[Federal Register Volume 64, Number 229 (Tuesday, November 30, 1999)]
[Rules and Regulations]
[Pages 66770-66771]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-30959]


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DEPARTMENT OF THE INTERIOR

Bureau of Indian Affairs

25 CFR Part 63

RIN 1076-AC97


Indian Child Protection and Family Violence Prevention; 
Correction

AGENCY: Bureau of Indian Affairs, Interior.

ACTION: Correction to final regulations.

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SUMMARY: This document contains corrections to the final regulations 
which were published on June 21, 1996 (61 FR 32272). The regulations 
implemented the provisions of the Indian Child Protection and Family 
Violence Prevention Act of 1990.

EFFECTIVE DATE: November 30, 1999.

FOR FURTHER INFORMATION CONTACT: Bettie Rushing, Bureau of Indian 
Affairs, P.O. Box 1887, Albuquerque, New Mexico 87103-1887, (505) 248-
6082.

SUPPLEMENTARY INFORMATION:

Background

    The Indian Child Protection and Family Violence Prevention Act of 
1990, Pub. L. 101-630, 26 U.S.C. 3201 et seq., authorizes such actions 
as are necessary to ensure effective child protection in Indian 
country, including character investigations to ensure no individual 
appointed to a position with duties and responsibilities involving 
regular

[[Page 66771]]

contact with, or control over, Indian children has been found guilty 
of, or entered a plea of nolo contendere or guilty to, any offense 
under Federal, State or tribal law involving crimes of violence; sexual 
assault, molestation, exploitation, contact or prostitution; or crimes 
against persons. See 25 U.S.C. 3201(b) and 3207. This was the first 
Federal statute to authorize background investigations by tribes and 
tribal organizations and mandate screening standards for the Bureau of 
Indian Affairs, as well as tribes and tribal organizations that receive 
funds under the Indian Self-Determination and Education Assistance Act 
or the Tribally Controlled Schools Act of 1988.
    The following day, the Crime Control Act of 1990, Pub. L. 101-647, 
42 U.S.C. Sec. 13041, was enacted. It authorized Federal agencies and 
facilities operated by the Federal Government or operated under 
contract with the Federal Government to conduct criminal history 
background checks for individuals providing child care services. It 
provides that an individual who has been convicted of a sex crime, an 
offense involving a child victim, or a drug felony may be denied 
employment for or dismissed from a child care services position. This 
is in contrast to the absolute prohibition in Pub. L. 101-630, that is 
cited above. Pub. L. 101-647 further provides that conviction for a 
crime other than a sex crime may be considered if it bears on an 
individual's fitness to have responsibility for the safety and well-
being of children. See 42 U.S.C. 13041(c).
    The Bureau conducted extensive consultation with tribes and Indian 
organizations prior to and following the publication of the proposed 
rule. The regulations were intended to describe the process for 
determining suitability for positions with duties and responsibilities 
involving regular contact with, or control over, Indian children, 
including the standards set forth in 5 CFR part 731, the Indian Child 
Protection and Family Violence Prevention Act and the Crime Control 
Act. Section 63.19 currently reads:
    (a) An employer may deny employment or dismiss an employee when an 
individual has been found guilty of or entered a plea of guilty or nolo 
contendere to any Federal, state or tribal offense involving a crime of 
violence, sexual assault, sexual molestation, child exploitation, 
sexual contact, prostitution, or crimes against persons.
    (b) An employer may deny employment or dismiss an employee when an 
individual has been convicted of an offense involving a child victim, a 
sex crime, or a drug felony. Paragraph (a) refers to the requirements 
of the Indian Child Protection and Family Violence Prevention Act, 
while subsection (b) refers to the Crime Control Act. While the 
screening requirements in Section 408 of the Indian Child Protection 
and Family Violence Prevention Act [25 U.S.C. 3207(a)], are clearly not 
permissive, the Bureau's regulations imply that its practice and 
application are. In fact, when the Bureau determines the suitability of 
volunteers for, selectees to, and employees in positions with duties 
and responsibilities involving regular contact with or control over 
Indian children, the standard in Section 408 (25 U.S.C. 3207) serves as 
a permanent statutory bar to employment as contemplated by the Indian 
Child Protection and Family Violence Prevention Act, Office of 
Personnel Management Suitability requirements found at 5 CFR 731.202, 
and the Office of Indian Education Programs Suitability 
Disqualifications found at 62 BIAM 11.36(A)(7). Based upon a finding of 
guilt or 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, volunteers, selectees and employees have been 
determined unsuitable for Public Trust positions with duties and 
responsibilities involving regular contact with or control over Indian 
children.
    Although these individuals may be determined suitable for Federal 
employment under 5 CFR part 731, a suitability determination under the 
Indian Child Protection and Family Violence Prevention Act, 25 U.S.C. 
3207, serves as a statutory bar to employment with the Office of Indian 
Education Programs, Social Services, and with few exceptions, the 
Office of Law Enforcement Services. Such positions include not only 
teachers, social workers, and law enforcement officers and 
investigators, but cooks, custodians, bus drivers, correctional 
personnel, and volunteers as well. In addition, the same standard is 
applied to Bureau facilities management personnel if their duties and 
responsibilities include the provision of services to schools or 
housing and other programs where children may be present.
    The Bureau now proposes to correct this obvious error and to 
clarify that other convictions may be considered when determining 
suitability for employment if they bear on the question of whether an 
individual is fit to have responsibility for the safety and well-being 
of children.

Need for Correction

    As published, the final rules contain errors which may prove 
misleading and are in need of correction.

List of Subjects in 25 CFR Part 63

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

    Accordingly, 25 CFR part 63 is corrected by making the following 
correcting amendment.

PART 63--INDIAN CHILD PROTECTION AND FAMILY VIOLENCE PREVENTION

    1. The authority citation for 25 CFR part 63 continues to read as 
follows:

    Authority: 5 U.S.C. 301; 25 U.S.C. 2, 9, 13, 200, 3201 et seq.; 
42 U.S.C. 13041.


Sec. 63.19  [Amended]

    2. In Sec. 63.19, paragraph (a), in the first sentence, the word 
``may'' is changed to ``must.''

    Dated: November 22, 1999.
Kevin Gover,
Assistant Secretary--Indian Affairs.
[FR Doc. 99-30959 Filed 11-29-99; 8:45 am]
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