[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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