[Federal Register Volume 79, Number 190 (Wednesday, October 1, 2014)]
[Proposed Rules]
[Pages 59168-59173]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-23061]
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DEPARTMENT OF DEFENSE
Office of the Secretary
32 CFR Part 86
[Docket ID: DOD-2013-OS-0009]
RIN 0790-AJ19
Background Checks on Individuals in DoD Child Care Services
Programs
AGENCY: Under Secretary of Defense for Personnel and Readiness, DoD.
ACTION: Proposed rule.
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SUMMARY: This rule establishes and updates policy, assigns
responsibilities, and provides procedures to conduct criminal history
checks on individuals involved in the provision of child care services
for children under the age of 18 in DoD programs. Public Law 101-647,
also known as the Crime Control Act of 1990 (Act), requires all
individuals involved with the provision of child care services to
children under the age of 18 undergo a criminal background check.
``Child care services'' include, but are not limited to, social
services, health and mental health care, child (day) care, education
(whether or not directly involved in teaching), and rehabilitative
programs. Any conviction for a sex crime, an offense involving a child
victim, or a drug felony, may be grounds for denying employment or for
dismissal of an employee providing any of the services discussed above
DATES: Comments must be received by December 1, 2014.
ADDRESSES: You may submit comments, identified by docket number and/or
Regulatory Information Number (RIN) number and title, by any of the
following methods:
Federal Rulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments.
Mail: Federal Docket Management System Office, 4800 Mark
Center Drive, East Tower, Suite 02G09, Alexandria, VA 22350-3100.
Instructions: All submissions received must include the agency name
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 http://www.regulations.gov as they are received without
change, including any personal identifiers or contact information.
FOR FURTHER INFORMATION CONTACT: Karen Morgan, 571-372-0859
SUPPLEMENTARY INFORMATION:
Executive Summary
The purpose of this regulatory action is to describe requirements
for criminal history background checks, including reinvestigation, and
self-reporting, for individuals involved with the provision of child
care services.
The legal authorities for this rule include: 5 U.S.C. 2105, 10
U.S.C. chapter 47, 42 U.S.C. 13041.
The major provisions of this regulatory action include providing
procedures for requirements for criminal history background checks
listing the types of background checks, and descriptions of
reinvestigation and self-reporting.
This rule is intended to support the workforce mission of the DoD
and implement current law that covers individuals expected to have
regular contact with children in the performance of child care services
on a DoD installation or DoD-sanctioned program. The estimated costs of
the proposed rule are $10 million annually. This cost includes
administration costs; required FBI fingerprint Investigations Child
Care National Agency Check with Inquiries checks ($125/NACI); State
Criminal History Repository checks ($25/each state the individual
resided in); and periodic reinvestigations. We do not believe that this
rule will impose substantial direct costs on state and local
governments.
Regulatory Analysis
Executive Order 12866, ``Regulatory Planning and Review'' and Executive
Order 13563, ``Improving Regulation and Regulatory Review''
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, reducing costs, harmonizing rules, and promoting flexibility.
This rule has been determined to be a significant regulatory action,
although not economically significant, under section 3(f) of Executive
Order 12866. Accordingly, the rule has been reviewed by the Office of
Management and Budget (OMB).
Section 202, Public Law 104-4, ``Unfunded Mandates Reform Act''
DoD has reviewed the rule in accordance with the Unfunded Mandates
Reform Act of 1995, and compliance with the rule would require no
additional expenditures by either public or private employers. In sum,
the final rule does not mandate that State, local, and tribal
governments adopt new, unfunded regulatory obligations. The costs of
the investigations conducted pursuant to this rule are borne by the
DoD, and not by the individual or his or her employer.
Public Law 96-354, ``Regulatory Flexibility Act'' (5 U.S.C. 601)
We certify this rule would not have a significant economic impact
on a substantial number of small entities because the costs for the
investigation conducted pursuant to this rule are borne by the DoD, and
not by the individual or his or her employer. Furthermore, any indirect
costs incurred by small businesses as a result of this rule would be
minimal. Accordingly, a regulatory flexibility analysis as provided in
the Regulatory Flexibility Act, as amended, is not required.
Public Law 96-511, ``Paperwork Reduction Act'' (44 U.S.C. Chapter 35)
This rule imposes reporting and record keeping requirements under
the Paperwork Reduction Act of 1995. These requirements have been
approved by the Office of Management and Budget and assigned OMB
Control Number 3206-0005, ``Questionnaires for National Security
Positions, Standard Form 86 (SF 86),'' OMB Control Number 3206-0261,
``SF 85 Questionnaire for Non-Sensitive Positions,'' OMB Control Number
3206-0191, ``SF 85P Questionnaire for Public Trust Positions,'' and OMB
Control Number 0704-0516, ``Child Care Development Program (CDP)
Criminal History.''
Executive Order 13132, ``Federalism''
This rulemaking was analyzed in accordance with the principles and
criteria contained in Executive Order 13132 (``Federalism''). It has
been determined that it does not have sufficient Federalism
implications to warrant the preparation of a Federalism summary impact
statement. This rulemaking has no substantial effect on
[[Page 59169]]
the States, or on the current Federal-State relationship, or on the
current distribution of power and responsibilities among the various
local officials. Nothing in this document preempts any State law or
regulation. Therefore, DoD did not consult with State and local
officials because it was not necessary. Show citation box
List of Subjects in 32 CFR Part 86
Government contracts, Government employees, Infants and children,
and Investigations.
Accordingly, 32 CFR part 86 is proposed to be revised to read as
follows:
PART 86--BACKGROUND CHECKS ON INDIVIDUALS IN DOD CHILD CARE
SERVICES PROGRAMS
Secs.
86.1 Purpose.
86.2 Applicability.
86.3 Definitions.
86.4 Policy.
86.5 Responsibilities.
86.6 Procedures.
Authority: 5 U.S.C. 2105, 10 U.S.C. chapter 47, and 42 U.S.C.
13041.
Sec. 86.1 Purpose.
This part establishes policy, assigns responsibilities, and
provides procedures to conduct criminal history checks on individuals
involved in the provision of child care services for children under the
age of 18 in DoD programs.
Sec. 86.2 Applicability.
This part applies to the Office of the Secretary of Defense, the
Military Departments, the Office of the Chairman of the Joint Chiefs of
Staff and the Joint Staff, the Combatant Commands, the Office of the
Inspector General of the Department of Defense, the Defense Agencies,
the DoD Field Activities, and all other organizational entities within
the DoD (referred to collectively in this part as the ``DoD
Components'').
Sec. 86.3 Definitions.
Unless otherwise noted, these terms and their definitions are for
the purposes of this part.
Adjudication. The evaluation of pertinent data in a background
investigation, as well as any other available information that is
relevant and reliable, to determine whether an individual is suitable
for work.
Adult. An individual 18 years of age or older regarded in the eyes
of the law as being able to manage his or her own affairs.
Applicant. A person upon whom a criminal history background check
is, will be, or has been conducted, including individuals who have been
selected or are being considered for a position subject to a criminal
history background check, and individuals undergoing a recurring
criminal history background check. Includes current employees.
Child. A person under 18 years of age.
Care provider. Current or prospective individuals hired with
appropriated fund (APF) and nonappropriated fund (NAFs) for education,
treatment or healthcare, child care or youth activities; individuals
employed under contract who work with children; and those who are
certified for care. Individuals working within programs that include:
Child Development Programs, DoD dependents schools, DoD-operated or -
sponsored activities, foster care, private organizations on DoD
installations, and youth programs.
Child care services. Care or services provided to children under
the age of 18 in settings including child protective services
(including the investigation of child abuse and neglect reports),
social services, health and mental health care, child (day) care,
education (whether or not directly involved in teaching), foster care,
residential care, recreational or rehabilitative programs, and
detention, correctional, or treatment services, as defined in 42 U.S.C.
13041
Class. With regard to the designation of positions, a categorical
descriptor identifying employee, contractor, provider, or volunteer
positions by group rather than by individual position or title (e.g.,
``doctors'' or ``individuals supervising children in a school'').
Contractor. Any individual, firm, corporation, partnership,
association, or other legal non-Federal entity that enters into a
contract directly with DoD or a DoD Component to furnish supplies,
services, or both including construction. Subcontractors are excluded.
Foreign governments or representatives of foreign governments that are
engaged in selling to DoD or a DoD Component are defense contractors
when acting in that context. A subcontractor is any supplier,
distributor, vendor, or firm that furnishes supplies or services to or
for a prime contractor or another subcontractor
Covered position. Defined in volume 731 of DoD Instruction 1400.25,
``DoD Civilian Personnel Management System'' (available at http://www.dtic.mil/whs/directives/corres/pdf/140025v731.pdf). Criminal
history background checks. A review of records, investigative reports,
and other investigative elements to generate criminal history
background findings to be used to make fitness or suitability
determinations.
Derogatory information. Information that may reasonably justify an
unfavorable personnel suitability or fitness determination because of
the nexus between the issue or conduct and the core duties of the
position.
DoD affiliation. A prior or current association, relationship, or
involvement with the DoD or any elements of DoD, including the Military
Departments.
DoD-sanctioned programs. Any program, facility, or service funded,
operated, or officially sanctioned by the DoD, a Military Department or
Service, or any agency, unit, or subdivision thereof. Examples include,
but are not limited to, chapel programs, child development centers,
family child care (FCC) programs, medical treatment facilities,
Department of Defense Education Activity (DoDEA) schools, recreation
and youth programs. These do not include programs operated by other
State or federal government agencies or private organizations without
the official sanction of a DoD entity.
Duties. Those activities performed as an employee, contractor,
provider, or volunteer that involve interaction with children,
including any work performed in a child development program or DoDEA
school.
Employee. An individual, paid from funds appropriated by the
Congress of the United States, or an individual employed by a NAF
instrumentality in accordance with 5 U.S.C. 2105(c). Includes foreign
nationals in accordance with Volume 1231 of DoD Instruction 1400.25,
``DoD Civilian Personnel Management System'' (available at http://www.dtic.mil/whs/directives/corres/pdf/1400.25-V1231.pdf), Military
Service members working during their off-duty hours, and non-status,
non-continuing temporary positions with specified employment periods
not to exceed 1 year such as summer hires, student interns, and
seasonal hires.
FAP. Defined in DoD Directive 6400.1, ``Family Advocacy Program
(FAP)'' (available at http://www.dtic.mil/whs/directives/corres/pdf/640001p.pdf).
FAP records check. A review of FAP records maintained on an
individual, including records maintained by the installation office and
records in the Service Child and Spouse Abuse Central Registry in
accordance with DoD Directive 6400.1. If the individual is the spouse
or dependent of a Service member, this may entail review of records
maintained on the sponsoring Service member. Installation and Service
Central Registry checks are
[[Page 59170]]
limited to identifying pending and met criteria incidents of
maltreatment and do not include information related to incidents that
did not meet criteria or any information contained in the clinical case
record that is protected by section 1320d-6 or 5 U.S.C. 552a
Federal Bureau of Investigation (FBI) criminal history background
check. An FBI identification record--often referred to as a criminal
history record or a ``rapsheet''--is a listing of certain information
taken from fingerprint submissions retained by the FBI in connection
with arrests and, in some instances, federal employment,
naturalization, or military service. The process of responding to an
identification record request is generally known as a criminal history
background check.
FCC. Defined in DoD Instruction 6060.2, ``Child Development
Programs (CDPs)'' (available at http://www.dtic.mil/whs/directives/corres/pdf/606002p.pdf).
FCC provider. Defined in DoD Instruction 6060.2.
FCC adult family members. Any adult, 18 years of age or older, who
resides in the home of an FCC provider for 30 or more consecutive days.
Fitness. The reference to a person's level of character and conduct
determined necessary for an individual to perform work for, or on
behalf of, a Federal Agency as an employee in the excepted service
(other than in a position subject to suitability) or as a contractor
employee.
Fitness determination. A decision, based on review of criminal
history background check findings, that an individual is fit to perform
duties in a position subject to criminal history background check.
Fitness determinations will be ``favorable,'' meaning that the
individual is fit to perform the duties, or ``unfavorable,'' meaning
that the individual is not.
Foreign nationals. Individuals who are not citizens of the United
States.
Foster care providers. A voluntary or court-mandated program that
provides 24-hour care and supportive services in a family home or group
facility, within government-owned or -leased quarters, for children and
youth who cannot be properly cared for by their own family.
Healthcare personnel. Military, civilian, or contract staff
involved in the delivery of healthcare services.
Host-government check. A criminal history background check
conducted on foreign nationals in accordance with U.S. and host country
treaties or agreements.
Interim suitability or fitness determination. Part of the pre-
screening process in the identification and resolution of suitability
or fitness issues, which occurs prior to the initiation of the required
investigation. It involves the review of applications and other
employment related documents. A favorable interim suitability or
fitness determination is a status granted on a temporary basis, which
permits individuals to work under line-of-sight supervision (LOSS)
after the return of the advance FBI fingerprint check, pending
completion of full investigative requirements and a final suitability
determination.
Investigative elements. The records, reports, or other individual
elements that comprise the whole of information collected during a
criminal history background check and used to make a fitness or
suitability determination.
Installations records check (IRC). A query of records maintained on
an individual by programs and entities at the military installation
where the individual lives, is assigned, or works, including military
law enforcement and installation security records, drug and alcohol
records, and FAP records for a minimum of 2 years before the date of
the application.
Investigative service provider (ISP). The company or agency
authorized to perform background investigations on personnel on behalf
of the agency.
Line of Sight Supervision (LOSS). Continuous visual observation and
supervision of an individual whose background check has not yet
cleared, and has a favorable interim suitability or fitness
determination, while engaged in child interactive duties, or in the
presence of children in a DoD sanctioned program or activity. The
person providing supervision must have undergone a background check and
received a final favorable suitability or fitness determination and be
current on all periodic reinvestigations as required by this part.
Met criteria. Reported incident of alleged maltreatment found to
meet DoD incident determination criteria for child abuse or domestic
abuse and entry into the Service FAP central registry of child abuse
and domestic abuse reports.
Position. An employee, contractor, provider, or volunteer role or
function.
Preliminary investigations. Those investigative elements of a
criminal history background check, including those specified in Sec.
86.6(f) of this part, which must be favorably completed and reviewed
before an individual may be permitted to perform duties under LOSS.
Providers. Individuals involved in child care services who have
regular contact with children or may be alone with children in the
performance of their duties. Includes FCC providers and individuals
with overall management responsibility for child and youth programs.
Regular contact with children. Recurring and more than incidental
contact with or access to children in the performance of their duties
on a DoD installation, program, or as part of a DoD-sanctioned
activity.
Reinvestigation. A criminal history background check conducted
after the period of time prescribed by this part to ensure the
individual remains eligible to provide child care services.
Reinvestigation includes the same checks conducted for the initial
investigation as outlined in paragraph (b) of Sec. 86.6.
Respite care providers. Individuals who provide short-term care and
supportive services in a family home or group facility within
government-owned or -leased quarters.
State criminal history repository (SCHR). A repository of criminal
information that lists past state convictions, current offender
information, and criminal identification information (fingerprints,
photographs, and other information or descriptions) that identify a
person as having been the subject of a criminal arrest or prosecution.
Checks of the SCHR may include the State child abuse and neglect
repository and the State sex offender registry.
Suitability determination. A decision that a person is or is not
suitable for a covered position within the DoD.
Supervisor. The person supervising individuals who are permitted to
perform duties only under LOSS, who is not necessarily the same as an
employee's supervisor for employment purposes (e.g., ratings,
assignment of duties).
Volunteer. There are two types of volunteers:
(1) Specified volunteers. Individuals who could have extensive or
frequent contact with children over a period of time. They include, but
are not limited to, positions involving extensive interaction alone,
extended travel, or overnight activities with children or youth.
Coaches and long-term instructors are among those who fall in this
category. Specified volunteers are designated by the DoD Component
head. Background checks are required in accordance with paragraph
(b)(4) of Sec. 86.6.
(2) Non-specified volunteers. Individuals who provide services that
are shorter in duration than is required to perform a criminal history
background check (e.g., one-day class
[[Page 59171]]
trip, class party). Because non-specified volunteers do not receive the
same level of background checks as specified volunteer, non-specified
volunteers must always be in line of sight of a staff member with a
complete background check.
Youth program. Defined in DoD Instruction 6060.4, ``Department of
Defense (DoD) Youth Programs (YPs)'' (available at http://www.dtic.mil/whs/directives/corres/pdf/606004p.pdf).
Sec. 86.4 Policy.
It is DoD policy that:
(a) Individuals who have regular contact with children under 18
years of age in DoD-sanctioned child care services programs will
undergo a criminal history background check.
(b) DoD Component heads are delegated the authority to make
suitability determinations and take subsequent actions in cases
involving applicants and appointees to covered positions as defined by
5 CFR 731.101, subject to the conditions in 5 CFR 731.103. This
authority may be further delegated to authorized management officials,
in writing, in accordance with volume 731 of DoD Instruction 1400.25.
(1) The DoD Consolidated Adjudications Facility is responsible for
making favorable suitability determinations for civilian personnel in
accordance with Deputy Assistant Secretary of Defense for Civilian
Personnel and Policy Memorandum, ``Responsibilities Under the
Department of Defense Suitability and Fitness Adjudications for
Civilians Employees Programs,'' August 26, 2013.
(2) Military members are not subject to suitability adjudication
under Volume 731 of DoD Instruction 1400.25, ``DoD Civilian Personnel
Management System'' (available at http://www.dtic.mil/whs/directives/corres/pdf/140025v731.pdf). Military members are subject to the
background check requirements of DoD Instruction 5200.02, ``Personnel
Security Program'' (available at http://www.dtic.mil/whs/directives/corres/pdf/520002_2014.pdf) and Sec. 86.6.
(c) All individuals who have a current or prior DoD affiliation
must also undergo an IRC.
(d) Suitability and fitness determinations for individuals subject
to this part will follow the guidance of Volume 731 of DoD Instruction
1400.25 for APF employees and Subchapter 1403 of DoD Instruction
1400.25 for NAF employees. Suitability and fitness are to be applied
for the child care worker population in accordance with Volume 731 of
DoD Instruction 1400.25 for appropriated fund employees in covered
positions as defined by 5 CFR part 731.
(e) Individuals who have received a favorable interim suitability
or fitness determination based on the FBI criminal history background
check are permitted to work under LOSS pursuant to 42 U.S.C.
13041(b)(3).
Sec. 86.5 Responsibilities.
(a) Under the authority, direction, and control of the Under
Secretary of Defense for Personnel and Readiness (USD(P&R)), the
Assistant Secretary of Defense for Readiness and Force Management
(ASD(R&FM)):
(1) Ensures the conduct of criminal history background checks
complies with DoD policy and the Criminal Justice Information Services
Division of the FBI's operational and security policies and procedures.
(2) Monitors DoD Component compliance with this part, applicable
laws, and subsequent guidance issued by the applicable ISP.
(b) Under the authority, direction, and control of the ASD(R&FM),
the Deputy Assistant Secretary of Defense for Civilian Personnel Policy
(DASD(CPP)) oversees development of DoD Component policies and
procedures for the background check initiation, completion,
adjudication, and suitability or fitness determination process for
civilian employees in accordance with this part.
(c) Under the authority, direction, and control of the ASD(R&FM),
the Deputy Assistant Secretary of Defense for Military Community and
Family Policy (DASD(MC&FP)) oversees development of DoD Component
policies and procedures related to the background check initiation,
completion, adjudication, and fitness determination process for
specified volunteers, FCC providers and adults residing in their home,
and others as identified in accordance with this part.
(d) Under the authority, direction, and control of the ASD(R&FM),
the Deputy Assistant Secretary of Defense for Military Personnel Policy
(DASD(MPP)):
(1) Implements this part for the individuals identified in
paragraph (a)(6)(v) of Sec. 86.6.
(2) Institutes effective quality assurance and quality control
systems for chaplains, support staff, specified volunteers, and
contractors who provide support to religious programs and activities
identified in paragraph (a)(6)(v) of Sec. 86.6 and in accordance with
this part.
(e) The Director of Administration under the authority, direction,
and control of the Deputy Chief Management Officer (DCMO) of the
Department of Defense, the Director of Administration ensures that the
adjudication of background investigations of individuals who have
regular contact with children under 18 years of age in DoD-sanctioned
programs considers the criteria for presumptive and automatic
disqualification as specified in this part.
(f) The Under Secretary of Defense for Acquisition, Technology, and
Logistics (USD(AT&L)) establishes policies and procedures for the
background check initiation, completion, adjudication, and fitness
determination process for contractors in accordance with the
requirements of this part.
(g) The DoD Component heads:
(1) Ensure Component compliance with the requirements of this part,
applicable laws, and guidance for civilian employees.
(2) Ensure compliance with suitability and fitness determination
policies, requirements, and procedures for individuals in child care
services in DoD programs as defined in 42 U.S.C. 13041 and DoD
Instruction 1400.25.
(3) Ensure compliance with policies, requirements, and procedures
for LOSS of individuals with a favorable interim suitability
determination.
(4) Provide support and resources as required to implement this
part and any Component-specific policies, requirements, and procedures,
and ensure implementation.
Sec. 86.6 Procedures.
(a) Requirements for Criminal History Background Checks.
(1) All criminal history background checks required by this part
must be initiated and overseen by properly trained and vetted
individuals who have been determined to be responsible for personnel
security pursuant to DoD 5200.2-R or human resource functions pursuant
to Volume 731 of DoD Instruction 1400.25. Program managers,
supervisors, and others not routinely performing personnel security and
human resource functions are prohibited from managing the criminal
history checks.
(2) All employment applications completed by individuals subject to
this part must comply with the requirements of 42 U.S.C. 13041(d).
(3) The DoD Component will ensure that only authorized ISPs are
used.
(4) When permitted by the host government, foreign government
checks of individuals serving on DoD installations overseas must be
requested directly by the employing Military Service or agency in
accordance with Volume 1231 of DoD Instruction 1400.25. As an
alternative, DoD Components may request that overseas
[[Page 59172]]
Military Service investigative elements obtain appropriate host-
government checks and accept such checks if they are comparable to
those required by 42 U.S.C. 13041. Where it is not possible to obtain
criminal history checks comparable to those required by 42 U.S.C.
13041, foreign nationals will not be eligible for employment in child
care services.
(5) Individuals subject to criminal history background checks are:
(i) All personnel employed or performing duties in DoD Child and
Youth or other sanctioned child care services program.
(ii) Individuals providing in-home FCC.
(iii) Personnel employed or performing duties in child and youth
recreational and athletic programs (e.g., Morale, Welfare, and
Recreation), including instructors and, when working in a facility when
children and youth are present, custodial personnel.
(iv) Individuals employed or performing duties in a DoDEA school
(whether or not directly involved with teaching), including but not
limited to teachers, administrators, other professional staff, aides,
bus drivers, janitors, cafeteria workers, nurses, and attendants.
(v) Chaplains, chaplains' assistants, religious program
specialists, and other individuals employed or performing child care
services duties for children under 18 years of age on a DoD
installation or as part of a military-sanctioned program.
(vi) Foster and respite child care providers on a DoD installation,
program, or as part of a military-sanctioned activity.
(vii) Health and mental health care personnel, employed or
performing child care services duties on a DoD installation, in a DoD
sanctioned program, or as part of a military-sanctioned activity,
including but not limited to physicians, dentists, nurse practitioners,
clinical social workers, physical therapists, speech-language
pathologists, clinical support staff (including residents), registered
nurses, licensed practical nurses, nursing assistants, play therapists,
and technicians.
(viii) Individuals employed or performing child care duties in
social services, residential care, rehabilitation programs, detention,
and correctional services on a DoD installation, program, or as part of
a military-sanctioned activity.
(ix) Any other individuals reasonably expected to have regular
contact with children on a DoD installation, in a DoD sanctioned
program, or as part of a military-sanctioned activity, including
specified volunteers and any person 18 years of age or older residing
in an FCC, foster, or respite care home.
(6) The DoD Components will also determine any other classes of
positions subject to criminal history background checks, taking care to
ensure that all individuals who have regular contact with children when
providing child care services are investigated and the requirement must
pertain to the class as a whole.
(7) Individuals designated in non-specified volunteer positions
must always be under direct LOSS in accordance with Sec. 86.6(f).
(b) Types of Background Checks. Procedures for conducting a
background check on individuals in paragraphs (a)(6)(i) through
(a)(6)(ix) of this section differ based on the employment status of the
individual. Military members are subject to the background check
requirements of DoD Instruction 5200.02 and this section. The FBI
criminal history background checks for all categories of individuals
must be fingerprint-based and fingerprints must be captured using an
FBI-approved system. SCHR checks may require hardcopy fingerprint
submissions. State checks must include the state child abuse and
neglect repository and the state sex offender registry. The Component
must request a check of the state child abuse and neglect repository
and the State sex offender registry if they are not automatically
checked as part of the standard SCHR check.
(1) Criminal History Background Checks for DoD Civilian and
Military Personnel who are Investigated at the NACI or a Higher Level
pursuant to DoD's Personnel Security Program.
(i) DoD civilian and military personnel required by DoD Instruction
5200.02 to be investigated according to the requirements of the NACI or
a higher level investigation and who have regular contact with children
under 18 years of age in DoD-sanctioned programs will be investigated
and adjudicated in accordance with the provisions of DoD Instruction
5200.02.
(ii) These personnel will also be subject to the additional
requirements of the Child Care National Agency Check and Inquiries
(CNACI) and the criteria for presumptive and automatic disqualification
as specified in paragraph (c) of this section.
(2) Criminal History Background Checks for Civilian Employees (APF
and NAF).
(i) In accordance with 42 U.S.C. 13041 and Volume 731 and
Subchapter 1403 of DoD Instruction 1400.25, complete a CNACI, which
includes an FBI criminal history background check conducted through the
Criminal Justice Information Services Division of the FBI and SCHR
checks through State repositories of all States that an employee or
prospective employee lists as current and former residences on an
employment application. Results of an advanced FBI fingerprint check
must be provided before completion of the full CNACI to determine
employment under LOSS.
(iii) Evidence or documentation of the individual's past or present
dependency on or addiction to any controlled or psychoactive
substances, narcotics, cannabis, or other dangerous drug without
evidence of substantial rehabilitation.
(iv) A conviction, including any general, special, or summary
court-martial conviction, or non-judicial punishment under Article 15
of the UCMJ for:
(A) A crime of violence committed against an adult.
(B) Illegal or improper use, possession, or addiction to any
controlled or psychoactive substances, narcotics, cannabis, or other
dangerous drug.
(v) A civil adjudication that terminated the individual's parental
rights to his or her child, except in cases where the birth parent
places his or her child for adoption.
(2) Evaluation of Presumptively Disqualifying Information. The DoD
Components will establish and oversee procedures for the evaluation of
presumptively disqualifying information for all categories of
individuals in paragraph (b) of this section. Evaluation of
presumptively disqualifying information for APF and NAF personnel must
be in accordance with Volume 731 and Subchapter 1403 of DoD Instruction
1400.25, respectively.
(3) Criteria for Disqualification Under LOSS. If an investigation
of an individual who is currently working under LOSS subsequently
results in an unfavorable determination, the DoD Components will take
action to protect children by reassigning or removing the individual
from employment, contract, or volunteer status.
(4) Disputes and Appeals. The DoD Components will establish and
oversee procedures for the communication of determinations and the
appeal of unfavorable determinations for all categories of individuals
in paragraph (b) of this section. The procedures for civilian personnel
are subject to Volume 731 of DoD Instruction 1400.25 for APF employees
and Subchapter 1403 of DoD Instruction 1400.25 for NAF employees.
[[Page 59173]]
(d) Reinvestigation.
(1) All DoD civilian employees (both APF and NAF), contractors,
military personnel, and any other individuals reasonably expected to
have regular contact with children on a DoD installation, program, or
as part of a military-sanctioned activity, including specified
volunteers and any person 18 years of age or older residing in an FCC,
foster, or respite care home, who continue to perform duties in the
position for which their initial background check was conducted, must
undergo a reinvestigation every 5 years. The reinvestigation must
consist of a check at the same level as the initial investigation as
outlined in paragraph (b) of this section.
(2) All FCC providers and adults residing in an FCC home must
undergo an annual reinvestigation. The reinvestigation must consist of
the same check conducted for the initial investigation as outlined in
paragraph (b) of this section.
(3) If the reinvestigation results in an unfavorable determination,
the DoD Components will take action to protect children by reassigning
or removing the individual from employment, contract, or volunteer
status.
(4) If derogatory information surfaces within the 5 years before
the reinvestigation, the DoD Component will take action to protect
children by reassigning or suspending the individual from having
contact with children, any individual, contractor or volunteer until
the case is resolved.
(e) Self-Reporting.
(1) Individuals who have regular contact with children under 18
years of age in DoD-sanctioned programs who have a completed background
check are required to immediately report subsequent automatic
disqualification criteria under paragraph (c)(1) of this section and
presumptive disqualification criteria under paragraphs (c)(2)(i),
(c)(2)(iv), and (c)(2)(v) of this section.
(2) The DoD Components will establish procedures for:
(i) Informing individuals of the requirement to immediately report
any incident or conviction that may invalidate their prior background
check and make them ineligible to work or have contact with children.
(ii) Responding to and evaluating reports made by such individuals,
and taking appropriate action until the case has been resolved or
closed.
Eligibility to Perform Duties Under LOSS.
The DoD Components will establish Component-specific procedures,
policies, and requirements, subject to the requirements of this
section, to permit applicants for whom a criminal history background
check has been initiated but not yet completed, to perform duties under
LOSS upon favorable findings of preliminary investigations.
(1) No Presumption of Right. No individual will be permitted to
perform duties under LOSS in a position subject to criminal history
background check without authorizing policy or other written permission
from a DoD Component head.
(2) Preliminary Investigations Required. No individual will be
permitted to perform duties under LOSS in a position subject to
criminal history background check unless the following investigative
elements have been reviewed and determined favorably:
(i) An IRC, including installation law enforcement records check,
drug and alcohol records, and FAP records check for a minimum of 2
years before the date of the application if the individual has a
preexisting DoD affiliation.
(ii) Initial results from the advanced FBI fingerprint criminal
history background check (not the full check).
(3) Exception for Non-specified Volunteers. Due to the controlled,
limited duration of an activity for these individuals, an advanced FBI
fingerprint criminal history background check is not required. Non-
specified volunteers will be permitted to perform duties and services
under LOSS for the duration of the activity.
(4) Supervisor Requirements. The supervisor must be a person who:
(i) Has undergone and successfully completed the required
background check.
(ii) Has complied, as required, with the periodic reinvestigation
requirement for a recurring criminal history background check.
(iii) Has not previously exhibited reckless disregard for an
obligation to supervise an employee, contractor, or volunteer.
(5) Video Surveillance. The use of video surveillance equipment to
provide temporary oversight for individuals whose required background
checks have been initiated but not completed is acceptable provided it
is continuously monitored by an individual who has undergone and
successfully completed all required background checks. This provision
shall meet the intent of a flexible and reasonable alternative for
``direct sight supervision.''
(6) Conspicuous Identification of Individuals Subject to LOSS.
Individuals permitted to perform duties solely under LOSS must be
conspicuously marked by means of distinctive clothing, badges,
wristbands, or other visible and apparent markings. The purpose of such
markings must be communicated to staff, customers, parents, and
guardians by conspicuous posting or printed information.
(7) Permissible Performance of Duties Without Supervision.
Individuals otherwise required to perform duties only under LOSS may
perform duties without supervision if:
(i) Interaction with a child occurs in the presence of the child's
parent or guardian;
(ii) Interaction with children is in a medical facility, subject to
supervisory policies of the facility, and in the presence of a mandated
reporter of child abuse; or
(iii) Interaction is necessary to prevent death or serious harm to
the child, and supervision is impractical or unfeasible (e.g., response
to a medical emergency, emergency evacuation of a child from a
hazardous location).
Dated: September 24, 2014.
Aaron Siegel,
Alternate OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 2014-23061 Filed 9-30-14; 8:45 am]
BILLING CODE 5001-06-P