing a 
centralized mechanism for conducting FBI checks for national service 
participants. While the Corporation is committed to identifying ways to 
decrease burden on grantees, at this time no such centralized mechanism 
is available.

(e) Alternative Screening Protocol for Individuals With Recurring 
Access to Vulnerable Populations (Sec.  2540.206)

    Under this proposed rule, an entity may apply to the Corporation 
for approval of an ASP that would relieve the entity from the 
requirement to conduct both the statewide and national checks on a 
covered individual with recurring access to vulnerable populations.
    The Corporation will approve an ASP for this requirement if the 
entity demonstrates: (1) The service provided by the individual serving 
with the entity to a vulnerable population is episodic in nature or for 
a 1-day period; (2) the cost to the program of complying with Sec.  
2540.202(b) of this chapter is prohibitive; (3) the program is not 
authorized, or is otherwise unable, under state or Federal law, to 
access the national criminal history background check system of the 
FBI; or (4) the program cannot comply with the requirement for good 
cause, as determined and approved by the Corporation.
(1) Episodic Access (Sec.  2540.206)
    Congress specifically exempted from heightened coverage those 
individuals whose access to vulnerable populations is ``episodic in 
nature or for a 1-day period.'' While the heightened coverage applies 
to all individuals with ``recurring access,'' or access on more than 
one occasion, it will not apply to those individuals whose recurring 
access is ``episodic in nature.''
    For the purposes of this rule, the Corporation proposes to define 
``episodic'' as access that is not a regular, scheduled, and 
anticipated component of an individual's position description. If 
access to vulnerable populations is not a regular, scheduled, and 
anticipated component of the position description, the program is not 
required to conduct both an FBI and a state check on the individual.
    For example, consider an individual who is applying for an 
AmeriCorps position with an environmental program that involves 
volunteer coordination. If the program anticipates that the position 
will involve coordinating high school student volunteers on a regular 
basis, the individual will need the heightened check. However, if the 
program has no reason to expect that the position will involve 
coordinating 17-year-old and younger volunteers because the program has 
never operated in a youth environment and does not have any youth 
engagement goals, and does not recruit high school age volunteers, any 
contact with a child volunteer would be irregular, unscheduled, and 
unanticipated, and thus, episodic. Therefore, it would be unnecessary 
to conduct a heighted check on the individual.
    The Corporation does not propose a numeric component for the 
determination of whether or not access is episodic. In other words, if 
a program does not anticipate that a member will have access to 
vulnerable populations, the requirement would not materialize after a 
specific number of incidents of access occur.
    The Corporation expects that in the majority of cases it will be 
clear whether or not access to vulnerable populations is an 
anticipated, regular component of a position description. Nevertheless, 
the Corporation recommends that programs specifically address contact 
with vulnerable populations in each position description. If incidental 
access becomes unexpectedly regular or frequent, a program may want to 
take additional precautionary measures based on the circumstances.
(2) Alternative Search Protocols Approved for ``Good Cause''
    The Corporation will publish on its Web site those scenarios for 
which the Corporation has approved ASPs for ``good cause'' based on 
requests received following the publication of this rule. This list may 
be expanded and codified in regulation in the future.

(f) Consecutive Terms (Sec.  2540.203)

    Under current 45 CFR 2540.203(c), (redesignated as 2540.203(b) 
under this proposed rule) it is not necessary to perform an additional 
check on an individual who serves in consecutive terms of service with 
a program with a break in service of fewer than 30 days. This section 
permits a program to forego additional checks for individuals serving 
consecutive terms, but is based upon a presumption that the additional 
check would essentially replicate the original check.
    Each individual hired or enrolled into a covered position that 
involves recurring access to vulnerable populations after April 21, 
2011, is required to undergo the enhanced criminal history check. The 
fact that an individual met the criminal history check requirements at 
the time the individual was hired or enrolled in a prior term of 
service does not excuse the individual from the enhanced requirements 
at the time the individual is hired or enrolled in a subsequent term, 
even if there has been a break in service of fewer than 30 days.
    If a program can demonstrate that the check performed on an 
individual during the previous term would meet the current 
requirements, it is not necessary to perform an additional check. For 
example, if, at the time the covered individual was hired or enrolled 
in a prior term, the program conducted the NSOPR check, a state check, 
and an FBI check, it is unnecessary to replicate the entire process for 
the subsequent term if there is a break in service of fewer than 30 
days.

(g) No Unaccompanied Access to Vulnerable Populations Pending Criminal 
History Results (Sec.  2540.204)

    Under current rules, an individual for whom the results of a 
required state criminal registry check are pending is not permitted 
access to vulnerable populations ``without being accompanied by an 
authorized program representative who has previously been cleared for 
such access.'' 45 CFR 2540.204(g). Since the initial promulgation of 
this rule, it has come to our attention that it is common for the 
vulnerable beneficiary in question to be accompanied by a parent, legal 
guardian, teacher, doctor, nurse, or other individual responsible for 
his or her care.
    The Corporation does not believe it is necessary for a selected 
individual with pending criminal history results to be accompanied by 
an authorized program representative who has received the appropriate 
criminal history check when the vulnerable individual is accompanied by 
an individual responsible for his or her care. Thus, under this 
proposed rule, a covered individual may be selected and placed while 
state or FBI criminal history checks are pending, so long as the 
individual is not permitted access to vulnerable populations without 
being accompanied by: (1) An authorized program representative who has 
previously been cleared for such access;

[[Page 39364]]

(2) a family member or legal guardian of the vulnerable individual; or 
(3) an individual authorized by the nature of his or her profession to 
have recurring access to the vulnerable individual, such as an 
education or medical professional.
    For example, a covered individual who occasionally gives nature 
tours to schoolchildren as part of an environmental program would not 
be required to be accompanied by an authorized program representative 
on the tour if the students are accompanied by teachers or parents.

(h) Documentation Requirements (Sec.  2540.205)

    This proposed rule clarifies that it is not necessary to retain the 
actual documents produced as a result of conducting the statewide or 
FBI criminal registry search component of the check. Rather, it is 
sufficient to retain a summary of the results certified by an 
authorized program representative, along with written documentation 
that the results were considered in selecting the individual. The 
program must have reviewed and determined that the criteria used by the 
issuing governmental body meets or exceeds the Corporation's standards 
for eligibility. For example, if a program receives a document from the 
statewide criminal registry that indicates the individual has been 
``cleared'' for service based upon an agreement that describes the 
offenses that would result in ineligibility, that clearance document 
may be retained as the result of the criminal registry check.

(i) Costs (Sec.  2540.204)

    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.
    The proposed rule codifies the Corporation's guidance that, except 
where approved by the Corporation, a grantee may not charge an 
individual for the cost of a National Service 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 compliance with the rules and requirements 
associated with National Service Criminal History Checks 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 
properly document (as described herein) the required National Service 
Criminal History Check on covered individuals.

IV. Non-Regulatory Matters

Coverage Based on Start Date

    The table below illustrates which requirements apply to various 
program types.

                                                                                             Table 1
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                                                                                Date individual hired or enrolled
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                     Recurring access to vulnerable  populations                      Before  November 23, 2007      November 23, 2007-       October 1, 2009- April     On or after  April 21,
-------------------------------------------------------------------------------------             *                  September 30, 2009              20, 2011                     2011
                                                                                     -----------------------------------------------------------------------------------------------------------
                                                                                         N        S        F        N        S        F        N        S        F        N        S        F
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Program:
    AmeriCorps S & N............................  Yes...............................       X   .......  .......       X        X   .......       X        X   .......       X        X        X
                                                  No................................  .......  .......  .......  .......  .......  .......       X        X   .......       X        X   .......
    FGP.........................................  Yes...............................       X   .......  .......       X        X   .......       X        X   .......       X        X        X
                                                  No................................  .......  .......  .......  .......  .......  .......       X        X   .......       X        X   .......
    Senior Companions...........................  Yes...............................       X   .......  .......       X        X   .......       X        X   .......       X        X        X
                                                  No................................  .......  .......  .......  .......  .......  .......       X        X   .......       X        X   .......
    RSVP staff..................................  Yes...............................  .......  .......  .......  .......  .......  .......       X        X   .......       X        X        X
                                                  No................................  .......  .......  .......  .......  .......  .......       X        X   .......       X        X   .......
    VISTA program grants........................  Yes...............................  .......  .......  .......  .......  .......  .......       X        X   .......       X        X        X
                                                  No................................  .......  .......  .......  .......  .......  .......       X        X   .......       X        X   .......
    Learn & Serve...............................  Yes...............................  .......  .......  .......  .......  .......  .......       X        X   .......       X        X        X
                                                  No................................  .......  .......  .......  .......  .......  .......       X        X   .......       X        X   .......
    Other Grant Programs........................  Yes...............................  .......  .......  .......  .......  .......  .......       X        X   .......       X        X        X
                                                  No................................  .......  .......  .......  .......  .......  .......       X        X   .......       X        X   .......
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N = NSOPW; S = State registry check; F = FBI fingerprint check
 
* This applies to individuals who were enrolled or employed as of November 23, 2007, but were hired or enrolled prior to that date.

V. Effective Dates

    The Corporation intends to make any final rule based on this 
proposal effective no sooner than 60 days after the final rule is 
published in the Federal Register. The requirement applies to any 
covered individual hired or enrolled on or after April 21, 2011. 
However, programs have until 60 days after the publication of the final 
rule to complete the heightened check.

VI. Regulatory Procedures

Executive Order 12866 and Executive Order 13563

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

[[Page 39365]]

Accordingly, the rule has been reviewed by the Office of Management and 
Budget.

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.

List of Subjects

45 CFR Part 2510

    Grant programs--social programs.

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. 12511.

    2. Amend Sec.  2510.20 by revising the definition of ``program'' to 
read as follows:


Sec.  2510.20  Definitions.

* * * * *
    Program. The term program, unless the context otherwise requires, 
and except when used as part of the term academic program, means a 
program described in section 112(a) (other than a program referred to 
in paragraph (3)(B) of that section), 118A, or 118(b)(1), or subsection 
(a), (b), or (c) of section 122, or in paragraph (1) or (2) of section 
152(b), section 198B, 198C, 198H, or a98K, or an activity that could be 
funded under section 179A, 198, 198O, 198P, or 199N.

PART 2522--AMERICORPS PARTICIPANTS, PROGRAMS, AND APPLICANTS

    1. The authority citation for Part 2522 continues to read as 
follows:

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

    2. Amend Sec.  2522.200 by:
    a. Removing the period at the end of paragraph (a)(3) and adding a 
semicolon in its place; and
    b. Adding a new paragraph (a)(4) to read as follows:


Sec.  2522.200  What are the eligibility requirements for an AmeriCorps 
participant?

    (a) * * *
    (4) Satisfy the National Service Criminal History Check eligibility 
criteria pursuant to 45 CFR Sec.  2540.201.
* * * * *
    3. 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 
a participant or staff position for which an individual receives a 
Corporation grant-funded living allowance, stipend, education award, or 
salary for participation in or employment by a program as defined in 
Sec.  2510.20 of this chapter.


Sec.  2522.206  [Removed and Reserved]

    4. Remove and reserve Sec.  2522.206.
    5. Revise Sec.  2522.207 to read as follows:


Sec.  2522.207  What are the procedures I must follow to determine an 
individual's eligibility to serve in a covered position?

    In determining an individual's eligibility to serve in a covered 
position, you must follow the procedures in part 2540 of this title.

PART 2540--GENERAL ADMINISTRATIVE PROVISIONS

    6. 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.

    7. Revise Sec.  2540.200 to read as follows:


Sec.  2540.200  To whom must I apply eligibility criteria relating to 
criminal history?

    You must apply eligibility criteria relating to criminal history to 
an individual applying for, or serving in, a position for which the 
individual receives a Corporation grant-funded living allowance, 
stipend, education award, or salary for participation in or employment 
by a program as defined in Sec.  2510.20 of this chapter.
    8. Revise Sec.  2540.201 to read as follows:


Sec.  2540.201  What eligibility criteria must I apply to a covered 
position in connection with the National Service Criminal History 
Check?

    In addition to eligibility criteria established by the program, an 
individual shall be ineligible to serve in a covered position if the 
individual--
    (a) Refuses to consent to a criminal registry check described in 
Sec.  2540.202 of

[[Page 39366]]

this chapter or makes a false statement in connection with a grantee's 
inquiry concerning the individual's criminal history;
    (b) Is registered, or required to be registered, on a state sex 
offender registry or the National Sex Offender Registry; and
    (c) Has been convicted of murder, as defined in section 1111 of 
title 18, United States Code.
    9. Revise Sec.  2540.202 to read as follows:


Sec.  2540.202  What search components of the National Service Criminal 
History Check must I satisfy to determine an individual's suitability 
to serve in a covered position?

    (a) In general. Unless the Corporation approves an alternative 
screening protocol under Sec.  2540.206 of this chapter, in determining 
an individual's suitability to serve in a covered position, you are 
responsible for conducting and documenting a National Service Criminal 
History Check, which consists of the following two search components:
    (1) State or FBI criminal registry search.
    (i) A search (by name or fingerprint) of the state criminal 
registry for
    (A) The state in which the program operates (for multi-state 
programs, the state where the individual will be primarily serving or 
working) and
    (B) The state in which the individual resides at the time of 
application; or
    (ii) Submitting fingerprints to the Federal Bureau of Investigation 
for a national criminal history background check; and
    (2) National Sex Offender Public Website. A name-based search of 
the Department of Justice (DOJ) National Sex Offender Public Website 
(NSOPW).
    (b) Special rule for individuals working with vulnerable 
populations. Unless the Corporation approves an alternative screening 
protocol under Sec.  2540.206, for each covered individual you hire or 
enroll on or after April 21, 2011, who is age 18 or older and whose 
position will involve recurring access to vulnerable populations, in 
addition to an NSOPW check described in paragraph (a)(2) of this 
section, you must conduct both a state and nationwide FBI criminal 
registry search, consisting of--
    (1) A search (by name or fingerprint) of
    (A) The state criminal registry for the state in which your program 
operates and
    (B) The state in which the individual resides at the time of 
application; and
    (2) Submitting fingerprints to the Federal Bureau of Investigation 
for a national criminal history background check.
    10. Revise Sec.  2540.203 to read as follows:


Sec.  2540.203  When must I conduct a National Service Criminal History 
Check on an individual in a covered position?

    (a) New Staff and Participants. You must conduct a National Service 
Criminal History Check upon selection and before enrolling or hiring 
any new covered individual. You must review the results of the NSOPW 
prior to enrolling or hiring the covered individual. You may permit the 
covered individual to commence grant-funded work or service pending 
receipt of the state or FBI criminal registry check results so long as 
the individual is not permitted access to vulnerable populations 
without being accompanied by an appropriate individual, as described in 
Sec.  2540.204(f) of this chapter.
    (b) Recurring Service. For an individual who serves consecutive 
terms of service in your program with a break in service of no more 
than 30 days, no additional check is required after the first term.
    11. Amend Sec.  2540.204 by:
    a. Revising paragraph (f); and
    b. Adding a new paragraph (g).
    The revision and addition will read as follows:


Sec.  2540.204  What procedures must I follow in conducting a National 
Service Criminal History Check for a covered position?

* * * * *
    (f) Ensure that an individual, for whom the results of a required 
state or FBI criminal registry check are pending, is not permitted to 
have access to children, persons age 60 and older, or individuals with 
disabilities without being accompanied by:
    (1) An authorized program representative who has previously been 
cleared for such access;
    (2) A family member or legal guardian of the vulnerable individual; 
or
    (3) An individual authorized by nature of his or her profession to 
have recurring access to the vulnerable individual, such as an 
education or medical professional.
    (g) Unless specifically approved by the Corporation, a grantee may 
not charge an individual for the cost of any component of a National 
Service Criminal History Check.
    12. Revise Sec.  2540.205(b) to read as follows:


Sec.  2540.205  What documentation must I maintain regarding a National 
Service Criminal History Check for a covered position?

* * * * *
    (b) Maintain the results of the NSOPW check, and the results or a 
summary of the results issued by a state or Federal government body of 
the state or FBI searches performed for each National Service Criminal 
History check (unless precluded by state law), and document in writing 
that an authorized program representative considered the results in 
selecting the individual.
    13. Revise Sec.  2540.206 to read as follows:


Sec.  2540.206  Under what circumstances may I follow alternative 
procedures in conducting a National Service Criminal History Check for 
a covered position?

    (a) In general. If you demonstrate that you are prohibited or 
otherwise precluded under state law from complying with a Corporation 
requirement relating to criminal history checks or that you can obtain 
substantially equivalent or better information through an alternative 
process, the Corporation will consider approving an alternative search 
protocol that you submit 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 individual; and
    (2) Includes a search of an alternative criminal database that is 
sufficient to identify the existence, or absence of, the criminal 
offenses listed in Sec.  2540.208 of this chapter.
    (b) Alternative Procedures for Individuals With Recurring Access to 
Vulnerable Populations. The Corporation may exempt a program from 
conducting either the statewide and or FBI criminal history checks on 
covered individuals with recurring access to vulnerable populations, as 
described in Sec.  2540.202 of this chapter, if the program 
demonstrates that:
    (1) The service provided by the individual serving with the entity 
to a vulnerable population is episodic in nature or for a 1-day period;
    (2) The cost to the program of complying with Sec.  2540.202(b) of 
this chapter is prohibitive;
    (3) The program is not authorized, or is otherwise unable, under 
state or Federal law, to access the state registry or the national 
criminal history background check system of the FBI; or
    (4) The program cannot comply with Sec.  2540.202(b) of this 
chapter for good cause, as determined and approved by the Corporation.
    (c) Episodic Access. For the purposes of this section, an 
individual's service to a vulnerable population is considered to be 
episodic in nature if the service is not

[[Page 39367]]

a regular, scheduled, and anticipated component of the individual's 
position description.


Sec.  2540.207  [Removed and reserved].

    14. Remove and reserve Sec.  2540.207.

PART 2551--SENIOR COMPANION PROGRAM

    15. The authority citation for part 2551 continues to read as 
follows:

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

    16. Amend Sec.  2551.23 by adding a new paragraph (l) to read as 
follows:


Sec.  2551.23  What are the sponsor's program responsibilities?

* * * * *
    (l) Conduct criminal history checks on all Senior Companions and 
Senior Companion grant-funded employees who enroll in, or are hired by, 
your program after November 23, 2007, in accordance with the National 
Service Criminal History Check requirements in 45 CFR Sec. Sec.  
2540.200-207.


Sec. Sec.  2551.26, 2551.27, 2551.28, 2551.29, 2551.30, 2551.31, 
2551.32  [Removed and Reserved].

    17. Remove and reserve Sec. Sec.  2551.26, 2551.27, 2551.28, 
2551.29, 2551.30, 2551.31, 2551.32.

PART 2552--FOSTER GRANDPARENT PROGRAM

    18. The authority citation for Part 2552 continues to read as 
follows:

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

    19. Amend Sec.  2552.23 by adding a new paragraph (l) to read as 
follows:


Sec.  2552.23  What are a sponsor's program responsibilities?

* * * * *
    (l) Conduct criminal history checks on all Foster Grandparents and 
Foster Grandparent grant-funded employees who enroll in, or are hired 
by, your program after November 23, 2007, in accordance with the 
National Service Criminal History Check requirements in 45 CFR 
Sec. Sec.  2540.200-207.


Sec.  2552.26, 2552.27, 2552.28, 2552.29, 2552.30, 2552.31, 
2552.32  [Removed and Reserved]

    20. Remove and reserve Sec.  2552.26, 2552.27, 2552.28, 2552.29, 
2552.30, 2552.31, 2552.32.

    Dated: June 24, 2011.
Valerie Green,
General Counsel.
[FR Doc. 2011-16509 Filed 7-5-11; 8:45 am]
BILLING CODE 6050-28-P