[Federal Register Volume 61, Number 121 (Friday, June 21, 1996)]
[Rules and Regulations]
[Pages 32272-32279]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-15511]
[[Page 32271]]
_______________________________________________________________________
Part VII
Department of the Interior
_______________________________________________________________________
Bureau of Indian Affairs
_______________________________________________________________________
25 CFR Part 63
Indian Child Protection and Family Violence Prevention; Final Rule
Federal Register / Vol. 61, No. 121 / Friday, June 21, 1996 / Rules
and Regulations
[[Page 32272]]
DEPARTMENT OF THE INTERIOR
Bureau of Indian Affairs
25 CFR Part 63
RIN 1076-AC 97
Indian Child Protection and Family Violence Prevention
AGENCY: Bureau of Indian Affairs, Interior.
ACTION: Final rule.
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SUMMARY: The Bureau of Indian Affairs (BIA) is establishing regulations
as mandated by the Indian Child Protection and Family Violence
Prevention Act that prescribe minimum standards of character and
suitability of employment for individuals whose duties and
responsibilities allow them regular contact with or control over Indian
children, and establish the method for distribution of funds
appropriated for Indian child protection and family violence prevention
programs, including appropriate caseload standards and staffing
requirements for these tribally operated programs.
Effective Date: These regulations take effect on July 22, 1996.
However, affected parties do not have to comply with the information
collection requirements in Secs. 63.15, 63.33 and 63.34 until the
Bureau of Indian Affairs publishes in the Federal Register the control
numbers assigned by the Office of Management and Budget to these
information collection requirements. Publication of the control number
notifies the public that OMB has approved these information
requirements under the Paper work Reduction Act of 1995.
SUPPLEMENTARY INFORMATION: The authority to issue rules and regulations
is vested in the Secretary of the Interior by 5 U.S.C. 301 and sections
463 and 465 of the Revised Statutes, 25 U.S.C. 2 and 9.
Background
In enacting the Indian Child Protection and Family Violence
Prevention Act (Act), Pub. L. 101-630, 104 Stat. 4544, 25 U.S.C. 3201-
3211, 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 purpose of this rule is:
To establish minimum standards of character and
suitability for employment for individuals whose duties and
responsibilities allow them regular contact with or control over Indian
children as required by Title IV, Section 408 of the Act, 25 U.S.C.
3207.
To establish the method for distribution of funds to
support tribally operated programs to protect Indian children and
reduce the incidents of family violence in Indian country as authorized
by Title IV, Section 411 of the Act, 25 U.S.C. 3210(f)(3).
To establish appropriate caseload standards and staffing
requirements for Indian child protection and family violence prevention
programs as required by Title IV, Section 411 of the Act, 25 U.S.C.
3210(f)(2).
This rule was developed in consultation with tribes. A working
group of tribal and BIA representatives developed a draft of each
section which was then presented to participants at a national tribal
consultation meeting in Oklahoma City, Oklahoma, August 31 through
September 1, 1994. Participants accepted a two part formula in which
49% of appropriated funds are distributed equally to all tribes and 49%
is distributed on a per capita basis according to the population of
children residing in the service area (25 U.S.C. 3210(f)(3) (A)-(B)),
with a two percent set aside for special circumstances (25 U.S.C.
3210(f)(3)(D)). In any year appropriations do not exceed fifty percent
of the authorization, funds will be equitably distributed (25 U.S.C.
3210(f)(5)), with a two percent set aside for special circumstances (25
U.S.C. 3210(f)(3)(D)).
The formula does not include projected number of cases per month
because many tribes have not developed statistics. The formula serves
as an interim formula until baseline data using the standard assessment
methodology developed for the Indian Child Welfare Act (ICWA) program
has been developed. Indian Child Protection and Family Violence
Prevention Program grants may be combined with ICWA grants to avoid
duplication of effort and paperwork. The caseload standards included in
this rule do not reflect the variety of activities contemplated by the
Act, e.g., prevention and public education. These are merely benchmarks
that may indicate whether funding is sufficient to support a child
protection and family violence prevention program, and are not intended
to dictate program design and staffing requirements at the local level.
It is with appreciation to the many tribal representatives who gave
of their time and experience that this rule is published.
Review of Public Comments
Section 63.3 Definitions
Pursuant to comments received, the definition of Family violence
has been amended to include persons with whom such person has, or had,
intimate or continuous social contact and household access.
Several comments requested a clarification of the term crimes
against persons as it is used in Secs. 63.12, 63.15 and 63.19. Section
63.3, Definitions, has been amended to include Crimes against persons.
25 U.S.C. 3207(b) requires that the minimum standards of character
prescribed under this rule ensure that no individual appointed to a
position which involves regular 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.
Section 63.17 How does an employer determine suitability for
employment and efficiency of service?
Section 63.17(e) was corrected to read ``adjudicating official''
rather than background investigation.
Section 63.17(f)(7), the degree of public trust and the possibility
the public would be placed at risk if the individual is appointed to
the position, has been deleted to conform with proposed changes to
United States Office of Personnel Management (OPM) rules on personnel
suitability and investigations, 5 CFR 731.202.
Section 63.18 Are the requirements for Bureau of Indian Affairs
adjudication different from the requirements for Indian tribes and
tribal organizations?
Pursuant to comments, Sec. 63.18 has been amended to clarify that
the BIA background investigation must include the OPM National Agency
Check and Inquiries which includes a search of the OPM Security/
Suitability Investigations Index (SII) and the Defense Clearance and
Investigations Index (DCII), and any additional standards which may be
established by the BIA.
Both credit checks and searches by state human services agencies
have been deleted because these are BIA, not OPM, requirements and do
not constitute minimum standards for this rule. Subsection (c) has been
added to clarify that the requirements for BIA are not mandatory for
the tribes. Tribes and tribal organizations are only required to
certify minimum standards of character (Sec. 63.12) and this is
accomplished through the adjudication process
[[Page 32273]]
described in Sec. 63.17. In addition, the BIA requires that all
employees who have regular contact with or control over Indian children
be reinvestigated every five years.
Section 63.19 When should an employer deny employment or dismiss
an employee?
One comment correctly indicated that subsections (a) and (b) are
similar.
Section 63.19(a) reflects the requirements of Indian Child
Protection and Family Violence Prevention Act, 25 U.S.C. 3207(b).
Section 63.19(b) has been amended to more clearly reflect the
requirements of the Crime Control Act of 1990, Pub. L. 101-647, as
amended, 42 U.S.C. 13041. Subtitle E, Child Care Worker Employee
Background Checks, requires that Federal agencies and facilities
operated under contract with the Federal Government which employ
individuals to provide child care services to children under the age of
18 must assure that all existing and newly-hired employees undergo
criminal history background checks. Any conviction for a sex crime, an
offense involving a child victim, or a drug felony, may be a reason for
denying employment or for dismissal of an employee. Conviction of 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. 42 U.S.C. 13041(c).
The Indian Child Protection and Family Violence Prevention Act
applies specifically to Indian tribes and tribal organizations and
requires that they conduct background investigations for all persons
employed in positions which involve regular contact with or control
over Indian children. The Crime Control Act of 1990 applies to Federal
contractors, including Indian tribes and tribal organizations. The
Crime Control Act includes conviction for a drug felony as a reason to
deny employment and only requires a fingerprint check, rather than the
full background investigation. Because both laws may apply to an Indian
tribe or tribal organization, they are included in this section.
Section 63.21 Are there other factors that may disqualify an
applicant, volunteer or employee from placement in a position which
involves regular contact with or control over Indian children?
One comment requested a definition of public trust, sensitive and
non-sensitive positions. Public trust positions are designated by the
employer. ``Sensitive'' and ``non-sensitive'' positions are terms used
by the OPM and refer to the national security positions. The Bureau of
Indian Affairs no longer uses sensitive and non-sensitive designations
for positions involving regular contact with or control over Indian
children; therefore Sec. 63.21(c) has been deleted.
Pursuant to this comment, Sec. 63.21 has been amended. The term
``non-sensitive position'' has been deleted and the terms ``public
trust position'' and ``sensitive position'' have been replaced in the
final rule by ``positions which involve regular contact with or control
over Indian children''.
Section 63.22 Can an employer certify an individual with a prior
conviction or substantiated misconduct as suitable for employment?
Comments also requested a section be added that addresses the
suitability of individuals in alcohol or drug recovery for employment
in positions which involve regular contact with or control over Indian
children.
Individuals convicted for a drug felony. The Crime Control Act of
1990 addresses convictions for a drug felony. Subtitle E, Child Care
Worker Employee Background Checks, provides that conviction of a crime
other than a sex crime may be considered in denying employment to an
individual or dismissing an employee, if it bears on the individual's
fitness to have responsibility for the safety and well-being of
children, 42 U.S.C. 13041(c). Note that any conviction for a sex crime,
an offense involving a child victim, or a drug felony, may be a reason
for denying employment or for dismissal of an employee, 42 U.S.C.
13041(c). Section 63.19(b) has been amended to include drug felonies.
The Indian Child Protection and Family Violence Prevention Act does
not enumerate drug felonies among the offenses which would preclude the
BIA from hiring or continuing the employment of an individual in a
position which involves regular contact with or control over Indian
children. We note that the Crime Control Act of 1990 is applicable to
any Federal agency, every facility operated by the Federal Government,
and every facility operated under contract with the Federal Government
that hires individuals involved with the provision of child care
services, 42 U.S.C. 12041(a)(1). The Crime Control Act of 1990 defines
child care services as 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, 42 U.S.C. 13041(a)(2).
Individuals convicted for an alcohol-related offense. The Indian
Child Protection and Family Violence Prevention Act, 25 U.S.C. 3207(b),
mandates that the BIA cannot hire or continue the employment of an
individual who 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, sexual molestation,
sexual exploitation, sexual contact or prostitution; or crimes against
persons. The purpose of the minimum standards of character is to ensure
that individuals who have been found guilty of, or entered a plea of
nolo contendere or guilty of these offenses are not hired or retained
in positions which involve regular contact with or control over Indian
children. It is not the abuse of alcohol, but the criminal behavior
that is addressed by the Act.
The Bureau of Indian Affairs may hire or continue the employment of
an individual who has been found guilty of, or entered a plea of nolo
contendere or guilty to these offenses in a position that does not
involve regular contact with or control over Indian children. The
adjudicating officer must determine that the individual's prior conduct
will not interfere with the performance of duties and will not create a
potential for risk to the safety and well-being of Indian children.
Section 63.22(a) has been modified to reflect this standard.
Indian tribes and tribal organizations must identify those
positions which permit contact with or control over Indian children and
establish standards to determine suitability for employment. Section
63.17(f) addresses the relevance of prior conduct, including an
individual's commitment to rehabilitation and a change in behavior. An
adjudicating officer may determine prior conduct such as alcohol abuse
is not relevant if the applicant or employee demonstrates a change in
behavior. Section 63.22 has been amended to clarify that although a
person may be found unsuitable for employment in a position which
involves regular contact with or control over Indian children, that
person may be employed in a position that does not involve contact with
or control over Indian children. The proposed Sec. 63.22 is now
Sec. 63.23, and the proposed Sec. 63.23 is now Sec. 63.24.
Section 63.34 How are Indian child protection and family violence
prevention program funds distributed?
Section 63.34(a)(3)(ii) has been amended to clarify that when the
BIA redistributes the unallocated special
[[Page 32274]]
circumstances funds the BIA will not retain a second 2% percent set
aside; all unallocated special circumstances funds will be distributed
in the fourth quarter of each fiscal year.
Evaluation and Certification
Executive Order 12778
The Department has certified to the Office of Management and Budget
(OMB) that this final rule meets the applicable standards provided in
sections 2(a) and 2(b)(2) of Executive Order 12778.
Executive Order 12866
The Office of Management and Budget has determined this final rule
is a significant regulatory action under Executive Order 12866.
Regulatory Flexibility Act
Depending upon the number of positions for which determinations of
suitability for employment are required, the cost of background
investigations (including the cost of each Federal Bureau of
Investigation 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. However, these costs are not projected to exceed $100,000
and are minimal when compared to the long-term societal and economic
impact on families and communities when children are the victims of
crimes of violence, sexual assault, sexual molestation, sexual
exploitation, sexual contact or prostitution.
Executive Order 12630
In accordance with Executive Order 12630, the Department has
determined that this final rule does not have significant ``takings''
implications. The final rule does not pertain to ``taking'' of private
property interests, nor does it impact private property.
Executive Order 12612
The Department has determined that this final rule does not have
significant federalism effects under Executive Order 12612 and will not
interfere with the roles, rights and responsibilities of states.
National Environmental Policy Act
The Department has determined that this final rule does not
constitute a major Federal action significantly affecting the quality
of the human environment and that no detailed statement is required
pursuant to the National Environmental Policy Act of 1969.
Unfunded Mandates Act of 1995
This rule imposes no unfunded mandates on any governmental or
private entity and is in compliance with the provisions of the Unfunded
Mandates Act of 1995.
Paperwork Reduction Act of 1995
Under the Paperwork Reduction Act of 1995, no persons are required
to respond to a collection of information contained in Sec. Sec. 63.15,
63.33 and 63.34 until the Office of Management and Budget has approved
the information requirements and issued control numbers. The
information collection requirements contained in this final rule will
be approved by the Office of Management and Budget as required by 44
U.S.C. 1320 et seq.
Drafting Information
The primary authors of this document are Judy A. Baggett, Janice
Ruffin, and Bettie Rushing, Office of Tribal Services, Bureau of Indian
Affairs.
List of Subjects in 25 CFR Part 63
Child welfare, Employment, Indians, Maternal and child health.
For the reasons given in the preamble, part 63 is added to chapter
I of title 25 of the Code of Federal Regulations to read as follows.
PART 63--INDIAN CHILD PROTECTION AND FAMILY VIOLENCE PREVENTION
Subpart A--Purpose, Policy, and Definitions
Sec.
63.1 Purpose.
63.2 Policy.
63.3 Definitions.
63.4 Information Collection.
63.5-63.9 [Reserved]
Subpart B--Minimum Standards of Character and Suitability for
Employment
63.10 Purpose.
63.11 What is a determination of suitability for employment and
efficiency of service?
63.12 What are minimum standards of character?
63.13 What does the Indian Child Protection and Family Violence
Prevention Act require of the Bureau of Indian Affairs and Indian
tribes or tribal organizations receiving funds under the Indian
Self-Determination and Education Assistance Act or the Tribally
Controlled Schools Act?
63.14 What positions require a background investigation and
determination of suitability for employment or retention?
63.15 What questions should an employer ask?
63.16 Who conducts the background investigation and prepares the
determination of suitability for employment?
63.17 How does an employer determine suitability for employment and
efficiency of service?
63.18 Are the requirements for Bureau of Indian Affairs
adjudication different from the requirements for Indian tribes and
tribal organizations?
63.19 When should an employer deny employment or dismiss an
employee?
63.20 What should an employer do if an individual has been charged
with an offense but the charge is pending or no disposition has been
made by a court?
63.21 Are there other factors that may disqualify an applicant,
volunteer or employee from placement in a position which involves
regular contact with or control over Indian children?
63.22 Can an employer certify an individual with a prior conviction
or substantial misconduct as suitable for employment?
63.23 What rights does an applicant, volunteer or employee have
during this process?
63.24 What protections must employers provide to applicants,
volunteers and employees?
63.25-63.29 [Reserved]
Subpart C--Indian Child Protection and Family Violence Prevention
Program
63.30 What is the purpose of the Indian child protection and family
violence prevention program?
63.31 Can both the Bureau of Indian Affairs and tribes operate
Indian child protection and family violence prevention programs?
63.32 Under what authority are Indian child protection and family
violence prevention program funds awarded?
63.33 What must an application for Indian child protection and
family violence prevention program funds include?
63.34 How are Indian child protection and family violence
prevention program funds distributed?
63.35 How may Indian child protection and family violence
prevention program funds be used?
63.36 What are the special requirements for Indian child protection
and family violence prevention programs?
63.37-63.50 [Reserved]
Authority: 5 U.S.C. 301; 25 U.S.C. 2, 9, 13, 200, 3201 et seq.;
42 U.S.C. 13041.
Subpart A--Purpose, Policy, and Definitions
Sec. 63.1 Purpose.
The purpose of these regulations is to prescribe minimum standards
of character and suitability for employment for individuals whose
duties and responsibilities allow them regular contact with or control
over Indian children, and to establish the method for distribution of
funds to support tribally operated programs to protect Indian children
and reduce the
[[Page 32275]]
incidents of family violence in Indian country as authorized by the
Indian Child Protection and Family Violence Prevention Act of 1990,
Pub. L. 101-630, 104 Stat. 4544, 25 U.S.C. 3201 3211.
Sec. 63.2 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, and the Indian child protection and family violence
prevention programs will emphasize the unique values of Indian culture
and community involvement in the prevention and treatment of child
abuse, child neglect and family violence.
Sec. 63.3 Definitions.
Bureau means the Bureau of Indian Affairs of the Department of the
Interior;
Child means an individual who is not married, and has not attained
18 years of age.
Child abuse includes but is not limited to any case in which a
child is dead, or exhibits evidence of skin bruising, bleeding,
malnutrition, failure to thrive, burns, fracture of any bone, subdural
hematoma, or soft tissue swelling, and this condition is not
justifiably explained or may not be the product of an accidental
occurrence; and any case in which a child is subjected to sexual
assault, sexual molestation, sexual exploitation, sexual contact, or
prostitution.
Child neglect includes but is not limited to, negligent treatment
or maltreatment of a child by a person, including a person responsible
for the child's welfare, under circumstances which indicate that the
child's health or welfare is harmed or threatened.
Crimes against persons are defined by local law. Adjudicating
officers must contact local law enforcement agencies to determine if
the crime for which an applicant or employee was found guilty (or
entered a plea of nolo contendere or guilty) is defined as a crime
against persons.
Family violence means any act, or threatened act, of violence,
including any forceful detention of an individual, which results, or
threatens to result, in physical or mental injury, and is committed by
an individual against another individual to whom such person is, or
was, related by blood or marriage or otherwise legally related, or with
whom such person is, or was, residing, or with whom such person has, or
had, intimate or continuous social contact and household access.
Indian means any individual who is a member of an Indian tribe.
Indian child means any unmarried person who is under age eighteen
and 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 country means:
(1) All land within the limits of any Indian reservation under the
jurisdiction of the United States Government, notwithstanding the
issuance of any patent, and, including rights-of-way running through
the reservation;
(2) All dependent Indian communities within the borders of the
United States whether within the original or subsequently acquired
territory thereof; and,
(3) All Indian allotments, the Indian titles to which have not been
extinguished, including rights-of-way running through the same. Unless
otherwise indicated, the term ``Indian country'' is used instead of
``Indian reservation'' for consistency.
Indian reservation means any Indian reservation, public domain
Indian allotment, former Indian reservation in Oklahoma, or lands held
by incorporated Native groups, regional corporations, or village
corporations under the provisions of the Alaska Native Claims
Settlement Act (43 U.S.C. 1601 et seq.).
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.
Inter-tribal consortium means a partnership between an Indian tribe
or tribal organization of an Indian tribe, and one or more Indian
tribes or tribal organizations of one or more Indian tribes.
Must is used in place of shall and indicates a mandatory or
imperative act or requirement.
Local child protective services agency is an agency of the Federal
Government, state, or Indian tribe that has the primary responsibility
for child protection on any Indian reservation, or within any community
in Indian country.
Local law enforcement agency is that Federal, tribal, or state law
enforcement agency that has primary responsibility for the
investigation of an instance of alleged child abuse within the involved
Indian jurisdiction.
Person responsible for a child's welfare is any person who has
legal or other recognized duty for the care and safety of a child, and
may include any employee or volunteer of a children's residential
facility, and any person providing out-of-home care, education, or
services to children.
Related assistance means the counseling and self-help services for
abusers, victims, and dependents in family violence situations;
referrals for appropriate health-care services (including alcohol and
drug abuse treatment); and may include food, clothing, child care,
transportation, and emergency services for victims of family violence
and their dependents.
Secretary means the Secretary of the Interior.
Service means the Indian Health Service of the Department of Health
and Human Services.
Shelter means the temporary refuge and related assistance in
compliance with applicable Federal and tribal laws and regulations
governing the provision, on a regular basis, of shelter, safe homes,
meals, and related assistance to victims of family violence or their
dependents.
Tribal organization means the recognized governing body of any
Indian tribe; 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: Provided,
That in any case where a contract is let, a grant is awarded, or
funding agreement is made to an organization to perform services
benefitting more than one Indian tribe, the approval of each such
Indian tribe must be a prerequisite to the letting or making of such
contract, grant, or funding agreement.
Sec. 63.4 Information Collection.
The information collection requirement contained in Sec. 63.15,
Sec. 63.33 and Sec. 63.34 will be approved by the Office of Management
and Budget under the Paperwork Reduction Act of 1995, 44 U.S.C.
3507(d), and assigned clearance number __________.
[[Page 32276]]
Secs. 63.5-63.9 [Reserved]
Subpart B--Minimum Standards of Character and Suitability for
Employment
Sec. 63.10 Purpose.
The purpose of this part is to establish:
(a) Procedures for determining suitability for employment and
efficiency of service as mandated by the Indian Child Protection and
Family Violence Prevention Act; and
(b) 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.
Sec. 63.11 What is a determination of suitability for employment and
efficiency of service?
(a) Determinations of suitability measure the fitness or
eligibility of an applicant, volunteer, or employee for a particular
position. Suitability for employment does not evaluate an applicant's
education, skills, knowledge, experience, etc. Rather, it requires that
the employer investigate the background of each applicant, volunteer,
and employee to:
(1) Determine the degree of risk the applicant, volunteer, or
employee brings to the position; and
(2) Certify that the applicant's, volunteer's, or employee's past
conduct would not interfere with his/her performance of duties, nor
would it create an immediate or long-term risk for any Indian child.
(b) Efficiency of service is the employer's verification that the
applicant or employee is able to perform the duties and
responsibilities of the position, and his/her presence on the job will
not inhibit other employees or the agency from performing their
functions.
Sec. 63.12 What are minimum standards of character?
Minimum standards of character are established by an employer and
refer to identifiable character traits and past conduct. An employer
may use character traits and past conduct to determine whether an
applicant, volunteer, or employee can effectively perform the duties of
a particular position without risk of harm to others. Minimum standards
of character ensure that no applicant, volunteer, or employee will be
placed in a position with regular contact with or control over Indian
children if he/she 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, sexual molestation,
sexual exploitation, sexual contact or prostitution, or crimes against
persons.
Sec. 63.13 What does the Indian Child Protection and Family Violence
Prevention Act require of the Bureau of Indian Affairs and Indian
tribes or tribal organizations receiving funds under the Indian Self-
Determination and Education Assistance Act or the Tribally Controlled
Schools Act?
(a) The Bureau of Indian Affairs must compile a list of all
authorized positions which involve regular contact with or control over
Indian children; investigate the character of each individual who is
employed, or is being considered for employment; and, prescribe minimum
standards of character which each individual must meet to be appointed
to such positions.
(b) All Indian tribes or tribal organizations receiving funds under
the authority of the Indian Self-Determination and Education Assistance
Act or the Tribally Controlled Schools Act of 1988 must conduct a
background investigation for individuals whose duties and
responsibilities would allow them 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
Bureau of Indian Affairs.
Sec. 63.14 What positions require a background investigation and
determination of suitability for employment or retention?
All positions that allow an applicant, employee, or volunteer
regular contact with or control over Indian children are subject to a
background investigation and determination of suitability for
employment.
Sec. 63.15 What questions should an employer ask?
Employment applications must:
(a) Ask whether the applicant, volunteer, or employee has been
arrested or convicted of a crime involving a child, violence, sexual
assault, sexual molestation, sexual exploitation, sexual contact or
prostitution, or crimes against persons;
(b) Ask the disposition of the arrest or charge;
(c) Require that an applicant, volunteer or employee sign, under
penalty of perjury, a statement verifying the truth of all information
provided in the employment application; and
(d) Inform the applicant, volunteer or employee that a criminal
history record check is a condition of employment and require the
applicant, volunteer or employee to consent, in writing, to a record
check.
Sec. 63.16 Who conducts the background investigation and prepares the
determination of suitability for employment?
(a) The Bureau of Indian Affairs must use the United States Office
of Personnel Management (OPM) to conduct background investigations for
Federal employees. The BIA 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 the
OPM to conduct an investigation. The investigation should cover the
past five years of the individual's employment, education, etc.
Sec. 63.17 How does an employer 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 rights of
applicants and employees. Adjudication requires uniform evaluation to
ensure fair and consistent judgment.
(b) Each case is judged on its own merits. All available
information, both favorable and unfavorable, must be considered and
assessed in terms of accuracy, completeness, relevance, seriousness,
overall significance, and how similar cases have been handled in the
past.
(c) An adjudicating official conducts the adjudication. Each
Federal agency, Indian tribe, or tribal organization must appoint an
adjudicating official, who must first have been the subject of a
favorable background investigation.
(1) Indian tribes and tribal organizations must ensure that persons
charged with the responsibility for adjudicating employee background
investigations are well-qualified and trained.
(2) Indian tribes and tribal organizations should also ensure that
individuals who are not trained to adjudicate these types of
investigations are supervised by someone who is experienced and receive
the training necessary to perform the task.
(d) Each adjudicating official must be thoroughly familiar with all
laws, regulations, and criteria involved in making a determination for
suitability.
[[Page 32277]]
(e) The adjudicating official must review the background
investigation to determine the character, reputation, and
trustworthiness of the individual. At a minimum, the adjudicating
official 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 employers, former supervisors,
employment references, and schools; and
(3) Review the results of the fingerprint charts maintained by the
Federal Bureau of Investigation or other law enforcement information
maintained by other agencies.
(f) Relevancy is a key objective in evaluating investigative data.
The adjudicating official must consider prior conduct in light of:
(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; and,
(6) The individual's commitment to rehabilitation and a change in
the behavior in question.
Sec. 63.18 Are the requirements for Bureau of Indian Affairs
adjudication different from the requirements for Indian tribes and
tribal organizations?
Yes.
(a) In addition to the minimum requirements for background
investigations found in Sec. 63.12, Bureau of Indian Affairs'
adjudicating officials must review the OPM National Agency Check and
Inquiries which includes a search of the OPM Security/Suitability
Investigations Index (Sll) and the Defense Clearance and Investigations
Index (DCII), and any additional standards which may be established by
the BIA.
(b) All Bureau of Indian Affairs 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 which
allows regular contact with or control over Indian children.
(c) Indian tribes and tribal organizations may adopt these
additional requirements but are not mandated to do so by law.
Sec. 63.19 When should an employer deny employment or dismiss an
employee?
(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.
Sec. 63.20 What should an employer 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 employer may deny the applicant employment until the charge
has been resolved.
(b) The employer may deny the employee any on-the-job contact with
children until the charge is resolved.
(c) The employer may detail or reassign the employee to other
duties that do not involve contact with children.
(d) The employer may place the employee on administrative leave
until the court has disposed of the charge.
Sec. 63.21 Are there other factors that may disqualify an applicant,
volunteer or employee from placement in a position which involves
regular contact with or control over Indian children?
Yes.
(a) An applicant, volunteer, or employee may be disqualified from
consideration or continuing employment if it is found that:
(1) The individual's misconduct or negligence interfered with or
affected a current or prior employer's performance of duties and
responsibilities.
(2) The individual's criminal or dishonest conduct affected the
individual's performance or the performance of others.
(3) The individual made an intentional false statement, deception
or fraud on an examination or in obtaining employment.
(4) The individual has refused to furnish testimony or cooperate
with an investigation.
(5) The individual's alcohol or substance abuse is of a nature and
duration that suggests the individual could not perform the duties of
the position or would directly threaten the property or safety of
others.
(6) The individual has illegally used narcotics, drugs, or other
controlled substances without evidence of substantial rehabilitation.
(7) The individual knowingly and willfully engaged in an act or
activities designed to disrupt government programs.
(b) An individual must be disqualified for Federal employment if
any statutory or regulatory provision would prevent his/her lawful
employment.
Sec. 63.22 Can an employer certify an individual with a prior
conviction or substantiated misconduct as suitable for employment?
(a) The Bureau of Indian Affairs must use Federal adjudicative
standards which allow the BIA to certify that an individual is suitable
for employment in a position that does not involve regular contact with
or control over Indian children. The adjudicating officer must
determine that the individual's prior conduct will not interfere with
the performance of duties and will not create a potential for risk to
the safety and well-being of Indian children.
(b) Indian tribes and tribal organizations must identify those
positions which permit contact with or control over Indian children and
establish standards to determine suitability for employment. Those
standards should then 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 contact with or control over Indian
children.
Sec. 63.23 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. The applicant, volunteer, or employee should receive a written
summary of all derogatory information and be informed of the process
for explaining, denying, or refuting unfavorable information.
(b) Employers and 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.
[[Page 32278]]
(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.
(e) Investigative reports contain information of a highly personal
nature and should be maintained confidentially and secured in locked
files. Investigative reports should be seen only by those officials who
in performing their official duties need to know the information
contained in the report.
Sec. 63.24 What protections must employers provide to applicants,
volunteers and employees?
(a) Indian tribes and tribal organizations must comply with the
privacy requirements of any Federal, state, or other tribal agency
providing background investigations. Indian tribes and tribal
organizations must establish and comply with personnel policies that
safeguard information derived from background investigations.
(b) The Bureau of Indian Affairs must comply with all policies,
procedures, criteria, and guidance contained in the Bureau of Indian
Affairs Manual or other appropriate guidelines.
(c) Federal agencies exercising authority under this part by
delegation from OPM must comply with OPM policies, procedures,
criteria, and guidance.
Secs. 63.25-63.29 [Reserved]
Subpart C--Indian Child Protection and Family Violence Prevention
Program
Sec. 63.30 What is the purpose of the Indian child protection and
family violence prevention program?
The purpose of this program is to develop tribally-operated
programs to protect Indian children and reduce the incidence of family
violence on Indian reservations.
Sec. 63.31 Can both the Bureau of Indian Affairs and tribes operate
Indian child protection and family violence prevention programs?
Yes. However, tribes are encouraged to develop and operate programs
to protect Indian children and reduce the incidence of family violence
in Indian country.
Sec. 63.32 Under what authority are Indian child protection and
family violence prevention program funds awarded?
The Secretary is authorized to enter into contracts with Indian
tribes, tribal organizations, or tribal consortia pursuant to the
Indian Self-Determination and Education Assistance Act, as amended, 25
U.S.C. 450 et seq., for the development and establishment of Indian
child protection and family violence prevention programs. This includes
compacting with tribes under the Self-Governance program procedures.
Sec. 63.33 What must an application for Indian child protection and
family violence prevention program funds include?
In addition to the Indian Self-Determination and Education
Assistance Act, as amended, 25 U.S.C. 450 et seq., contracting
requirements, each application must provide the following information:
(a) The name and address of the agency or official to be
responsible for the investigation of reported cases of child abuse and
child neglect, the treatment and prevention of incidents of family
violence, and the provision of immediate shelter and related assistance
for victims of family violence and their dependents;
(b) Projected service population of the program;
(c) Projected service area of the program; and
(d) Projected number of cases per month.
Sec. 63.34 How are Indian child protection and family violence
prevention program funds distributed?
(a) Funds will be distributed, subject to the availability of
appropriations, and:
(1) In any fiscal year that the appropriation exceeds 50 percent of
the level of funding authorized for this purpose by the Act, 49 percent
must be distributed equally to all tribes and tribal organizations and
49 percent must be distributed on a per capita basis according to the
population of children residing in the service area. Two percent of the
annual appropriation will be set aside for distribution to tribes
demonstrating special circumstances.
(2) In any fiscal year that the appropriation does not exceed 50
percent of the level of funding authorized for this purpose by the Act,
funding must be distributed in equal amounts to all tribes. Two percent
of the annual appropriation will be set aside for distribution to
tribes demonstrating special circumstances.
(3) Special circumstances include but are not limited to a high
incidence of child sexual abuse, a high incidence of violent crimes, a
high incidence of violent crimes against women, or the existence of a
significant victim population within the community.
(i) This 2 percent will be subject to discretionary distribution by
the Assistant Secretary--Indian Affairs, or his or her designee. Tribes
may request these funds through their respective area offices. All
requests must demonstrate a high incidence of child sexual abuse, a
high incidence of violent crimes, a high incidence of violent crimes
against women, or the existence of a significant victim population
within the community.
(ii) Special circumstances funds will remain available through the
third quarter of each fiscal year. In the fourth quarter, unallocated
special circumstances funds will be redistributed as set forth in
paragraphs (a)(1) and (a)(2) of this section, except that there will be
no additional set aside for special circumstances.
(b) Any tribe not wishing to receive Indian child protection and
family violence prevention funds must inform its respective area office
in writing within 90 days after receiving notice of the allocation from
the area office. Each area office may reallocate unused Indian child
protection and family violence prevention program funds as provided in
this section.
(c) Funds may be used as matching shares for other federally funded
programs which contribute to and promote prevention of child abuse,
child neglect, and family violence on Indian reservations, but may not
be used to supplant funds available for the same general purposes.
(d) Any income resulting from the operation of Indian child
protection and family violence prevention programs may be retained and
used to promote prevention of child abuse, child neglect, and family
violence on Indian reservations.
Sec. 63.35 How may Indian child protection and family violence
prevention program funds be used?
Indian child protection and family violence prevention program
funds may be used to:
(a) Establish child protective services programs.
(b) Establish family violence prevention and treatment programs.
(c) Develop and implement multidisciplinary child abuse
investigation and prosecution programs.
(d) Provide immediate shelter and related assistance to victims of
family violence and their dependents, including construction or
renovation of facilities to establish family violence shelters.
(e) Purchase equipment to assist in the investigation of cases of
child abuse and child neglect.
(f) Develop protocols and intergovernmental or interagency
[[Page 32279]]
agreements among tribal, Federal, state law enforcement, courts of
competent jurisdiction, and related agencies to ensure investigations
of child abuse cases to minimize the trauma to the child victim, to
define and specify each party's responsibilities, and to provide for
the coordination of services to victims and their families.
(g) Develop child protection codes and regulations that provide for
the care and protection of children and families on Indian
reservations.
(h) Establish community education programs for tribal members and
school children on issues of family violence, child abuse, and child
neglect.
(i) Establish training programs for child protective services, law
enforcement, judicial, medical, education, and related services
personnel in the investigation, prevention, protection, and treatment
of child abuse, child neglect, and family violence.
(j) Establish other innovative and culturally relevant programs and
projects that show promise of successfully preventing and treating
family violence, child abuse, and child neglect.
Sec. 63.36 What are the special requirements for Indian child
protection and family violence prevention programs?
(a) Each tribe must develop appropriate standards of service,
including caseload standards and staffing requirements. The following
caseload standards and staffing requirements are comparable to those
recommended by the Child Welfare League of America, and are included to
assist tribes in developing standards for Indian child protection and
family violence prevention programs:
(1) Caseworkers providing services to abused and neglected children
and their families have a caseload of 20 active ongoing cases and five
active investigations per caseworker.
(2) Caseworkers providing services to strengthen and preserve
families with children have a caseload of 20 families. If intensive
family-centered crisis services are provided, a caseload of 10 families
per caseworker is recommended.
(3) It is recommended that there be one supervisor for every six
caseworkers.
(b) The negotiation and award of contracts, grants, or funding
agreements under these regulations must include the following
requirements:
(1) Performance of background investigations to ensure that only
those individuals who meet the standards of character contained in
Sec. 63.12 are employed in positions which involve regular contact with
or control over Indian children.
(2) Submission of an annual report to the contracting officer's
representative which details program activities, number of children and
families served, and the number of child abuse, child neglect, and
family violence reports received.
(3) Assurance that the identity of any person making a report of
child abuse or child neglect will not be disclosed without the consent
of the individual and that all reports and records collected under
these regulations are confidential and to be disclosed only as provided
by Federal or tribal law.
(4) Assurance that persons who, in good faith, report child abuse
or child neglect will not suffer retaliation from their employers.
Secs. 63.37--63.50 [Reserved]
Dated: June 6, 1996.
Ada E. Deer,
Assistant Secretary--Indian Affairs.
[FR Doc. 96-15511 Filed 6-20-96; 8:45 am]
BILLING CODE 4310-02-P
