[Federal Register Volume 64, Number 57 (Thursday, March 25, 1999)]
[Proposed Rules]
[Pages 14560-14565]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-7341]
[[Page 14559]]
_______________________________________________________________________
Part V
Department of Health and Human Services
_______________________________________________________________________
Public Health Service
_______________________________________________________________________
42 CFR Part 36
Indian Child Protection and Family Violence Prevention Act Minimum
Standards of Character; Proposed Rule
Federal Register / Vol. 64, No. 57 / Thursday, March 25, 1999 /
Proposed Rules
[[Page 14560]]
DEPARTMENT OF HEALTH AND HUMAN SERVICES
Public Health Service
42 CFR Part 36
RIN 0917-AA02
Indian Child Protection and Family Violence Prevention Act
Minimum Standards of Character
AGENCY: Indian Health Service, Public Health Service, HHS.
ACTION: Notice of proposed rulemaking.
-----------------------------------------------------------------------
SUMMARY: The Indian Health Service (IHS) is proposing to establish
regulations as mandated by section 408 of the Indian Child Protection
and Family Violence Prevention Act (the ``Act''), that prescribe
minimum standards of character and suitability of employment criteria
for individuals who are employed or are being considered for employment
in positions with duties and responsibilities that involve regular
contact with or control over Indian children.
DATES: Comments must be received on or before May 24, 1999.
ADDRESSES: Written comments may be sent to Betty J. Penn, Regulations
Officer, Indian Health Service, Twinbrook Metro Plaza, Suite 450, 12300
Twinbrook Parkway, Rockville, Maryland 20852. Comments will be made
available for public inspection at this address from 8:30 a.m. to 5:00
p.m., Monday-Friday beginning approximately two weeks after publication
of this notice.
FOR FURTHER INFORMATION CONTACT: Ramona Williams, Child Protection
Coordinator, Office of Mental Health/Social Services, Indian Health
Service, 5300 Homestead Road, NE., Albuquerque, New Mexico 87110, (505)
248-4245. (This is not a toll-free number.)
SUPPLEMENTARY INFORMATION: The IHS is proposing regulations as mandated
by section 408 of the Act, that prescribe minimum standards of
character for individuals with duties and responsibilities that involve
regular contact with or control over Indian children. The minimum
standards of character prescribed in these proposed rules can be found
in Sec. 36.405.
The Act requires that minimum standards of character prescribed by
these regulations ensure that no individuals appointed to positions
involving regular contact with or control over Indian children shall
have been found guilty of or entered a plea of nolo contendere or
guilty to an offense under Federal, State, or tribal law involving
crimes of violence; sexual assault, molestation, exploitation, contact,
or prostitution; or crimes against persons. The IHS is proposing that
the minimum standards of character have been met only after individuals
in positions involving regular contact with or control over Indian
children have been the subject of a satisfactory background
investigation, and it has been determined that these individuals have
not been found guilty of or entered a plea of nolo contendere or guilty
to an offense under Federal, State, or tribal law involving crimes of
violence; sexual assault, molestation, exploitation, contact, or
prostitution; or crimes against persons.
If an individual has been determined to be unsuitable for
employment in a position involving regular contact with or control over
Indian children, the IHS is proposing that adjudicative standards may
be used to ensure that the individual is suitable for employment in a
position, if available, that does not involve regular contact with or
control over Indian children. This would require a determination that
the individual's prior conduct will not interfere with the performance
of duties and will not create a potential risk to the safety and well-
being of any Indian children.
The Bureau of Indian Affairs (BIA) published final regulations at
25 CFR part 63 establishing minimum standards of character and
suitability of employment as required by the Act. The IHS is proposing
minimum standards of character similar to those of the BIA so that
similar standards will be applied by each agency. The Act requires that
tribes or tribal organizations who receive funds under the Indian Self-
Determination and Education Assistance Act (ISDEA), Pub. L. 93-638,
employ individuals in positions involving regular contact with or
control over Indian children only if the individuals meet standards of
character no less stringent than those prescribed under these
regulations. Thus, the minimum standards of character as proposed by
these rules will become the basis for tribes or tribal organizations to
use when developing their own minimum standards of character and
suitability for employment of individuals.
Federal employees are regularly subject to the additional
suitability criteria contained in 5 CFR part 731 as a condition of
employment. In addition, section 231 of the Crime Control Act of 1990,
Pub. L. 101-647, 42 U.S.C. 13041, provides that an individual employed
by a Federal agency by direct hire or under contract may be
disqualified from consideration or continuing employment if such
individual has been convicted of a sex crime, an offense involving a
child victim or a drug felony, or any other crime if such conviction
bears on an individual's fitness to have responsibility for the safety
and well-being of children.
Tribes or tribal organizations may but are not required to apply
additional criteria in determining whether an individual is suitable
for a position with duties and responsibilities that involve regular
contact with or control over Indian children. Any additional
suitability criteria beyond the minimum standards of character required
by these proposed rules would be determined by each individual tribe or
tribal organization in accordance with its own personnel policies and
procedures. Standards of character established by tribes or tribal
organizations should be used to determine whether an individual is
suitable for employment in a position that permits contact with or
control over Indian children. If not, the individual may only be placed
in a position that does not permit regular contact with or control over
Indian children.
Under the Act, Indian tribes or tribal organizations are
responsible for identifying individuals in positions within their
tribal programs whose duties and responsibilities involve regular
contact with or control over Indian children. The Act requires tribes
or tribal organizations to conduct background investigations of these
individuals. Tribes or tribal organizations are not required to follow
the United States Office of Personnel Management (OPM) requirements for
background investigations for Federal employees. However, in order to
meet the minimum standards of character under these proposed rules,
tribes or tribal organizations must ensure that background
investigations are completed on individuals with duties and
responsibilities that involve regular contact with or control over
Indian children. The background investigations require a criminal
history background check, including a fingerprint check through the
Criminal Justice Information Services Division of the Federal Bureau of
Investigation (FBI), under procedures approved by the FBI, and
inquiries to State and tribal law enforcement agencies. The IHS has
entered into an interagency agreement with the BIA to assist tribes and
tribal organizations to access fingerprint/National Criminal History
checks through existing FBI files and data bases of individuals being
considered for or
[[Page 14561]]
placed in positions identified by the tribal programs as having regular
contact with or control over Indian children.
The IHS presented an earlier draft of these proposed rules at the
14th Annual National Indian Health Board Consumer Conference. In
addition, the IHS provided a copy of the draft proposed rules to the
tribal leader of each federally recognized tribe for their review and
comment. These proposed rules were modified to reflect the comments
received.
Pending publication of these proposed rules, the IHS issued policy
guidance requiring IHS personnel staff to identify positions involving
regular contact with or control over Indian children, to conduct
background investigations of individuals in these positions, and to
identify those individuals who do not meet the minimum standards of
character under section 408 of the Act. These proposed rules have taken
into consideration the agency's experience in implementing section 408
of the Act.
The Department has determined that where an individual has been
convicted of or pleaded guilty or nolo contendere to one of the
enumerated crimes in section 408 of the Act, the IHS does not have the
discretion to retain that individual in a position involving regular
contact with or control over Indian children. We believe this is true
regardless of such factors as the date of incident, circumstances of
incident, rehabilitation or other relevant factors that might result in
a determination that the individual is not a potential risk to Indian
children. However, the individual must be given an opportunity to
explain, deny, or refute unfavorable and incorrect information before
an adjudication is final. The IHS would have the discretion to remove
that individual to a position not involving regular contact with or
control over Indian children after a determination is made that Indian
children will not be placed at risk.
There are several terms in section 408 of the Act that were not
defined by Congress. The IHS is proposing to define these terms in
these regulations to remove any ambiguity created by the statute. The
IHS has defined these terms based on the agency's experience in
implementing section 408 of the Act.
The term regular contract with or control over Indian children is
not defined in the Act. The IHS has defined the term in these proposed
rules to apply to those positions where the responsibility for Indian
children is within the scope of the individual's duties and
responsibilities or where the individual has access to Indian children
on a recurring or foreseeable basis that could potentially place an
Indian child as risk. The IHS has developed a list of possible
positions within the agency that might involve regular contact with or
control over Indian children. The IHS has discretion to identify those
positions on this list, on a case-by-case basis, to determine whether
the duties and responsibilities of a particular position involve
regular contact with or control over Indian children as defined by
these proposed rules.
In addition, Congress did not define the terms crimes against
persons or crimes of violence. The IHS is proposing to define the terms
crimes against persons and crimes of violence for purposes of these
proposed rules. The Act does not distinguish between felonies and
misdemeanors, and thus, it has been determined that the Department does
not have discretion to distinguish between felonies and misdemeanors in
defining these terms. For example, if a crime is categorized as a crime
against persons under Federal, State, or tribal law, a conviction or
plea (even if a misdemeanor) would require termination or bar the
individual from employment in a position involving regular contact with
or control over Indian children. In determining whether an offense
falls within these categories, reference may be made to the applicable
Federal, State, or tribal law under which the individual was convicted
or pleaded guilty or nolo contendere.
The IHS welcomes comments regarding these proposed rules from the
public and especially the tribes and tribal organizations affected by
them. Interested persons may submit written comments regarding the
proposed rule to the location identified in the addresses section of
this document.
Executive Order 12866
This proposed rule is a significant regulatory action under
Executive Order (E.O.) 12866 and requires review by the Office of
Management and Budget (OMB). Depending upon the number of positions for
which determinations of suitability for employment are required, the
cost of the background investigations (including the cost of each FBI
fingerprint check) may have an economic effect on each tribal
government and tribal organization under the Regulatory Flexibility Act
(5 U.S.C. 601, et seq. and require additional outlays by tribal
governments, tribal organizations, and the Federal Government. These
costs are not projected to exceed $100 million. The cost of background
investigation of Federal employees by the OPM are estimated to be
$475,000. The cost of FBI fingerprint checks requested by tribes is
approximately $20,000. In addition, the IHS is expected to expend
$90,000 per year to support one staff position and related costs
associated with tribal requests for FBI fingerprint checks processed
through the BIA.
Executive Order 12612: Federalism
The Department has determined that this proposed rule does not have
significant federalism effects under E.O. 12612 and will not interfere
with the roles, rights and responsibilities of states.
Paperwork Reduction Act
Under the Paperwork Reduction Act of 1995, agencies are required to
provide 60-day notice in the Federal Register and solicit public
comment before a collection of information requirement is submitted to
the OMB for review and approval. In order to fairly evaluate whether an
information collection should be approved by OMB, section 3506(c)(2)(A)
of the Paperwork Reduction Act of 1995 requires that we solicit comment
on the following issues:
Whether the information collection is necessary and useful to carry
out the proper functions of the agency;
The accuracy of the agency's estimate of the information collection
burden;
The quality, utility, and clarity of the information to be
collected; and
Recommendations to minimize the information collection burden on
the affected public, including automated collection techniques.
Therefore, we are soliciting comment on each of these issues for
the proposed information collection requirements discussed below.
Sections 36.410--What Questions Must the IHS Ask as Part of the
Background Investigation?
All applicants for a position involving regular contact with or
control over Indian children are required to undergo background
investigations to determine whether they meet minimum standards of
character for that position. This section describes questions that will
be asked as part of the background investigation. Applicants must state
whether they have been arrested, charged, convicted of or plead guilty
to certain enumerated crimes. In addition, the individuals will be
required to sign, under penalty of perjury, a statement verifying the
truth of all of the information provided in the employment application
and acknowledging that knowingly falsifying or concealing information
is subject to fine or imprisonment, or both.
[[Page 14562]]
Finally, the applicant must sign an informed consent form authorizing a
criminal record check.
The IHS anticipates there will be approximately 100 respondents who
will require no more than 15 minutes each to respond to these questions
and sign the required forms.
For comments that relate to information collection requirements,
mail a copy of comments to: Office of Information and Regulatory
Affairs, Office of Management and Budget, Room 10235, New Executive
Office Building, Washington, DC 20503, Attention Allison Herron Eydt,
IHS Desk Officer.
List of Subjects in 42 CFR Part 36
American Indians, Alaska Natives, Children, Child health,
Employment.
Dated: September 21, 1998.
Michael H. Trujillo,
Assistant Surgeon General, Director, Indian Health Service.
Approved: December 10, 1998.
Donna E. Shalala,
Secretary, Department of Health and Human Services.
For the reasons set out in the preamble, the Department proposes to
add subpart K to Part 36 of Title 42, CFR, as follows:
Subpart K--Indian Child Protection and Family Violence Prevention
Sec.
36.401 Purpose.
36.402 Policy.
36.403 Definitions.
36.404 What does the Indian Child Protection and Family Violence
Prevention Act require of the IHS and Indian tribes or tribal
organizations receiving funds under the ISDEA?
36.405 What are the minimum standards of character for individuals
placed in, or applying for, a position that involves regular contact
with or control over Indian children?
36.406 What are other factors, in addition to the minimum standards
of character, that may be considered in determining placement of an
individual in a position that involves regular contact with or
control over Indian children?
36.407 What positions require a background investigation and
determination of suitability for employment or retention?
36.408 Who conducts the background investigation and prepares
determinations of suitability for employment?
36.409 Are the requirements for IHS adjudication different from the
requirements for Indian tribes and tribal organizations?
36.410 What questions must the IHS ask as part of the background
investigation?
36.411 What protections must the IHS and tribes or tribal
organizations provide to individuals undergoing a background
investigation?
36.412 How does the IHS determine suitability for employment and
efficiency of service?
36.413 What rights does an applicant, volunteer, or employee have
during this process?
36.414 When should the IHS deny employment or dismiss an employee?
36.415 What must the IHS do if an individual has been charged with
an offense but the charge is pending or no disposition has been made
by a court?
Authority: 25 U.S.C. 3201; 5 U.S.C. 301; 42 U.S.C. 13041.
Subpart K--Indian Child Protection and Family Violence Prevention
Sec. 36.401 Purpose.
The purpose of the regulations in this subpart is to establish
minimum standards of character to ensure that individuals having
regular contact with or control over Indian children have not been
convicted of certain types of crimes or acted in a manner that placed
others at risk or raised questions about their trustworthiness as
mandated by the Indian Child Protection and Family Violence Prevention
Act of 1990, Public Law 101-630, 104 Stat. 4544, 25 U.S.C. 3201-3211.
Sec. 36.402 Policy.
In enacting the Indian Child Protection and Family Violence
Prevention Act, the Congress recognized there is no resource more vital
to the continued existence and integrity of Indian tribes than their
children and that the United States has a direct interest, as trustee,
in protecting Indian children who are members of, or are eligible for
membership in, an Indian tribe. The minimum standards of character and
suitability of employment for individuals ensure that Indian children
are protected. In order to protect Indian children, the IHS has
established minimum standards of character requiring completion of a
satisfactory background investigation that ensures that no individuals
who have 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, are placed in positions
involving regular contact with or control over Indian children.
Sec. 36.403 Definitions
Crimes against persons means an offense that has an element the
use, attempted use, or threatened use of physical force or other abuse
of a person and includes, but is not limited to, homicide; assault;
kidnapping; false imprisonment; reckless endangerment; robbery; rape;
sexual assault, molestation, exploitation, contact, or prostitution;
and other sexual offenses. In determining whether an offense falls
within this category, reference may be made to the applicable Federal,
State, or tribal law under which the individual was convicted or
pleaded guilty or nolo contendere.
Crimes of violence means:
(1) An offense that has as an element the use, attempted use, or
threatened use of physical force against the person or property of
another, or
(2) Any other offense that is a felony and that, by its nature,
involves substantial risk that physical force against the person or
property of another may be used in the course of committing the
offense. In determining whether an offense falls within this category,
reference may be made to the applicable Federal, State, or tribal law
under which the individual was convicted or pleaded guilty or nolo
contendere.
Indian means any individual who is a member of an Indian tribe, as
defined in this section.
Indian child means any unmarried person under the age of eighteen
who is either a member of an Indian tribe or eligible for membership in
an Indian tribe and is the biological child of a member of an Indian
tribe.
Indian tribe means any Indian tribe, band, nation, or other
organized group or community, including any Alaska Native village or
regional or village corporation as defined in or established pursuant
to the Alaska Native Claims Settlement Act (43 U.S.C. 1601 et seq.)
which is recognized as eligible for the special programs and services
provided by the United States to Indians because of their status as
Indians.
Individuals means persons with duties and responsibilities that
involve regular contact with or control over Indian children and
includes but is not limited to the following:
(1) Employees in the competitive or excepted service, the
Commissioned corps, or the Senior Executive Service in the IHS;
(2) Individuals who perform service for or under the supervision of
the IHS while being permanently assigned to another IHS office or to
another organization, such as a Federal agency, State, or tribe;
(3) Individuals who volunteer to perform services for or under the
supervision of the IHS;
[[Page 14563]]
(4) Individuals who contract with the IHS to perform services in
IHS facilities.
Must is used in place of shall and indicates a mandatory or
imperative act or requirement.
Regular contact with or control over an Indian child means
responsibility for an Indian child within the scope of the individual's
duties and responsibilities or access to Indian children on a recurring
and foreseeable basis that could potentially place an Indian child at
risk.
Tribal organization as defined in the ISDEA, means the recognized
governing body of any Indian tribe or any legally established
organization of Indians which is controlled, sanctioned, or chartered
by such governing body or which is democratically elected by the adult
members of the Indian community to be served by such organization and
which includes the maximum participation of Indians in all phases of
its activities.
Sec. 36.404 What does the Indian Child Protection and Family Violence
Prevention Act require of the IHS and Indian tribes or tribal
organizations receiving funds under the ISDEA?
(a) The IHS must compile a list of all authorized positions with
duties and responsibilities that involve regular contact with or
control over Indian children; investigate the character of each
individual who is employed or is being considered for employment in
such a position; and prescribe minimum standards of character that each
individual must meet to be appointed to such positions.
(b) All Indian tribes or tribal organizations receiving funds under
the authority of the ISDEA must identify those positions that permit
regular contact with or control over Indian children; conduct an
investigation of the character of each individual who is employed or is
being considered for employment in a position that involves regular
contact with or control over Indian children; and employ only
individuals who meet standards of character that are no less stringent
than those prescribed for the IHS.
Sec. 36.405 What are the minimum standards of character for
individuals placed in, or applying for, a position that involves
regular contact with or control over Indian children?
The minimum standards of character shall mean a benchmark of moral,
ethical, and emotional strengths established by character traits and
past conduct to ensure that the individual is competent to complete
his/her job without harm to Indian children. The minimum standards of
character shall be considered met only after the individual has been
the subject of a satisfactory background investigation. The background
investigation shall include a review of:
(a) The individual's trustworthiness, through inquiries with the
individual's references and places of employment and education;
(b) A criminal history background check, which includes a
fingerprint check through the Criminal Justice Information Services
Division of the FBI, under procedures approved by the FBI, and
inquiries to State and tribal law enforcement agencies for residence
for the previous 5 years listed on the individual's application; and
(c) A determination as to whether the individual 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.
Sec. 36.406 What are other factors, in addition to the minimum
standards of character, that may be considered in determining placement
of an individual in a position that involves regular contact with or
control over Indian children?
(a) All Federal employees are subject to suitability criteria
contained in 5 CFR Part 31 as a condition of employment.
(b) Section 231 of the Crime Control Act of 1990, Pub. L. 101-647,
42 U.S.C. 13041, provides that an individual may be disqualified from
consideration or continuing employment if such individual has been
convicted of a sex crime, an offense involving a child victim or a drug
felony, or any other crime if such conviction bears on an individual's
fitness to have responsibility for the safety and well-being of
children.
(c) Tribes or tribal organizations may but are not required to
apply additional criteria in determining whether an individual is
suitable for a position with duties and responsibilities that involve
regular contact with or control over Indian children. Any additional
suitability criteria established by tribes or tribal organizations
beyond the minimum standards of character described in Sec. 36.405
would be determined by each individual tribe or tribal organization in
accordance with its own personnel policies and procedures.
Sec. 36.407 What positions require a background investigation and
determination of suitability for employment or retention?
(a) All positions that allow an individual regular contact with or
control over Indian children are subject to a background investigation
and determination of suitability for employment. The IHS has compiled a
list of positions within the agency in which the duties and
responsibilities could involve regular contact with or control over
Indian children. The list will be periodically updated and made
available at all IHS Personnel Offices upon request. Positions should
be reviewed on a case-by-case basis to determine whether the individual
in that position has regular contact with or control over Indian
children.
(b) Tribes and tribal organizations may use the list compiled by
the IHS or develop a list of positions within their program that
involve regular contact with or control over Indian children.
Sec. 36.408 Who conducts the background investigation and prepares
determinations of suitability for employment?
(a) The IHS must use the Office of Personnel Management (OPM) to
conduct background investigations for Federal employees. The IHS must
designate qualified security personnel to adjudicate the results of
background investigations.
(b) Indian tribes and tribal organizations may conduct their own
background investigations, contract with private firms, or request that
a Federal agency conduct investigations. (FBI criminal history record
information, however, may only be received or evaluated by governmental
agencies, including tribal government agencies, and may not be
disseminated to private entities.) The investigation should cover the
past five years of the individual's employment, education, etc.
Sec. 36.409 Are the requirements for IHS adjudication different from
the requirements for Indian tribes and tribal organizations?
(a) In addition to the minimum requirements for background
investigations found in Sec. 36.405, IHS's adjudicating officials must
review the results of searches by State human services agencies, the
OPM National Agency Check and Inquiries, the OPM Security/Suitability
Investigations Index, and the Defense Clearance and Investigations
Index.
(b) All IHS employees who have regular contact with or control over
Indian children must be reinvestigated every five years during their
employment in that or any other position that allows regular contact
with or control over Indian children.
(c) Indian tribes or tribal organizations may but are not required
to adopt portions of the rules in this subpart that
[[Page 14564]]
are specifically applicable to employment within the IHS in conducting
background investigations and adjudicating suitability for employment
in tribal positions that allow regular contact with or control over
Indian children.
Sec. 36.410 What questions must the IHS ask as part of the background
investigation?
(a) Applications for employment with the IHS must include the
following questions:
(1) Has the individual been arrested or charged with a crime
involving a child? If yes, the individual must provide the date,
explanation of the violation, disposition of the arrest or charge,
place of occurrence, and the name and address of the police department
or court involved.
(2) Has the individual ever 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? If
yes, the individual must provide an explanation of the violation, place
of occurrence, date and disposition of the court proceeding, and the
name and address of the police department or court involved.
(b) The IHS must require that the individual sign, under penalty of
perjury, a statement verifying the truth of all information provided in
the employment application and acknowledging that knowingly falsifying
or concealing a material fact is a felony that may result in fines up
to $10,000 or 5 years imprisonment, or both.
(c) The IHS must inform the individual that a criminal history
record check is a condition of employment and require the individual to
consent in writing to a criminal history record check.
Sec. 36.411 What protections must the IHS and tribes or tribal
organizations provide to individuals undergoing a background
investigation?
(a) The IHS must comply with all policies, procedures, criteria,
and guidance contained in other appropriate guidelines, such as the OPM
policies, procedures, criteria, and guidance.
(b) Indian tribes and tribal organizations must comply with the
privacy requirements of the Federal, State, or other tribal agency
providing the background investigations. Indian tribes and tribal
organizations may establish their own procedures that safeguard
information derived from background investigations.
Sec. 36.412 How does the IHS determine suitability for employment and
efficiency of service?
(a) Adjudication is the process employers use to determine
suitability for employment and efficiency of service. The adjudication
process protects the interests of the employer and the right of
applicants and employees. Adjudication requires uniform evaluation to
ensure fair and consistent judgment.
(b) Each case is judge on its own merits. All available
information, both favorable and unfavorable, should be considered and
assessed in terms of accuracy, completeness, relevance, seriousness,
overall significance, and how similar cases have been handled in the
past.
(c) The adjudicating official who conducts the adjudication must
first have been the subject of a favorable background investigation.
(d) Each adjudicating official must be thoroughly familiar with all
laws, regulations, and criteria involved in making a determination for
suitability.
(e) The adjudicating official must review the background
investigation to determine the character, reputation, and
trustworthiness of the individual. At a minimum, the background
investigation must:
(1) Review each security investigation form and employment
application and compare the information provided.
(2) Review the results of written record searches requested from
local law enforcement agencies, former employer, former supervisors,
employment references, and schools.
(3) Review the results of the fingerprint charts maintained by the
Federal Bureau of Investigation or other law enforcement information
maintained by other agencies.
(4) Review the information obtained through a background
investigation and determine whether the individual has been found
guilty of, or entered a plea of nolo contendere of 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.
(f) After an opportunity has been afforded the individual to
respond, pursuant to Sec. 36.413, and it is adjudicated that the
individual has been found guilty of or entered a plea of nolo
contendere or guilty to an enumerated offense under paragraph (e)(4) of
this section, that individual shall not be placed or retained in a
position involving regular contact with or control over Indian
children.
(g) For individuals who have been determined to be unsuitable for
employment in positions having regular contact with or control over
Indian children, the IHS may use Federal adjudicative standards to
certify that an individual is suitable for employment in a position, if
available, that does not involve regular contact with or control over
Indian children. The adjudicating official must determine that the
individual's prior conduct will not interfere with the performance of
duties and will not create a potential risk to the safety and well-
being of any Indian children after consideration of the following
factors:
(1) The nature and seriousness of the conduct in question.
(2) The recency and circumstances surrounding the conduct in
question.
(3) The age of the individual at the time of the incident.
(4) Societal conditions that may have contributed to the nature of
the conduct.
(5) The probability that the individual will continue the type of
behavior in question.
(6) The individual's commitment to rehabilitation and a change in
the behavior in question.
(7) The degree of public trust and the possibility the public would
be placed at risk if the individual is appointed to the position.
Sec. 36.413 What rights does an applicant, volunteer, or employee have
during this process?
(a) The applicant, volunteer, or employee must be provided an
opportunity to explain, deny, or refute unfavorable and incorrect
information gathered in an investigation, before the adjudication is
final. He/she should receive a written summary of all derogatory
information and be informed of the process for explaining, denying, or
refuting unfavorable information.
(b) The adjudicating officials must not release the actual
background investigative report to an applicant, volunteer, or
employee. However, they may issue a written summary of the derogatory
information.
(c)The applicant, volunteer, or employee who is the subject of a
background investigation may obtain a copy of the reports from the
originating (Federal, State, or other tribal) agency and challenge the
accuracy and completeness of any information maintained by that agency.
(d) The results of an investigation cannot be used for any purpose
other than to determine suitability for employment in a position that
involves regular contact with or control over Indian children.
[[Page 14565]]
(e) Investigative reports contain information of a highly personal
nature and must be maintained confidentially and secured in locked
files. Investigative reports must be seen only by those officials who,
in performing their official duties, need to know the information
contained in the report.
Sec. 36414 When should the IHS deny employment or dismiss an employee?
(a) The IHS must deny employment to an individual or dismiss an
employee, when the duties and responsibilities of the position the
individual person would hold or holds involve regular contact with or
control over Indian children, and it has been adjudicated, pursuant to
Sec. 36.412 and Sec. 36.413, that the 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,
molestation, exploitation, contact, or prostitution; or crimes against
persons. The IHS has the discretion to place such an individual in a
position, if available, that does not involve regular contact with or
control over Indian children, if a determination has been made that
such placement would not put Indian children at risk and the individual
would be able to perform the duties and responsibilities of this
position.
(b) Pursuant to section 231 of the Crime Control Act of 1990, Pub.
L. 101-647, 42 U.S.C. 13041, as amended by Pub. L. 102-190, the IHS may
hire an individual provisionally prior to the completion of a
background investigation if, at all times prior to receipt of the
background investigation during which children are in the care of the
individual, the individual is within the sight and under the
supervision of a staff person and a satisfactory background
investigation has been completed on that staff person.
Sec. 36.415 What must the IHS do if an individual has been charged
with an offense but the charge is pending or no disposition has been
made by a court?
(a) The IHS may deny the applicant employment until the charge has
been resolved.
(b) The IHS may deny the employee any on-the-job contact with
children until the charge is resolved.
(c) The IHS may detail or reassign the employee to other duties
that do not involve regular contact with children.
(d) The IHS may place the employee on indefinite suspension, in
accordance with statutory and regulatory requirements, until the court
has disposed of the charge.
[FR Doc. 99-7341 Filed 3-24-99; 8:45 am]
BILLING CODE 4160-16-M
