[Federal Register Volume 64, Number 229 (Tuesday, November 30, 1999)]
[Rules and Regulations]
[Pages 66770-66771]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-30959]
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DEPARTMENT OF THE INTERIOR
Bureau of Indian Affairs
25 CFR Part 63
RIN 1076-AC97
Indian Child Protection and Family Violence Prevention;
Correction
AGENCY: Bureau of Indian Affairs, Interior.
ACTION: Correction to final regulations.
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SUMMARY: This document contains corrections to the final regulations
which were published on June 21, 1996 (61 FR 32272). The regulations
implemented the provisions of the Indian Child Protection and Family
Violence Prevention Act of 1990.
EFFECTIVE DATE: November 30, 1999.
FOR FURTHER INFORMATION CONTACT: Bettie Rushing, Bureau of Indian
Affairs, P.O. Box 1887, Albuquerque, New Mexico 87103-1887, (505) 248-
6082.
SUPPLEMENTARY INFORMATION:
Background
The Indian Child Protection and Family Violence Prevention Act of
1990, Pub. L. 101-630, 26 U.S.C. 3201 et seq., authorizes such actions
as are necessary to ensure effective child protection in Indian
country, including character investigations to ensure no individual
appointed to a position with duties and responsibilities involving
regular
[[Page 66771]]
contact with, or control over, Indian children has been found guilty
of, or entered a plea of nolo contendere or guilty to, any offense
under Federal, State or tribal law involving crimes of violence; sexual
assault, molestation, exploitation, contact or prostitution; or crimes
against persons. See 25 U.S.C. 3201(b) and 3207. This was the first
Federal statute to authorize background investigations by tribes and
tribal organizations and mandate screening standards for the Bureau of
Indian Affairs, as well as tribes and tribal organizations that receive
funds under the Indian Self-Determination and Education Assistance Act
or the Tribally Controlled Schools Act of 1988.
The following day, the Crime Control Act of 1990, Pub. L. 101-647,
42 U.S.C. Sec. 13041, was enacted. It authorized Federal agencies and
facilities operated by the Federal Government or operated under
contract with the Federal Government to conduct criminal history
background checks for individuals providing child care services. It
provides that an individual who has been convicted of a sex crime, an
offense involving a child victim, or a drug felony may be denied
employment for or dismissed from a child care services position. This
is in contrast to the absolute prohibition in Pub. L. 101-630, that is
cited above. Pub. L. 101-647 further provides that conviction for a
crime other than a sex crime may be considered if it bears on an
individual's fitness to have responsibility for the safety and well-
being of children. See 42 U.S.C. 13041(c).
The Bureau conducted extensive consultation with tribes and Indian
organizations prior to and following the publication of the proposed
rule. The regulations were intended to describe the process for
determining suitability for positions with duties and responsibilities
involving regular contact with, or control over, Indian children,
including the standards set forth in 5 CFR part 731, the Indian Child
Protection and Family Violence Prevention Act and the Crime Control
Act. Section 63.19 currently reads:
(a) An employer may deny employment or dismiss an employee when an
individual has been found guilty of or entered a plea of guilty or nolo
contendere to any Federal, state or tribal offense involving a crime of
violence, sexual assault, sexual molestation, child exploitation,
sexual contact, prostitution, or crimes against persons.
(b) An employer may deny employment or dismiss an employee when an
individual has been convicted of an offense involving a child victim, a
sex crime, or a drug felony. Paragraph (a) refers to the requirements
of the Indian Child Protection and Family Violence Prevention Act,
while subsection (b) refers to the Crime Control Act. While the
screening requirements in Section 408 of the Indian Child Protection
and Family Violence Prevention Act [25 U.S.C. 3207(a)], are clearly not
permissive, the Bureau's regulations imply that its practice and
application are. In fact, when the Bureau determines the suitability of
volunteers for, selectees to, and employees in positions with duties
and responsibilities involving regular contact with or control over
Indian children, the standard in Section 408 (25 U.S.C. 3207) serves as
a permanent statutory bar to employment as contemplated by the Indian
Child Protection and Family Violence Prevention Act, Office of
Personnel Management Suitability requirements found at 5 CFR 731.202,
and the Office of Indian Education Programs Suitability
Disqualifications found at 62 BIAM 11.36(A)(7). Based upon a finding of
guilt or a plea of nolo contendere or guilty to any offense under
Federal, State or tribal law involving crimes of violence; sexual
assault, molestation, exploitation, contact or prostitution; or crimes
against persons, volunteers, selectees and employees have been
determined unsuitable for Public Trust positions with duties and
responsibilities involving regular contact with or control over Indian
children.
Although these individuals may be determined suitable for Federal
employment under 5 CFR part 731, a suitability determination under the
Indian Child Protection and Family Violence Prevention Act, 25 U.S.C.
3207, serves as a statutory bar to employment with the Office of Indian
Education Programs, Social Services, and with few exceptions, the
Office of Law Enforcement Services. Such positions include not only
teachers, social workers, and law enforcement officers and
investigators, but cooks, custodians, bus drivers, correctional
personnel, and volunteers as well. In addition, the same standard is
applied to Bureau facilities management personnel if their duties and
responsibilities include the provision of services to schools or
housing and other programs where children may be present.
The Bureau now proposes to correct this obvious error and to
clarify that other convictions may be considered when determining
suitability for employment if they bear on the question of whether an
individual is fit to have responsibility for the safety and well-being
of children.
Need for Correction
As published, the final rules contain errors which may prove
misleading and are in need of correction.
List of Subjects in 25 CFR Part 63
American Indians, Alaska Natives, Children, Child Care, Employment.
Accordingly, 25 CFR part 63 is corrected by making the following
correcting amendment.
PART 63--INDIAN CHILD PROTECTION AND FAMILY VIOLENCE PREVENTION
1. The authority citation for 25 CFR part 63 continues to read as
follows:
Authority: 5 U.S.C. 301; 25 U.S.C. 2, 9, 13, 200, 3201 et seq.;
42 U.S.C. 13041.
Sec. 63.19 [Amended]
2. In Sec. 63.19, paragraph (a), in the first sentence, the word
``may'' is changed to ``must.''
Dated: November 22, 1999.
Kevin Gover,
Assistant Secretary--Indian Affairs.
[FR Doc. 99-30959 Filed 11-29-99; 8:45 am]
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