[Federal Register Volume 88, Number 164 (Friday, August 25, 2023)]
[Proposed Rules]
[Pages 58167-58173]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-18194]


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DEPARTMENT OF JUSTICE

Federal Bureau of Investigation

28 CFR Part 105

[Docket No. FBI-154; AG Order No. 5736-2023]
RIN 1110-AA33


Child Protection Improvements Act Criteria for Designated Entity 
Determinations

AGENCY: Federal Bureau of Investigation, Department of Justice.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Department of Justice is proposing to promulgate 
regulations (``proposed rule'' or ``rule'') concerning the Child 
Protection Improvements Act of 2018 (``CPIA''). The CPIA provides a 
means by which authorized qualified entities can have access to 
national criminal history background checks for determinations of 
whether covered individuals have been convicted of, or are under 
pending indictment for, a crime that bears upon their fitness to have 
responsibility for the safety and well-being of children, the elderly, 
or individuals with disabilities. As required by the CPIA, these 
proposed regulations would establish the criteria to be utilized by an 
entity designated by the Federal Bureau of Investigation (FBI) to make 
these determinations.

DATES: Written comments must be postmarked and electronic comments must 
be submitted on or before September 25, 2023. Commenters should be 
aware that the electronic Federal Docket Management System will not 
accept comments after 11:59 p.m. eastern time on the last day of the 
comment period.

ADDRESSES: You may review this proposed rule on https://www.regulations.gov and use the electronic comment form for these 
regulations to submit your comments. Submit written comments by U.S. 
Postal Service or other commercial delivery services, addressing them 
to FBI, CPIA Comments, Attention, Betsy C. Taylor, Office of the 
General Counsel (OGC), FBI Criminal Justice Information Services (CJIS) 
Division, 1000 Custer Hollow Road, Module C3, Clarksburg, West Virginia 
26306.

[[Page 58168]]


FOR FURTHER INFORMATION CONTACT: Betsy C. Taylor, Assistant General 
Counsel, OGC, FBI CJIS Division, 1000 Custer Hollow Road, Module C3, 
Clarksburg, West Virginia 26306; Telephone: (304) 625-5429. (Note: This 
is not a toll-free number).

SUPPLEMENTARY INFORMATION:

Electronic Access and Filing

    Electronic comments are preferred. For comments sent via U.S. 
Postal Service or other commercial delivery, please do not submit 
duplicate electronic comments. Please confine comments to the proposed 
rule. All submissions received must include the agency name (FBI) and 
docket number or RIN for this Federal Register document. The general 
policy for comments and other submissions from members of the public is 
to make these submissions available for public viewing on the internet 
at https://www.regulations.gov as they are received, without change, 
including any personal identifiers or contact information. It is 
recommended that your comments not include any personal information 
such as social security numbers or medical information.

Background

    The CPIA, enacted as part of the Consolidated Appropriations Act, 
2018 (Pub. L. 115-141) amended the National Child Protection Act/
Volunteers for Children Act (``NCPA/VCA'') (34 U.S.C. 40101 et seq.). 
The CPIA requires the Attorney General to establish a national program 
(the ``CPIA Program'') to provide qualified entities in States that do 
not have procedures in place to utilize the NCPA/VCA, or in States that 
do not prohibit the use of the CPIA Program, with access to national 
criminal history background checks on, and criminal history reviews of, 
covered individuals. 34 U.S.C. 40102(a)(3)(A).
    Under the CPIA, the FBI conducts fingerprint-based national 
criminal history background checks on covered individuals upon request 
of a designated entity and provides the resulting information to the 
designated entity. Reviewing that information, the designated entity 
determines whether the individual has been convicted of, or is under 
pending indictment for, a crime bearing on the individual's fitness to 
have responsibility for the safety and well-being of children, the 
elderly, or individuals with disabilities. The designated entity then 
informs the qualified entity--such as an employer or volunteer 
organization providing care for children, the elderly, or individuals 
with disabilities--whether the designated entity's review has 
determined that the covered individual's criminal history includes a 
conviction or pending indictment for a crime bearing on fitness listed 
in Sec.  105.34 of the proposed rule. 34 U.S.C. 40102(a)(3), (b)(4), 
(f)(1).
    Invoking the processes described in this proposed rule would not be 
mandatory. Rather, the rule will provide a means for a qualified entity 
in a State that does not have procedures to utilize the NCPA/VCA or 
that does not prohibit the CPIA Program to obtain national criminal 
history background checks of covered individuals. The choice whether to 
invoke the rule's procedures will be left to the discretion of the 
qualified entities, subject to any other applicable legal requirements.

Crimes Bearing on Fitness

    The CPIA requires the Attorney General to establish by rule the 
criteria for designated entities to use in making the determination 
bearing on fitness for covered individuals. 34 U.S.C. 40102(f)(2)(C). 
The criminal history review criteria must be based on the criteria 
established pursuant to section 108(a)(3)(G)(i) of the PROTECT Act, 
Public Law 108-21 (34 U.S.C. 40102 note) and section 658H of the Child 
Care and Development Block Grant Act (``CCDBGA'') of 1990 (42 U.S.C. 
9858f).
    A pilot project established by the PROTECT Act required that the 
National Center for Missing and Exploited Children (``NCMEC'') make a 
determination whether criminal history record information received in 
response to a criminal history background check indicated that a 
provider or volunteer had a criminal history that rendered the 
individual unfit to provide care to children, based upon criteria 
established jointly by the NCMEC and three designated nonprofit 
organizations--the Boys and Girls Clubs of America, the National 
Mentoring Partnership, and the National Council of Youth Sports. The 
resulting criteria established pursuant to the PROTECT Act provided 
that anyone who had been convicted or was under pending indictment for 
any of the following offenses would be considered unfit to provide care 
to children: (1) all felonies, (2) any lesser crime of which sexual 
relations is an element (including pornography); (3) any lesser crime 
involving cruelty to animals, (4) any lesser crime involving controlled 
substances, including Driving Under the Influence that may involve 
drugs; and (5) any lesser crime involving force or threat of force 
against a person.\1\
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    \1\ See U.S. Dep't of Justice, Office of Legislative Affairs, 
Interim Report on the Feasibility of Performing Fingerprint-Based 
Criminal History Background Checks on Individuals That Participate 
in National Service Programs 27-30 (2009).
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    The CCDBGA provides that a child care staff member shall be 
ineligible for employment by a child care provider receiving certain 
federal assistance if such individual:
    (A) refuses to consent to the criminal background check;
    (B) knowingly makes a materially false statement in connection with 
such criminal background check;
    (C) is registered, or is required to be registered, on a State sex 
offender registry or repository or the National Sex Offender Registry 
established under the Adam Walsh Child Protection and Safety Act of 
2006;
    (D) has been convicted of a felony consisting of:
    (1) murder, as described in 18 U.S.C. 1111;
    (2) child abuse or neglect;
    (3) a crime against children, including child pornography;
    (4) spousal abuse;
    (5) a crime involving rape or sexual assault;
    (6) kidnapping;
    (7) arson;
    (8) physical assault or battery; or
    (9) a drug-related offense committed during the preceding five 
years; or
    (E) has been convicted of a violent misdemeanor committed as an 
adult against a child, including the following crimes:
    (1) child abuse;
    (2) child endangerment;
    (3) sexual assault; or
    (4) a misdemeanor involving child pornography.
    See 42 U.S.C. 9858f(c)(1). In addition, under the CCDBGA, a State 
may allow for a review process through which the State may determine 
that a child care staff member, including a prospective child care 
staff member, disqualified for a drug-related offense committed during 
the preceding five years is eligible for employment. See 42 U.S.C. 
9858f(e)(4).
    The CPIA differs from the PROTECT Act pilot program and the CCDBGA 
in that it does not declare covered individuals to be unfit or 
ineligible to care for children, the elderly, or individuals with 
disabilities and does not limit the discretion of qualified entities as 
to who they will employ or allow to participate in their activities. 
Rather, it provides a mechanism by which qualified entities may obtain 
from the designated entity a determination whether a covered

[[Page 58169]]

individual has a conviction or is under pending indictment for a crime 
bearing on the covered individual's fitness to have responsibility for 
the safety and well-being of children, the elderly, or individuals with 
disabilities. The CPIA leaves it to the qualified entities themselves 
to decide what effect they will give to that determination.

Designated Entities

    Pursuant to the CPIA, the Attorney General is required to designate 
one or more non-federal entities to make the determinations bearing on 
fitness. 34 U.S.C. 40102(f)(2)(A). These designated entities will be 
authorized to provide national criminal history background checks for 
qualified entities in States that do not have procedures in place to 
utilize the NCPA/VCA, or in States that do not prohibit the use of the 
CPIA Program. The FBI will issue a Request for Proposal (``RFP'') to 
select those to serve as designated entities under the CPIA Program. As 
noted above, participation in the CPIA Program by qualified entities is 
voluntary, and they are not required to conduct checks of their covered 
individuals using these designated entities.
    The FBI collects user fees for the fingerprint-based criminal 
history record information checks it conducts in compliance with Public 
Law 101-515 (now codified at 34 U.S.C. 41104). The FBI's user fees are 
set out in a fee schedule routinely published in the Federal Register. 
In accordance with 28 CFR 20.31(e)(1), the FBI reviews its fee schedule 
at least every four years to determine the current cost of processing 
fingerprint identification records for noncriminal justice purposes. 
The FBI's user fee schedule provides for a reduction in the rate it 
charges for checks of volunteers serving vulnerable populations, such 
as volunteers who will be covered under the CPIA Program. As published 
in the Federal Register, the current cost for processing the FBI 
fingerprint check is $13.25 for employees and $11.25 for volunteers. 
See 87 FR 47794 (Aug. 4, 2022).
    In accordance with the CPIA, designated entities will be required 
to adopt a fee schedule for providing their national criminal history 
background checks and criminal history reviews. See generally 34 U.S.C. 
40102(e). These designated entities also are required by the CPIA to 
remit to the FBI its portion of that fee. Id. 40102(e)(2). The CPIA 
provides that fees collected by a designated entity must be set at a 
level that will ensure the recovery of the full costs of providing 
their services. Id. However, the CPIA also requires that the fees set 
by designated entities must be established in a manner that ensures 
that volunteers will not be discouraged from participating in programs 
to care for children, the elderly, or individuals with disabilities. 
Id. 40102(e)(3). In addition, the CPIA requires that a fee charged to a 
qualified entity that is not organized under section 501(c)(3) of the 
Internal Revenue Code of 1986 may not be less than the total sum of the 
costs of the FBI and the designated entity. Id.
    As part of the evaluation criteria in the RFP, a prospective 
designated entity will be required to provide information on the 
methodology it will use to determine the ``full costs'' of providing 
the services, how their fee structure will not discourage volunteers, 
and the profit margin, if any, to be collected for providing these 
services. This information will be considered by the FBI in evaluating 
and making decisions regarding prospective designated entities for 
participation in the CPIA Program.

Discussion

Crimes Bearing on Fitness

    As noted above, 34 U.S.C. 40102(f)(2)(C) requires the Attorney 
General to establish by rule the criteria--based on the criteria used 
in a PROTECT Act pilot program and the CCDBGA--for designated entities 
to use under the CPIA in determining whether a covered individual's 
criminal history includes a crime bearing on the individual's fitness 
to have responsibility for the safety and well-being of children, the 
elderly, or individuals with disabilities. The PROTECT Act criteria, 
described earlier in this preamble, are in some respects most suitable 
as a model for crimes bearing on fitness under the CPIA because of 
their greater generality. For example, since the PROTECT Act criteria 
include all felonies, there is no need to enumerate the CCDBGA's 
particular covered felonies, 42 U.S.C. 9858f(c)(1)(D). However, certain 
features of the CCDBGA are helpful in defining the relevant offenses, 
including the CCDBGA's greater explicitness regarding sex offenses and 
offenses involving abuse, neglect, or endangerment. In addition, both 
the PROTECT Act criteria and the CCDBGA criteria require some 
adaptation for purposes of the CPIA, because the CPIA relates to 
qualified entities serving the elderly and individuals with 
disabilities, as well as child-serving entities.
    The relevant crimes under the CPIA that bear upon the covered 
individual's fitness to have responsibility for the safety and well-
being of children, the elderly, or individuals with disabilities are 
set forth in Sec.  105.34 of the proposed regulation. Those crimes are 
as follows:
    Section 105.34(1) refers to ``[a]ny felony.'' This is the same as 
the first PROTECT Act category.
    Section 105.34(2) refers to crimes involving abuse, neglect, or 
endangerment of children, the elderly, or individuals with 
disabilities. This is similar to the CCDBGA's coverage of offenses of 
child abuse, neglect, or endangerment, see 42 U.S.C. 9858f(c)(1)(D)(ii) 
and (E), with the necessary addition of such crimes directed against 
the elderly or individuals with disabilities for purposes of the CPIA.
    Section 105.34(3) refers to crimes involving the use, or attempted 
or threatened use, of force against a person. This parallels the fifth 
category under the PROTECT Act pilot program.
    Section 105.34(4) refers to crimes involving sexual abuse, assault, 
or exploitation, including child pornography crimes. This is similar to 
the second category under the PROTECT Act pilot program, and to CCDBGA 
provisions appearing in 42 U.S.C. 9858f(c)(1)(D)(iii), (v), (E).
    Section 105.34(5) refers to crimes on the basis of which the 
covered individual is registered, or is required to be registered, in 
the sex offender registry of a jurisdiction, or is included in the 
National Sex Offender Registry. This parallels the CCDBGA provision in 
42 U.S.C. 9858f(c)(1)(C).
    Section 105.34(6) refers to crimes involving cruelty to animals, 
parallel to the third PROTECT Act category.
    Section 105.34(7) refers to crimes involving controlled substances, 
including impaired driving offenses involving drugs, which is similar 
to the fourth PROTECT Act category, and to the CCDBGA provision in 42 
U.S.C. 9858f(c)(1)(D)(ix).
    The proposed rule provides that after a designated entity evaluates 
a covered individual using the CPIA criteria, one of three 
determinations is to be returned to the qualified entity under the CPIA 
Program: (1) the covered individual has a conviction or is under 
pending indictment for a crime bearing on fitness listed in Sec.  
105.34, (2) the covered individual does not have a conviction and is 
not under pending indictment for a crime bearing on fitness listed in 
Sec.  105.34, or (3) the covered individual may have a conviction for a 
crime bearing on fitness listed in Sec.  105.34. A determination that a 
covered individual ``may have a conviction'' should be returned by the 
designated entity if the disposition is missing from an arrest for a 
crime listed in Sec.  105.34. The ``may

[[Page 58170]]

have a conviction'' determination should be returned only after the 
designated entity has conducted research to try to locate relevant 
missing disposition data. The FBI notes that a designated entity's 
determination that a covered individual ``has,'' ``does not have,'' or 
``may have'' a conviction or pending indictment for a crime bearing on 
fitness pertains to the national criminal history background check 
information received from the FBI as part of the CPIA Program. A 
qualified entity is not prohibited from denying a covered individual an 
employment or volunteer position based on other evaluation criteria.

Requests for a National Criminal History Background Check

    As noted above, the authorized qualified entities themselves will 
decide whether to invoke the procedures of this proposed rule in order 
to obtain a criminal history background check on their covered 
individuals regarding care for children, the elderly, or individuals 
with disabilities. The following discussion explains the intended 
process where a qualified entity is seeking such a criminal history 
background check pursuant to the CPIA.
    Under 34 U.S.C. 40102(b), a covered individual must provide to a 
qualified entity located in a State a set of fingerprints and complete 
and sign a statement as part of a request for a national criminal 
history background check, including an attestation that the covered 
individual has not been convicted of any crime or, if the covered 
individual has been convicted of a crime, a description of the crime 
and the particulars of the conviction. In addition, covered individuals 
must be informed by the qualified entity of the covered individual's 
right to obtain a copy of any background check report by the designated 
entity and the process by which a covered individual may appeal those 
results. The statement provided by the qualified entity must also 
notify the covered individual that the qualified entity may elect to 
deny them access to a person to whom the qualified entity provides care 
prior to the completion of their background check. As noted above, a 
qualified entity also may deny a covered individual access to a person 
to whom the qualified entity provides care at any time based on other 
evaluation criteria. The designated entity must also have in effect 
procedures to ensure that the covered individual is notified of their 
right to obtain a copy of their national criminal history background 
check report and given notice of the opportunity to appeal and 
instructions on how to complete the appeals process, if the covered 
individual wishes to challenge the accuracy or completeness of the 
information contained in the background check report.
    The FBI is publishing this NPRM to allow interested parties the 
opportunity to provide comments concerning the criteria bearing on 
fitness to be established under the CPIA and the procedures for 
requesting and obtaining the results of criminal history background 
checks from a designated entity.

Technical Corrections

    Finally, the FBI is proposing to update and correct the authority 
citations in part 105.

Regulatory Certifications

Executive Orders 12866 and 13563

    Executive Orders 12866 (Regulatory Planning and Review) and 13563 
(Improving Regulation and Regulatory Review) direct agencies to assess 
the 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, distributive impacts, and equity). Executive Order 
13563 emphasizes the importance of quantifying both costs and benefits, 
reducing costs, harmonizing rules, and promoting flexibility.
    This proposed rule has been drafted and reviewed in accordance with 
Executive Order 12866, section 1(b), Principles of Regulation. The 
Office of Management and Budget (OMB) has determined that this rule is 
a significant regulatory action under section 3(f) of Executive Order 
12866, and accordingly, this rule has been reviewed by the OMB. The 
current cost of conducting the FBI fingerprint check, as published in 
the Federal Register (83 FR 48335) is $13.25 for employees and $11.25 
for volunteers. The exact impact of the proposed regulations on covered 
individuals and qualified entities cannot be calculated due to 
uncertainty concerning the number of designated entities that will be 
participating in the CPIA Program; the number of qualified entities 
that will choose to submit fingerprint-based background checks through 
the CPIA Program; the geographic locations of the designated entities 
and the qualified entities; associated costs by the designated entity 
in establishing a connection to the FBI for the electronic submission 
of the fingerprints and receipt of criminal history record information; 
and the number of background check reports on covered individuals 
lacking disposition data for which the designated entity must research. 
However, because the designated entities are required by the CPIA to 
recoup their full costs, they are not expected to incur any net costs.
    This rule will not have an annual effect on the economy of $100 
million, nor will it adversely affect in a material way the economy, a 
sector of the economy, productivity, competition, jobs, the 
environment, public health or safety, or State, local or tribal 
governments or communities. Accordingly, this rule is not an 
economically significant rulemaking as defined by Executive Order 
12866.
    Although this rule is a significant regulatory action under 
Executive Order 12866, the fees for providing determinations will be 
set by the designated entities themselves, under the standards of the 
CPIA, and they will be collecting those fees for providing a service 
under the CPIA. There is no change in the fees being charged by the 
FBI.

Executive Order 13132--Federalism

    This proposed rule will not have a substantial, direct effect on 
the States, on the relationship between the national government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government. Therefore, in accordance with Executive 
Order 13132, it is determined that this proposed rule does not have 
sufficient federalism implications to warrant the preparation of a 
Federalism Assessment.

Executive Order 12988--Civil Justice Reform

    This proposed rule meets the applicable standards set forth in 
sections 3(a) and 3(b)(2) of Executive Order 12988.

Regulatory Flexibility Act

    The Department, in accordance with the Regulatory Flexibility Act, 
5 U.S.C. 605(b), has reviewed this proposed rule and, by approving it, 
certifies that this rule will not have a significant economic impact on 
a substantial number of small entities. The FBI charges a user fee in 
compliance with Public Law 101-515. This proposed rule imposes minimal 
costs on businesses, organizations, or governmental jurisdictions 
(whether large or small) because the submission of fingerprints for 
these national criminal background checks is voluntary on the part of 
the qualified entities. Additionally, any costs that may be borne by 
the current or prospective employee or volunteer

[[Page 58171]]

with the qualified entity is not expected to have a significant 
economic impact.

Unfunded Mandates Reform Act of 1995

    This proposed rule does not contain a mandate that will result in 
the expenditure by State, local, and tribal governments, in the 
aggregate, or by the private sector, of $100 million or more in any one 
year, and it will not significantly or uniquely affect small 
governments. Further, the statute authorizes a designated entity 
through this Federal program to recover only the full costs of 
providing such services, and the fee system to be established is to 
ensure that fees to qualified entities do not discourage volunteers 
from participating in programs to care for children, the elderly, or 
individuals with disabilities. Finally, fees to qualified entities not 
organized under section 501(c)(3) of title 26 may not be less than the 
total sum of the costs of the FBI and the designated entity. Therefore, 
no action was deemed necessary under the provisions of the Unfunded 
Mandates Reform Act of 1995.

Congressional Review Act

    This proposed rule is not a major rule as defined by the 
Congressional Review Act, 5 U.S.C. 804. This proposed rule will not 
result in an annual effect on the U.S. economy of $100 million or more; 
a major increase in costs or prices; or have significant adverse 
effects on competition, employment, investment, productivity, 
innovation, or on the ability of U.S.-based companies to compete with 
foreign-based companies in domestic and export markets.

Paperwork Reduction Act of 1995

    The proposed rule does not contain collection of information 
requirements. Therefore, clearance by the OMB under the Paperwork 
Reduction Act, 44 U.S.C. 3501 et seq., is not required. Of note, 
information collection associated with the Civil Applicant Fingerprint 
Card has been approved by the OMB for review under the provisions of 
the Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)). The OMB 
Control Number for this collection is 1110-0046.

List of Subjects in 28 CFR Part 105

    Administrative practice and procedure, Law enforcement, Privacy.

    Accordingly, for the reasons set forth in the preamble, 28 CFR part 
105 is proposed to be amended as follows:

PART 105--CRIMINAL HISTORY BACKGROUND CHECKS

0
1. The authority citation for part 105 is revised to read as follows:

    Authority:  Section 113 of Pub. L. 107-71, 115 Stat. 622 (49 
U.S.C. 44939); Section 6402 of Pub. L. 108-458, title VI, 118 Stat. 
3755 (28 U.S.C. 534 note; editorially reclassified as 34 U.S.C. 
41106); Division S, Title I, Section 101 of Pub. L. 115-141, 132 
Stat. 1123 (34 U.S.C. 40101 et seq.)

0
2. In subpart B, add an authority citation to read as follows:

    Authority:  Section 113 of Pub. L. 107-71, 115 Stat. 622 (49 
U.S.C. 44939).

0
3. Revise the authority citation in subpart C to read as follows:

    Authority:  Section 6402 of Pub. L. 108-458, title VI, 118 Stat. 
3755 (28 U.S.C. 534 note; editorially reclassified as 34 U.S.C. 
41106).

0
4. Add a new subpart D to read as follows:

Subpart D--Child Protection Improvements Act Criteria for 
Designated Entity Determinations

Sec.
105.31 Definitions.
105.32 Request by a qualified entity for a national criminal history 
background check.
105.33 Receipt by a designated entity of a request from a qualified 
entity.
105.34 Crimes bearing on fitness.
105.35 Criminal history lacking disposition data.
105.36 Determination by a designated entity.
105.37 Rights of a covered individual.
105.38 Collection of fees.

    Authority:  Child Protection Improvements Act (Division S, Title 
I, Section 101 of Pub. L. 115-141, 132 Stat. 1123 (34 U.S.C. 40101 
et seq.)).


Sec.  105.31  Definitions.

    Authorized agency means a division or office of a State designated 
by a State to report, receive, or disseminate information under the 
CPIA.
    Care means the provision of care, treatment, education, training, 
instruction, supervision, or recreation to children, the elderly, or 
individuals with disabilities.
    Child means a person who is a child for purposes of the criminal 
child abuse law of a State.
    Covered individual means an individual--
    (1) Who has, seeks to have, or may have access to children, the 
elderly, or individuals with disabilities, served by a qualified 
entity; and
    (2) Who--
    (i) Is employed by or volunteers with, or seeks to be employed by 
or volunteer with, a qualified entity, or
    (ii) Owns or operates, or seeks to own or operate, a qualified 
entity.
    CPIA means the Child Protection Improvements Act of 2018, enacted 
as part of the Consolidated Appropriations Act, 2018 (Pub. L. 115-141), 
which amended the National Child Protection Act/Volunteers for Children 
Act (NCPA/VCA) (34 U.S.C. 40101 et seq.).
    CPIA Program means the program established by the Federal Bureau of 
Investigation (FBI) that implements the CPIA under this subpart D.
    Designated entity means an entity designated to conduct 
determinations under the authority of 34 U.S.C. 40102(f)(2)(A), through 
an agreement with the FBI.
    Individuals with disabilities means persons with mental or physical 
impairment who require assistance to perform one or more daily living 
tasks.
    National criminal history background check system means the 
criminal history record system maintained by the FBI based on 
fingerprint identification or any other approved method of positive 
identification.
    Qualified entity means a business or organization, whether public, 
private, for-profit, not-for-profit, or voluntary, that provides care 
or care placement services, including a business or organization that 
licenses or certifies others to provide care or care placement 
services.
    State means a State, the District of Columbia, the Commonwealth of 
Puerto Rico, American Samoa, the U.S. Virgin Islands, Guam, and the 
Commonwealth of the Northern Mariana Islands.


Sec.  105.32  Request by a qualified entity for a national criminal 
history background check.

    (a) Qualified entities located in States that do not have in effect 
procedures described in 34 U.S.C. 40102(a)(1), or qualified entities 
located in States that do not prohibit the use of the program 
established under the CPIA, may be provided access to national criminal 
history background checks on, and criminal history reviews of, covered 
individuals through a designated entity under an agreement with the 
FBI.
    (b) After approval by the designated entity for participation in 
the CPIA Program, each participating qualified entity will determine 
which covered individuals will be subject to the background check. The 
covered individual must provide a complete set of fingerprints to the 
qualified entity. The covered individual also must provide a signed 
statement to the qualified entity containing the following:

[[Page 58172]]

    (1) The name, address, and date of birth appearing on a valid 
identification document (as defined in 18 U.S.C. 1028) of the covered 
individual;
    (2) An attestation that the covered individual has not been 
convicted of a crime and, if the covered individual has been convicted 
of a crime, a description of the crime and the particulars of the 
conviction;
    (3) The statement must notify the covered individual that the 
qualified entity may request a national criminal history background 
check;
    (4) The statement must notify the covered individual of his or her 
right to obtain a copy of any background check report, to challenge the 
accuracy or completeness of the information contained in any such 
report, and to obtain a prompt determination as to the validity of such 
challenge before a final determination is made by the designated entity 
as provided in Sec.  105.37; and
    (5) The statement must also notify the covered individual that 
prior to the completion of the background check the qualified entity 
may choose to deny the covered individual access to a person to whom 
the qualified entity provides care.
    (c) Based upon the qualified entity's determination that the 
requirements under the CPIA are met, a qualified entity may submit to 
the appropriate designated entity a request, to include the 
fingerprints of the covered individual, for a national criminal history 
background check on, and a criminal history review of, a covered 
individual.


Sec.  105.33  Receipt by a designated entity of a request from a 
qualified entity.

    (a) An entity will be authorized as a designated entity through an 
agreement with the FBI. This agreement will specify the respective 
responsibilities of the designated entity and the FBI, including that 
the designated entity's employees receive a fingerprint-based national 
criminal history background check in a manner determined by the FBI, 
prior to access to criminal history record information.
    (b) The designated entity will determine if a business or 
organization, whether public, private, for-profit, not-for-profit, or 
voluntary, meets the definition of a qualified entity.
    (c) The designated entity will determine if a qualified entity is 
located in a State that does not have in effect procedures requiring 
qualified entities to contact an authorized agency of the State for a 
nationwide background check or if the State does not prohibit the use 
of the national program established under the CPIA, prior to providing 
access to a national criminal history background check on, and criminal 
history reviews of, covered individuals. A State that does not prohibit 
the use of the national program established under the CPIA is a State 
that does not have a statute or regulation prohibiting a national 
criminal history background check of a covered individual or a State 
that has determined it has procedures in place in statute or regulation 
but is unable to accommodate the qualified entity's request for a 
national criminal history background check.
    (d) The designated entity national program established under the 
CPIA also may not be used if a Federal law requires use of a Federal 
national criminal history background check program.
    (e) Upon receipt of an authorized qualified entity request, a 
designated entity shall forward the request to the FBI and the FBI 
shall complete a fingerprint-based check of its national criminal 
history background check system and provide the information received in 
response to the request to the appropriate designated entity.
    (f) The FBI fingerprint-based check of its national criminal 
history record system will provide outreach to States that support 
record requests for employment and licensing purposes and will return 
State criminal history record information from the respective State 
criminal history database. Upon a request from a qualified entity, the 
designated entity may conduct a separate check of a State criminal 
history database. The request for a State check should be submitted by 
the designated entity to the appropriate State according to the 
applicable procedures of that State.


Sec.  105.34  Crimes bearing on fitness.

    Upon receipt of the criminal history record information, the 
designated entity shall make a determination whether the covered 
individual has been convicted of, or is under pending indictment for, a 
crime that bears upon the covered individual's fitness to have 
responsibility for the safety and well-being of children, the elderly, 
or individuals with disabilities. The crimes that bear on a covered 
individual's fitness are:
    (a) Any felony.
    (b) Any crime involving abuse, neglect, or endangerment of a child, 
an elderly individual, or an individual with a disability.
    (c) Any crime involving the use, or attempted or threatened use, of 
force against a person.
    (d) Any crime involving sexual abuse, assault, or exploitation, 
including any crime involving child pornography.
    (e) Any crime on the basis of which the covered individual is 
registered, or is required to be registered, in the sex offender 
registry of a jurisdiction, or is included in the National Sex Offender 
Registry established by 34 U.S.C. 20921(a).
    (f) Any crime involving cruelty to an animal.
    (g) Any crime involving a controlled substance, including any 
impaired driving offense involving a controlled substance.


Sec.  105.35  Criminal history lacking disposition data.

    Upon the designated entity's receipt of criminal history record 
information from the FBI regarding an arrest for a crime bearing on 
fitness described in Sec.  105.34 that is lacking disposition data, the 
designated entity shall conduct research in whatever Federal, State, or 
local recordkeeping systems are available to obtain complete data. The 
designated entity also should provide any source documentation 
containing missing disposition data it obtains from criminal justice or 
law enforcement agencies to the FBI so that the FBI may update or 
forward to the State Identification Bureaus for appropriate updating.


Sec.  105.36  Determination by a designated entity.

    (a) The designated entity shall issue one of the following 
determinations to the qualified entity with respect to a covered 
individual:
    (1) The covered individual has a conviction or is under pending 
indictment for a crime bearing on fitness listed in Sec.  105.34;
    (2) The covered individual does not have a conviction and is not 
under pending indictment for a crime bearing on fitness listed in Sec.  
105.34; or
    (3) The covered individual may have a conviction for a crime 
bearing on fitness listed in Sec.  105.34.
    (b) The designated entity shall return a determination that the 
covered individual may have a conviction if the covered individual has 
been arrested for a crime bearing on fitness listed in Sec.  105.34 but 
the disposition information is missing, and there is no other 
conviction or pending indictment for a crime bearing on fitness listed 
in Sec.  105.34 in the covered individual's criminal history record 
information. The ``may have a conviction'' determination shall be 
returned after the designated entity conducts its research to try to 
locate relevant missing disposition data as required in Sec.  105.35.

[[Page 58173]]

    (c) The criminal history record information provided from the FBI 
to the designated entity shall not be provided to the qualified entity.


Sec.  105.37  Rights of a covered individual.

    (a) Upon request to the designated entity, the covered individual 
who is the subject of the background check shall be provided with a 
copy of any background check report from the designated entity, 
including a copy of the criminal history record information that the 
designated entity received from the FBI.
    (b) Each designated entity must ensure that the covered individual 
who is the subject of the background check is provided notice of the 
opportunity to appeal and instructions on how to complete the appeals 
process.
    (1) Each covered individual may appeal the results of the 
determination made by the designated entity to challenge the accuracy 
or completeness of the information contained in the background check 
report of the covered individual and obtain a prompt determination as 
to the validity of such challenge before a final determination is made.
    (2) Each covered individual may appeal the information contained in 
the FBI criminal history record information through procedures the FBI 
has in place pursuant to 28 CFR part 16, subpart C, wherein the subject 
of a criminal history record may request production of that record to 
review it or to obtain a change, correction, or update of that record.


Sec.  105.38  Collection of fees.

    (a) Each designated entity shall set the fees to be collected under 
the CPIA Program at a level that will ensure the recovery of the full 
costs of providing all such services under the standards of the CPIA. 
The fee schedule by the designated entity shall be established to 
ensure that fees to qualified entities for background checks of covered 
individuals do not discourage volunteers from participating in the 
programs of qualified entities.
    (b) The designated entity shall remit the appropriate portion of 
such fee to the FBI. That amount shall be the amount published in the 
Federal Register to be collected for the provision of a fingerprint-
based criminal history background check conducted by the FBI.
    (c) A fee charged to a qualified entity not organized under 26 
U.S.C. 501(c)(3) shall not be less than the total sum of the costs of 
the FBI and the designated entity.

    Dated: August 17, 2023.
Merrick B. Garland,
Attorney General.
[FR Doc. 2023-18194 Filed 8-24-23; 8:45 am]
BILLING CODE 4410-02-P