[Federal Register Volume 60, Number 170 (Friday, September 1, 1995)]
[Proposed Rules]
[Pages 45982-45987]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-21606]




[[Page 45981]]

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Part IV





Department of the Interior





_______________________________________________________________________



Bureau of Indian Affairs



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25 CFR Part 63



Indian Child Protection and Family Violence Prevention; Proposed Rule

  Federal Register / Vol. 60, No. 170 / Friday, September 1, 1995 / 
Proposed Rules  

[[Page 45982]]


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: Proposed rule.

-----------------------------------------------------------------------

SUMMARY: The Bureau of Indian Affairs (BIA) is proposing to establish 
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.

DATES: Comments must be received on or before October 31, 1995.

ADDRESSES: Mail comments to Betti A. Delrow, Child Protection 
Coordinator, Department of the Interior, Bureau of Indian Affairs, 1849 
C St. NW, Mail Stop 4603-MIB, Washington, DC 20240; OR, hand deliver 
them to Room 4603 at the above address.

FOR FURTHER INFORMATION CONTACT: Joann Sebastian Morris, Acting 
Director, Office of Tribal Services, telephone (202) 208-3463.

Supplementary Information:

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 these proposed regulations is:
     To propose 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(b).
     To propose 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 propose 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).
    These proposed regulations were 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.
    The transcript of the national tribal consultation meeting 
indicates that, after lengthy discussion, 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)).
    Participants agreed that the proposed formula should not include 
projected number of cases per month because many tribes have not had 
the opportunity to develop statistics. It was recommended the proposed 
formula serve as an interim formula until the BIA has developed 
baseline data using the standard assessment methodology developed for 
the Indian Child Welfare Act program. It was also recommended that 
Indian Child Protection and Family Violence Prevention Program grants 
be combined with ICWA grants to avoid duplication of effort and 
paperwork.
    Participants acknowledged that the Act requires caseload standards 
be developed as a part of the funding formula, but indicated that 
caseload standards do not represent the variety of activities 
contemplated by the Act, e.g., prevention and public education. 
Participants agreed that caseload standards can indicate whether 
funding is sufficient to support a child protection and family violence 
prevention program, but such standards should dictate program design 
and staffing requirements at the local level.
    Representatives of the 1994 tribal consultation meeting were then 
asked to assist the tribal/BIA working group with the revision of the 
draft regulations. The revision was completed October 23, 1994, and 
rewritten in ``Plain English'' in January, 1995.
    It is with appreciation to the many tribal representatives who gave 
of their time and experience that these proposed regulations are 
published.
    Publication of the proposed rule by the Department of the Interior 
(Department) provides the public an opportunity to participate in the 
rulemaking process. Interested persons may submit written comments 
regarding the proposed rule to the location identified in the 
``addresses'' section of this document.
    The Department has certified to the Office of Management and Budget 
(OMB) that these proposed regulations meet the applicable standards 
provided in sections 2(a) and 2(b)(2) of Executive Order 12778.
    This proposed rule is a significant regulatory action under 
Executive Order 12866 and requires review by the Office of Management 
and Budget.
    Depending upon the number of positions for which determinations of 
suitability for employment are required, the cost of background 
investigations (including the current $22 fee for 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, molestation, exploitation, contact 
or prostitution.
    In accordance with Executive Order 12630, the Department has 
determined that this proposed rule does not have ``significant 
takings'' implications. The proposed rule does not pertain to 
``taking'' of private property interests, nor does it impact private 
property.
    The Department has determined that this proposed rule does not have 
significant federalism effects under Executive Order 12612 and will not 
interfere with the roles, rights and responsibilities of states.
    The Department has determined that this proposed rule does not 
constitute a major Federal action significantly affecting the quality 
of the human 

[[Page 45983]]
environment and that no detailed statement is required pursuant to the 
National Environmental Policy Act of 1969.
    The information collection requirements contained in this part will 
be approved by the Office of Management and Budget under 44 U.S.C. 3501 
et seq. This information is necessary to conduct background 
investigations of individuals in positions that involve regular contact 
with or control over Indian children. The information collected 
includes an annual program report and statistical data as required by 
the contract or grant award agreement.
    Public reporting for this information collection is estimated to 
average 32 hours per response, including the time for reviewing 
instructions, gathering and maintaining data, and completing and 
reviewing the information collected, and completing the required 
reports.

Drafting Information

    The primary authors of this document are Judy A. Baggett, Division 
of Social Services, Office of Tribal Services, Janice Ruffin, Division 
of Law Enforcement Services, Bureau of Indian Affairs, Department of 
Interior, and Bettie Rushing, Division of Tribal Government Services.

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 of title 25, chapter 
I of the Code of Federal Regulations is proposed to be added as set 
forth below.

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.
63.4-63.9  [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  Who is required to determine suitability for employment and 
efficiency of service?
63.14  What positions require a determination of suitability for 
employment or retention?
63.15  What questions should an employer ask?
63.16  Who conducts the background investigation and prepares 
determinations 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 sensitive position?
63.22  What rights does an applicant, volunteer or employee have 
during this process?
63.23  What protections must employers provide to applicants, 
volunteers and employees?
63.24-63.29  [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 funds awarded?
63.33  What must an application for Indian child protection and 
family violence 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.

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 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.
    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.
    Indian means any individual who is a member of an Indian tribe.
    Indian child means any unmarried person who is under age eighteen 
and 

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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 The term ``Indian country'' is used instead of 
``Indian reservation'' for consistency. 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.
    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 or grant 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 or grant.


Sec. 63.4-63.9  [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, molestation, 
exploitation, contact or prostitution, or crimes against persons.


Sec.  63.13  Who is required to determine suitability for employment 
and efficiency of service?

    (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 

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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 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, molestation, exploitation, 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 
determinations of suitability for employment?
    (a) The Bureau of Indian Affairs must use the 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 
United States Office of Personnel Management (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.
    (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 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;
    (6) The individual's commitment to rehabilitation and a change in 
the behavior in question; and
    (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. 63.18  Are the requirements for Bureau of Indian Affairs 
adjudication different from the requirements for Indian tribes and 
tribal organizations?

    (a) Yes. In addition to the minimum requirements for background 
investigations found in Sec. 63.12, Bureau of Indian Affair's 
adjudicating officials must review the results of searches by state 
human services agencies, the OPM National Agency Check and Inquiries 
plus Credit, which includes a search of the OPM Security/Suitability 
Investigations Index (SII) and the Defense Clearance and Investigations 
Index (DCII).
    (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.


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, 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, 
sex crime or violence against a person.


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 

[[Page 45986]]
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 sensitive position?

    (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 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.
    (c) An employer may still certify that the individual is suitable 
for employment in a non-sensitive or sensitive position having no 
contact with children if the prior conduct would not interfere with 
performance of duties and the position does not involve a high degree 
of public trust or potential for risk for Indian children.


Sec. 63.22  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.
    (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. 63.23  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. 63.24-63.29  [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 incidents 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 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 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 

[[Page 45987]]
    percent 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) Funds will remain available through the third quarter of each 
fiscal year; in the fourth quarter, unallocated funds will be 
redistributed based upon the criteria set forth in this section.
    (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 by 
Sec. 63.35.
    (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 of equipment to assist in the investigation of cases 
of child abuse and child neglect.
    (f) Develop protocols and intergovernmental or interagency 
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 contract and grant 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. 63.1 2 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 pursuant 
to 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: August 9, 1995.
Ada E. Deer,
Assistant Secretary--Indian Affairs.
[FR Doc. 95-21606 Filed 8-31-95; 8:45 am]
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