[Federal Register: November 30, 1999 (Volume 64, Number 229)] [Rules and Regulations] [Page 66770-66771] From the Federal Register Online via GPO Access [wais.access.gpo.gov] [DOCID:fr30no99-19] ======================================================================= ----------------------------------------------------------------------- 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. ----------------------------------------------------------------------- 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] BILLING CODE 4310-02-P