[Federal Register Volume 64, Number 57 (Thursday, March 25, 1999)]
[Proposed Rules]
[Pages 14560-14565]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-7341]



[[Page 14559]]

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Part V





Department of Health and Human Services





_______________________________________________________________________



Public Health Service



_______________________________________________________________________



42 CFR Part 36



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

  Federal Register / Vol. 64, No. 57 / Thursday, March 25, 1999 / 
Proposed Rules  

[[Page 14560]]



DEPARTMENT OF HEALTH AND HUMAN SERVICES

Public Health Service

42 CFR Part 36

RIN 0917-AA02


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

AGENCY: Indian Health Service, Public Health Service, HHS.

ACTION: Notice of proposed rulemaking.

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

SUMMARY: The Indian Health Service (IHS) is proposing to establish 
regulations as mandated by section 408 of the Indian Child Protection 
and Family Violence Prevention Act (the ``Act''), that prescribe 
minimum standards of character and suitability of employment criteria 
for individuals who are employed or are being considered for employment 
in positions with duties and responsibilities that involve regular 
contact with or control over Indian children.

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

ADDRESSES: Written comments may be sent to Betty J. Penn, Regulations 
Officer, Indian Health Service, Twinbrook Metro Plaza, Suite 450, 12300 
Twinbrook Parkway, Rockville, Maryland 20852. Comments will be made 
available for public inspection at this address from 8:30 a.m. to 5:00 
p.m., Monday-Friday beginning approximately two weeks after publication 
of this notice.

FOR FURTHER INFORMATION CONTACT: Ramona Williams, Child Protection 
Coordinator, Office of Mental Health/Social Services, Indian Health 
Service, 5300 Homestead Road, NE., Albuquerque, New Mexico 87110, (505) 
248-4245. (This is not a toll-free number.)

SUPPLEMENTARY INFORMATION: The IHS is proposing regulations as mandated 
by section 408 of the Act, that prescribe minimum standards of 
character for individuals with duties and responsibilities that involve 
regular contact with or control over Indian children. The minimum 
standards of character prescribed in these proposed rules can be found 
in Sec. 36.405.
    The Act requires that minimum standards of character prescribed by 
these regulations ensure that no individuals appointed to positions 
involving regular contact with or control over Indian children shall 
have been found guilty of or entered a plea of nolo contendere or 
guilty to an offense under Federal, State, or tribal law involving 
crimes of violence; sexual assault, molestation, exploitation, contact, 
or prostitution; or crimes against persons. The IHS is proposing that 
the minimum standards of character have been met only after individuals 
in positions involving regular contact with or control over Indian 
children have been the subject of a satisfactory background 
investigation, and it has been determined that these individuals have 
not been found guilty of or entered a plea of nolo contendere or guilty 
to an offense under Federal, State, or tribal law involving crimes of 
violence; sexual assault, molestation, exploitation, contact, or 
prostitution; or crimes against persons.
    If an individual has been determined to be unsuitable for 
employment in a position involving regular contact with or control over 
Indian children, the IHS is proposing that adjudicative standards may 
be used to ensure that the individual is suitable for employment in a 
position, if available, that does not involve regular contact with or 
control over Indian children. This would require a determination that 
the individual's prior conduct will not interfere with the performance 
of duties and will not create a potential risk to the safety and well-
being of any Indian children.
    The Bureau of Indian Affairs (BIA) published final regulations at 
25 CFR part 63 establishing minimum standards of character and 
suitability of employment as required by the Act. The IHS is proposing 
minimum standards of character similar to those of the BIA so that 
similar standards will be applied by each agency. The Act requires that 
tribes or tribal organizations who receive funds under the Indian Self-
Determination and Education Assistance Act (ISDEA), Pub. L. 93-638, 
employ individuals in positions involving regular contact with or 
control over Indian children only if the individuals meet standards of 
character no less stringent than those prescribed under these 
regulations. Thus, the minimum standards of character as proposed by 
these rules will become the basis for tribes or tribal organizations to 
use when developing their own minimum standards of character and 
suitability for employment of individuals.
    Federal employees are regularly subject to the additional 
suitability criteria contained in 5 CFR part 731 as a condition of 
employment. In addition, section 231 of the Crime Control Act of 1990, 
Pub. L. 101-647, 42 U.S.C. 13041, provides that an individual employed 
by a Federal agency by direct hire or under contract may be 
disqualified from consideration or continuing employment if such 
individual has been convicted of a sex crime, an offense involving a 
child victim or a drug felony, or any other crime if such conviction 
bears on an individual's fitness to have responsibility for the safety 
and well-being of children.
    Tribes or tribal organizations may but are not required to apply 
additional criteria in determining whether an individual is suitable 
for a position with duties and responsibilities that involve regular 
contact with or control over Indian children. Any additional 
suitability criteria beyond the minimum standards of character required 
by these proposed rules would be determined by each individual tribe or 
tribal organization in accordance with its own personnel policies and 
procedures. Standards of character established by tribes or tribal 
organizations should be used to determine whether an individual is 
suitable for employment in a position that permits contact with or 
control over Indian children. If not, the individual may only be placed 
in a position that does not permit regular contact with or control over 
Indian children.
    Under the Act, Indian tribes or tribal organizations are 
responsible for identifying individuals in positions within their 
tribal programs whose duties and responsibilities involve regular 
contact with or control over Indian children. The Act requires tribes 
or tribal organizations to conduct background investigations of these 
individuals. Tribes or tribal organizations are not required to follow 
the United States Office of Personnel Management (OPM) requirements for 
background investigations for Federal employees. However, in order to 
meet the minimum standards of character under these proposed rules, 
tribes or tribal organizations must ensure that background 
investigations are completed on individuals with duties and 
responsibilities that involve regular contact with or control over 
Indian children. The background investigations require a criminal 
history background check, including a fingerprint check through the 
Criminal Justice Information Services Division of the Federal Bureau of 
Investigation (FBI), under procedures approved by the FBI, and 
inquiries to State and tribal law enforcement agencies. The IHS has 
entered into an interagency agreement with the BIA to assist tribes and 
tribal organizations to access fingerprint/National Criminal History 
checks through existing FBI files and data bases of individuals being 
considered for or

[[Page 14561]]

placed in positions identified by the tribal programs as having regular 
contact with or control over Indian children.
    The IHS presented an earlier draft of these proposed rules at the 
14th Annual National Indian Health Board Consumer Conference. In 
addition, the IHS provided a copy of the draft proposed rules to the 
tribal leader of each federally recognized tribe for their review and 
comment. These proposed rules were modified to reflect the comments 
received.
    Pending publication of these proposed rules, the IHS issued policy 
guidance requiring IHS personnel staff to identify positions involving 
regular contact with or control over Indian children, to conduct 
background investigations of individuals in these positions, and to 
identify those individuals who do not meet the minimum standards of 
character under section 408 of the Act. These proposed rules have taken 
into consideration the agency's experience in implementing section 408 
of the Act.
    The Department has determined that where an individual has been 
convicted of or pleaded guilty or nolo contendere to one of the 
enumerated crimes in section 408 of the Act, the IHS does not have the 
discretion to retain that individual in a position involving regular 
contact with or control over Indian children. We believe this is true 
regardless of such factors as the date of incident, circumstances of 
incident, rehabilitation or other relevant factors that might result in 
a determination that the individual is not a potential risk to Indian 
children. However, the individual must be given an opportunity to 
explain, deny, or refute unfavorable and incorrect information before 
an adjudication is final. The IHS would have the discretion to remove 
that individual to a position not involving regular contact with or 
control over Indian children after a determination is made that Indian 
children will not be placed at risk.
    There are several terms in section 408 of the Act that were not 
defined by Congress. The IHS is proposing to define these terms in 
these regulations to remove any ambiguity created by the statute. The 
IHS has defined these terms based on the agency's experience in 
implementing section 408 of the Act.
    The term regular contract with or control over Indian children is 
not defined in the Act. The IHS has defined the term in these proposed 
rules to apply to those positions where the responsibility for Indian 
children is within the scope of the individual's duties and 
responsibilities or where the individual has access to Indian children 
on a recurring or foreseeable basis that could potentially place an 
Indian child as risk. The IHS has developed a list of possible 
positions within the agency that might involve regular contact with or 
control over Indian children. The IHS has discretion to identify those 
positions on this list, on a case-by-case basis, to determine whether 
the duties and responsibilities of a particular position involve 
regular contact with or control over Indian children as defined by 
these proposed rules.
    In addition, Congress did not define the terms crimes against 
persons or crimes of violence. The IHS is proposing to define the terms 
crimes against persons and crimes of violence for purposes of these 
proposed rules. The Act does not distinguish between felonies and 
misdemeanors, and thus, it has been determined that the Department does 
not have discretion to distinguish between felonies and misdemeanors in 
defining these terms. For example, if a crime is categorized as a crime 
against persons under Federal, State, or tribal law, a conviction or 
plea (even if a misdemeanor) would require termination or bar the 
individual from employment in a position involving regular contact with 
or control over Indian children. In determining whether an offense 
falls within these categories, reference may be made to the applicable 
Federal, State, or tribal law under which the individual was convicted 
or pleaded guilty or nolo contendere.
    The IHS welcomes comments regarding these proposed rules from the 
public and especially the tribes and tribal organizations affected by 
them. Interested persons may submit written comments regarding the 
proposed rule to the location identified in the addresses section of 
this document.

Executive Order 12866

    This proposed rule is a significant regulatory action under 
Executive Order (E.O.) 12866 and requires review by the Office of 
Management and Budget (OMB). Depending upon the number of positions for 
which determinations of suitability for employment are required, the 
cost of the background investigations (including the cost of each FBI 
fingerprint check) may have an economic effect on each tribal 
government and tribal organization under the Regulatory Flexibility Act 
(5 U.S.C. 601, et seq. and require additional outlays by tribal 
governments, tribal organizations, and the Federal Government. These 
costs are not projected to exceed $100 million. The cost of background 
investigation of Federal employees by the OPM are estimated to be 
$475,000. The cost of FBI fingerprint checks requested by tribes is 
approximately $20,000. In addition, the IHS is expected to expend 
$90,000 per year to support one staff position and related costs 
associated with tribal requests for FBI fingerprint checks processed 
through the BIA.

Executive Order 12612: Federalism

    The Department has determined that this proposed rule does not have 
significant federalism effects under E.O. 12612 and will not interfere 
with the roles, rights and responsibilities of states.

Paperwork Reduction Act

    Under the Paperwork Reduction Act of 1995, agencies are required to 
provide 60-day notice in the Federal Register and solicit public 
comment before a collection of information requirement is submitted to 
the OMB for review and approval. In order to fairly evaluate whether an 
information collection should be approved by OMB, section 3506(c)(2)(A) 
of the Paperwork Reduction Act of 1995 requires that we solicit comment 
on the following issues:
    Whether the information collection is necessary and useful to carry 
out the proper functions of the agency;
    The accuracy of the agency's estimate of the information collection 
burden;
    The quality, utility, and clarity of the information to be 
collected; and
    Recommendations to minimize the information collection burden on 
the affected public, including automated collection techniques.
    Therefore, we are soliciting comment on each of these issues for 
the proposed information collection requirements discussed below.

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

    All applicants for a position involving regular contact with or 
control over Indian children are required to undergo background 
investigations to determine whether they meet minimum standards of 
character for that position. This section describes questions that will 
be asked as part of the background investigation. Applicants must state 
whether they have been arrested, charged, convicted of or plead guilty 
to certain enumerated crimes. In addition, the individuals will be 
required to sign, under penalty of perjury, a statement verifying the 
truth of all of the information provided in the employment application 
and acknowledging that knowingly falsifying or concealing information 
is subject to fine or imprisonment, or both.

[[Page 14562]]

Finally, the applicant must sign an informed consent form authorizing a 
criminal record check.
    The IHS anticipates there will be approximately 100 respondents who 
will require no more than 15 minutes each to respond to these questions 
and sign the required forms.
    For comments that relate to information collection requirements, 
mail a copy of comments to: Office of Information and Regulatory 
Affairs, Office of Management and Budget, Room 10235, New Executive 
Office Building, Washington, DC 20503, Attention Allison Herron Eydt, 
IHS Desk Officer.

List of Subjects in 42 CFR Part 36

    American Indians, Alaska Natives, Children, Child health, 
Employment.

    Dated: September 21, 1998.
Michael H. Trujillo,
Assistant Surgeon General, Director, Indian Health Service.
    Approved: December 10, 1998.
Donna E. Shalala,
Secretary, Department of Health and Human Services.

    For the reasons set out in the preamble, the Department proposes to 
add subpart K to Part 36 of Title 42, CFR, as follows:

Subpart K--Indian Child Protection and Family Violence Prevention

Sec.
36.401  Purpose.
36.402  Policy.
36.403  Definitions.
36.404 What does the Indian Child Protection and Family Violence 
Prevention Act require of the IHS and Indian tribes or tribal 
organizations receiving funds under the ISDEA?
36.405 What are the minimum standards of character for individuals 
placed in, or applying for, a position that involves regular contact 
with or control over Indian children?
36.406 What are other factors, in addition to the minimum standards 
of character, that may be considered in determining placement of an 
individual in a position that involves regular contact with or 
control over Indian children?
36.407 What positions require a background investigation and 
determination of suitability for employment or retention?
36.408 Who conducts the background investigation and prepares 
determinations of suitability for employment?
36.409 Are the requirements for IHS adjudication different from the 
requirements for Indian tribes and tribal organizations?
36.410 What questions must the IHS ask as part of the background 
investigation?
36.411 What protections must the IHS and tribes or tribal 
organizations provide to individuals undergoing a background 
investigation?
36.412 How does the IHS determine suitability for employment and 
efficiency of service?
36.413 What rights does an applicant, volunteer, or employee have 
during this process?
36.414 When should the IHS deny employment or dismiss an employee?
36.415 What must the IHS do if an individual has been charged with 
an offense but the charge is pending or no disposition has been made 
by a court?

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

Subpart K--Indian Child Protection and Family Violence Prevention


Sec. 36.401  Purpose.

    The purpose of the regulations in this subpart is to establish 
minimum standards of character to ensure that individuals having 
regular contact with or control over Indian children have not been 
convicted of certain types of crimes or acted in a manner that placed 
others at risk or raised questions about their trustworthiness as 
mandated by the Indian Child Protection and Family Violence Prevention 
Act of 1990, Public Law 101-630, 104 Stat. 4544, 25 U.S.C. 3201-3211.


Sec. 36.402  Policy.

    In enacting the Indian Child Protection and Family Violence 
Prevention Act, the Congress recognized there is no resource more vital 
to the continued existence and integrity of Indian tribes than their 
children and that the United States has a direct interest, as trustee, 
in protecting Indian children who are members of, or are eligible for 
membership in, an Indian tribe. The minimum standards of character and 
suitability of employment for individuals ensure that Indian children 
are protected. In order to protect Indian children, the IHS has 
established minimum standards of character requiring completion of a 
satisfactory background investigation that ensures that no individuals 
who have been found guilty of, or entered a plea of nolo contendere or 
guilty to, any offense under Federal, State, or tribal law involving 
crimes of violence; sexual assault, molestation, exploitation, contact, 
or prostitution; or crimes against persons, are placed in positions 
involving regular contact with or control over Indian children.


Sec. 36.403  Definitions

    Crimes against persons means an offense that has an element the 
use, attempted use, or threatened use of physical force or other abuse 
of a person and includes, but is not limited to, homicide; assault; 
kidnapping; false imprisonment; reckless endangerment; robbery; rape; 
sexual assault, molestation, exploitation, contact, or prostitution; 
and other sexual offenses. In determining whether an offense falls 
within this category, reference may be made to the applicable Federal, 
State, or tribal law under which the individual was convicted or 
pleaded guilty or nolo contendere.
    Crimes of violence means:
    (1) An offense that has as an element the use, attempted use, or 
threatened use of physical force against the person or property of 
another, or
    (2) Any other offense that is a felony and that, by its nature, 
involves substantial risk that physical force against the person or 
property of another may be used in the course of committing the 
offense. In determining whether an offense falls within this category, 
reference may be made to the applicable Federal, State, or tribal law 
under which the individual was convicted or pleaded guilty or nolo 
contendere.
    Indian means any individual who is a member of an Indian tribe, as 
defined in this section.
    Indian child means any unmarried person under the age of eighteen 
who is either a member of an Indian tribe or eligible for membership in 
an Indian tribe and is the biological child of a member of an Indian 
tribe.
    Indian tribe means any Indian tribe, band, nation, or other 
organized group or community, including any Alaska Native village or 
regional or village corporation as defined in or established pursuant 
to the Alaska Native Claims Settlement Act (43 U.S.C. 1601 et seq.) 
which is recognized as eligible for the special programs and services 
provided by the United States to Indians because of their status as 
Indians.
    Individuals means persons with duties and responsibilities that 
involve regular contact with or control over Indian children and 
includes but is not limited to the following:
    (1) Employees in the competitive or excepted service, the 
Commissioned corps, or the Senior Executive Service in the IHS;
    (2) Individuals who perform service for or under the supervision of 
the IHS while being permanently assigned to another IHS office or to 
another organization, such as a Federal agency, State, or tribe;
    (3) Individuals who volunteer to perform services for or under the 
supervision of the IHS;

[[Page 14563]]

    (4) Individuals who contract with the IHS to perform services in 
IHS facilities.
    Must is used in place of shall and indicates a mandatory or 
imperative act or requirement.
    Regular contact with or control over an Indian child means 
responsibility for an Indian child within the scope of the individual's 
duties and responsibilities or access to Indian children on a recurring 
and foreseeable basis that could potentially place an Indian child at 
risk.
    Tribal organization as defined in the ISDEA, means the recognized 
governing body of any Indian tribe or any legally established 
organization of Indians which is controlled, sanctioned, or chartered 
by such governing body or which is democratically elected by the adult 
members of the Indian community to be served by such organization and 
which includes the maximum participation of Indians in all phases of 
its activities.


Sec. 36.404  What does the Indian Child Protection and Family Violence 
Prevention Act require of the IHS and Indian tribes or tribal 
organizations receiving funds under the ISDEA?

    (a) The IHS must compile a list of all authorized positions with 
duties and responsibilities that involve regular contact with or 
control over Indian children; investigate the character of each 
individual who is employed or is being considered for employment in 
such a position; and prescribe minimum standards of character that each 
individual must meet to be appointed to such positions.
    (b) All Indian tribes or tribal organizations receiving funds under 
the authority of the ISDEA must identify those positions that permit 
regular contact with or control over Indian children; conduct an 
investigation of the character of each individual who is employed or is 
being considered for employment in a position that involves regular 
contact with or control over Indian children; and employ only 
individuals who meet standards of character that are no less stringent 
than those prescribed for the IHS.


Sec. 36.405  What are the minimum standards of character for 
individuals placed in, or applying for, a position that involves 
regular contact with or control over Indian children?

    The minimum standards of character shall mean a benchmark of moral, 
ethical, and emotional strengths established by character traits and 
past conduct to ensure that the individual is competent to complete 
his/her job without harm to Indian children. The minimum standards of 
character shall be considered met only after the individual has been 
the subject of a satisfactory background investigation. The background 
investigation shall include a review of:
    (a) The individual's trustworthiness, through inquiries with the 
individual's references and places of employment and education;
    (b) A criminal history background check, which includes a 
fingerprint check through the Criminal Justice Information Services 
Division of the FBI, under procedures approved by the FBI, and 
inquiries to State and tribal law enforcement agencies for residence 
for the previous 5 years listed on the individual's application; and
    (c) A determination as to whether the individual has been found 
guilty of or entered a plea of nolo contendere or guilty to any offense 
under Federal, State, or tribal law involving crimes of violence; 
sexual assault, molestation, exploitation, contact, or prostitution; or 
crimes against persons.


Sec. 36.406  What are other factors, in addition to the minimum 
standards of character, that may be considered in determining placement 
of an individual in a position that involves regular contact with or 
control over Indian children?

    (a) All Federal employees are subject to suitability criteria 
contained in 5 CFR Part 31 as a condition of employment.
    (b) Section 231 of the Crime Control Act of 1990, Pub. L. 101-647, 
42 U.S.C. 13041, provides that an individual may be disqualified from 
consideration or continuing employment if such individual has been 
convicted of a sex crime, an offense involving a child victim or a drug 
felony, or any other crime if such conviction bears on an individual's 
fitness to have responsibility for the safety and well-being of 
children.
    (c) Tribes or tribal organizations may but are not required to 
apply additional criteria in determining whether an individual is 
suitable for a position with duties and responsibilities that involve 
regular contact with or control over Indian children. Any additional 
suitability criteria established by tribes or tribal organizations 
beyond the minimum standards of character described in Sec. 36.405 
would be determined by each individual tribe or tribal organization in 
accordance with its own personnel policies and procedures.


Sec. 36.407  What positions require a background investigation and 
determination of suitability for employment or retention?

    (a) All positions that allow an individual regular contact with or 
control over Indian children are subject to a background investigation 
and determination of suitability for employment. The IHS has compiled a 
list of positions within the agency in which the duties and 
responsibilities could involve regular contact with or control over 
Indian children. The list will be periodically updated and made 
available at all IHS Personnel Offices upon request. Positions should 
be reviewed on a case-by-case basis to determine whether the individual 
in that position has regular contact with or control over Indian 
children.
    (b) Tribes and tribal organizations may use the list compiled by 
the IHS or develop a list of positions within their program that 
involve regular contact with or control over Indian children.


Sec. 36.408  Who conducts the background investigation and prepares 
determinations of suitability for employment?

    (a) The IHS must use the Office of Personnel Management (OPM) to 
conduct background investigations for Federal employees. The IHS must 
designate qualified security personnel to adjudicate the results of 
background investigations.
    (b) Indian tribes and tribal organizations may conduct their own 
background investigations, contract with private firms, or request that 
a Federal agency conduct investigations. (FBI criminal history record 
information, however, may only be received or evaluated by governmental 
agencies, including tribal government agencies, and may not be 
disseminated to private entities.) The investigation should cover the 
past five years of the individual's employment, education, etc.


Sec. 36.409  Are the requirements for IHS adjudication different from 
the requirements for Indian tribes and tribal organizations?

    (a) In addition to the minimum requirements for background 
investigations found in Sec. 36.405, IHS's adjudicating officials must 
review the results of searches by State human services agencies, the 
OPM National Agency Check and Inquiries, the OPM Security/Suitability 
Investigations Index, and the Defense Clearance and Investigations 
Index.
    (b) All IHS employees who have regular contact with or control over 
Indian children must be reinvestigated every five years during their 
employment in that or any other position that allows regular contact 
with or control over Indian children.
    (c) Indian tribes or tribal organizations may but are not required 
to adopt portions of the rules in this subpart that

[[Page 14564]]

are specifically applicable to employment within the IHS in conducting 
background investigations and adjudicating suitability for employment 
in tribal positions that allow regular contact with or control over 
Indian children.


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

    (a) Applications for employment with the IHS must include the 
following questions:
    (1) Has the individual been arrested or charged with a crime 
involving a child? If yes, the individual must provide the date, 
explanation of the violation, disposition of the arrest or charge, 
place of occurrence, and the name and address of the police department 
or court involved.
    (2) Has the individual ever been found guilty of, or entered a plea 
of nolo contendere or guilty to, any offense under Federal, State, or 
tribal law involving crimes of violence; sexual assault, molestation, 
exploitation, contact, or prostitution; or crimes against persons? If 
yes, the individual must provide an explanation of the violation, place 
of occurrence, date and disposition of the court proceeding, and the 
name and address of the police department or court involved.
    (b) The IHS must require that the individual sign, under penalty of 
perjury, a statement verifying the truth of all information provided in 
the employment application and acknowledging that knowingly falsifying 
or concealing a material fact is a felony that may result in fines up 
to $10,000 or 5 years imprisonment, or both.
    (c) The IHS must inform the individual that a criminal history 
record check is a condition of employment and require the individual to 
consent in writing to a criminal history record check.


Sec. 36.411  What protections must the IHS and tribes or tribal 
organizations provide to individuals undergoing a background 
investigation?

    (a) The IHS must comply with all policies, procedures, criteria, 
and guidance contained in other appropriate guidelines, such as the OPM 
policies, procedures, criteria, and guidance.
    (b) Indian tribes and tribal organizations must comply with the 
privacy requirements of the Federal, State, or other tribal agency 
providing the background investigations. Indian tribes and tribal 
organizations may establish their own procedures that safeguard 
information derived from background investigations.


Sec. 36.412  How does the IHS determine suitability for employment and 
efficiency of service?

    (a) Adjudication is the process employers use to determine 
suitability for employment and efficiency of service. The adjudication 
process protects the interests of the employer and the right of 
applicants and employees. Adjudication requires uniform evaluation to 
ensure fair and consistent judgment.
    (b) Each case is judge on its own merits. All available 
information, both favorable and unfavorable, should be considered and 
assessed in terms of accuracy, completeness, relevance, seriousness, 
overall significance, and how similar cases have been handled in the 
past.
    (c) The adjudicating official who conducts the adjudication must 
first have been the subject of a favorable background investigation.
    (d) Each adjudicating official must be thoroughly familiar with all 
laws, regulations, and criteria involved in making a determination for 
suitability.
    (e) The adjudicating official must review the background 
investigation to determine the character, reputation, and 
trustworthiness of the individual. At a minimum, the background 
investigation must:
    (1) Review each security investigation form and employment 
application and compare the information provided.
    (2) Review the results of written record searches requested from 
local law enforcement agencies, former employer, former supervisors, 
employment references, and schools.
    (3) Review the results of the fingerprint charts maintained by the 
Federal Bureau of Investigation or other law enforcement information 
maintained by other agencies.
    (4) Review the information obtained through a background 
investigation and determine whether the individual has been found 
guilty of, or entered a plea of nolo contendere of guilty to, any 
offense under Federal, State, or tribal law involving crimes of 
violence; sexual assault, molestation, exploitation, contact, or 
prostitution; or crimes against persons.
    (f) After an opportunity has been afforded the individual to 
respond, pursuant to Sec. 36.413, and it is adjudicated that the 
individual has been found guilty of or entered a plea of nolo 
contendere or guilty to an enumerated offense under paragraph (e)(4) of 
this section, that individual shall not be placed or retained in a 
position involving regular contact with or control over Indian 
children.
    (g) For individuals who have been determined to be unsuitable for 
employment in positions having regular contact with or control over 
Indian children, the IHS may use Federal adjudicative standards to 
certify that an individual is suitable for employment in a position, if 
available, that does not involve regular contact with or control over 
Indian children. The adjudicating official must determine that the 
individual's prior conduct will not interfere with the performance of 
duties and will not create a potential risk to the safety and well-
being of any Indian children after consideration of the following 
factors:
    (1) The nature and seriousness of the conduct in question.
    (2) The recency and circumstances surrounding the conduct in 
question.
    (3) The age of the individual at the time of the incident.
    (4) Societal conditions that may have contributed to the nature of 
the conduct.
    (5) The probability that the individual will continue the type of 
behavior in question.
    (6) The individual's commitment to rehabilitation and a change in 
the behavior in question.
    (7) The degree of public trust and the possibility the public would 
be placed at risk if the individual is appointed to the position.


Sec. 36.413  What rights does an applicant, volunteer, or employee have 
during this process?

    (a) The applicant, volunteer, or employee must be provided an 
opportunity to explain, deny, or refute unfavorable and incorrect 
information gathered in an investigation, before the adjudication is 
final. He/she should receive a written summary of all derogatory 
information and be informed of the process for explaining, denying, or 
refuting unfavorable information.
    (b) The adjudicating officials must not release the actual 
background investigative report to an applicant, volunteer, or 
employee. However, they may issue a written summary of the derogatory 
information.
    (c)The applicant, volunteer, or employee who is the subject of a 
background investigation may obtain a copy of the reports from the 
originating (Federal, State, or other tribal) agency and challenge the 
accuracy and completeness of any information maintained by that agency.
    (d) The results of an investigation cannot be used for any purpose 
other than to determine suitability for employment in a position that 
involves regular contact with or control over Indian children.

[[Page 14565]]

    (e) Investigative reports contain information of a highly personal 
nature and must be maintained confidentially and secured in locked 
files. Investigative reports must be seen only by those officials who, 
in performing their official duties, need to know the information 
contained in the report.


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

    (a) The IHS must deny employment to an individual or dismiss an 
employee, when the duties and responsibilities of the position the 
individual person would hold or holds involve regular contact with or 
control over Indian children, and it has been adjudicated, pursuant to 
Sec. 36.412 and Sec. 36.413, that the individual has been found guilty 
of, or entered a plea of guilty or nolo contendere to, any Federal, 
State, or tribal offense involving a crime of violence; sexual assault, 
molestation, exploitation, contact, or prostitution; or crimes against 
persons. The IHS has the discretion to place such an individual in a 
position, if available, that does not involve regular contact with or 
control over Indian children, if a determination has been made that 
such placement would not put Indian children at risk and the individual 
would be able to perform the duties and responsibilities of this 
position.
    (b) Pursuant to section 231 of the Crime Control Act of 1990, Pub. 
L. 101-647, 42 U.S.C. 13041, as amended by Pub. L. 102-190, the IHS may 
hire an individual provisionally prior to the completion of a 
background investigation if, at all times prior to receipt of the 
background investigation during which children are in the care of the 
individual, the individual is within the sight and under the 
supervision of a staff person and a satisfactory background 
investigation has been completed on that staff person.


Sec. 36.415  What must the IHS do if an individual has been charged 
with an offense but the charge is pending or no disposition has been 
made by a court?

    (a) The IHS may deny the applicant employment until the charge has 
been resolved.
    (b) The IHS may deny the employee any on-the-job contact with 
children until the charge is resolved.
    (c) The IHS may detail or reassign the employee to other duties 
that do not involve regular contact with children.
    (d) The IHS may place the employee on indefinite suspension, in 
accordance with statutory and regulatory requirements, until the court 
has disposed of the charge.

[FR Doc. 99-7341 Filed 3-24-99; 8:45 am]
BILLING CODE 4160-16-M