Indian Child Protection and Family Violence Prevention Act Minimum Standards of Character

SUMMARY: The Indian Health Service (IHS) is proposing to establish

regulations as mandated by section 408 of the Indian Child Protection

and Family Violence Prevention Act (the ``Act''), that prescribe

minimum standards of character and suitability of employment criteria

for individuals who are employed or are being considered for employment

in positions with duties and responsibilities that involve regular

contact with or control over Indian children.

DATES: Comments must be received on or before May 24, 1999.

ADDRESSES: Written comments may be sent to Betty J. Penn, Regulations

Officer, Indian Health Service, Twinbrook Metro Plaza, Suite 450, 12300

Twinbrook Parkway, Rockville, Maryland 20852. Comments will be made

available for public inspection at this address from 8:30 a.m. to 5:00

p.m., Monday-Friday beginning approximately two weeks after publication

of this notice.

FOR FURTHER INFORMATION CONTACT: Ramona Williams, Child Protection

Coordinator, Office of Mental Health/Social Services, Indian Health

Service, 5300 Homestead Road, NE., Albuquerque, New Mexico 87110, (505)

248-4245. (This is not a toll-free number.)

SUPPLEMENTARY INFORMATION: The IHS is proposing regulations as mandated

by section 408 of the Act, that prescribe minimum standards of

character for individuals with duties and responsibilities that involve

regular contact with or control over Indian children. The minimum

standards of character prescribed in these proposed rules can be found

in Sec. 36.405.

The Act requires that minimum standards of character prescribed by

these regulations ensure that no individuals appointed to positions

involving regular contact with or control over Indian children shall

have been found guilty of or entered a plea of nolo contendere or

guilty to an offense under Federal, State, or tribal law involving

crimes of violence; sexual assault, molestation, exploitation, contact,

or prostitution; or crimes against persons. The IHS is proposing that

the minimum standards of character have been met only after individuals

in positions involving regular contact with or control over Indian

children have been the subject of a satisfactory background

investigation, and it has been determined that these individuals have

not been found guilty of or entered a plea of nolo contendere or guilty

to an offense under Federal, State, or tribal law involving crimes of

violence; sexual assault, molestation, exploitation, contact, or

prostitution; or crimes against persons.

If an individual has been determined to be unsuitable for

employment in a position involving regular contact with or control over

Indian children, the IHS is proposing that adjudicative standards may

be used to ensure that the individual is suitable for employment in a

position, if available, that does not involve regular contact with or

control over Indian children. This would require a determination that

the individual's prior conduct will not interfere with the performance

of duties and will not create a potential risk to the safety and well-

being of any Indian children.

The Bureau of Indian Affairs (BIA) published final regulations at

25 CFR part 63 establishing minimum standards of character and

suitability of employment as required by the Act. The IHS is proposing

minimum standards of character similar to those of the BIA so that

similar standards will be applied by each agency. The Act requires that

tribes or tribal organizations who receive funds under the Indian Self-

Determination and Education Assistance Act (ISDEA), Pub. L. 93-638,

employ individuals in positions involving regular contact with or

control over Indian children only if the individuals meet standards of

character no less stringent than those prescribed under these

regulations. Thus, the minimum standards of character as proposed by

these rules will become the basis for tribes or tribal organizations to

use when developing their own minimum standards of character and

suitability for employment of individuals.

Federal employees are regularly subject to the additional

suitability criteria contained in 5 CFR part 731 as a condition of

employment. In addition, section 231 of the Crime Control Act of 1990,

Pub. L. 101-647, 42 U.S.C. 13041, provides that an individual employed

by a Federal agency by direct hire or under contract may be

disqualified from consideration or continuing employment if such

individual has been convicted of a sex crime, an offense involving a

child victim or a drug felony, or any other crime if such conviction

bears on an individual's fitness to have responsibility for the safety

and well-being of children.

Tribes or tribal organizations may but are not required to apply

additional criteria in determining whether an individual is suitable

for a position with duties and responsibilities that involve regular

contact with or control over Indian children. Any additional

suitability criteria beyond the minimum standards of character required

by these proposed rules would be determined by each individual tribe or

tribal organization in accordance with its own personnel policies and

procedures. Standards of character established by tribes or tribal

organizations should be used to determine whether an individual is

suitable for employment in a position that permits contact with or

control over Indian children. If not, the individual may only be placed

in a position that does not permit regular contact with or control over

Indian children.

Under the Act, Indian tribes or tribal organizations are

responsible for identifying individuals in positions within their

tribal programs whose duties and responsibilities involve regular

contact with or control over Indian children. The Act requires tribes

or tribal organizations to conduct background investigations of these

individuals. Tribes or tribal organizations are not required to follow

the United States Office of Personnel Management (OPM) requirements for

background investigations for Federal employees. However, in order to

meet the minimum standards of character under these proposed rules,

tribes or tribal organizations must ensure that background

investigations are completed on individuals with duties and

responsibilities that involve regular contact with or control over

Indian children. The background investigations require a criminal

history background check, including a fingerprint check through the

Criminal Justice Information Services Division of the Federal Bureau of

Investigation (FBI), under procedures approved by the FBI, and

inquiries to State and tribal law enforcement agencies. The IHS has

entered into an interagency agreement with the BIA to assist tribes and

tribal organizations to access fingerprint/National Criminal History

checks through existing FBI files and data bases of individuals being

considered for or

[[Page 14561]]

placed in positions identified by the tribal programs as having regular

contact with or control over Indian children.

The IHS presented an earlier draft of these proposed rules at the

14th Annual National Indian Health Board Consumer Conference. In

addition, the IHS provided a copy of the draft proposed rules to the

tribal leader of each federally recognized tribe for their review and

comment. These proposed rules were modified to reflect the comments

received.

Pending publication of these proposed rules, the IHS issued policy

guidance requiring IHS personnel staff to identify positions involving

regular contact with or control over Indian children, to conduct

background investigations of individuals in these positions, and to

identify those individuals who do not meet the minimum standards of

character under section 408 of the Act. These proposed rules have taken

into consideration the agency's experience in implementing section 408

of the Act.

The Department has determined that where an individual has been

convicted of or pleaded guilty or nolo contendere to one of the

enumerated crimes in section 408 of the Act, the IHS does not have the

discretion to retain that individual in a position involving regular

contact with or control over Indian children. We believe this is true

regardless of such factors as the date of incident, circumstances of

incident, rehabilitation or other relevant factors that might result in

a determination that the individual is not a potential risk to Indian

children. However, the individual must be given an opportunity to

explain, deny, or refute unfavorable and incorrect information before

an adjudication is final. The IHS would have the discretion to remove

that individual to a position not involving regular contact with or

control over Indian children after a determination is made that Indian

children will not be placed at risk.

There are several terms in section 408 of the Act that were not

defined by Congress. The IHS is proposing to define these terms in

these regulations to remove any ambiguity created by the statute. The

IHS has defined these terms based on the agency's experience in

implementing section 408 of the Act.

The term regular contract with or control over Indian children is

not defined in the Act. The IHS has defined the term in these proposed

rules to apply to those positions where the responsibility for Indian

children is within the scope of the individual's duties and

responsibilities or where the individual has access to Indian children

on a recurring or foreseeable basis that could potentially place an

Indian child as risk. The IHS has developed a list of possible

positions within the agency that might involve regular contact with or

control over Indian children. The IHS has discretion to identify those

positions on this list, on a case-by-case basis, to determine whether

the duties and responsibilities of a particular position involve

regular contact with or control over Indian children as defined by

these proposed rules.

In addition, Congress did not define the terms crimes against

persons or crimes of violence. The IHS is proposing to define the terms

crimes against persons and crimes of violence for purposes of these

proposed rules. The Act does not distinguish between felonies and

misdemeanors, and thus, it has been determined that the Department does

not have discretion to distinguish between felonies and misdemeanors in

defining these terms. For example, if a crime is categorized as a crime

against persons under Federal, State, or tribal law, a conviction or

plea (even if a misdemeanor) would require termination or bar the

individual from employment in a position involving regular contact with

or control over Indian children. In determining whether an offense

falls within these categories, reference may be made to the applicable

Federal, State, or tribal law under which the individual was convicted

or pleaded guilty or nolo contendere.

The IHS welcomes comments regarding these proposed rules from the

public and especially the tribes and tribal organizations affected by

them. Interested persons may submit written comments regarding the

proposed rule to the location identified in the addresses section of

this document.

Executive Order 12866

This proposed rule is a significant regulatory action under

Executive Order (E.O.) 12866 and requires review by the Office of

Management and Budget (OMB). Depending upon the number of positions for

which determinations of suitability for employment are required, the

cost of the background investigations (including the cost of each FBI

fingerprint check) may have an economic effect on each tribal

government and tribal organization under the Regulatory Flexibility Act

(5 U.S.C. 601, et seq. and require additional outlays by tribal

governments, tribal organizations, and the Federal Government. These

costs are not projected to exceed $100 million. The cost of background

investigation of Federal employees by the OPM are estimated to be

$475,000. The cost of FBI fingerprint checks requested by tribes is

approximately $20,000. In addition, the IHS is expected to expend

$90,000 per year to support one staff position and related costs

associated with tribal requests for FBI fingerprint checks processed

through the BIA.

Executive Order 12612: Federalism

The Department has determined that this proposed rule does not have

significant federalism effects under E.O. 12612 and will not interfere

with the roles, rights and responsibilities of states.

Paperwork Reduction Act

Under the Paperwork Reduction Act of 1995, agencies are required to

provide 60-day notice in the Federal Register and solicit public

comment before a collection of information requirement is submitted to

the OMB for review and approval. In order to fairly evaluate whether an

information collection should be approved by OMB, section 3506(c)(2)(A)

of the Paperwork Reduction Act of 1995 requires that we solicit comment

on the following issues:

Whether the information collection is necessary and useful to carry

out the proper functions of the agency;

The accuracy of the agency's estimate of the information collection

burden;

The quality, utility, and clarity of the information to be

collected; and

Recommendations to minimize the information collection burden on

the affected public, including automated collection techniques.

Therefore, we are soliciting comment on each of these issues for

the proposed information collection requirements discussed below.

Sections 36.410--What Questions Must the IHS Ask as Part of the

Background Investigation?

All applicants for a position involving regular contact with or

control over Indian children are required to undergo background

investigations to determine whether they meet minimum standards of

character for that position. This section describes questions that will

be asked as part of the background investigation. Applicants must state

whether they have been arrested, charged, convicted of or plead guilty

to certain enumerated crimes. In addition, the individuals will be

required to sign, under penalty of perjury, a statement verifying the

truth of all of the information provided in the employment application

and acknowledging that knowingly falsifying or concealing information

is subject to fine or imprisonment, or both.

[[Page 14562]]

Finally, the applicant must sign an informed consent form authorizing a

criminal record check.

The IHS anticipates there will be approximately 100 respondents who

will require no more than 15 minutes each to respond to these questions

and sign the required forms.

For comments that relate to information collection requirements,

mail a copy of comments to: Office of Information and Regulatory

Affairs, Office of Management and Budget, Room 10235, New Executive

Office Building, Washington, DC 20503, Attention Allison Herron Eydt,

IHS Desk Officer.

List of Subjects in 42 CFR Part 36

American Indians, Alaska Natives, Children, Child health,

Employment.

Dated: September 21, 1998.

Michael H. Trujillo,

Assistant Surgeon General, Director, Indian Health Service.

Approved: December 10, 1998.

Donna E. Shalala,

Secretary, Department of Health and Human Services.

For the reasons set out in the preamble, the Department proposes to

add subpart K to Part 36 of Title 42, CFR, as follows:

Subpart K--Indian Child Protection and Family Violence Prevention

Sec.

36.401 Purpose.

36.402 Policy.

36.403 Definitions.

36.404 What does the Indian Child Protection and Family Violence

Prevention Act require of the IHS and Indian tribes or tribal

organizations receiving funds under the ISDEA?

36.405 What are the minimum standards of character for individuals

placed in, or applying for, a position that involves regular contact

with or control over Indian children?

36.406 What are other factors, in addition to the minimum standards

of character, that may be considered in determining placement of an

individual in a position that involves regular contact with or

control over Indian children?

36.407 What positions require a background investigation and

determination of suitability for employment or retention?

36.408 Who conducts the background investigation and prepares

determinations of suitability for employment?

36.409 Are the requirements for IHS adjudication different from the

requirements for Indian tribes and tribal organizations?

36.410 What questions must the IHS ask as part of the background

investigation?

36.411 What protections must the IHS and tribes or tribal

organizations provide to individuals undergoing a background

investigation?

36.412 How does the IHS determine suitability for employment and

efficiency of service?

36.413 What rights does an applicant, volunteer, or employee have

during this process?

36.414 When should the IHS deny employment or dismiss an employee?

36.415 What must the IHS do if an individual has been charged with

an offense but the charge is pending or no disposition has been made

by a court?

Authority: 25 U.S.C. 3201; 5 U.S.C. 301; 42 U.S.C. 13041.

Subpart K--Indian Child Protection and Family Violence Prevention

Sec. 36.401 Purpose.

The purpose of the regulations in this subpart is to establish

minimum standards of character to ensure that individuals having

regular contact with or control over Indian children have not been

convicted of certain types of crimes or acted in a manner that placed

others at risk or raised questions about their trustworthiness as

mandated by the Indian Child Protection and Family Violence Prevention

Act of 1990, Public Law 101-630, 104 Stat. 4544, 25 U.S.C. 3201-3211.

Sec. 36.402 Policy.

In enacting the Indian Child Protection and Family Violence

Prevention Act, the Congress recognized there is no resource more vital

to the continued existence and integrity of Indian tribes than their

children and that the United States has a direct interest, as trustee,

in protecting Indian children who are members of, or are eligible for

membership in, an Indian tribe. The minimum standards of character and

suitability of employment for individuals ensure that Indian children

are protected. In order to protect Indian children, the IHS has

established minimum standards of character requiring completion of a

satisfactory background investigation that ensures that no individuals

who have been found guilty of, or entered a plea of nolo contendere or

guilty to, any offense under Federal, State, or tribal law involving

crimes of violence; sexual assault, molestation, exploitation, contact,

or prostitution; or crimes against persons, are placed in positions

involving regular contact with or control over Indian children.

Sec. 36.403 Definitions

Crimes against persons means an offense that has an element the

use, attempted use, or threatened use of physical force or other abuse

of a person and includes, but is not limited to, homicide; assault;

kidnapping; false imprisonment; reckless endangerment; robbery; rape;

sexual assault, molestation, exploitation, contact, or prostitution;

and other sexual offenses. In determining whether an offense falls

within this category, reference may be made to the applicable Federal,

State, or tribal law under which the individual was convicted or

pleaded guilty or nolo contendere.

Crimes of violence means:

(1) An offense that has as an element the use, attempted use, or

threatened use of physical force against the person or property of

another, or

(2) Any other offense that is a felony and that, by its nature,

involves substantial risk that physical force against the person or

property of another may be used in the course of committing the

offense. In determining whether an offense falls within this category,

reference may be made to the applicable Federal, State, or tribal law

under which the individual was convicted or pleaded guilty or nolo

contendere.

Indian means any individual who is a member of an Indian tribe, as

defined in this section.

Indian child means any unmarried person under the age of eighteen

who is either a member of an Indian tribe or eligible for membership in

an Indian tribe and is the biological child of a member of an Indian

tribe.

Indian tribe means any Indian tribe, band, nation, or other

organized group or community, including any Alaska Native village or

regional or village corporation as defined in or established pursuant

to the Alaska Native Claims Settlement Act (43 U.S.C. 1601 et seq.)

which is recognized as eligible for the special programs and services

provided by the United States to Indians because of their status as

Indians.

Individuals means persons with duties and responsibilities that

involve regular contact with or control over Indian children and

includes but is not limited to the following:

(1) Employees in the competitive or excepted service, the

Commissioned corps, or the Senior Executive Service in the IHS;

(2) Individuals who perform service for or under the supervision of

the IHS while being permanently assigned to another IHS office or to

another organization, such as a Federal agency, State, or tribe;

(3) Individuals who volunteer to perform services for or under the

supervision of the IHS;

[[Page 14563]]

(4) Individuals who contract with the IHS to perform services in

IHS facilities.

Must is used in place of shall and indicates a mandatory or

imperative act or requirement.

Regular contact with or control over an Indian child means

responsibility for an Indian child within the scope of the individual's

duties and responsibilities or access to Indian children on a recurring

and foreseeable basis that could potentially place an Indian child at

risk.

Tribal organization as defined in the ISDEA, means the recognized

governing body of any Indian tribe or any legally established

organization of Indians which is controlled, sanctioned, or chartered

by such governing body or which is democratically elected by the adult

members of the Indian community to be served by such organization and

which includes the maximum participation of Indians in all phases of

its activities.

Sec. 36.404 What does the Indian Child Protection and Family Violence

Prevention Act require of the IHS and Indian tribes or tribal

organizations receiving funds under the ISDEA?

(a) The IHS must compile a list of all authorized positions with

duties and responsibilities that involve regular contact with or

control over Indian children; investigate the character of each

individual who is employed or is being considered for employment in

such a position; and prescribe minimum standards of character that each

individual must meet to be appointed to such positions.

(b) All Indian tribes or tribal organizations receiving funds under

the authority of the ISDEA must identify those positions that permit

regular contact with or control over Indian children; conduct an

investigation of the character of each individual who is employed or is

being considered for employment in a position that involves regular

contact with or control over Indian children; and employ only

individuals who meet standards of character that are no less stringent

than those prescribed for the IHS.

Sec. 36.405 What are the minimum standards of character for

individuals placed in, or applying for, a position that involves

regular contact with or control over Indian children?

The minimum standards of character shall mean a benchmark of moral,

ethical, and emotional strengths established by character traits and

past conduct to ensure that the individual is competent to complete

his/her job without harm to Indian children. The minimum standards of

character shall be considered met only after the individual has been

the subject of a satisfactory background investigation. The background

investigation shall include a review of:

(a) The individual's trustworthiness, through inquiries with the

individual's references and places of employment and education;

(b) A criminal history background check, which includes a

fingerprint check through the Criminal Justice Information Services

Division of the FBI, under procedures approved by the FBI, and

inquiries to State and tribal law enforcement agencies for residence

for the previous 5 years listed on the individual's application; and

(c) A determination as to whether the individual has been found

guilty of or entered a plea of nolo contendere or guilty to any offense

under Federal, State, or tribal law involving crimes of violence;

sexual assault, molestation, exploitation, contact, or prostitution; or

crimes against persons.

Sec. 36.406 What are other factors, in addition to the minimum

standards of character, that may be considered in determining placement

of an individual in a position that involves regular contact with or

control over Indian children?

(a) All Federal employees are subject to suitability criteria

contained in 5 CFR Part 31 as a condition of employment.

(b) Section 231 of the Crime Control Act of 1990, Pub. L. 101-647,

42 U.S.C. 13041, provides that an individual may be disqualified from

consideration or continuing employment if such individual has been

convicted of a sex crime, an offense involving a child victim or a drug

felony, or any other crime if such conviction bears on an individual's

fitness to have responsibility for the safety and well-being of

children.

(c) Tribes or tribal organizations may but are not required to

apply additional criteria in determining whether an individual is

suitable for a position with duties and responsibilities that involve

regular contact with or control over Indian children. Any additional

suitability criteria established by tribes or tribal organizations

beyond the minimum standards of character described in Sec. 36.405

would be determined by each individual tribe or tribal organization in

accordance with its own personnel policies and procedures.

Sec. 36.407 What positions require a background investigation and

determination of suitability for employment or retention?

(a) All positions that allow an individual regular contact with or

control over Indian children are subject to a background investigation

and determination of suitability for employment. The IHS has compiled a

list of positions within the agency in which the duties and

responsibilities could involve regular contact with or control over

Indian children. The list will be periodically updated and made

available at all IHS Personnel Offices upon request. Positions should

be reviewed on a case-by-case basis to determine whether the individual

in that position has regular contact with or control over Indian

children.

(b) Tribes and tribal organizations may use the list compiled by

the IHS or develop a list of positions within their program that

involve regular contact with or control over Indian children.

Sec. 36.408 Who conducts the background investigation and prepares

determinations of suitability for employment?

(a) The IHS must use the Office of Personnel Management (OPM) to

conduct background investigations for Federal employees. The IHS must

designate qualified security personnel to adjudicate the results of

background investigations.

(b) Indian tribes and tribal organizations may conduct their own

background investigations, contract with private firms, or request that

a Federal agency conduct investigations. (FBI criminal history record

information, however, may only be received or evaluated by governmental

agencies, including tribal government agencies, and may not be

disseminated to private entities.) The investigation should cover the

past five years of the individual's employment, education, etc.

Sec. 36.409 Are the requirements for IHS adjudication different from

the requirements for Indian tribes and tribal organizations?

(a) In addition to the minimum requirements for background

investigations found in Sec. 36.405, IHS's adjudicating officials must

review the results of searches by State human services agencies, the

OPM National Agency Check and Inquiries, the OPM Security/Suitability

Investigations Index, and the Defense Clearance and Investigations

Index.

(b) All IHS employees who have regular contact with or control over

Indian children must be reinvestigated every five years during their

employment in that or any other position that allows regular contact

with or control over Indian children.

(c) Indian tribes or tribal organizations may but are not required

to adopt portions of the rules in this subpart that

[[Page 14564]]

are specifically applicable to employment within the IHS in conducting

background investigations and adjudicating suitability for employment

in tribal positions that allow regular contact with or control over

Indian children.

Sec. 36.410 What questions must the IHS ask as part of the background

investigation?

(a) Applications for employment with the IHS must include the

following questions:

(1) Has the individual been arrested or charged with a crime

involving a child? If yes, the individual must provide the date,

explanation of the violation, disposition of the arrest or charge,

place of occurrence, and the name and address of the police department

or court involved.

(2) Has the individual ever been found guilty of, or entered a plea

of nolo contendere or guilty to, any offense under Federal, State, or

tribal law involving crimes of violence; sexual assault, molestation,

exploitation, contact, or prostitution; or crimes against persons? If

yes, the individual must provide an explanation of the violation, place

of occurrence, date and disposition of the court proceeding, and the

name and address of the police department or court involved.

(b) The IHS must require that the individual sign, under penalty of

perjury, a statement verifying the truth of all information provided in

the employment application and acknowledging that knowingly falsifying

or concealing a material fact is a felony that may result in fines up

to $10,000 or 5 years imprisonment, or both.

(c) The IHS must inform the individual that a criminal history

record check is a condition of employment and require the individual to

consent in writing to a criminal history record check.

Sec. 36.411 What protections must the IHS and tribes or tribal

organizations provide to individuals undergoing a background

investigation?

(a) The IHS must comply with all policies, procedures, criteria,

and guidance contained in other appropriate guidelines, such as the OPM

policies, procedures, criteria, and guidance.

(b) Indian tribes and tribal organizations must comply with the

privacy requirements of the Federal, State, or other tribal agency

providing the background investigations. Indian tribes and tribal

organizations may establish their own procedures that safeguard

information derived from background investigations.

Sec. 36.412 How does the IHS determine suitability for employment and

efficiency of service?

(a) Adjudication is the process employers use to determine

suitability for employment and efficiency of service. The adjudication

process protects the interests of the employer and the right of

applicants and employees. Adjudication requires uniform evaluation to

ensure fair and consistent judgment.

(b) Each case is judge on its own merits. All available

information, both favorable and unfavorable, should be considered and

assessed in terms of accuracy, completeness, relevance, seriousness,

overall significance, and how similar cases have been handled in the

past.

(c) The adjudicating official who conducts the adjudication must

first have been the subject of a favorable background investigation.

(d) Each adjudicating official must be thoroughly familiar with all

laws, regulations, and criteria involved in making a determination for

suitability.

(e) The adjudicating official must review the background

investigation to determine the character, reputation, and

trustworthiness of the individual. At a minimum, the background

investigation must:

(1) Review each security investigation form and employment

application and compare the information provided.

(2) Review the results of written record searches requested from

local law enforcement agencies, former employer, former supervisors,

employment references, and schools.

(3) Review the results of the fingerprint charts maintained by the

Federal Bureau of Investigation or other law enforcement information

maintained by other agencies.

(4) Review the information obtained through a background

investigation and determine whether the individual has been found

guilty of, or entered a plea of nolo contendere of guilty to, any

offense under Federal, State, or tribal law involving crimes of

violence; sexual assault, molestation, exploitation, contact, or

prostitution; or crimes against persons.

(f) After an opportunity has been afforded the individual to

respond, pursuant to Sec. 36.413, and it is adjudicated that the

individual has been found guilty of or entered a plea of nolo

contendere or guilty to an enumerated offense under paragraph (e)(4) of

this section, that individual shall not be placed or retained in a

position involving regular contact with or control over Indian

children.

(g) For individuals who have been determined to be unsuitable for

employment in positions having regular contact with or control over

Indian children, the IHS may use Federal adjudicative standards to

certify that an individual is suitable for employment in a position, if

available, that does not involve regular contact with or control over

Indian children. The adjudicating official must determine that the

individual's prior conduct will not interfere with the performance of

duties and will not create a potential risk to the safety and well-

being of any Indian children after consideration of the following

factors:

(1) The nature and seriousness of the conduct in question.

(2) The recency and circumstances surrounding the conduct in

question.

(3) The age of the individual at the time of the incident.

(4) Societal conditions that may have contributed to the nature of

the conduct.

(5) The probability that the individual will continue the type of

behavior in question.

(6) The individual's commitment to rehabilitation and a change in

the behavior in question.

(7) The degree of public trust and the possibility the public would

be placed at risk if the individual is appointed to the position.

Sec. 36.413 What rights does an applicant, volunteer, or employee have

during this process?

(a) The applicant, volunteer, or employee must be provided an

opportunity to explain, deny, or refute unfavorable and incorrect

information gathered in an investigation, before the adjudication is

final. He/she should receive a written summary of all derogatory

information and be informed of the process for explaining, denying, or

refuting unfavorable information.

(b) The adjudicating officials must not release the actual

background investigative report to an applicant, volunteer, or

employee. However, they may issue a written summary of the derogatory

information.

(c)The applicant, volunteer, or employee who is the subject of a

background investigation may obtain a copy of the reports from the

originating (Federal, State, or other tribal) agency and challenge the

accuracy and completeness of any information maintained by that agency.

(d) The results of an investigation cannot be used for any purpose

other than to determine suitability for employment in a position that

involves regular contact with or control over Indian children.

[[Page 14565]]

(e) Investigative reports contain information of a highly personal

nature and must be maintained confidentially and secured in locked

files. Investigative reports must be seen only by those officials who,

in performing their official duties, need to know the information

contained in the report.

Sec. 36414 When should the IHS deny employment or dismiss an employee?

(a) The IHS must deny employment to an individual or dismiss an

employee, when the duties and responsibilities of the position the

individual person would hold or holds involve regular contact with or

control over Indian children, and it has been adjudicated, pursuant to

Sec. 36.412 and Sec. 36.413, that the individual has been found guilty

of, or entered a plea of guilty or nolo contendere to, any Federal,

State, or tribal offense involving a crime of violence; sexual assault,

molestation, exploitation, contact, or prostitution; or crimes against

persons. The IHS has the discretion to place such an individual in a

position, if available, that does not involve regular contact with or

control over Indian children, if a determination has been made that

such placement would not put Indian children at risk and the individual

would be able to perform the duties and responsibilities of this

position.

(b) Pursuant to section 231 of the Crime Control Act of 1990, Pub.

L. 101-647, 42 U.S.C. 13041, as amended by Pub. L. 102-190, the IHS may

hire an individual provisionally prior to the completion of a

background investigation if, at all times prior to receipt of the

background investigation during which children are in the care of the

individual, the individual is within the sight and under the

supervision of a staff person and a satisfactory background

investigation has been completed on that staff person.

Sec. 36.415 What must the IHS do if an individual has been charged

with an offense but the charge is pending or no disposition has been

made by a court?

(a) The IHS may deny the applicant employment until the charge has

been resolved.

(b) The IHS may deny the employee any on-the-job contact with

children until the charge is resolved.

(c) The IHS may detail or reassign the employee to other duties

that do not involve regular contact with children.

(d) The IHS may place the employee on indefinite suspension, in

accordance with statutory and regulatory requirements, until the court

has disposed of the charge.

[FR Doc. 99-7341 Filed 3-24-99; 8:45 am]

BILLING CODE 4160-16-M