Indian Child Protection and Family Violence Prevention; Minimum Standards of Character, 37562-37564 [2020-11974]

Agencies

• DEPARTMENT OF THE INTERIOR
• Bureau of Indian Affairs

[Federal Register Volume 85, Number 121 (Tuesday, June 23, 2020)]
[Rules and Regulations]
[Pages 37562-37564]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-11974]


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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: Interim final rule.

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SUMMARY: This interim final rule updates 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. These 
updates reflect updates made to the list of crimes by amendments to the 
Indian Child Protection and Family Violence Prevention Act.

DATES: This interim final rule is effective on June 23, 2020. Submit 
comments by July 23, 2020.

ADDRESSES: You may submit comments by any of the following methods:
     Federal rulemaking portal www.regulations.gov. The rule is 
listed under the agency name ``Bureau of Indian Affairs.''
     Email: [email protected].
     We cannot ensure that comments received after the close of 
the comment period (see DATES) will be included in the docket for this 
rulemaking and considered. Comments sent to an address other than those 
listed above will not be included in the docket for this rulemaking.

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 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 updates replaced ``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 the Department'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.

[[Page 37563]]

    With this regulatory update, the list of offenses will include 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. 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 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. We have 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;
    (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. We have evaluated this 
rule under the Department's consultation policy under the criteria in 
Executive Order 13175 and have 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 under the Paperwork 
Reduction Act (44 U.S.C. 3501 et seq.) is not required. We 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)). We have 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.

L. Clarity of This Regulation

    We are required by Executive Orders 12866 (section 1(b)(12)), and 
12988 (section 3(b)(1)(B)), and 13563 (section 1(a)), and by the 
Presidential Memorandum of June 1, 1998, to write all rules in plain 
language. This means that each rule we publish must:
    (a) Be logically organized;
    (b) Use the active voice to address readers directly;
    (c) Use common, everyday words and clear language rather than 
jargon;
    (d) Be divided into short sections and sentences; and
    (e) Use lists and tables wherever possible.
    If you feel that we have not met these requirements, send us 
comments by one of the methods listed in the ADDRESSES section. To 
better help us revise the rule, your comments should be as specific as 
possible. For example, you should tell us the numbers of the

[[Page 37564]]

sections or paragraphs that you find unclear, which sections or 
sentences are too long, the sections where you think lists or tables 
would be useful, etc.

M. Public Availability of Comments

    Before including your address, phone number, email address, or 
other personal identifying information in your comment, you should be 
aware that your entire comment--including your personal identifying 
information--may be made publicly available at any time. While you can 
ask us in your comment to withhold your personal identifying 
information from public review, we cannot guarantee that we will be 
able to do so.

N. Determination To Issue an Interim Final Rule With Immediate 
Effective Date

    We are publishing this interim final rule with a request for 
comment without prior notice and comment, as allowed under 5 U.S.C. 
553(b). Under section 553(b) we find that there is good cause to 
effectuate this rule without prior notice, and comments are unnecessary 
and would be contrary to the public interest. This rule is necessary to 
ensure that individuals who have committed offenses against children 
are not approved for positions involving regular contact with, or 
control over, Indian children in contravention of statutory law.
    As allowed under 5 U.S.C. 553(d)(3), the effective date of this 
rule is the date of publication in the Federal Register. Good cause for 
an immediate effective date exists because the delay in publishing this 
rule would potentially result in approval or rejection of individuals 
for positions involving regular contact with, or control over, Indian 
children, who statutorily should not be approved or rejected. We are 
requesting comments on this interim final rule. We will review any 
comments received and, by a future publication in the Federal Register, 
address any comments received.

List of Subjects in 25 CFR Part 63

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

    For the reason stated in the preamble, the Department of the 
Interior, Bureau of Indian Affairs amends part 63 in title 25 of the 
Code of Federal Regulations as follows:

PART 63--INDIAN CHILD PROTECTION AND FAMILY VIOLENCE PROTECTION

0
1. Revise the authority for part 63 as follows:

    Authority: 5 U.S.C. 301; 25 U.S.C. 2, 9, 13, 200, 3201 et seq.; 
42 U.S.C. 13041.

Subpart A--Purpose, Policy, and Definitions

0
2. In Sec.  63.3, add in alphabetical order a definition for ``Offenses 
committed against children'' to read as follows:


Sec.  63.3  Definitions.

* * * * *
    Offenses committed 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 is controlling.
* * * * *

Subpart B--Minimum Standards of Character and Suitability for 
Employment

0
3. Revise Sec.  63.12 to read as follows:


Sec.  63.12  What are minimum standards of character?

    Minimum standards of character are established by an employer and 
refer to identifiable character traits and past conduct. An employer 
may use character traits and past conduct to determine whether an 
applicant, volunteer, or employee can effectively perform the duties of 
a particular position without risk of harm to others. Minimum standards 
of character ensure that no applicant, volunteer, or employee will be 
placed in a position with regular contact with or control over Indian 
children if he/she 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, sexual molestation, sexual 
exploitation, sexual contact or prostitution; crimes against persons; 
or offenses committed against children.

0
4. In Sec.  63.19, revise paragraph (a) and add paragraph (c) to read 
as follows:


Sec.  63.19  When should an employer deny employment or dismiss an 
employee?

    (a) An employer must 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 felonious offense, or any of 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; crimes against persons; or offenses 
committed against children, except as provided in paragraph (c) of this 
section.
* * * * *
    (c) An employer may consider if a pardon, expungement, set aside, 
or other court order reaches the plea of guilty, plea of nolo 
contendere, or the finding of guilt.

Tara Sweeney,
Assistant Secretary--Indian Affairs.
[FR Doc. 2020-11974 Filed 6-22-20; 8:45 am]
BILLING CODE 4337-15-P