Quiero saber acerca de...

khammond on DSKJM1Z7X2PROD with RULES

Federal Register / Vol. 86, No. 35 / Wednesday, February 24, 2021 / Rules and Regulations state checks, and the FBI checkwere conducted and reviewed before November 1, 2021. While the November 1, 2021 date is slightly more than 180
days from the effective date, the agency believes that the additional three calendar days and first of the month start date will allow for easier administration. By providing this extended compliance window, it is expected that most individuals in covered positions who remain in work or service in a covered position who did not have a three-part check will be able to obtain the missing states or FBI
check, as applicable, by the deadline.
This requirement is prospective in applicability, not retroactive. That is, no action is required by individuals who do not continue to work or serve in a covered position. The rule establishes the future condition for continued service and establishes a uniform set of requirements that must be met by a future date certain. A defined date supports clarity of applicability and uniformity in monitoring. For entities that participated in the exemption period and conducted all three component checks, additional action may not be required for most individuals.
Comment: Many commenters objected to the requirement to conduct three-part checks for all covered individuals, regardless of their access to vulnerable populations. A number of commenters asserted that the agency had exceeded its legal authority in imposing this requirement and that two-part checks were satisfactory for covered persons who do not have access to vulnerable populations. Other commenters said it was excessively burdensome for covered persons and grantees to obtain an extra level of clearance when it is not required by the statute, especially since it had to be completed prior to service starting.
Response: The agency declines to modify the rule to have a distinction between checks for those serving vulnerable populations and those without recurring access to vulnerable populations. The need to establish consistency across grant programs and to simplify the requirements, as well as concerns for the safety of vulnerable populations, outweighed concerns about grant recipient preference. Commenters asserted that the statutory language is plain and does not give the agency discretion regarding the NSCHC
component checks for those not working with vulnerable populations; the statute, they argue, gives the choice of NSCHC
components to the grant recipient. The agency does not take this view.

VerDate Sep<11>2014

16:14 Feb 23, 2021

Jkt 253001

Section 189Da of the NCSA states that entities shall, subject to the regulations and requirements established by the Corporation, conduct criminal history background checks on specified individuals. Emphasis added. Section 189Db states that the criminal history background check under section a shall, except in cases approved for good cause by the Corporation, include a name-based sex offender check, and state checks for the state of service and state of residence at time of application, or a fingerprintbased FBI check.
Section 189Db establishes the minimum requirements that the agency must consider in exercising its authority under 189Da and understands the or in 189D b2 to be read as permitting the agency to establish an NSCHC that permits a state component, an FBI
component, or both.
The agencys regulatory requirement aligns with the statute. A check of all three components meets the statutory requirement that the agency not require less than a sex offender check and either the state or FBI checks. The operative phrase in 189Db is shall . . .
include. It is permissive and, read in the context of 189Da, vests implementation to the discretion of the agency.
The scope of agency discretion would be different had the language said shall consist of or shall be limited to or shall not exceed, or other such discretion-limiting language. Section 189Db requires the agency to include the specified components, but does not require the agency to limit itself to those components.
Congress similarly specified the requirements for those serving vulnerable populations. At minimum, all three components must be present in the agencys requirements for those who work with vulnerable populations. The agency retains discretionthat is, what is required for the NSCHC is still subject to the requirements and regulations established by the Corporationand could require additional components, although the agency has opted to establish a check that mirrors the statutory language for those who work or serve with vulnerable populations.
Comment: Several commenters felt that replacing the current Alternative Search Procedure process with a new waiver process lacked clarity. They expressed concern because there has been a widespread history of needing Alternative Search Procedures to resolve situations where programs lacked access, or timely access, to criminal history check results and they were
PO 00000

Frm 00055

Fmt 4700

Sfmt 4700

11145

unsure how the proposed waiver process was intended to work.
Response: The agency believes that with agency-approved vendors available, there should be less need for alternative procedures or to waive elements of the requirements for criminal history checks. However, the agency recognizes that circumstances change, and new factual situations may emerge, and expects to use the waiver process to address those situations.
Those who would like a waiver may request it through the specified email address and the agency will provide a written response.
Comment: The agency noted that the proposed rule may have created confusion about the role of the budget in determining applicability of the NSCHC in section 201a4. That section specified that an individual had to be paid a salary and on the budget.
Response: The statutory requirement to conduct an NSCHC applies to persons who serve under a grant award whether they are paid directly from federal funds or if their time and effort are reflected on the grant as match under a cost reimbursement award. The budget document, historically, has been a strong indicator of persons who would be subject to the rule, but the budget document at the time of application, alone, does not determine who is in a position that requires an NSCHC.
Persons whose activities are attributed to funding on a CNCS grant or subgrant are always covered.
Comment: Several commenters expressed a desire for more frequent and impactful training for grant recipients to help them be more compliant. Many commenters provided suggestions for ways to improve training and training materials.
Response: The agency welcomes the suggestions for improving training and will consider them when it develops training programs or supporting materials.
Comment: The agency received several comments regarding its approach to enforcement. Commenters expressed disapproval of an enforcement scheme that required grant recipients to return grant funds to the agency when the grant recipients did not comply with the regulatory requirements.
Response: The agency did not propose making its enforcement guidance part of this rulemaking, as enforcement for noncompliance with grants is addressed under 2 CFR 200.338. With the agencyapproved vendors, all grant recipients have an established pathway to compliance and the costs of the NSCHC
and any other checks required for
E:FRFM24FER1.SGM

24FER1