[Federal Register Volume 85, Number 201 (Friday, October 16, 2020)]
[Rules and Regulations]
[Pages 65704-65706]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-21535]


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DEPARTMENT OF THE INTERIOR

Bureau of Indian Affairs

25 CFR Part 63

[201A2100DD/AAKC001030/A0A501010.999900 253G]
RIN 1076-AF53


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

AGENCY: Bureau of Indian Affairs, Interior.

ACTION: Final rule; confirmation.

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SUMMARY: The Bureau of Indian Affairs (BIA) is confirming the interim 
final rule published on June 23, 2020, updating the minimum standards 
of character to ensure that individuals having regular contact with or 
control over Indian children have not been convicted of certain types 
of crimes or acted in a manner that placed others at risk, in 
accordance with the Indian Child Protection and Family Violence 
Prevention Act, as amended.

DATES: This final rule is effective on October 16, 2020.

FOR FURTHER INFORMATION CONTACT: Ms. Elizabeth Appel, Director, Office 
of Regulatory Affairs & Collaborative Action--Indian Affairs, (202) 
273-4680; [email protected].

SUPPLEMENTARY INFORMATION:

I. Summary of Rule

    The Indian Child Protection and Family Violence Prevention Act, 25 
U.S.C. 3201 et seq., requires the Secretary of the Interior to 
prescribe minimum standards of character for positions that involve 
duties and responsibilities involving regular contact with, or control 
over, Indian children. The Department of the Interior (Interior) 
prescribed the minimum standards of character in its regulations at 25 
CFR 63.12 and 63.19. As a result, no applicant, volunteer, or employee 
of Interior may be placed in a position with regular contract with or 
control over Indian children if that person has been found guilty of, 
or entered a plea of nolo contendere or guilty to, certain offenses. 
Before 2000, the offenses listed in the regulation matched the offenses 
listed in the Act: Any offense under Federal, State, or Tribal law 
involving crimes of violence, sexual assault, sexual molestation, 
sexual exploitation, sexual contact or prostitution, or crimes against 
persons.
    In 2000, Congress updated the Act to clarify which types of 
offenses are disqualifying. See Public Law 106-568, revising 25 U.S.C. 
3207(b). Specifically, the 2000 Act updated ``any offense'' with ``any 
felonious offense, or any of two or more misdemeanor offenses,'' and 
added ``offenses committed against children.'' This interim final rule 
would update Interior's regulations, at sections 63.12 and 63.19, to 
reflect the updated language of the Act and add a definition to define 
the phrase ``offenses committed against children.'' The definition is 
the same as the Indian Health Service (IHS) definition of ``offenses 
committed against children'' in the regulations establishing minimum 
standards of character under the Indian Child Protection and Family 
Violence

[[Page 65705]]

Prevention Act for those working in the IHS. See 42 CFR 136.403. Using 
the same definition provides consistency in these standards across 
Federal agencies.
    This rule also includes an explanation of whether a conviction, or 
plea of nolo contendere or guilty, should be considered if there has 
been a pardon, expungement, set aside, or other court order of the 
conviction or plea. As the IHS regulation provides, this rule provides 
that all convictions or pleas of nolo contendere or guilty 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. See 42 CFR 136.407. Including this 
contingency also provides consistency in the standards across Federal 
agencies.
    With this regulatory update, the list of offenses includes any 
felonious offense or any two or more misdemeanor offenses under 
Federal, State, or Tribal law involving crimes of violence, sexual 
assault, sexual molestation, sexual exploitation, sexual contact or 
prostitution, or crimes against persons, or any offenses committed 
against children. Practically, what this rule means is that an 
individual with a single misdemeanor offense involving certain crimes 
is no longer prohibited from holding positions for which that 
individual is otherwise qualified. This rule remedies an overly broad 
prohibition, as determined by Congress in the 2000 amendments. This 
rule also means that an individual with offenses against children would 
be prohibited from holding positions involving regular contact with, or 
control over, Indian children, regardless of that individual's 
qualifications.

II. Interim Final Rule and Comments

    BIA published an interim final rule on June 23, 2020. 85 FR 37562. 
BIA received one written comment submission on the interim final rule. 
That comment was from a Tribe and expressed strong support for the rule 
and stated that it will have a significant beneficial impact. BIA will 
also consider the Tribe's recommendation for additional future 
revisions or guidance to provide Tribes with greater discretion in 
hiring decisions and enhance Tribal sovereignty.

III. Procedural Requirements

A. Regulatory Planning and Review (E.O. 12866 and 13563)

    Executive Order 12866 provides that the Office of Information and 
Regulatory Affairs in the Office of Management and Budget will review 
all significant rules. The Office of Information and Regulatory Affairs 
has determined that this rule is not significant.
    Executive Order (E.O.) 13563 reaffirms the principles of E.O. 12866 
while calling for improvements in the nation's regulatory system to 
promote predictability, reduce uncertainty, and use the best, most 
innovative, and least burdensome tools for achieving regulatory ends. 
The executive order also directs agencies to consider regulatory 
approaches that reduce burdens and maintain flexibility and freedom of 
choice for the public where these approaches are relevant, feasible, 
and consistent with regulatory objectives. E.O. 13563 emphasizes 
further that regulations must be based on the best available science 
and that the rulemaking process must allow for public participation and 
an open exchange of ideas. BIA developed this rule in a manner 
consistent with these requirements.

B. Regulatory Flexibility Act

    This rule will not have a significant economic effect on a 
substantial number of small entities under the Regulatory Flexibility 
Act (5 U.S.C. 601 et seq.).

C. Small Business Regulatory Enforcement Fairness Act

    This rule is not a major rule under 5 U.S.C. 804(2), the Small 
Business Regulatory Enforcement Fairness Act. This rule:
    (a) Does not have an annual effect on the economy of $100 million 
or more;
    (b) Will not cause a major increase in costs or prices for 
consumers, individual industries, Federal, State, or local government 
agencies, or geographic regions; or
    (c) Does not have significant adverse effects on competition, 
employment, investment, productivity, innovation, or the ability of 
U.S. based enterprises to compete with foreign-based enterprises.

D. Unfunded Mandates Reform Act

    This rule does not impose an unfunded mandate on State, local, or 
Tribal governments or the private sector of more than $100 million per 
year. The rule does not have a significant or unique effect on State, 
local, or Tribal governments or the private sector. A statement 
containing the information required by the Unfunded Mandates Reform Act 
(2 U.S.C. 1531 et seq.) is not required.

E. Takings (E.O. 12630)

    This rule does not affect a taking of private property or otherwise 
have taking implications under Executive Order 12630. A takings 
implication assessment is not required.

F. Federalism (E.O. 13132)

    Under the criteria in section 1 of Executive Order 13132, this rule 
does not have sufficient federalism implications to warrant the 
preparation of a federalism summary impact statement. A federalism 
summary impact statement is not required.

G. Civil Justice Reform (E.O. 12988)

    This rule complies with the requirements of Executive Order 12988. 
Specifically, this rule:
    (a) Meets the criteria of section 3(a) requiring that all 
regulations be reviewed to eliminate errors and ambiguity and be 
written to minimize litigation; and
    (b) Meets the criteria of section 3(b)(2) requiring that all 
regulations be written in clear language and contain clear legal 
standards.

H. Consultation With Indian Tribes (E.O. 13175 and Departmental Policy)

    The Department of the Interior strives to strengthen its 
government-to-government relationship with Indian Tribes through a 
commitment to consultation with Indian Tribes and recognition of their 
right to self-governance and tribal sovereignty. This rule was 
evaluated under the Interior's consultation policy pursuant to the 
criteria in Executive Order 13175. The Interior has determined this 
regulation does not require consultation because it is merely updating 
discrete provisions of the regulation to match controlling statutory 
law.

I. Paperwork Reduction Act

    This rule does not contain information collection requirements, and 
a submission to the Office of Management and Budget (OMB) under the 
Paperwork Reduction Act (44 U.S.C. 3501 et seq.) is not required. BIA 
may not conduct or sponsor, and you are not required to respond to, a 
collection of information unless it displays a currently valid OMB 
control number.

J. National Environmental Policy Act

    This rule does not constitute a major Federal action significantly 
affecting the quality of the human environment. A detailed statement 
under the National Environmental Policy Act of 1969 (NEPA) is not 
required because the rule is covered by a categorical exclusion. This 
rule is excluded from the requirement to prepare a detailed statement 
because it is a regulation of an administrative nature (for further 
information, see 43 CFR 46.210(i)). BIA

[[Page 65706]]

has also determined that the rule does not involve any of the 
extraordinary circumstances listed in 43 CFR 46.215 that would require 
further analysis under NEPA.

K. Effects on the Energy Supply (E.O. 13211)

    This rule is not a significant energy action under the definition 
in Executive Order 13211. A Statement of Energy Effects is not 
required.

List of Subjects in 25 CFR Part 63

    Child welfare, Domestic violence, Employment, Grant programs-
Indians, Grant programs-social programs, Indians.

0
The interim final rule amending 25 CFR part 63 which was published at 
85 FR 37562 on June 23, 2020, is adopted as final without change.

Tara Sweeney,
Assistant Secretary--Indian Affairs.
[FR Doc. 2020-21535 Filed 10-15-20; 8:45 am]
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