2020-21535. Indian Child Protection and Family Violence Prevention; Minimum Standards of Character

AGENCY:

Bureau of Indian Affairs, Interior.

ACTION:

Final rule; confirmation.

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, [phone]; [e-mail].

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 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 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

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.