32272 Federal Register / Vol. 61, No. 121 / Friday, June 21, 1996 / Rules and Regulations

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.

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 §§ 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 §§ 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, § 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

(§ 63.12) and this is accomplished

through the adjudication process
Federal Register / Vol. 61, No. 121 / Friday, June 21, 1996 / Rules and Regulations 32273

described in § 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 nonsensitive positions. Public trust

positions are designated by the

employer. ‘‘Sensitive’’ and ‘‘nonsensitive’’ 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

§ 63.21(c) has been deleted.

Pursuant to this comment, § 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 wellbeing 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 alcoholrelated 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 § 63.22 is

now § 63.23, and the proposed § 63.23 is

now § 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
32274 Federal Register / Vol. 61, No. 121 / Friday, June 21, 1996 / Rules and Regulations

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 § § 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

§ 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
Federal Register / Vol. 61, No. 121 / Friday, June 21, 1996 / Rules and Regulations 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.

§ 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.

§ 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.

§ 63.4 Information Collection.

The information collection

requirement contained in § 63.15,

§ 63.33 and § 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 lllll.
32276 Federal Register / Vol. 61, No. 121 / Friday, June 21, 1996 / Rules and Regulations

§§ 63.5–63.9 [Reserved]

Subpart B—Minimum Standards of

Character and Suitability for

Employment

§ 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.

§ 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.

§ 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.

§ 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 SelfDetermination 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 SelfDetermination 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.

§ 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.

§ 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.

§ 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.

§ 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.
Federal Register / Vol. 61, No. 121 / Friday, June 21, 1996 / Rules and Regulations 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.

§ 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 § 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.

§ 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.

§ 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.

§ 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.

§ 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.

§ 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.
32278 Federal Register / Vol. 61, No. 121 / Friday, June 21, 1996 / Rules and Regulations

(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.

§ 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.

§§ 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?

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.

§ 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.

§ 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 SelfDetermination 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.

§ 63.33 What must an application for

Indian child protection and family violence

prevention program funds include?

In addition to the Indian SelfDetermination 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.

§ 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.

§ 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
Federal Register / Vol. 61, No. 121 / Friday, June 21, 1996 / Rules and Regulations 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.

§ 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 § 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.

§§ 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]

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