[Federal Register Volume 67, Number 184 (Monday, September 23, 2002)]
[Rules and Regulations]
[Pages 59461-59471]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-23943]



[[Page 59461]]

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DEPARTMENT OF HEALTH AND HUMAN SERVICES

42 CFR PART 136

RIN 0917-AA02


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

AGENCY: Indian Health Service, DHHS.

ACTION: Interim final rule with comment period.

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SUMMARY: This is an Interim Final Rule with comment period implementing 
regulations as mandated by section 408 of the Indian Child Protection 
and Family Violence Prevention Act (the ``Act''), as amended by section 
814 of the Native American Laws Technical Corrections Act of 2000, 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.
    We will send copies of this Interim Final Rule to each Indian 
Tribe. The IHS welcomes comments regarding this Interim Final Rule 
especially from the Tribes and Tribal organizations affected by them.

DATES: Effective Date: November 22, 2002.
    Comments Due Date: November 22, 2002.

ADDRESSES: Send your written comments to: Betty Gould, Regulations 
Officer, Division of Regulatory and Legal Affairs, IHS, 12300 Twinbrook 
Parkway, Suite 450, Rockville, MD 20857, Telephone 301-443-7899. (This 
is not a toll-free number.) Comments received will be available for 
inspection at the address above from 9 a.m. to 3 p.m., Monday through 
Friday, beginning approximately two weeks after publication.

FOR FURTHER INFORMATION CONTACT: Ramona Williams, Child Protection 
Coordinator, 12300 Twinbrook Parkway, Suite 605, Rockville, Maryland 
20852, (301) 443-1539 (This is not a toll-free number.)

SUPPLEMENTARY INFORMATION: On March 25, 1999, the IHS published a 
Notice of Proposed Rulemaking (NPRM) in the Federal Register (64 FR 
14560) 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 IHS proposed in the NPRM that the 
minimum standards of character as required by section 408 of the Act 
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.
    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 the NPRM would be the basis for Tribes or 
Tribal organizations to use when developing their own minimum standards 
of character and suitability for employment of individuals.
    The IHS presented an earlier draft of the NPRM at the 14th Annual 
National Indian Health Board Consumer Conference. In addition, the IHS 
provided a copy of the draft NPRM to the tribal leader of each 
federally recognized tribe for their review and comment. The NPRM was 
modified to reflect the Tribal comments received.
    The NPRM provided interested persons until May 24, 1999 to submit 
written comments and on May 26, 1999, the IHS extended the comment 
period to July 26, 1999, in response to Tribal requests for more time 
to analyze the NPRM and to prepare their comments.
    On December 27, 2000, Congress enacted technical amendments to 
section 408 of the Act, pursuant to section 814 of S. 3031, the Native 
American Laws Technical Corrections Act of 2000. Section 408 of the 
Act, as amended now reads:

    The minimum standards of character that are to be prescribed 
under this section shall ensure that none of the individuals 
appointed to positions described in subsection (a) have been found 
guilty of, or entered a plea of nolo contendere or guilty to, any 
felonious offense, or any of 2 or more misdemeanor offenses, under 
Federal, State, or Tribal law involving crimes of violence; sexual 
assault, molestation, exploitation, contact or prostitution; crimes 
against persons; or offenses committed against children. [emphasis 
added]

    The technical amendments were intended to remedy a situation where 
the original provision was overly broad. Federal employees with a 
single misdemeanor offense, possibly committed many years ago and which 
involved no violence or crimes against children, were being prohibited 
from holding positions for which they were otherwise qualified.
    In developing the Interim Final Rule, the agency has revised its 
regulations by adopting the statutory language contained in the 
technical amendments. The following is a summary of changes made to the 
Interim Final Rule incorporating the statutory amendments. 
Specifically, Sec.  136.403 contains a definition of ``offenses 
committed against children'' to mean any felonious or misdemeanor crime 
under Federal, State, or Tribal law committed against a victim that has 
not attained the age of eighteen years. In determining whether a crime 
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.
    The agency developed this definition based on research of 
definition of crimes involving children contained in Federal or State 
laws. The definition of ``offenses against children'' varies from State 
to State and therefore, we are proposing a general definition with 
reference to applicable Federal, State or Tribal law. In defining 
``offenses against children'', we propose using the word crime in the 
definition to limit its application to criminal offenses not civil 
offenses. We believe this position is consistent with the technical 
amendments clarifying that any felonious offense, or any of two or more 
misdemeanor offenses require removal and that Congress did not intend 
to encompass all possible offenses but limited the applicability to 
crimes as evidenced by the reference to felonies and misdemeanors.
    In addition, the Interim Final Rule has been amended to provide 
that the minimum standards of character to hold a position involving 
regular contact with or control over an Indian child must ensure that 
the individual has not been guilty of, or entered a plea of nolo 
contendere or guilty to any felonious offense or any of two or more 
misdemeanor offenses under Federal, State, or Tribal law involving 
crimes of violence; sexual assault, molestation, exploitation, contact, 
or prostitution; crimes against persons; or offenses committed against 
children. Specifically, Sec. Sec.  136.405, 136.406(c), 136.414(e)(5) 
and 136.416 have been

[[Page 59462]]

revised to incorporate the statutory amendments.
    Section 136.412, which includes the questions required by the 
agency as part of the background investigation, has been revised to 
reflect the technical amendments. Section 136.412(a)(2) has been 
modified to include the additional category of crimes ``offenses 
against children''. Section 136.412(a)(2) has been further modified to 
require individuals who are applying for, or are currently in, a 
position involving regular contact with or control over Indian children 
to answer whether they have ever been found guilty of, or entered a 
plea of nolo contendere or guilty to, any felonious or misdemeanor 
offense under Federal, State or Tribal law involving any of the 
enumerated crimes. The agency retains the discretion not to hire an 
individual applying for, or to remove an individual from, a covered 
position if it determines that such individual places Indian children 
at risk.
    The agency has determined that the technical amendments to the Act 
were effective December 27, 2000 and the agency began implementing the 
amendments as of that date. The agency believes that the technical 
amendments are not retroactive and therefore all final determinations 
issued before December 27, 2000, remain unchanged.
    Prior to the technical amendments being enacted, the agency was 
prepared to issue a Final Rule based on comments received in response 
to the NPRM published in March 1999. However, as a result of the 
technical amendments, the agency further revised its regulations to 
reflect the statutory language. Therefore, we believe an Interim Final 
Rule is appropriate to solicit public comment specifically on those 
portions of the Interim Final Rule that have been revised to reflect 
the technical amendments.
    The agency received several comments from Tribes and Tribal 
Organizations in response to the March 1999 NPRM. We carefully analyzed 
the submissions by individuals, groups, Indian and non-Indian 
organizations. To the extent possible, the agency has, in preparing 
this Interim Final Rule, accommodated the comments received from Tribes 
and Tribal organizations. A discussion of the comments and the 
Secretary's response is as follows:
    We received several comments in support of the regulation and the 
purpose of the law for which it was intended. We received several 
comments regarding the application of the law to conviction of crimes 
that occurred many years prior to employment with the IHS. We also 
received several comments regarding the definitions. We received 
several comments regarding the financial cost and personnel time of 
conducting the background investigation of current and prospective 
employees. We received miscellaneous comments addressed more 
specifically below.
    These comments can be organized into the following subject matters 
for purposes of analysis and discussion.

1. Issue of retroactivity
2. Definitions
3. Background investigations
4. Miscellaneous issues

Issue of retroactivity

    Comment: The agency received several comments that the agency 
should not consider convictions or pleas of nolo contendere or guilty 
to crimes that occurred many years ago. Some commenters believed that 
section 408 of the Act should not be applied retroactively to 
convictions that occurred prior to enactment of the Act. Some 
commenters believed that the agency should not consider convictions 
that occurred several years prior to the person's employment with the 
agency, especially those convictions that occurred when the employee 
was young and where the employee has not had any convictions since 
then. Some commenters believed that the agency should consider 
mitigating factors surrounding the incident and/or should not consider 
the conviction unless there is a nexus between the conduct and the 
employee's performance on the job.
    Response: Subsequent to the publication of the NPRM, the agency 
removed four employees who as a result of a background investigation 
had been determined as not meeting the minimum standards of character 
in section 408 of the Act, because each of the respective employees had 
been convicted of at least one of the enumerated crimes. Before 
removing these employees, the agency searched for available vacant 
positions to which the employees could have been reassigned; however, 
no such positions were available that did not have contact with Indian 
children. The employees appealed their removal to the Merit Systems 
Protection Board (MSPB). The final decision of the MSPB sustained the 
agency's removals of these employees and reversed the MSPB's initial 
decision regarding interpretation of section 408 of the Act.
    The final decision of the MSPB found that the minimum standards of 
character in section 408 of the Act applied to both current and 
prospective employees and that the plain language in the statute 
mandated the removal actions. The MSPB found that Congress authorized 
the agency to ``prescribe by regulations minimum standards of 
character'' and mandated that those standards must ``ensure that none 
of the individuals appointed to [covered] positions * * * have been 
found guilty of, or entered a plea of nolo contendere or guilty to * * 
*'' a covered crime. The MSPB determined that the only way to ensure 
that none of the individuals appointed to a covered position have been 
found guilty of, or entered into a plea of nolo contendere or guilty to 
a covered crime is to make that prohibition the base eligibility 
requirement for obtaining and/or retaining employment in a covered 
position. Therefore, under its plain meaning, the MSPB found that 
section 408 of the Act requires, as the minimum eligibility standard 
for holding a covered position, that the individual who is employed or 
is being considered for employment must not have been found guilty of, 
or entered a plea of nolo contendere or guilty to, a covered crime.
    The MSPB also rejected the employees' claims that the penalty of 
removal is unreasonable and that it should be mitigated by 
consideration of factors in 5 CFR 731.202, otherwise known as the 
Douglas factors. Although the MSPB acknowledged that it could reduce a 
penalty imposed by an agency if certain mitigating circumstances 
existed under Douglas, the MSPB determined that the plain meaning of 
the statute prohibited individuals from holding a covered position if 
they have been found guilty of, or entered a plea of nolo contendere or 
guilty to, a covered crime.
    The MSPB found that Congress, by enacting the mandatory language of 
section 408 of the Act, created a presumption of nexus between an 
employee's violation of the minimum standards of character and 
appointment to or continued service in a covered position. Even though 
the employees who were removed argued that a nexus could not be 
presumed because the convictions/violations occurred more than ten 
years ago, the MSPB found that the language of the statute does not 
limit its coverage to a specific time period. The MSPB disagreed with 
the employees that a nexus could not be presumed and found that the 
history and purpose of the statute established the vital connection 
between the employees' off duty conduct and the efficiency of the 
service.
    Four of the employees appealed the MSPB's final decision to the 
United States Court of Appeals, Federal Circuit, see Johnson v. Dep't 
of Health and Human Services, 2001 U.S. App. LEXIS

[[Page 59463]]

14175, 18 Fed. Appx. 837 (2001) and DeLong v. Dep't of Health and Human 
Services, 264 F.3d 1334.\1\ On appeal, the employees alleged that the 
MSPB's decision was arbitrary, capricious, and not in accordance with 
the law. The employees also alleged their right to substantive due 
process under the Fifth Amendment. On June 22, 2001, in Johnson v. 
Dep't of Health and Human Services, and on September 5, 2001 in DeLong 
v. Dep't of Health and Human Services, 264 F.3d 1334, the Federal 
Circuit affirmed the final decision of the MSPB finding that 
substantial evidence supported the MSPB's final decision and that such 
decision was not arbitrary, capricious, or an abuse of discretion. The 
Federal Circuit also found that the employees had not met their burden 
of establishing that there is no rational connection between their 
removal under section 408 of the Act and a valid interest of Congress.
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    \1\ The status of the two other employees; appeals are described 
as follows. One employee appealed to the Federal Circuit in Case v. 
Department of Health and Human Services, Fed. Cir. No: 00-3451, MSPB 
No: DA0752990315-I-1. His case was dismissed by the Federal Circuit 
for failure to pay the docket fees. The other employee appealed to 
the Eastern District of Oklahoma in Daugherty v. Tommy Thompson, 
Secretary of Department of Health and Human Services, and Department 
of Health and Human Services, No. 01-168-P (E.D. OK 2001). The 
federal district court judge granted the Defendant's Motion for 
Summary Judgment on November 30, 2001. The employee appealed to the 
Tenth Circuit, No. 02-7015, on January 28, 2002.
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    Many of the comments received regarding the applicability of the 
Act to convictions that occurred several years ago were addressed in 
the MSPB and Federal Circuit decisions. As indicated above, the MSPB 
and the Federal Circuit have determined that the plain meaning of the 
statute requires mandatory removal of individuals in covered positions 
who have been convicted of or plead nolo contendere or guilty to 
covered crimes no matter when the conviction occurred. The MSPB found 
that the language of the statute does not limit its coverage to a 
specific time period. Further, the MSPB determined that based on the 
purpose and language in the statute that Congress has presumed a nexus 
between certain crimes committed and the efficiency of the service. To 
the extent that the MSPB decision has addressed these issues and upheld 
the agency's interpretation of section 408 of the Act, the agency does 
not have the discretion to revise or modify its regulations to address 
the concerns. However, we believe that through technical amendments to 
the statute, Congress has attempted to address some of these concerns. 
The Congress has clarified that the minimum standards of character must 
ensure that those individuals who have been convicted of or have plead 
guilty to any felonious offense or any two or more misdemeanor offenses 
involving certain enumerated crimes shall not hold covered positions. 
By delineating any felonious offenses or two or more misdemeanor 
offenses, the impact of section 408 of the Act on those individuals 
who, as a result of youthful indiscretions, might have been convicted 
of or plead guilty to one misdemeanor is lessened.
    Comment: The agency received comments regarding whether convictions 
or pleas of nolo contendere or guilty to should be considered if there 
has been a pardon, expungement, set aside or other court order of the 
conviction or plea.
    Response: The agency has clarified these regulations by adding an 
additional provision at Sec.  136.407 that explains that all 
convictions or pleas should be considered in making final 
determinations unless a pardon, expungement, set aside or other court 
order reaches the plea of guilty, the plea of nolo contendere or the 
finding of guilt. This means that for instance, if an individual is 
pardoned for political reasons, then the pardon does not reach a 
finding of innocence or not guilty, and thus should still be considered 
in making a determination under these regulations. However, if an 
individual is pardoned or has a conviction expunged due to new 
evidence, (e.g., DNA evidence), proving that the individual is 
innocent, then the conviction should not be considered in making a 
determination under these regulations. The adjudicating official could 
request supporting or explanatory documents from the individual. The 
Office of General Counsel is available to review the court's order and 
any proposed determination.
    Comment: One commenter suggested that the term suitability should 
be deleted and replaced with the word ``eligibility.'' The commenter 
explains that the term ``suitability'' implies that mitigating factors 
would apply, but section 408 of the Act has been interpreted to not 
allow the agency to consider mitigating factors in hiring and 
retention.
    Response: We agree and we have made appropriate changes to 
Sec. Sec.  136.409, 136.410, 136.411, and 136.414.

Definitions

    Comment: Several comments were received regarding the definition of 
crimes, and specifically the definitions of crimes of violence and 
crimes against persons. Many of the commenters were concerned that the 
definitions were too broad and that felonies should be included but not 
all misdemeanors. One commenter suggested narrowing the list of crimes 
under the definition of crimes and adding language to ensure that only 
relatively serious crimes are included. Some commenters thought that 
conviction of sexual crimes should be considered as prohibitive to 
holding a covered position but conviction of other crimes should be 
considered as part of an adjudicatory process to determine if an 
individual should be appointed to a covered position.
    Response: The definitions in the regulations are based on the 
language in the statute. As indicated in the preamble to the NPRM, the 
agency determined it did not have discretion to consider only certain 
category of crimes; e.g. felonies vs. misdemeanors; and nor did it have 
discretion to mitigate certain categories of crimes; e.g. sexual vs. 
non-sexual. Since the publication of the NPRM, the Congress enacted 
legislative amendments and clarified that the minimum standards of 
character must ensure that those individuals who have been convicted of 
or have plead guilty to any felonious offense, or any two or more 
misdemeanor offenses, involving certain enumerated crimes do not hold 
covered positions. Thus, Congress has delineated between felonies and 
two or more misdemeanors and these regulations have been modified to 
reflect the legislative amendments.
    Comment: Some commenters believe that the definition of crimes 
should be left to the discretion of the Tribes.
    Response: There is no discretion in law for Tribes to define crimes 
less stringent than the definitions as defined in these regulations 
because the Tribes are required to establish minimum standards of 
character no less stringent than the Federal government. Because the 
minimum standards of character require that a person not be convicted 
or have plead guilty to certain enumerated crimes, the definition of 
crimes is directly related to the minimum of standards of character and 
such definitions cannot be less stringent than those defined in these 
regulations. Tribes could develop definitions of crimes that are more 
stringent or more encompassing than the Federal government, but not 
less than.
    Comment: Some commenters were concerned about the different 
definitions contained in the Bureau of Indian Affairs (BIA) regulations 
and recommended that the definitions be consistent.
    Response: The BIA regulations at 25 CFR part 63 state that ``crimes 
against persons'' are defined by local laws. The IHS definition of 
``crimes against

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persons'' was developed based on a survey of state criminal codes. Both 
of the IHS and BIA-definition of ``crimes against persons'' reference 
the applicable Federal, State or Tribal law and thus, are not defined 
inconsistently.
    Comment: Some commenters suggested the word ``offense'' in the 
definition should be replaced by the term ``crime'' because the term 
``offense'' could be interpreted to include not just criminal 
convictions but traffic violations or other civil offenses.
    Response: We agree and have deleted from the definitions of crimes 
against person and crimes of violence, the word ``offense'' and 
replaced it with ``crime''. We believe this position is consistent with 
the technical amendments clarifying that any felonious or two or more 
misdemeanor offenses require removal and that Congress did not intend 
to encompass all possible offenses but limited the applicability to 
crimes as evidenced by the reference to felonies and misdemeanors.
    Comment: Some commenters suggest deleting the enumeration of sexual 
crimes in the definition of crimes against persons since those sexual 
crimes are listed in other provisions of the law.
    Response: We disagree. Congress specifically enumerated sexual 
offenses because of potential harm to children. The definitions of 
crimes against person and crimes of violence inherently encompass 
sexual offense crimes and we believe it helps clarify Congressional 
intent.
    Comment: Some commenters were concerned that the definition of 
crimes of violence is vague and overlaps with the definition of crimes 
against persons.
    Response: The definitions follow the statute and Congressional 
intent to be all encompassing in order to protect Indian children.
    Comment: One commenter suggests the definition should not include 
crimes involving property.
    Response: We disagree. Crimes involving property go to a person's 
moral and ethical character.
    Comment: One commenter recommends deleting the reference to 
applicable Federal, State or Tribal law because it is confusing. 
Another commenter suggested the language referencing applicable 
Federal, State, or Tribal law in determining whether a crime is within 
the scope of these definitions of crimes might lead to inconsistent 
treatment of employees who have committed similar crimes in different 
states.
    Response: The reference to applicable law was intended to serve as 
a means for adjudicating officials conducting background investigations 
to verify if a person was convicted of one of the covered crimes, if 
otherwise unclear from the background investigation documents. The fact 
that convictions might vary from State to State is a result of State's 
power to define crimes within its jurisdiction. In order to address any 
confusion regarding the reference to applicable Federal, State or 
Tribal law, the IHS has revised its definitions of crimes of violence, 
crimes against persons and offenses against children to clarify that in 
determining whether a crime is within the scope of these definitions 
the applicable Federal, State or Tribal law is controlling.
    Comment: One commenter wrote that the term ``individuals'' was used 
inconsistently throughout the regulations and that another term such as 
employee would be more appropriate.
    Response: We disagree with this comment. The term individual as 
defined in these regulations includes other persons than employees.
    Comment: One commenter suggested a new definition of individuals by 
deleting the term individual from definition of ``individuals'' and 
using the term person in its place.
    Response: We agree with these comments and have revised the 
definition of individuals consistent with these comments.
    Comment: One commenter suggested a new definition of prostitution 
to include only those crimes that involve exploitation of other people 
and excludes prostitution crimes committed by a prostitute on the basis 
that many prostitutes are victims of child abuse.
    Response: We disagree with the comment and have not included a 
separate definition of prostitution.
    Comment: One commenter suggested a new definition of ``regular 
contact with or control over Indian children'' by deleting the word 
``access'' and replacing it with the word ``contact'' so that a person 
is not covered just because they might have access but must have 
contact with Indian children. This same commenter suggested to delete 
the phrase ``that could potentially place an Indian child at risk'' 
because Congress has already determined that Indian children are at 
risk if minimum standards of character are not applied to individuals 
who have regular contact with Indian children.
    Response: We had written the definition in such a way so that 
employees who might have access to children would be covered only if 
that access could potentially place an Indian child at risk, e.g., a 
janitor that has keys to inpatient rooms occupied by children in a 
hospital and could access those rooms during off-peak hours. However, 
we agree with the commenter that individuals must have contact with 
children, not just ``access'' to children, in order to be covered under 
section 408 of the Act and have revised the definition consistent with 
these comments. Under this revised definition, the agency, depending 
upon the circumstances at the facility, could determine that a janitor 
that has keys to inpatient rooms occupied by children in a hospital, 
and could access those rooms during off-peak hours, has contact with 
children and is covered by this definition and these regulations.
    Comment: One commenter wrote that there should be a separate 
definition of Tribal government agency in Sec.  136.408(b) to clarify 
that Indian Tribes or Tribal organizations can access criminal records.
    Response: We disagree that a separate definition of Tribal 
government agency is needed. For clarification, we have deleted the 
term in Sec.  136.410 and replaced it with Tribes or Tribal 
organizations as defined in these regulations at Sec.  136.403.

Background Investigation

    Comment: One commenter indicated that gaining sufficient access to 
relevant background materials has proven difficult for some Tribal 
organizations. The commenter suggested that the regulations be amended 
to clarify that Federal and State agencies are permitted to provide 
assistance and to give Tribes and Tribal organizations access to 
relevant information. The commenter suggested that Sec.  136.410(b) be 
amended as follows:

    (b) Indian Tribes and Tribal organizations may conduct their own 
background investigations, contract with private firms, or request 
that a Federal or State agency conduct all or part of the 
investigations. (FBI criminal history information, however, may only 
be received or evaluated by governmental agencies, including Tribal 
organizations and Tribal governmental agencies, and may not be 
disseminated to private firms or other entities. The results of 
searches by state human service agencies may be provided to Tribal 
organizations and Tribal governmental agencies in summary form. The 
investigation should cover the past five years of the individual's 
employment, education, etc.

    Response: We have revised Sec.  136.410(b) to include reference to 
state agencies so that Tribes can gain greater access and ability to 
conduct background investigations.
    Comment: One commenter objected to the requirement in Sec.  
136.413(b) that Indian Tribes and Tribal organizations

[[Page 59465]]

comply with the privacy requirements of the Federal, State, or other 
Tribal agency providing the background investigations. The commenter 
viewed this requirement as possibly interfering with the ability of 
Tribes and Tribal organizations to gain access to the records they need 
to conduct the background investigations since they may well need to 
challenge the applicability of certain requirements or negotiate 
exceptions to certain restrictions when they are incompatible with 
Tribal duties under the Act. The commenter suggested that the first 
sentence in subparagraph (b) be deleted to preserve the ability of 
Tribal employers to do this.
    Response: We disagree. The purpose of this provision is to protect 
the privacy rights of the applicant or employee and we cannot waive by 
these regulations the privacy protections that Federal, State or Tribal 
agencies must adhere to in conducting background investigations.
    Comment: We received several comments regarding Sec.  136.414(b) of 
the March 1999 NPRM, implementing Section 1094 of the Crime Control Act 
as amended by Pub. L. 102-190. Section 1094 allows the Department of 
Health and Human Services to provisionally hire individuals in child 
care related positions before the completion of a background check. 
However, at all times while children are in the care of that 
individual, the child care provider must be within sight and under the 
supervision of a staff person whose background check has been 
successfully completed. One commenter suggested that the provisional 
license and the safety net be removed from the regulations. The 
commenter believed that the IHS staff person must complete a successful 
background investigation before they perform work for the Tribal 
members. One commenter suggested language changes to specifically 
exclude provisional employees from the definition of individuals 
covered by these regulations and to define provisional employees as a 
separate definition.
    Response: To address any concerns regarding this provision, we have 
developed a new section, see Sec.  136.417, by adding a separate 
question that now reads ``May the IHS hire individuals pending 
completion of a background investigation? '' and by moving old Sec.  
136.414(b) as the response to this question. We disagree with the 
commenter that the agency should not hire staff until a complete 
background investigation is completed. The agency, under certain 
circumstances, needs the discretion to hire individuals in positions 
involving regular contact with children, pending completion of a 
background investigation. The agency believes that children are not at 
risk as long as this provisional employee is in sight and under 
supervision of a staff person. The agency disagrees that a separate 
definition of provisional worker is necessary because such definition 
is not consistent with Federal personnel laws and regulations. However, 
we believe we have addressed the commenter's concerns by revising the 
definition of individuals, as defined in Sec.  136.403, to include 
temporary employment.
    Comment: One commenter wrote that the proposed regulations were 
confusing because they appeared to combine substantive and procedural 
requirements and were not clear as to what provisions the Tribes were 
required to comply with and what provisions were at Tribal option. The 
commenter suggested language changes to Sec.  136.409(c) as follows:

    (c) In conducting background investigations and adjudicating 
suitability for employment in Tribal positions that allow regular 
contact with or control over Indian children, Indian Tribes or 
Tribal organizations may, but are not required to adopt portions of 
the rules in this subpart that are specifically applicable to 
employment within the IHS, including 42 CFR Sec. Sec.  136.409-
136.415.

    Response: In the March 1999 NPRM, the agency included language in 
Sec.  136.409(c) to explain that the Tribes or Tribal organizations are 
not required to adopt those provisions in the regulations that are 
specifically applicable to IHS employment. However, in response to this 
comment, the agency has revised old Sec.  136.409. We have moved old 
Sec.  136.409(a) to Sec.  136.414(e)(4). We have deleted old Sec.  
136.409(b) in its entirety as the agency received comments that 
investigation of employees every five years is a burdensome 
requirement. In deleting Sec.  136.409(b), the agency determined that 
employees do not have to be investigated every five years, because it 
receives information regarding current arrest and/or conviction records 
of its employees on a regular basis. We have created a new Sec.  
136.411 to clarify that the background and adjudication requirements 
for the IHS and Tribes or Tribal organizations are different. However, 
we have not included reference to specific provisions in the 
regulations applicable to IHS employment as the agency believes those 
provisions are self-evident.
    Comment: One commenter wrote that the Act does not require a FBI 
fingerprint check. The commenter believes that this is an unnecessary 
requirement and that the requirement should be deleted from the 
proposed rule. Conducting investigations will place a burden on the 
Tribes' finances and resources. Some commenters questioned if there 
will be additional funds allocated to Tribes to perform the background 
investigations.
    Response: The agency has determined that fingerprint checks are the 
only effective means to verify past conviction of enumerated crimes. 
Also, we have determined as required by Executive Order 12866 that 
fingerprint investigations are not a financial burden.
    Comment: One commenter requests clarification as to which law 
enforcement agency will receive the background check request and what 
criteria determines the decision to check city, county, State, Federal 
or Tribal agencies. The commenter also asked for clarification as to 
how will the consistency of results received from one agency be 
evaluated against those from another agency.
    Response: We believe the regulations address these issues. As 
proposed in Sec.  136.410, the OPM conducts the background 
investigations for Federal employees, and Tribes are responsible for 
conducting background investigations of its Tribal employees. Section 
136.406 outlines the requirements of a satisfactory background 
investigation and outlines those law enforcement agencies that should 
receive a background check request.

Miscellaneous Issues

    Comment: One commenter requested clarification as to whether urban 
Indian programs funded under Title V of the Indian Health Care 
Improvement Act, Public Law (P.L.) 94-437, 25 U.S.C.1601 et seq., are 
affected by these regulations since urban Indian clinics are not funded 
by Public Law 93-638.
    Response: Section 408 of the Act does not apply to urban Indian 
programs. However, Section 231 of the Crime Control Act of 1990, Public 
Law 101-647, 42 U.S.C. 13041, applies to urban Indian programs. Section 
231 provides that an individual employed by a Federal agency by direct 
hire or under contract may be displaced from consideration or 
continuing employment if such individual had been convicted of a sex 
crime, an offense involving a child victim or a drug felony, or any 
crime if such conviction bears on an individual's fitness to have 
responsibility for the safety or well-being of children.

[[Page 59466]]

    Comment: One commenter suggested that although the Act specifically 
requires the IHS to compile a list of positions, this requirement does 
not apply to Tribes and Tribal organizations. The commenter believed 
there are other rational ways a Tribal employer might make these 
determinations, and suggested revising Sec.  136.404 (b) to recognize 
that Tribal employers may develop their own procedures.
    Response: Section 136.404(b) requires the Tribe to identify those 
positions having regular contact with or control over Indian children 
but does not require the Tribe to compile a list as in Sec.  
136.404(a). We have not amended Sec.  136.404(b) as suggested by the 
commenter because we believe Sec.  136.404(b) is consistent with the 
statute. However, we have amended the language in Sec.  136.409(b) to 
clarify that Tribes do not have to develop a list but may develop 
procedures to determine which of its positions involve regular contact 
with children.
    Comment: One commenter suggested that IHS include a new section in 
its regulations as follows:

    Sec.  136.416 Who is responsible for ensuring IHS and other 
Federal employees who are detailed to Tribes and Tribal 
organizations pursuant to the Intergovernmental Personal Act meet 
minimum standards of character?
    (a) The IHS will ensure that Federal employees detailed to 
Tribes and Tribal organizations meet the minimum character standards 
established in 42 CFR 36.405.
    (b) A Tribe or Tribal organization is permitted, but not 
required, to accept the IHS determination in lieu of conducting its 
own investigation and making its own determination.
    (c) At the request of a Tribe or Tribal organization, the IHS 
will either (1) apply the character standards of the particular 
Tribe or Tribal organization to the Federal employee to determine 
whether he or she meets them or (2) provide the Tribe or Tribal 
organization with copies of its own investigation records so that 
the Tribe or Tribal organization can determine for itself whether 
the Federal employee meets its own character standards.

    Response: Intergovernmental Personnel Act/Memorandum of Agreement 
(IPA/MOA) employees are covered by the definition of individuals in 
Sec.  136.403. IPA/MOA employees are Federal employees and the agency 
is responsible for conducting the background investigation and making a 
personnel decision to hire or remove an IPA/MOA employee. Thus, we 
cannot accept the suggested language. However a Tribe or Tribal 
organization has the discretion to apply more stringent standards in 
determining whether to place an IPA/MOA employee at a Tribally operated 
site.
    Comment: Some commenters believe that the Tribes should establish 
the minimum standards of character to allow Tribes to adopt higher 
qualification standards for individuals with regular contact or control 
over Indian children.
    Response: The statute provides that the Secretary shall establish 
minimum standards of character that ensure that no individual appointed 
or retained to a position, that has regular contact or control over a 
child, has been found guilty of or entered a plea of guilty to any 
felonious offense or any two or more misdemeanor offenses under 
Federal, State or Tribal law involving crimes of violence, sexual 
assault, molestation, exploitation, contact or prostitution, crimes 
against persons; or offenses committed against children. The Secretary 
has prescribed by these regulations the minimum standards of character 
consistent with the statute. Tribes may adopt more stringent standards 
such as higher qualification standards, but may not adopt less 
stringent standards than as prescribed by these regulations.
    Comment: One commenter wrote that Sec.  136.401 B Purpose B does 
not clearly delineate the purpose of the regulations. The commenter 
suggested that the statement of purpose be revised as follows:

    The purpose of the regulations in this subpart is to establish 
minimum standards for Federal employees working in the IHS, 
including 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 as mandated by 25 U.S.C. 3207; 
fitness standards to ensure child care service employees are fit to 
have responsibility for the safety and well-being of children, as 
mandated by the Crime Control Act of 1990 (P.L. 101-647); 
suitability standards to ensure that individuals have not acted in a 
manner that places others at risk or raised questions about their 
trustworthiness, as mandated by 5 CFR Part 731; and efficiency 
standards to ensure that individuals are qualified for the positions 
they hold or seek, as mandated by 25 U.S.C 3207 ACharacter 
Investigation (Indian Child Protection and Family Violence Act)

    Response: We agree and have made the suggested changes to Sec.  
136.401. In addition, we have added language to Sec.  136.401 to 
clarify that a secondary purpose of these regulations will be to serve 
as guidance for Tribes or Tribal organizations to use when developing 
their own minimum standards of character that cannot be less stringent 
than prescribed by these regulations.
    Comment: One commenter indicated that Sec.  136.402--Policy 
inaccurately suggests that the proposed regulations will implement only 
the Act.
    Response: The agency has revised Sec.  136.402 by moving the 
explanation of the minimum standards of character to Sec.  136.405 
where the minimum of standards is defined. Furthermore, the agency 
created an additional section in Sec.  136.406 that includes many of 
the provisions from old Sec.  136.405 that pertain more to procedure 
than substance.

Executive Order 12866

    This Interim Final Rule is a significant regulatory action under 
Executive Order (E.O.) 12866 and has been reviewed 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. OPM 
conducts background investigations of Federal employees and charges 
$85.00 per background check. IHS estimates that 2,000 people apply for 
positions requiring background checks annually because they have 
regular contact with Indian children (primarily doctors, nurses and 
other hospital staff). The annual cost of OPM background investigation 
for 2,000 people is $170,000. The cost of the background investigations 
by Tribes or Tribal organizations is estimated to be approximately 
$20,000. Many of the Tribes receive fingerprint checks from the FBI at 
$22.00 per fingerprint check. The $20,000 annual cost estimate assumes 
that Tribes will offer positions to about 900 people who have regular 
contact with Indian children each year. Section 202 of the Unfunded 
Mandates Reform Act (Public Law 104-4) requires an assessment of 
anticipated costs and benefits before proposing any rule that may 
result in expenditure by State, local, and Tribal governments, in 
aggregate, or by the private sector, of $110 million in any one year 
(adjusted annually for inflation). We have determined that this rule is 
consistent with the principles set forth in the Executive Order and in 
these statutes and find that this rule will not have an effect on the 
economy that exceeds $110 million in any one year. Therefore, no 
further analysis is required under the Unfunded Mandates Reform Act.

[[Page 59467]]

Executive Order 13132 Federalism

    The Department has determined that this Interim Final Rule does not 
have significant federalism effects under E.O. 12612 and will not 
interfere with the roles, rights and responsibilities of states. The 
Act requires the Tribes or Tribal organizations to develop minimum 
standards of character that cannot be less stringent than prescribed by 
these regulations. Tribes or Tribal organizations are responsible for 
identifying positions involving regular contact with children or 
control over Indian children and conducting background investigations 
of these individuals. In conducting background investigations and 
adjudicating eligibility for employment in these positions, Tribes or 
Tribal organizations may, but are not required to, adopt portions of 
the rules that are specifically applicable to Federal employment. The 
statutory amendments provide more reasonable minimum standards of 
character and thus, the Tribes have more flexibility in hiring 
individuals who might otherwise been ineligible for employment under 
the stricter standards.

Paperwork Reduction Act

    Under the Paperwork Reduction Act (PRA) of 1995, agencies are 
required to provide 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 a 
information collection should be approved by OMB, section 3506 
(c)(2)(A) of the PRA requires that we solicit public 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. When the 
agency published a NPRM of these proposed regulations on March 25, 
1999, the agency requested comments on the following proposed 
information collection requirements discussed below. The Office of 
Management and Budget (OMB) did not receive any comments. As indicated 
previously, Congress enacted technical amendments to section 408 of the 
Act by delineating between any felonious or any of two or more 
misdemeanor offenses of enumerated crimes. In addition, Congress added 
an additional category of crimes, namely, Aoffenses against children. 
As a result of the technical amendments, the data collection instrument 
has been revised. The agency has revised the questions required by the 
agency as part of the background investigation to delineate between 
felony or misdemeanor offenses. The agency believes that the questions 
should require the individual to identify a conviction or a plea to any 
of the covered offenses, whether a felony or misdemeanor conviction or 
plea, because the agency retains the discretion not to hire this 
individual to, or to remove this individual from, a covered position if 
it determines that such an individual places Indian children at risk. 
We are soliciting public comment on these issues for the data 
collection instrument to be used to collect the requested information.
    For respondent convenience and to limit the response burden, IHS 
opted to utilize item 16, ``Continuation Space/Agency Optional 
Questions'' of the U.S. Office of Personnel Management, Optional Form 
306, ``Declaration for Federal Employment,'' (OMB approved No. 3206-
0182). Through use of a one page addendum to the Declaration for 
Federal Employment IHS is able to receive the information and the 
certification required in this rule. The IHS anticipates there will be 
approximately 2000 respondents on an annual basis who will require no 
more than 15 minutes each to respond to these questions and sign the 
required certification. The total estimated annual burden for this 
collection of information is 500 hours. Emergency PRA clearance 
request. To implement the rule and protect American Indian children at 
the earliest date, IHS is submitting an emergency PRA clearance request 
to OMB for approval of the data collection instrument. As stated in 
this notice, the information collection requirements contained in the 
rule will be effective 60 days from the date of this publication.
    Direct Comments to OMB: Send your written comments and suggestions 
regarding the information collection contained in this notice, 
especially regarding the estimated public burden and associated 
response time to: Office of Information and Regulatory Affairs, Office 
of Management and Budget, New Executive Office Building, Suite 10235, 
Washington, DC 20503, Attention: Allison H. Eydt, IHS Desk Officer. To 
help ensure timely receipt of your comments you are encouraged to fax 
your comments directly to Ms Allison H. Edyt at 202-395-6974 within 50 
days of this publication. To request information regarding this data 
collection activity or to obtain a copy of the data collection 
instrument(s) and/or instruction(s), contact: Mr. Lance Hodahkwen, Sr., 
M.P.H., IHS Reports Clearance Officer, 12300 Twinbrook Parkway, Suite 
450, Rockville, MD 20852.1601. You may call non-toll free (301) 443-
1116, send a FAX to (301) 443-2316 or e-mail your request for 
information regarding this data collection activity or to obtain a copy 
of the data collection instrument to [email protected].

List of Subjects in 42 CFR Part 36

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

    Dated: May 8, 2002.
Michel E. Lincoln,
Deputy Director.
    Dated: June 25, 2002.
Tommy G. Thompson,
Secretary.


    For the reasons set out in the preamble, the Department amends 42 
CFR chapter I by adding subpart K to part 136 to read as follows:

PART 136--INDIAN HEALTH

Subpart K--Indian Child Protection and Family Violence Prevention
Sec.
136.401 Purpose.
136.402 Policy.
136.403 Definitions.
136.404 What does the Indian Child Protection and Family Violence 
Prevention Act require of the Indian Health Service and Indian 
Tribes or Tribal organizations receiving funds under the ISDEA?
136.405 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?
136.406 Under what circumstances will the minimum standards of 
character be considered to be met?
136.407 Under what circumstances should a conviction, or plea of 
nolo contendere or guilty to, be considered if there has been a 
pardon, expungement, set aside, or other court order of the 
conviction or plea?
136.408 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?
136.409 What positions require a background investigation and 
determination of eligibility for employment or retention?
136.410 Who conducts the background investigation and prepares 
determinations of eligibility for employment?
136.411 Are the requirements for Indian Health Service adjudication 
different

[[Page 59468]]

from the requirements for Indian Tribes and Tribal organizations?
136.412 What questions must the IHS ask as part of the background 
investigation?
136.413 What protections must the IHS and Tribes or Tribal 
organizations provide to individuals undergoing a background 
investigation?
136.414 How does the IHS determine eligibility for placement or 
retention of individuals in positions involving regular contact with 
Indian children?
136.415 What rights does an individual have during this process?
136.416 When should the IHS deny employment or dismiss an employee?
136.417 May the IHS hire individuals pending completion of a 
background investigation?
136.418 What should 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--3211, 5 U.S.C. 301; 42 U.S.C. 13041.

Subpart K--Indian Child Protection and Family Violence Prevention


Sec.  136.401   Purpose.

    (a) The purpose of the regulations in this subpart is to establish 
minimum standards for Federal employees working in the Indian Health 
Service (IHS), including 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 as mandated by 
section 408 of the Indian Child Protection and Family Violence 
Prevention Act (the ``Act''), Public Law (Pub. L.) 101-630, 104 Stat. 
4544, 25 U.S.C. 3201-3211, as amended by section 814 of the Native 
American Laws Technical Corrections Act of 2000. In order to implement 
these minimum standards of character, these regulations also address:
    (1) The efficiency standards to ensure that individuals are 
qualified for the positions they hold or seek, as mandated by Section 
408 of the Act.
    (2) Fitness standards to ensure child care service employees are 
fit to have responsibility for the safety and well-being of children, 
as mandated by Section 231 of the Crime Control Act of 1990, Pub. L. 
101-647, 42 U.S.C. 13041.
    (3) Suitability standards to ensure that individuals have not acted 
in a manner that places others at risk or raised questions about their 
trustworthiness, as mandated by 5 CFR part 731.
    (b) 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 defined in these regulations will become the basis for 
Tribes or Tribal organizations to use when developing their own minimum 
standards of character that cannot be less stringent than as prescribed 
herein.


Sec.  136.402  Policy.

    In enacting the Indian Child Protection and Family Violence 
Prevention Act, (the ``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 as prescribed by the regulations in this subpart 
are intended to ensure that Indian children are protected.


Sec.  136.403  Definitions.

    Crimes against Persons means a crime that has as 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 a crime falls within 
this category, the applicable Federal, State, or Tribal law under which 
the individual was convicted or pleaded guilty or nolo contendere shall 
be controlling.
    Crimes of violence means a crime that has as an element the use, 
attempted use, or threatened use of physical force against the person 
or property of another, or any other crime 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 crime. In determining whether a crime 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 below.
    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:
    (a) Persons in the competitive or excepted service (including 
temporary employment), the Commissioned Corps, or the Senior Executive 
Service in the IHS;
    (b) Persons 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;
    (c) Persons who volunteer to perform services in IHS facilities;
    (d) Persons who contract with the IHS to perform services in IHS 
facilities.
    Must or shall indicates a mandatory or imperative act or 
requirement.
    Offenses against children means any felonious or misdemeanor crime 
under Federal, State, or Tribal law committed against a victim that has 
not attained the age of eighteen years. In determining whether a crime 
falls within this category, the applicable Federal, State, or Tribal 
law under which the individual was convicted or pleaded guilty or nolo 
contendere shall be controlling.
    Regular contact with or control over an Indian child means 
responsibility for an Indian child(ren) within the scope of the 
individual's duties and responsibilities or contact with an Indian 
child(ren) on a recurring and foreseeable basis.
    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.

[[Page 59469]]

Sec.  136.404  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 or employed in 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 by regulations in this subpart.


Sec.  136.405  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. 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 felonious offense or any of 
two or more misdemeanor offenses under Federal, State, or Tribal law 
involving crimes of violence; sexual assault, molestation, 
exploitation, contact, or prostitution; crimes against persons; or 
offenses committed against children, are placed in positions involving 
regular contact with or control over Indian children.


Sec.  136.406  Under what circumstances will the minimum standards of 
character be considered to be met?

    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 Federal Bureau of Investigation (FBI), under procedures 
approved by the FBI, and inquiries to State and Tribal law enforcement 
agencies for the previous five years of residence 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 
felonious offense or any of two or more misdemeanor offenses under 
Federal, State, or Tribal law involving crimes of violence; sexual 
assault, molestation, exploitation, contact, or prostitution; crimes 
against persons; or offenses committed against children.


Sec.  136.407  Under what circumstances should a conviction, or plea of 
nolo contendere or guilty to, be considered if there has been a pardon, 
expungement, set aside, or other court order of the conviction or plea?

    All convictions or pleas of nolo contendere or guilty to should be 
considered in making a determination unless a pardon, expungement, set 
aside or other court order reaches the plea of guilty, plea of nolo 
contendere, or the finding of guilt.


Sec.  136.408  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 731 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.  136.405 
and Sec.  136.406 would be determined by each individual Tribe or 
Tribal organization in accordance with its own personnel policies and 
procedures.


Sec.  136.409  What positions require a background investigation and 
determination of eligibility 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 eligibility 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 their own procedures to determine within their 
program those positions that involve regular contact with or control 
over Indian children.


Sec.  136.410  Who conducts the background investigation and prepares 
determinations of eligibility 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 may request 
that a Federal or State agency conduct investigations. (FBI criminal 
history record information, however, may only be received or evaluated 
by governmental agencies, including Tribes or Tribal organizations as 
defined in these regulations at Sec.  136.403, and may not be 
disseminated to private entities.)


Sec.  136.411  Are the requirements for IHS adjudication different from 
the requirements for Indian Tribes and Tribal organizations?

    Yes, in conducting background investigations and adjudicating 
eligibility for employment in Tribal positions that allow regular 
contact with or control over Indian children, Indian Tribes or Tribal 
organizations may, but are not required to, adopt portions of the

[[Page 59470]]

rules in this subpart that are specifically applicable to employment 
with the IHS.


Sec.  136.412  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 felonious or misdemeanor offense, 
under Federal, State, or Tribal law involving crimes of violence; 
sexual assault, molestation, exploitation, contact, or prostitution; 
crimes against persons; or offenses committed against children? 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 five 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.  136.413  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. Questions asked in Sec.  
136.412 will be added as an addendum to item 16 of the OPM 
Optional Form 306, ``Declaration for Federal Employment.'' The 
information is collected as part of the OPM Optional Form 306 and is 
safeguarded in accordance with Privacy Act provisions.
    (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.  136.414  How does the IHS determine eligibility for placement or 
retention of individuals in positions involving regular contact with 
Indian children?

    (a) Adjudication is the process IHS uses to determine eligibility 
for placement or retention of individuals in positions involving 
regular contact with Indian children. 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 judged 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 
eligibility.
    (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.
    (3) Review the results of the fingerprint charts maintained by the 
FBI or other law enforcement information maintained by other agencies.
    (4) Review any other information obtained through a background 
investigation, including 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.
    (5) Determine whether the individual has been found guilty of, or 
entered a plea of nolo contendere or guilty to, any felonious offense, 
or any of two or more misdemeanor offenses under Federal, State, or 
Tribal law, involving crimes of violence; sexual assault, molestation, 
exploitation, contact, or prostitution; crimes against persons; or 
offenses committed against children.
    (f) After an opportunity has been afforded the individual to 
respond, pursuant to Sec.  136.415, 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)(5) 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 ineligible 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.  136.415  What rights does an individual have during this process?

    (a) The individual 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 individual. However, they may 
issue a written summary of the derogatory information.
    (c) The individual who is the subject of a background investigation 
may

[[Page 59471]]

request, to the extent permissible by law, 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 eligibility 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 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.  136.416  When should the IHS deny employment or dismiss an 
employee?

    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.  136.414 and Sec.  136.415, that the individual has been found 
guilty of, or entered a plea of guilty or nolo contendere to, any 
felonious offense, or any of two or more misdemeanor offenses, under 
Federal, State or Tribal law involving a crime of violence; sexual 
assault, molestation, exploitation, contact, or prostitution; crimes 
against persons; or offenses committed against children. 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.


Sec.  136.417  May the IHS hire individuals pending completion of a 
background investigation?

    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 provisionally individuals as defined in these regulations, 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.  136.418  What should 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. 02-23943 Filed 9-20-02; 8:45 am]
BILLING CODE 4160-16-P