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Federal Register / Vol. 86, No. 35 / Wednesday, February 24, 2021 / Rules and Regulations history background check as part of a comprehensive screening process. And many commenters articulated how they are subject to several background check requirements from various sources and have tailored their screening and vetting procedures to conform with those required by state law or best practices or site requirements. The commenters asserted that the agencys requirements are yet another burden and suggested that the agency remove the requirement or broaden exemptions. The agencys legislation is prescriptive and creates an obligation to ensure that grant recipients comply with the law. The agency wants to ensure that grant recipients meet the basic requirements of the rule and can easily document compliance with the requirements. Commenters expressed a desire for ease of administration and minimal duplication of process.
However, the IPERA data reflects that many grant recipients could not demonstrate that they conducted the required components on time, and the agency does not find a sufficient basis to embrace the relaxed approach suggested by some commenters.
Commenters supported elimination of the requirement for staff to obtain criminal history checks under planning grants, non-profit capacity building grants, and on fixed-award grants, again, with some commenters expressing support for expansion of categories of exemptions. In addition, commenters expressed support for the elimination of the requirement to conduct criminal history checks of individuals under the age of 18 at the time they start service or employment. And, commenters also expressed support for extending the time period for which a grant recipient must re-check a person after a break in service or employment with the same organization from 120 days to 180 days.
The final rule has been modified in response to the comments provided.
The comments and CNCSs responses are set forth below:
Comment: CNCS received positive comments on eliminating the requirement for grant recipients to conduct criminal history checks on employees of organizations with planning grants and staff on fixedamount grants. Some commenters requested that exemptions from NSCHCs extend to additional CNCS
grants such as the Volunteer Generation Fund, and the Martin Luther King and 9/11 Day of Service grants.
Response: The agency balanced the statutory requirements articulated in 42
U.S.C. 12645g to protect vulnerable populations being served by programs, the needs of the agency to efficiently monitor programs, and the
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administration of the requirements by grant recipients. Fixed-amount grant recipients receive a fixed amount per member service year and do not identify specific staff positions on a grant budget. Relying on information provided in the narrative text of fixedamount grant applications to identify persons for whom the NSCHC was required, led, at times, to requiring checks for persons who would never be included if the program were funded under a cost reimbursement grant. It also led to uncertainty in determining whether a position was covered or not.
Fixed-amount grants are intended to optimize efficiency in grantmaking.
Fixed-amount grant recipients are provided a sum of money that is significantly less than what is needed to implement the program. The additional resources required to implement the program are the responsibility of the recipient. Fixed-amount grant recipients are not required to track spending or a specified percentage of matching funds, and federal agencies focus on grant recipient performance rather than grant recipient accounting. To require fixedamount grantees to track funds in the same manner that cost reimbursement grant recipients do, for the purpose of determining whether or not a person is covered by the rule, would disrupt the statutory scheme of fixed-amount grants. In order to eliminate ambiguity and create a rule that can be easily applied with parity, the agency determined that the staff who implement fixed-amount grants should be exempt from the criminal history check requirement, under its authority to exempt individuals from the requirements for good cause under section 189D. While the agency encourages organizations to implement criminal history checks as part of a comprehensive screening procedure to reduce risk to vulnerable populations, which could include staff who implement fixed-amount grant activities, the agency finds that clarifying the applicability of the rule resolves the current ambiguous state.
The agency considered the comments regarding eliminating the applicability of the NSCHC to other grants, such as the Martin Luther King, Jr. and September 11th Day of Service grants and Volunteer Generation Fund grants.
The agency declines to exempt these grants from the NSCHC requirements, as the grants issued are used to pay the salaries of persons reflected on a grant award who are implementing a day of service grant or otherwise covered grant program and the agency did not find a
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sufficient basis to exclude them from the statutory requirements.
Comment: The agency received positive comments about not requiring an NSCHC for individuals under the age of 18 at the start of their service. Some commenters expressed a desire for the agency to expand exemptions to participants and employees who may already receive criminal history checks because of their profession.
Response: The agency finds that good cause exists to exempt those under the age of 18 from the NSCHC requirements and establishes the persons start date as the operative date for determining the persons age. Congress specified that a check for those serving with vulnerable populations applied only for those who were 18 or older, but did not specify the age requirement for being subject to the NSCHC for persons who serve with nonvulnerable populations, leaving it subject to the regulations and requirements established by the agency.
Because Congress provided language in the statute that stated additional NSCHC
components were required only for those 18 or older, the agency finds the age specified in the legislation to be a reasonable basis to establish parity in the age at which a baseline NSCHC is required. The agency encourages grant recipients to ask all applicants about any disqualifying criminal history and conduct an NSOPW search, but in the interest of clarity and consistency in application of the final rule, finds that an NSCHC for those under 18 years of age is not required by the regulation.
The agency has considered exemptions for certain professions in the past, and understands that there may be a reasonable basis to exempt certain professions from the NSCHC
requirement. However, due to the variability of states standards for rendering clearance decisions, and in pursuit of clarity in application and ease of monitoring, the agency has decided against including profession-based exceptions in the final rule. For situations where grant recipients demonstrate that an administrative modification to the rule is necessary, the final rule includes a waiver provision.
Rather than codifying exemptions, the agency may evaluate facts and circumstances, in a particular case or in a class of cases, that necessitate administrative modifications to the process through the waiver provision.
Comment: Some commenters expressed support for requiring programs to obtain criminal history check results through designated vendors because it simplified the process and provided a consistent, timely and reliable method. However,
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