80 FR 55752 - Background Checks on Individuals in DoD Child Care Services Programs

DEPARTMENT OF DEFENSE
Office of the Secretary

Federal Register Volume 80, Issue 180 (September 17, 2015)

Page Range		55752-55761
FR Document		2015-23269

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. 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.

Federal Register, Volume 80 Issue 180 (Thursday, September 17, 2015)

[Federal Register Volume 80, Number 180 (Thursday, September 17, 2015)]
[Rules and Regulations]
[Pages 55752-55761]
From the Federal Register Online [www.thefederalregister.org]
[FR Doc No: 2015-23269]

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DEPARTMENT OF DEFENSE

Office of the Secretary

32 CFR Part 86

[Docket ID: DOD-2014-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: Final 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. 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: This rule is effective October 19, 2015.

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 rule are $10 million annually. This cost includes administration
costs; required FBI fingerprint Investigations Child Care National
Agency Check and 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.
This rule is part of DoD's retrospective plan, completed in August
2011, under Executive Order 13563, ``Improving Regulation and
Regulatory Review.'' DoD's full plan and updates can be accessed at:
http://www.regulations.gov/#!docketDetail;dct=FR+PR+N+O+SR;rpp=10;po=0;D=DOD-2011-OS-0036.

Public Comments

The Department of Defense published a proposed rule in the Federal
Register on October 1, 2014 (79 FR 59168-59173) for a 60-day public
comment period. We received 22 comments. Five comments expressed
support for the rule and no response is required. One comment was
withdrawn. The remaining comments are listed below.
Comment ID DOD-2014-OS-0009-0003:
The law still states that 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. Public Law 101-
647. The word may give too much flexibility in the decision making
process to hiring agents in determining what to do with results of the
background check. The review board may either bar employment based on
the offenses listed out in the statute or excuse the background check
results. Agency processes should spell out more specifically which
offenses are bars and which are not.
Response: The commenter has referenced the summary paragraph at the
beginning of the rule, which is not the rule itself. Please see Sec.
86.6(c) for specific criteria for automatic and presumptive
disqualifiers, which does not use the term, ``may.''
It is imperative that a thorough review, investigation and
study of different systems for background checks is completed on each
organization interacting with children.
Response: This rule/policy was developed in collaboration with the
Military Services, which are responsible for providing detailed
procedures that meet the overall DoD requirements in this rule to
ensure the rule/policy is implemented correctly.

[[Page 55753]]

Comment ID DOD-2014-OS-0009-0004:
This rule includes all current employees, contractors and
specific volunteers, in addition to future applicants, which is bound
to create a backlog for which no solution is presented, at least in the
current rule.
Response: This rule does not create a new system. It updates
existing policy for background checks.
This rule addresses foreign nationals in a way that could
be ambiguous in its application. The definition describes a foreign
national as not a citizen of the United States. This encompasses a fair
amount of specific volunteers, especially in the religious ministries
at overseas DoD facilities. These volunteers, innocent of any criminal
wrong doing, may not fall under host country agreements and therefore
be unable to continue their work. This would be an unfair outcome for
those individuals and the organizations that rely on an already limited
pool of volunteers. A similar outcome is possible for those foreign
nationals who are military members or spouses who are not yet U.S.
citizens that reside in the U.S. and work on DoD facilities.
Response: There are policies and procedures in place to ensure
foreign nationals receive appropriate background checks or work under
line-of-sight supervision (LOSS) in order to continue their work.
The rule seems to exclude subcontractors from its
application. This may be due to the potential increased burden on first
line contractors to ensure all its subs are in compliance. This is
frankly unacceptable as a lot of what occurs on DoD facilities,
especially overseas, is accomplished by subcontractors.
Response: The exclusion of subcontractors has been deleted from the
definition of contractors.
Comment ID DOD-2014-OS-0009-0005: I'm confused by the language in
Sec. 86.6(b), which references ``(a)(6)(i)'' and ``(a)(6)(ix)'' as
being ``in this section.'' I can't find the quoted section. This may be
my error, or perhaps it is a clerical oversight.
Response: The reference should be (a)(5)(i) and (a)(5)(ix). Section
86.6(b) has been updated with the accurate reference.
Comment ID DOD-2014-OS-0009-0006: Why limit the background checks
to individuals with ``regular contact with children?'' The definition
of ``regular contact with children'' excludes those with access to
children. The narrow reach of the proposed rule seems to leave out
serious threats. Limited resources could be to blame.
Response: It is beyond the scope of DoD to conduct a background
check on any individual who has access to children. This rule/policy is
intended to ensure appropriate checks of those who work in DoD-
sanctioned child care services programs.
Comment ID DOD-2014-OS-0009-0007: Absent documented statistical
research to the contrary, the Department of Defense has not established
that individuals who are convicted drug felons are any more likely to
threaten a child's safety than any other citizen of the United States.
Please modify the proposed rule to omit the class ``persons with a drug
felony'' from the screening process for federal jobs within the
Department of Defense that serve children under the age of 18.
Response: Inclusion of a ``felony conviction of a drug offense'' as
an automatic disqualifier was based on careful and objective analysis
regarding how to protect children in DoD child care services programs.
A felony conviction of a drug offense could adversely impact the
integrity of the position and the safety and well-being of children in
DoD care.
Comment ID DOD-2014-OS-0009-0008:
Costs: $10 million annually is a large amount of money.
How crucial are each of the checks and investigations and how necessary
is it for reinvestigations to take place every 5 years if the surfacing
of derogatory information will trigger a reinvestigation anyways? I
like Executive Orders 13563, and it seems to address these questions,
however it states that it is not economically significant, which makes
me wonder whether alternatives ways to regulate and minimize costs are
properly being explored and examined. The price of each component, for
example video surveillances or conspicuous marking, should be strictly
scrutinized. What other programs is the use of this money being
indirectly taken away from? Additionally, what process will determine
that the state and local governments will not be substantially affected
financially and what does substantial mean? It is great that employers
and a substantial number of small entities will not be significantly
impacted under the Unfunded Mandates Reform Act and the Regulatory
Flexibility Act, but how far do the costs extend to government
contracts and employees within the state?
Response: The requirements for the initial checks and regular 5
year reinvestigations are crucial to ensuring protection of children in
DoD child care services programs. As background check systems are
updated to report derogatory information more immediately, this rule/
policy may be updated to revise the every 5 year requirement. The costs
of the investigations are borne by the DoD, and not by the individual
or his or her employer or the State. This policy update does not and
cannot mandate that State, local, and tribal governments adopt new,
unfunded regulatory obligations.
Privacy and Relevancy: Those in charge of the background
checks are about to look at any other available information that is
relevant (listed under Adjudication). I fear that some may abuse this
and unfairly use information that is not so relevant against an
applicant.
Response: Adjudicators are trained to appropriately assess
information received as part of a background checks in accordance with
law and policy. Individuals who abuse their access to information are
not operating in accordance with laws, regulations and policies.
Categorizing Care Provider, Providers, and Personnel
performing duties in athletic programs: The definitions for these types
of jobs can easily be stretched to many things (for example, could
babysitting under certain circumstances count?). Child care or youth
activities could mean so many things that do not necessarily require
these extensive checks. My obvious hesitancy expressed in these
comments and questions comes from my concern for costs for this rule as
well as unfair burdens placed on individuals that may have a poor
history, but a history that is unrelated to the wrongdoings that their
guilt from these tests would be impliedly accusing them of, or a
history that is simply in the past and different from their present
state (for example a minor criminal record or drug use that has been
overcome). It is honorable to aim to protect our children, but it is
also important to protect our citizens and employees who are trying to
live happy lives and contribute to the economy in the best ways that
they can.
Response: The categories of individuals who require a criminal
history background check, which includes all individuals who have
regular contact with children under 18 years of age in DoD-sanctioned
child care services programs, was established in accordance with Public
Law 101-647 in order to protect the health and well-being of children
in such programs. The costs of the specific investigations required
pursuant to this rule have been

[[Page 55754]]

budgeted and are borne by the Department of Defense and not by the
individual or his or her employer or the state.
Lastly, it concerns me that the DoD Components will
evaluate the disqualifications AND ALSO oversee procedures for the
appeal of unfavorable determinations. This system has the potential to
be unjust.
Response: There is an appeals process that individuals can pursue
should they feel they have been treated unjustly. The DoD Components
will establish and oversee procedures for the appeal of unfavorable
determinations for all categories of individuals. The procedures for
civilian personnel are subject to Volume 731 of DoDI 1400.25, DoD
Civilian Personnel Management System.
Comment ID DOD-2014-OS-0009-0009: Under Sec. 86.4(c), not only
individuals who have current DoD affiliation but also individuals who
have prior DoD affiliation must undergo an IRC. I am curious why this
would be necessary. If a person no longer has an affiliation with the
DoD and is not going to have contact with the DoD child care service,
why go through the trouble of checking all those individuals with prior
affiliation?
Response: Section 86.4(a) has been modified to include this
requirement so that it is clear the IRC is only conducted if the
individual (who has a prior DoD affiliation) is undergoing a background
check because he/she will have regular contact with children in DoD
child care services programs.
Comment ID DOD-2014-OS-0009-0010:
Section 86.4 Policy does not contain any actual policy as
to why these rules are being proposed. It would be helpful if the
section included something pertaining to the importance of the
protection of children from known child abusers, drug users etc. A
specific policy will help when looking at what is important in
conducting a background check (in example, a person with a forma
addiction who has undergone rehabilitation who has had no adverse
contact with children.) Also, the policy will help the DoD in defending
any appeals from potential employees who were denied employment.
Response: Section 86.4 has been updated with additional language
indicating why the rule is being promulgated.
A required amount of employment for a LOSS supervisor as
an extra safeguard will also help promote the policy of the proposed
rules.
Response: The role of the LOSS supervisor is to ensure that an
individual who does not yet have a completed background check remains
in the line of sight of another individual who does have a completed
background check. The LOSS supervisor is not necessarily supervising
the performance of the other individual; the LOSS supervisor is only
ensuring that individual is not left alone with children.
Comment ID DOD-2014-OS-0009-0011: It seems as though we should
require the caregivers themselves to pay for the background checks. It
is not uncommon for employers to require employees to pay the costs
associated with licensing or certifications.
Response: Background checks should not be compared to elective
licenses and certifications. The costs of the specific investigations
required pursuant to this Rule have been budgeted and are borne by the
Department of Defense and not by the individual or his or her employer
or the state. By law, background checks are required for federal
agencies that hire or contract for hire in the provision of care to
children under the age of 18. Per this Rule, Office of Personnel
Management (OPM) is the only authorized Investigative Service Provider
(ISP) that the Military Service Components may use for background
investigations. Contracted support must meet the intent of this Rule,
DoD policy and the law.
Comment ID DOD-2014-OS-0009-0012:
Video surveillance violates a person's ``expectation of
privacy.'' It should be re-written to comply with the 5th Amendment.
The procedure may be ruled unconstitutional as it currently stands.
Response: Signage and monitors are placed in highly visible
entryways and foyers and inform individuals that video surveillance is
being conducted. Video surveillance events occurring in public space
for which individuals do not have reasonable expectations of privacy.
Video surveillance does not intrude upon an individual's sphere of
privacy; the use of video surveillance equipment (in designated
programs) supports the law's intent for Line of Sight Supervision
(LOSS) for individuals whose background checks have been initiated but
not completed. Surveillance equipment is also used by staff trainers
and managers as a training aid for staff observations and coaching.
Procedures: Requirements for Criminal background checks.
Foreign government background checks for employees working overseas has
a 5th Amendment issue. How is an overseas employee challenge the
validity of a foreign background check? There may be procedural and
language barriers that prevent a fair opportunity to exonerate oneself.
Response: The current rule provides basic guidance regarding
background checks for foreign nationals as they relate to DoD child
care services programs. See DoD Instruction 5200.46 for more detailed
guidance on procedures for foreign nationals.
Comment ID DOD-2014-OS-0009-00015: Of course children of any
parentage should be protected from criminals and potential harm via
their caretakers; however this cost will most likely be substantial.
Please consider you taxpayers when making these choices that can seem
frivolous at times.
Response: The costs of the investigations are borne by the DoD, and
not by the individual or his or her employer or the State. When
contracting for services, the contract must ensure it meets the intent
of this Rule and the Crime Control Act of 1990. This Rule is a top
priority for DoD to ensure the safety and well-being of all children in
DoD child care services programs. By law, background checks are
required for federal agencies that hire, contract for hire or use
volunteers for the provision of care to children under the age of 18.
Comment ID DOD-2014-OS-0009-00016: The Unfunded Mandates Reform Act
states there will be no additional financial expenditures required from
the individual or employer while the regulatory act acknowledges
potential indirect costs to small entities. If this proposed rule is
passed, it would be beneficial to clearly outline what constitutes a
small entity, what course of action, if any, can they take to avoid
costs, and what kind of notice will they have if they are affected by
this rule. When it comes to implementing the rule, if passed, there
needs to be guidelines for how businesses that may incur costs can go
about managing the financial change comfortably. As a DoD organization,
can these small entities expect to qualify for additional funds to
offset these costs (costs unspecified at this moment)? If this rule is
passed, it should clearly state what the dollar figure will be, and a
definite yes or no about eligibility of offsetting the expenses via
government funds. If the proposed rule is passed, how immediate will
the new procedures effect these small entities? The rule should be
altered to include the time frame for implementing the policy and allow
organizations to communicate if they need additional accommodations to
be effective in its implementation.

[[Page 55755]]

Response: DoD has certified that 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.
Comment ID DOD-2014-OS-0009-00017: Not all agencies within
individual states make their records available to commercial databases,
nor does the FBI make its federal or state criminal records available
to commercial services. In addition, the information in commercial
databases may only be updated occasionally. Some states have databases
that have not been updated to determine if the individual has any
arrest history, therefore when a background check is being completed on
a federal level, the record may not be current, and in turn, invalid
information will be received on that individual. Most states allow
criminals who have paid their dues, to erase their criminal records.
Currently, 12 states expunge first-time criminal offenses after ex-
convicts demonstrate a law-abiding lifestyle for 10 years.
Response: The rule requires multiple levels of investigation in
order to ensure the most accurate information possible is captured
during the investigation process. The DoD uses various data sources
from federal, state and local authorities to obtain information on
background investigations, credentialing, suitability determination and
security clearances. The primary investigations include the Child Care
National Agency Check and Inquiries; the FBI Identification Records
check; the State Criminal History Repository Check; the state sex
offender registry; the child abuse registry and an Installations
Records Check (IRC Derogatory information is identified through this
multi-tier investigative process). The Department remains committed in
its efforts to ensure those who work with children meet the highest
standards of conduct.
Comment ID DOD-2014-OS-0009-00018:
Will background checks be conducted on the current staff
on hand first? Will there be a set time frame to complete the
background check? For example, each person attempting to gain
employment has a 4-6 month waiting period, prior to a hire date? I know
firsthand that some background checks can take a very long time ranging
from 4 months to 12 months depending on the individual and their
circumstances.
Response: This rule does not create a new system. It updates
existing policy for background checks. The provision to work under LOSS
allows DoD to employ individuals while the background checks are being
completed.
Has the DoD considered how criminal histories are not
always current or may have mistakes? A person may have committed a
crime, even serious in nature, but the individual may take a plea, and
with 12 months good behavior it may be expunged from their record. Are
there any plans or a step to assist with this process? Has the DoD
considered using public Web site searches to assist with this process
such as Facebook, Instagram, YouTube, Twitter, etc. to gain more
information on that particular individual? Using open source
information may quickly display a person behaviors, likes, dislikes,
etc., is a cheaper option, and may take only ten minutes depending on
what the DoD discovers.
Response: DoD requirements outlined in this rule make use of
available legal sources of investigative information to make
determinations about individuals' suitability for employment in DoD
child care services programs.
Comment ID DOD-2014-OS-0009-00022: I am in support of this proposed
rule, but to accomplish greater safeguarding of children as intended,
subcontractors should not be excluded as stated. DoD contracts are
typically performed by subcontractors who actually perform work around
the children, not the prime contractors.
Response: The exclusion of subcontractors has been deleted from the
definition of contractors.
Comment ID DOD-2014-OS-0009-00024: The comment urges the DoD to
update requirements for criminal background checks on individuals in
DoD child care services programs in Sec. 86.5, Responsibilities to
align with the provisions recently enacted by the Child Care and
Development Block Grant Act of 2014.
Response: We have carefully reviewed the requirements of the
proposed rule and the requirements set forth in Public Law 113-186, the
Child Care and Development Block Grant Act of 2014. This rule meets or
exceeds the requirements of the Child Care and Development Block Grant
Act of 2014. We have determined that, while the language of the rule
differs slightly from the language of Public Law 113-186, the databases
searched yield the same information.

Regulatory Analysis

Executive Order 12866, ``Regulatory Planning and Review'' and
Executive Order 13563, ``Improving Regulation and Regulatory Review''
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).

Sec. 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

[[Page 55756]]

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 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.

List of Subjects in 32 CFR Part 86

Government contracts, Government employees, Infants and children,
Investigations.

Accordingly, 32 CFR part 86 is 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 funds (APF) and nonappropriated funds (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. 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,
or operated 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).

[[Page 55757]]

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 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), 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 Sec. 86.6(b).
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

[[Page 55758]]

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 Sec. 86.6(b)(4).
(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 trip, class party). Because non-
specified volunteers do not receive the same level of background checks
as specified volunteers, 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 in order to protect the
health, safety and well-being of children in such programs.
(b) All individuals who have regular contact with children under 18
years of age in DoD-sanctioned child care services programs and who
also have a current or prior DoD affiliation must also undergo an IRC.
(c) 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.
(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 military personnel in accordance with
DoD Instruction 5200.02.
(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 Sec. 86.6(a)(5)(v) and in accordance with this part.
(e) 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, tracked, and overseen by properly trained and vetted
individuals who have been determined to be responsible for personnel
security pursuant to DoD Instruction 5200.02 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

[[Page 55759]]

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 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 programs.
(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. Healthcare providers
participating in TRICARE shall be governed by TRICARE policy.
(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 paragraph (g) of
this section.
(b) Types of background checks. Procedures for conducting a
background check on individuals in paragraphs (a)(5)(i) through (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 National Agency Check
and Inquiries (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.
(ii) Individuals with a prior DoD affiliation must also complete an
IRC, which includes an installation law enforcement check, drug and
alcohol records check, and a check of the Family Advocacy Program (FAP)
records for a minimum of 2 years before the date of the application.
(3) Criminal history background checks for FCC providers and
contractors. (i) In accordance with 42 U.S.C. 13041, complete a CNACI,
which includes an FBI criminal history background check conducted
through the Criminal Justice Identification Services Division of the
FBI and SCHR checks through State repositories of all States that a
provider or contractor or prospective provider or contractor lists as
current and former residences in an employment application. Results of
an advanced FBI fingerprint check must be provided before completion of
the full CNACI. Results for contractors may be used to determine
employment under LOSS.
(ii) Individuals with a prior DoD affiliation must also complete an
IRC, including an installation law enforcement check, drug and alcohol
records check, and a check of the FAP records for a minimum of 2 years
before the date of the application.
(4) Criminal history background checks for others. (i) In
accordance with 42 U.S.C. 13041, only an FBI advanced fingerprint check
is required for criminal history background checks for volunteers and
persons 18 years of age or older residing in an FCC, foster, or respite
care home.

[[Page 55760]]

(ii) Individuals with a prior DoD affiliation must also complete an
IRC to include: an installation law enforcement check, drug and alcohol
records check, and a check of the FAP records for a minimum of 2 years
before the date of the application.
(5) Timely completion. To ensure timely completion, the DoD
Components will establish procedures to initiate or request criminal
history background check results, follow up to ensure checks have been
completed, and address situations where there is a delay in receiving
results. In no event will an individual subject to this part be
presumed to have a favorable background check merely because there has
been a delay in receiving the results of the requisite background
check. If no response from the state(s) is received within 60 days,
determinations based upon the CNACI report may be made.
(c) Criteria for disqualification based on results on criminal
history background checks. The ultimate decision to determine how to
use information obtained from the criminal history background checks in
selection for positions involving the care, treatment, supervision, or
education of children must incorporate a common sense decision based
upon all known facts. Adverse information is evaluated by the DoD
Component who is qualified at the appropriate level of command in
interpreting criminal history background checks. All information of
record both favorable and unfavorable will be assessed in terms of its
relevance, recentness, and seriousness. Likewise, positive mitigating
factors should be considered. Final suitability decisions shall be made
by that commander or designee. Criteria that will result in
disqualification of an applicant require careful screening of the data.
A disqualifying event may be the basis for a non-selection, withdrawal
of a tentative offer of employment, ineligibility for facility access,
removal from a contract, a suitability action under 5 CFR part 731, a
probationary termination, an adverse action, or other appropriate
action.
(1) Criteria for automatic disqualification. No person, regardless
of circumstances, will be approved to provide child care services
pursuant to this part if the background check discloses:
(i) That the individual has been convicted in either a civilian or
military court (to include any general, special or summary court-
martial conviction) or received non-judicial punishment (under Article
15 or chapter 47 of Title 10, U.S.C., also known and referred to in
this part as ``the Uniform Code of Military Justice (UCMJ)'') for any
of the following:
(A) A sexual offense.
(B) Any criminal offense involving a child victim.
(C) A felony drug offense.
(ii) That the individual has been held to be negligent in a civil
adjudication or administrative proceeding concerning the death or
serious injury to a child or dependent person entrusted to the
individual's care.
(2) [Reserved]
(d) Suitability and fitness determinations for individuals involved
with the provision of child care services. Suitability and fitness
determinations for individuals subject to this part will be made in
accordance with Volume 731, Volume 1231, and Subchapter 1403 of DoD
Instruction 1400.25, and part 1201 of 5 U.S.C., as appropriate. The
following may be the basis for non-selection, withdrawal of a tentative
offer of employment, ineligibility for facility access, removal from a
contract, a suitability action under DoD Instruction 1400.25, a
probationary termination, an adverse action, or other appropriate
action.
(1) Criteria for presumptive disqualification. Officials charged
with making determinations pursuant to this part must include in the
record a written justification for any favorable determination made
where background check findings include any of the following
presumptively disqualifying information:
(i) A FAP record indicating that the individual met criteria for
child abuse or neglect or civil adjudication that the individual
committed child abuse or neglect.
(ii) Evidence of an act or acts by the individual that tend to
indicate poor judgment, unreliability, or untrustworthiness in
providing child care services.
(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 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.
(e) 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 the same check conducted for 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 utilizing the Special Agreement Check
(SAC) for childcare providers. The SAC reinvestigation consists of an
update to 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.

[[Page 55761]]

(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 from having contact with
children, any individual, contractor or volunteer until the case is
resolved.
(f) 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), (iv), and (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.
(g) Eligibility to perform duties under LOSS. The DoD Components
will establish Component-specific procedures, policies, and
requirements, subject to the requirements of this paragraph, 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 11, 2015.
Aaron Siegel,
Alternate OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 2015-23269 Filed 9-16-15; 8:45 am]
BILLING CODE 5001-06-P

Federal Register / Vol. 80, No. 180 / Thursday, September 17, 2015 / Rules and Regulations 55753

Comment ID DOD–2014–OS–0009– seems to leave out serious threats. services programs. As background check
0004: Limited resources could be to blame. systems are updated to report
• This rule includes all current Response: It is beyond the scope of derogatory information more
employees, contractors and specific DoD to conduct a background check on immediately, this rule/policy may be
volunteers, in addition to future any individual who has access to updated to revise the every 5 year
applicants, which is bound to create a children. This rule/policy is intended to requirement. The costs of the
backlog for which no solution is ensure appropriate checks of those who investigations are borne by the DoD, and
presented, at least in the current rule. work in DoD-sanctioned child care not by the individual or his or her
Response: This rule does not create a services programs. employer or the State. This policy
new system. It updates existing policy Comment ID DOD–2014–OS–0009– update does not and cannot mandate
for background checks. 0007: Absent documented statistical that State, local, and tribal governments
• This rule addresses foreign research to the contrary, the Department adopt new, unfunded regulatory
nationals in a way that could be of Defense has not established that obligations.
ambiguous in its application. The individuals who are convicted drug • Privacy and Relevancy: Those in
definition describes a foreign national as felons are any more likely to threaten a charge of the background checks are
not a citizen of the United States. This child’s safety than any other citizen of about to look at any other available
encompasses a fair amount of specific the United States. Please modify the information that is relevant (listed
volunteers, especially in the religious proposed rule to omit the class ‘‘persons under Adjudication). I fear that some
ministries at overseas DoD facilities. with a drug felony’’ from the screening may abuse this and unfairly use
These volunteers, innocent of any process for federal jobs within the information that is not so relevant
criminal wrong doing, may not fall Department of Defense that serve against an applicant.
under host country agreements and children under the age of 18. Response: Adjudicators are trained to
Response: Inclusion of a ‘‘felony appropriately assess information
therefore be unable to continue their
conviction of a drug offense’’ as an received as part of a background checks
work. This would be an unfair outcome
automatic disqualifier was based on in accordance with law and policy.
for those individuals and the
careful and objective analysis regarding Individuals who abuse their access to
organizations that rely on an already how to protect children in DoD child information are not operating in
limited pool of volunteers. A similar care services programs. A felony accordance with laws, regulations and
outcome is possible for those foreign conviction of a drug offense could policies.
nationals who are military members or adversely impact the integrity of the • Categorizing Care Provider,
spouses who are not yet U.S. citizens position and the safety and well-being Providers, and Personnel performing
that reside in the U.S. and work on DoD of children in DoD care. duties in athletic programs: The
facilities. Comment ID DOD–2014–OS–0009– definitions for these types of jobs can
Response: There are policies and 0008: easily be stretched to many things (for
procedures in place to ensure foreign • Costs: $10 million annually is a example, could babysitting under
nationals receive appropriate large amount of money. How crucial are certain circumstances count?). Child
background checks or work under line- each of the checks and investigations care or youth activities could mean so
of-sight supervision (LOSS) in order to and how necessary is it for many things that do not necessarily
continue their work. reinvestigations to take place every 5 require these extensive checks. My
• The rule seems to exclude years if the surfacing of derogatory obvious hesitancy expressed in these
subcontractors from its application. This information will trigger a reinvestigation comments and questions comes from
may be due to the potential increased anyways? I like Executive Orders 13563, my concern for costs for this rule as well
burden on first line contractors to and it seems to address these questions, as unfair burdens placed on individuals
ensure all its subs are in compliance. however it states that it is not that may have a poor history, but a
This is frankly unacceptable as a lot of economically significant, which makes history that is unrelated to the
what occurs on DoD facilities, especially me wonder whether alternatives ways to wrongdoings that their guilt from these
overseas, is accomplished by regulate and minimize costs are tests would be impliedly accusing them
subcontractors. properly being explored and examined. of, or a history that is simply in the past
Response: The exclusion of The price of each component, for and different from their present state
subcontractors has been deleted from example video surveillances or (for example a minor criminal record or
the definition of contractors. conspicuous marking, should be strictly drug use that has been overcome). It is
Comment ID DOD–2014–OS–0009– scrutinized. What other programs is the honorable to aim to protect our
0005: I’m confused by the language in use of this money being indirectly taken children, but it is also important to
§ 86.6(b), which references ‘‘(a)(6)(i)’’ away from? Additionally, what process protect our citizens and employees who
and ‘‘(a)(6)(ix)’’ as being ‘‘in this will determine that the state and local are trying to live happy lives and
section.’’ I can’t find the quoted section. governments will not be substantially contribute to the economy in the best
This may be my error, or perhaps it is affected financially and what does ways that they can.
a clerical oversight. substantial mean? It is great that Response: The categories of
Response: The reference should be employers and a substantial number of individuals who require a criminal
(a)(5)(i) and (a)(5)(ix). Section 86.6(b) small entities will not be significantly history background check, which
has been updated with the accurate impacted under the Unfunded Mandates includes all individuals who have
reference. Reform Act and the Regulatory regular contact with children under 18
Comment ID DOD–2014–OS–0009– Flexibility Act, but how far do the costs years of age in DoD-sanctioned child
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0006: Why limit the background checks extend to government contracts and care services programs, was established
to individuals with ‘‘regular contact employees within the state? in accordance with Public Law 101–647
with children?’’ The definition of Response: The requirements for the in order to protect the health and well-
‘‘regular contact with children’’ initial checks and regular 5 year being of children in such programs. The
excludes those with access to children. reinvestigations are crucial to ensuring costs of the specific investigations
The narrow reach of the proposed rule protection of children in DoD child care required pursuant to this rule have been

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55754 Federal Register / Vol. 80, No. 180 / Thursday, September 17, 2015 / Rules and Regulations

budgeted and are borne by the Response: The role of the LOSS employee challenge the validity of a
Department of Defense and not by the supervisor is to ensure that an foreign background check? There may
individual or his or her employer or the individual who does not yet have a be procedural and language barriers that
state. completed background check remains in prevent a fair opportunity to exonerate
• Lastly, it concerns me that the DoD the line of sight of another individual oneself.
Components will evaluate the who does have a completed background Response: The current rule provides
disqualifications AND ALSO oversee check. The LOSS supervisor is not basic guidance regarding background
procedures for the appeal of unfavorable necessarily supervising the performance checks for foreign nationals as they
determinations. This system has the of the other individual; the LOSS relate to DoD child care services
potential to be unjust. supervisor is only ensuring that programs. See DoD Instruction 5200.46
Response: There is an appeals process individual is not left alone with for more detailed guidance on
that individuals can pursue should they children. procedures for foreign nationals.
feel they have been treated unjustly. The Comment ID DOD–2014–OS–0009– Comment ID DOD–2014–OS–0009–
DoD Components will establish and 0011: It seems as though we should 00015: Of course children of any
oversee procedures for the appeal of require the caregivers themselves to pay parentage should be protected from
unfavorable determinations for all for the background checks. It is not criminals and potential harm via their
categories of individuals. The uncommon for employers to require caretakers; however this cost will most
procedures for civilian personnel are employees to pay the costs associated likely be substantial. Please consider
subject to Volume 731 of DoDI 1400.25, with licensing or certifications. you taxpayers when making these
DoD Civilian Personnel Management Response: Background checks should choices that can seem frivolous at times.
System. not be compared to elective licenses and
Response: The costs of the
Comment ID DOD–2014–OS–0009– certifications. The costs of the specific
investigations are borne by the DoD, and
investigations required pursuant to this
0009: Under § 86.4(c), not only not by the individual or his or her
Rule have been budgeted and are borne
individuals who have current DoD employer or the State. When contracting
by the Department of Defense and not
affiliation but also individuals who have for services, the contract must ensure it
by the individual or his or her employer
prior DoD affiliation must undergo an meets the intent of this Rule and the
or the state. By law, background checks
IRC. I am curious why this would be Crime Control Act of 1990. This Rule is
are required for federal agencies that
necessary. If a person no longer has an a top priority for DoD to ensure the
hire or contract for hire in the provision
affiliation with the DoD and is not going safety and well-being of all children in
of care to children under the age of 18.
to have contact with the DoD child care DoD child care services programs. By
Per this Rule, Office of Personnel
service, why go through the trouble of law, background checks are required for
Management (OPM) is the only
checking all those individuals with authorized Investigative Service federal agencies that hire, contract for
prior affiliation? Provider (ISP) that the Military Service hire or use volunteers for the provision
Response: Section 86.4(a) has been Components may use for background of care to children under the age of 18.
modified to include this requirement so investigations. Contracted support must Comment ID DOD–2014–OS–0009–
that it is clear the IRC is only conducted meet the intent of this Rule, DoD policy 00016: The Unfunded Mandates Reform
if the individual (who has a prior DoD and the law. Act states there will be no additional
affiliation) is undergoing a background Comment ID DOD–2014–OS–0009– financial expenditures required from the
check because he/she will have regular 0012: individual or employer while the
contact with children in DoD child care • Video surveillance violates a regulatory act acknowledges potential
services programs. person’s ‘‘expectation of privacy.’’ It indirect costs to small entities. If this
Comment ID DOD–2014–OS–0009– should be re-written to comply with the proposed rule is passed, it would be
0010: 5th Amendment. The procedure may be beneficial to clearly outline what
• Section 86.4 Policy does not ruled unconstitutional as it currently constitutes a small entity, what course
contain any actual policy as to why stands. of action, if any, can they take to avoid
these rules are being proposed. It would Response: Signage and monitors are costs, and what kind of notice will they
be helpful if the section included placed in highly visible entryways and have if they are affected by this rule.
something pertaining to the importance foyers and inform individuals that video When it comes to implementing the
of the protection of children from surveillance is being conducted. Video rule, if passed, there needs to be
known child abusers, drug users etc. A surveillance events occurring in public guidelines for how businesses that may
specific policy will help when looking space for which individuals do not have incur costs can go about managing the
at what is important in conducting a reasonable expectations of privacy. financial change comfortably. As a DoD
background check (in example, a person Video surveillance does not intrude organization, can these small entities
with a forma addiction who has upon an individual’s sphere of privacy; expect to qualify for additional funds to
undergone rehabilitation who has had the use of video surveillance equipment offset these costs (costs unspecified at
no adverse contact with children.) Also, (in designated programs) supports the this moment)? If this rule is passed, it
the policy will help the DoD in law’s intent for Line of Sight should clearly state what the dollar
defending any appeals from potential Supervision (LOSS) for individuals figure will be, and a definite yes or no
employees who were denied whose background checks have been about eligibility of offsetting the
employment. initiated but not completed. expenses via government funds. If the
Response: Section 86.4 has been Surveillance equipment is also used by proposed rule is passed, how immediate
updated with additional language staff trainers and managers as a training will the new procedures effect these
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indicating why the rule is being aid for staff observations and coaching. small entities? The rule should be
promulgated. • Procedures: Requirements for altered to include the time frame for
• A required amount of employment Criminal background checks. Foreign implementing the policy and allow
for a LOSS supervisor as an extra government background checks for organizations to communicate if they
safeguard will also help promote the employees working overseas has a 5th need additional accommodations to be
policy of the proposed rules. Amendment issue. How is an overseas effective in its implementation.

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Federal Register / Vol. 80, No. 180 / Thursday, September 17, 2015 / Rules and Regulations 55757

FAP records check. A review of FAP for children and youth who cannot be Position. An employee, contractor,
records maintained on an individual, properly cared for by their own family. provider, or volunteer role or function.
including records maintained by the Healthcare personnel. Military, Preliminary investigations. Those
installation office and records in the civilian, or contract staff involved in the investigative elements of a criminal
Service Child and Spouse Abuse Central delivery of healthcare services. history background check, including
Registry in accordance with DoD Host-government check. A criminal those specified in § 86.6(f), which must
Directive 6400.1. If the individual is the history background check conducted on be favorably completed and reviewed
spouse or dependent of a Service foreign nationals in accordance with before an individual may be permitted
member, this may entail review of U.S. and host country treaties or to perform duties under LOSS.
records maintained on the sponsoring agreements. Providers. Individuals involved in
Service member. Installation and Interim suitability or fitness child care services who have regular
Service Central Registry checks are determination. Part of the pre-screening contact with children or may be alone
limited to identifying pending and met process in the identification and with children in the performance of
criteria incidents of maltreatment and resolution of suitability or fitness issues, their duties. Includes FCC providers and
do not include information related to which occurs prior to the initiation of individuals with overall management
incidents that did not meet criteria or the required investigation. It involves responsibility for child and youth
any information contained in the the review of applications and other programs.
clinical case record that is protected by employment related documents. A Regular contact with children.
section 1320d–6 or 5 U.S.C. 552a. favorable interim suitability or fitness Recurring and more than incidental
Federal Bureau of Investigation (FBI) determination is a status granted on a contact with or access to children in the
criminal history background check. An temporary basis, which permits performance of their duties on a DoD
FBI identification record—often referred individuals to work under line-of-sight installation, program, or as part of a
to as a criminal history record or a supervision (LOSS) after the return of DoD-sanctioned activity.
‘‘rapsheet’’—is a listing of certain the advance FBI fingerprint check, Reinvestigation. A criminal history
information taken from fingerprint pending completion of full investigative background check conducted after the
submissions retained by the FBI in requirements and a final suitability period of time prescribed by this part to
connection with arrests and, in some determination. ensure the individual remains eligible to
instances, federal employment, Investigative elements. The records, provide child care services.
naturalization, or military service. The reports, or other individual elements Reinvestigation includes the same
process of responding to an that comprise the whole of information checks conducted for the initial
identification record request is generally collected during a criminal history investigation as outlined in § 86.6(b).
known as a criminal history background Respite care providers. Individuals
background check and used to make a
check. who provide short-term care and
fitness or suitability determination.
FCC. Defined in DoD Instruction supportive services in a family home or
Installations records check (IRC). A
6060.2, ‘‘Child Development Programs group facility within government-owned
query of records maintained on an
(CDPs)’’ (available at http:// or -leased quarters.
individual by programs and entities at State criminal history repository
www.dtic.mil/whs/directives/corres/pdf/
the military installation where the (SCHR). A repository of criminal
606002p.pdf).
individual lives, is assigned, or works, information that lists past state
FCC provider. Defined in DoD
including military law enforcement and convictions, current offender
Instruction 6060.2.
FCC adult family members. Any installation security records, drug and information, and criminal identification
adult, 18 years of age or older, who alcohol records, and FAP records for a information (fingerprints, photographs,
resides in the home of an FCC provider minimum of 2 years before the date of and other information or descriptions)
for 30 or more consecutive days. the application. that identify a person as having been the
Fitness. The reference to a person’s Investigative service provider (ISP). subject of a criminal arrest or
level of character and conduct The company or agency authorized to prosecution. Checks of the SCHR may
determined necessary for an individual perform background investigations on include the State child abuse and
to perform work for, or on behalf of, a personnel on behalf of the agency. neglect repository and the State sex
Federal Agency as an employee in the Line of Sight Supervision (LOSS). offender registry.
excepted service (other than in a Continuous visual observation and Suitability determination. A decision
position subject to suitability) or as a supervision of an individual whose that a person is or is not suitable for a
contractor employee. background check has not yet cleared, covered position within the DoD.
Fitness determination. A decision, and has a favorable interim suitability or Supervisor. The person supervising
based on review of criminal history fitness determination, while engaged in individuals who are permitted to
background check findings, that an child interactive duties, or in the perform duties only under LOSS, who is
individual is fit to perform duties in a presence of children in a DoD- not necessarily the same as an
position subject to criminal history sanctioned program or activity. The employee’s supervisor for employment
background check. Fitness person providing supervision must have purposes (e.g., ratings, assignment of
determinations will be ‘‘favorable,’’ undergone a background check and duties).
meaning that the individual is fit to received a final favorable suitability or Volunteer. There are two types of
perform the duties, or ‘‘unfavorable,’’ fitness determination and be current on volunteers:
meaning that the individual is not. all periodic reinvestigations as required (1) Specified volunteers. Individuals
Foreign nationals. Individuals who by this part. who could have extensive or frequent
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are not citizens of the United States. Met criteria. Reported incident of contact with children over a period of
Foster care providers. A voluntary or alleged maltreatment found to meet DoD time. They include, but are not limited
court-mandated program that provides incident determination criteria for child to, positions involving extensive
24-hour care and supportive services in abuse or domestic abuse and entry into interaction alone, extended travel, or
a family home or group facility, within the Service FAP central registry of child overnight activities with children or
government-owned or -leased quarters, abuse and domestic abuse reports. youth. Coaches and long-term

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55758 Federal Register / Vol. 80, No. 180 / Thursday, September 17, 2015 / Rules and Regulations

instructors are among those who fall in 5200.02, ‘‘Personnel Security Program’’ (1) Implements this part for military
this category. Specified volunteers are (available at http://www.dtic.mil/whs/ personnel in accordance with DoD
designated by the DoD Component directives/corres/pdf/520002_2014.pdf) Instruction 5200.02.
head. Background checks are required and § 86.6. (2) Institutes effective quality
in accordance with § 86.6(b)(4). (d) Suitability and fitness assurance and quality control systems
(2) Non-specified volunteers. determinations for individuals subject for chaplains, support staff, specified
Individuals who provide services that to this part will follow the guidance of volunteers, and contractors who provide
are shorter in duration than is required Volume 731 of DoD Instruction 1400.25 support to religious programs and
to perform a criminal history for APF employees and Subchapter activities identified in § 86.6(a)(5)(v)
background check (e.g., one-day class 1403 of DoD Instruction 1400.25 for and in accordance with this part.
trip, class party). Because non-specified NAF employees. Suitability and fitness (e) Under the authority, direction, and
volunteers do not receive the same level are to be applied for the child care control of the Deputy Chief Management
of background checks as specified worker population in accordance with Officer (DCMO) of the Department of
volunteers, non-specified volunteers Volume 731 of DoD Instruction 1400.25 Defense, the Director of Administration
must always be in line of sight of a staff for appropriated fund employees in ensures that the adjudication of
member with a complete background covered positions as defined by 5 CFR background investigations of
check. part 731. individuals who have regular contact
Youth program. Defined in DoD (e) Individuals who have received a with children under 18 years of age in
Instruction 6060.4, ‘‘Department of favorable interim suitability or fitness DoD-sanctioned programs considers the
Defense (DoD) Youth Programs (YPs)’’ determination based on the FBI criminal criteria for presumptive and automatic
(available at http://www.dtic.mil/whs/ history background check are permitted disqualification as specified in this part.
directives/corres/pdf/606004p.pdf). to work under LOSS pursuant to 42 (f) The Under Secretary of Defense for
U.S.C. 13041(b)(3). Acquisition, Technology, and Logistics
§ 86.4 Policy.
It is DoD policy that: § 86.5 Responsibilities. (USD(AT&L)) establishes policies and
(a) Individuals who have regular (a) Under the authority, direction, and procedures for the background check
contact with children under 18 years of control of the Under Secretary of initiation, completion, adjudication, and
age in DoD-sanctioned child care Defense for Personnel and Readiness fitness determination process for
services programs will undergo a (USD(P&R)), the Assistant Secretary of contractors in accordance with the
criminal history background check in Defense for Readiness and Force requirements of this part.
order to protect the health, safety and Management (ASD(R&FM)): (g) The DoD Component heads:
well-being of children in such programs. (1) Ensures the conduct of criminal (1) Ensure Component compliance
(b) All individuals who have regular history background checks complies with the requirements of this part,
contact with children under 18 years of with DoD policy and the Criminal applicable laws, and guidance for
age in DoD-sanctioned child care Justice Information Services Division of civilian employees.
services programs and who also have a the FBI’s operational and security (2) Ensure compliance with suitability
current or prior DoD affiliation must policies and procedures. and fitness determination policies,
also undergo an IRC. (2) Monitors DoD Component requirements, and procedures for
(c) DoD Component heads are compliance with this part, applicable individuals in child care services in
delegated the authority to make laws, and subsequent guidance issued DoD programs as defined in 42 U.S.C.
suitability determinations and take by the applicable ISP. 13041 and DoD Instruction 1400.25.
subsequent actions in cases involving (b) Under the authority, direction, and (3) Ensure compliance with policies,
applicants and appointees to covered control of the ASD(R&FM), the Deputy requirements, and procedures for LOSS
positions as defined by 5 CFR 731.101, Assistant Secretary of Defense for of individuals with a favorable interim
subject to the conditions in 5 CFR Civilian Personnel Policy (DASD(CPP)) suitability determination.
731.103. This authority may be further oversees development of DoD (4) Provide support and resources as
delegated to authorized management Component policies and procedures for required to implement this part and any
officials, in writing, in accordance with the background check initiation, Component-specific policies,
volume 731 of DoD Instruction 1400.25. completion, adjudication, and requirements, and procedures, and
(1) The DoD Consolidated suitability or fitness determination ensure implementation.
Adjudications Facility is responsible for process for civilian employees in
making favorable suitability § 86.6 Procedures.
accordance with this part.
determinations for civilian personnel in (c) Under the authority, direction, and (a) Requirements for criminal history
accordance with Deputy Assistant control of the ASD(R&FM), the Deputy background checks. (1) All criminal
Secretary of Defense for Civilian Assistant Secretary of Defense for history background checks required by
Personnel and Policy Memorandum, Military Community and Family Policy this part must be initiated, tracked, and
‘‘Responsibilities Under the Department (DASD(MC&FP)) oversees development overseen by properly trained and vetted
of Defense Suitability and Fitness of DoD Component policies and individuals who have been determined
Adjudications for Civilians Employees procedures related to the background to be responsible for personnel security
Programs,’’ August 26, 2013. check initiation, completion, pursuant to DoD Instruction 5200.02 or
(2) Military members are not subject adjudication, and fitness determination human resource functions pursuant to
to suitability adjudication under process for specified volunteers, FCC Volume 731 of DoD Instruction 1400.25.
Volume 731 of DoD Instruction 1400.25, providers and adults residing in their Program managers, supervisors, and
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‘‘DoD Civilian Personnel Management home, and others as identified in others not routinely performing
System’’ (available at http:// accordance with this part. personnel security and human resource
www.dtic.mil/whs/directives/corres/pdf/ (d) Under the authority, direction, and functions are prohibited from managing
140025v731.pdf). Military members are control of the ASD(R&FM), the Deputy the criminal history checks.
subject to the background check Assistant Secretary of Defense for (2) All employment applications
requirements of DoD Instruction Military Personnel Policy (DASD(MPP)): completed by individuals subject to this

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55760 Federal Register / Vol. 80, No. 180 / Thursday, September 17, 2015 / Rules and Regulations

(ii) Individuals with a prior DoD Military Justice (UCMJ)’’) for any of the rights to his or her child, except in cases
affiliation must also complete an IRC to following: where the birth parent places his or her
include: an installation law enforcement (A) A sexual offense. child for adoption.
check, drug and alcohol records check, (B) Any criminal offense involving a (2) Evaluation of presumptively
and a check of the FAP records for a child victim. disqualifying information. The DoD
minimum of 2 years before the date of (C) A felony drug offense. Components will establish and oversee
the application. (ii) That the individual has been held procedures for the evaluation of
(5) Timely completion. To ensure to be negligent in a civil adjudication or presumptively disqualifying
timely completion, the DoD administrative proceeding concerning information for all categories of
Components will establish procedures the death or serious injury to a child or individuals in paragraph (b) of this
to initiate or request criminal history dependent person entrusted to the section. Evaluation of presumptively
background check results, follow up to individual’s care. disqualifying information for APF and
ensure checks have been completed, (2) [Reserved] NAF personnel must be in accordance
and address situations where there is a (d) Suitability and fitness with Volume 731 and Subchapter 1403
delay in receiving results. In no event determinations for individuals involved of DoD Instruction 1400.25,
will an individual subject to this part be with the provision of child care services. respectively.
presumed to have a favorable Suitability and fitness determinations (3) Criteria for disqualification under
background check merely because there for individuals subject to this part will LOSS. If an investigation of an
has been a delay in receiving the results be made in accordance with Volume individual who is currently working
of the requisite background check. If no 731, Volume 1231, and Subchapter 1403 under LOSS subsequently results in an
response from the state(s) is received of DoD Instruction 1400.25, and part unfavorable determination, the DoD
within 60 days, determinations based 1201 of 5 U.S.C., as appropriate. The Components will take action to protect
upon the CNACI report may be made. following may be the basis for non- children by reassigning or removing the
(c) Criteria for disqualification based selection, withdrawal of a tentative offer individual from employment, contract,
on results on criminal history of employment, ineligibility for facility or volunteer status.
background checks. The ultimate access, removal from a contract, a
(4) Disputes and appeals. The DoD
decision to determine how to use suitability action under DoD Instruction
Components will establish and oversee
information obtained from the criminal 1400.25, a probationary termination, an
procedures for the communication of
history background checks in selection adverse action, or other appropriate
determinations and the appeal of
for positions involving the care, action.
unfavorable determinations for all
treatment, supervision, or education of (1) Criteria for presumptive
categories of individuals in paragraph
children must incorporate a common disqualification. Officials charged with
sense decision based upon all known (b) of this section. The procedures for
making determinations pursuant to this
facts. Adverse information is evaluated civilian personnel are subject to Volume
part must include in the record a
by the DoD Component who is qualified 731 of DoD Instruction 1400.25 for APF
written justification for any favorable
at the appropriate level of command in employees and Subchapter 1403 of DoD
determination made where background
interpreting criminal history Instruction 1400.25 for NAF employees.
check findings include any of the
background checks. All information of following presumptively disqualifying (e) Reinvestigation. (1) All DoD
record both favorable and unfavorable information: civilian employees (both APF and NAF),
will be assessed in terms of its (i) A FAP record indicating that the contractors, military personnel, and any
relevance, recentness, and seriousness. individual met criteria for child abuse other individuals reasonably expected
Likewise, positive mitigating factors or neglect or civil adjudication that the to have regular contact with children on
should be considered. Final suitability individual committed child abuse or a DoD installation, program, or as part
decisions shall be made by that neglect. of a military-sanctioned activity,
commander or designee. Criteria that (ii) Evidence of an act or acts by the including specified volunteers and any
will result in disqualification of an individual that tend to indicate poor person 18 years of age or older residing
applicant require careful screening of judgment, unreliability, or in an FCC, foster, or respite care home,
the data. A disqualifying event may be untrustworthiness in providing child who continue to perform duties in the
the basis for a non-selection, withdrawal care services. position for which their initial
of a tentative offer of employment, (iii) Evidence or documentation of the background check was conducted, must
ineligibility for facility access, removal individual’s past or present dependency undergo a reinvestigation every 5 years.
from a contract, a suitability action on or addiction to any controlled or The reinvestigation must consist of the
under 5 CFR part 731, a probationary psychoactive substances, narcotics, same check conducted for the initial
termination, an adverse action, or other cannabis, or other dangerous drug investigation as outlined in paragraph
appropriate action. without evidence of rehabilitation. (b) of this section.
(1) Criteria for automatic (iv) A conviction, including any (2) All FCC providers and adults
disqualification. No person, regardless general, special, or summary court- residing in an FCC home must undergo
of circumstances, will be approved to martial conviction, or non-judicial an annual reinvestigation utilizing the
provide child care services pursuant to punishment under Article 15 of the Special Agreement Check (SAC) for
this part if the background check UCMJ for: childcare providers. The SAC
discloses: (A) A crime of violence committed reinvestigation consists of an update to
(i) That the individual has been against an adult. the initial investigation as outlined in
convicted in either a civilian or military (B) Illegal or improper use, paragraph (b) of this section.
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court (to include any general, special or possession, or addiction to any (3) If the reinvestigation results in an
summary court-martial conviction) or controlled or psychoactive substances, unfavorable determination, the DoD
received non-judicial punishment narcotics, cannabis, or other dangerous Components will take action to protect
(under Article 15 or chapter 47 of Title drug. children by reassigning or removing the
10, U.S.C., also known and referred to (v) A civil adjudication that individual from employment, contract,
in this part as ‘‘the Uniform Code of terminated the individual’s parental or volunteer status.

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Document Created: 2015-12-15 09:33:57
Document Modified: 2015-12-15 09:33:57

Category		Regulatory Information
Collection		Federal Register
sudoc Class		AE 2.7: GS 4.107: AE 2.106:
Publisher		Office of the Federal Register, National Archives and Records Administration
Section		Rules and Regulations
Action		Final rule.
Dates		This rule is effective October 19, 2015.
Contact		Karen Morgan, 571-372-0859.
FR Citation		80 FR 55752
RIN Number		0790-AJ19
CFR Associated		Government Contracts; Government Employees; Infants and Children and Investigations

80 FR 55752 - Background Checks on Individuals in DoD Child Care Services Programs

DEPARTMENT OF DEFENSEOffice of the Secretary

Federal Register Volume 80, Issue 180 (September 17, 2015)

DEPARTMENT OF DEFENSE
Office of the Secretary