Indian Child Protection and Family Violence Prevention; Minimum Standards of Character
| Published date | 23 June 2020 |
| Citation | 85 FR 37562 |
| Record Number | 2020-11974 |
| Section | Rules and Regulations |
| Court | Indian Affairs Bureau |
Federal Register, Volume 85 Issue 121 (Tuesday, June 23, 2020)
[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
