83 FR 12301 - Education Contracts Under Johnson-O'Malley Act

DEPARTMENT OF THE INTERIOR
Bureau of Indian Affairs

Federal Register Volume 83, Issue 55 (March 21, 2018)

This proposed rule would update one section of the regulation regarding when Indian students are eligible for benefits of education contracts under the Johnson-O'Malley Act (JOM), to codify past practice and a Federal District Court ruling by deleting the requirement that the Indian student must have \1/4\ or more degree of Indian blood.

[Federal Register Volume 83, Number 55 (Wednesday, March 21, 2018)]
[Proposed Rules]
[Pages 12301-12303]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2018-05749]


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DEPARTMENT OF THE INTERIOR

Bureau of Indian Affairs

[189D0102DR/DS5A300000/DR.5A311.IA000118]

25 CFR Part 273

RIN 1076-AF24


Education Contracts Under Johnson-O'Malley Act

AGENCY: Bureau of Indian Affairs, Interior.

ACTION: Proposed rule.

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[[Page 12302]]

SUMMARY: This proposed rule would update one section of the regulation 
regarding when Indian students are eligible for benefits of education 
contracts under the Johnson-O'Malley Act (JOM), to codify past practice 
and a Federal District Court ruling by deleting the requirement that 
the Indian student must have \1/4\ or more degree of Indian blood.

DATES: Please submit comments by May 21, 2018.

ADDRESSES: You may submit comments by any of the following methods:
    You may submit comments by any of the following methods:

--Federal rulemaking portal: http://www.regulations.gov. The rule is 
listed under the agency name ``Bureau of Indian Affairs.''
--Email: [email protected]. Include the number 1076-AF24 in the subject 
line of the message.
--Mail: Elizabeth Appel, Office of Regulatory Affairs & Collaborative 
Action, U.S. Department of the Interior, 1849 C Street NW, MIB-4660-MS, 
Washington, DC 20240. Include the number 1076-AF24 in the subject line 
of the message.

--Hand delivery: Elizabeth Appel, Office of Regulatory Affairs & 
Collaborative Action, U.S. Department of the Interior, 1849 C Street 
NW, MS 4660, Washington, DC 20240. Include the number 1076-AF24 in the 
subject line of the message.

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

SUPPLEMENTARY INFORMATION:
I. Summary of Rule
II. Procedural Requirements
    A. Regulatory Planning and Review (E.O. 12866, 13563, and 13771)
    B. Regulatory Flexibility Act
    C. Small Business Regulatory Enforcement Fairness Act
    D. Unfunded Mandates Reform Act
    E. Takings (E.O. 12630)
    F. Federalism (E.O. 13132)
    G. Civil Justice Reform (E.O. 12988)
    H. Consultation With Indian Tribes (E.O. 13175)
    I. Paperwork Reduction Act
    J. National Environmental Policy Act
    K. Effects on the Energy Supply (E.O. 13211)
    L. Clarity of This Regulation
    M. Public Availability of Comments

I. Summary of Rule

    This rule would revise a section of the regulations governing 
education contracts under the JOM. The JOM authorizes the Secretary of 
the Interior to enter into contracts with States, schools, and private 
organizations, and to expend appropriated funds in support of Indian 
students under those contracts. See, 25 U.S.C. 254. The regulations at 
25 CFR part 273 implement this authority.
    This rule would revise section 273.12 of the regulations to 
correctly reflect the requirements for students eligible for JOM 
funding. Currently, the regulations state that Indian students are 
eligible for benefits of a JOM contract if they are of \1/4\ or more 
degree Indian blood and are recognized by the Secretary as being 
eligible for Bureau services. Prior to the 1990's, the Department 
implemented this regulation to require \1/4\ or more degree Indian 
blood. In 1990, the United States District Court for the District of 
Nevada stated that this regulatory requirement was too restrictive. 
See, Nevada Urban Indians, Inc. v. United States, CV-N-90-238 BRT 
(September 12, 1990). Since that Court ruling, the Department has 
implemented this regulatory provision as requiring only membership in a 
federally recognized Tribe. The Department does not require a certain 
degree of Indian blood. As such, this rule would delete the requirement 
for a blood degree quantum. With this deletion, the rule codifies both 
the Court ruling and past practice.

II. Procedural Requirements

A. Regulatory Planning and Review (E.O. 12866, 13563, and 13771)

    Executive Order (E.O.) 12866 provides that the Office of 
Information and Regulatory Affairs (OIRA) at the Office of Management 
and Budget (OMB) will review all significant rules. OIRA has determined 
that this rule is not significant.
    E.O. 13563 reaffirms the principles of E.O. 12866 while calling for 
improvements in the Nation's regulatory system to promote 
predictability, to reduce uncertainty, and to use the best, most 
innovative, and least burdensome tools for achieving regulatory ends. 
The E.O. 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. This rule is also part of the Department's commitment 
under the Executive Order to reduce the number and burden of 
regulations.
    E.O. 13771 of January 30, 2017, directs Federal agencies to reduce 
the regulatory burden on regulated entities and control regulatory 
costs. E.O. 13771, however, applies only to significant regulatory 
actions, as defined in Section 3(f) of E.O. 12866. Therefore, E.O. 
13771 does not apply to this proposed rule.

B. Regulatory Flexibility Act

    The Department of the Interior certifies that 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 because it merely codifies eligibility requirements that were 
already established by past practice and a Federal District Court 
ruling.
    (b) Will not cause a major increase in costs or prices for 
consumers, individual industries, Federal, State, or local government 
agencies, or geographic regions because this rule affects only 
individuals' eligibility for certain education contracts.
    (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 
because this rule affects only individuals' eligibility for certain 
education contracts.

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.

[[Page 12303]]

E. Takings (E.O. 12630)

    This rule does not affect a taking of private property or otherwise 
have taking implications under Executive Order 12630 because this rule 
does not affect individual property rights protected by the Fifth 
Amendment or involve a compensable ``taking.'' 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 because the rule 
affects only individuals' eligibility under certain education 
contracts. 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)

    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 and under the criteria 
in Executive Order 13175 and have determined that it has no substantial 
direct effects on federally recognized Indian Tribes and that 
consultation under the Department's Tribal consultation policy is not 
required because the eligibility requirements established in this rule 
are already in effect and have been in effect for many years.

I. Paperwork Reduction Act

    This rule does not contain any information collection requirements, 
and a submission to the Office of Management and Budget under the 
Paperwork Reduction Act is not required.

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 this is an administrative and procedural regulation. 
(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 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 sections 
or paragraphs that are unclearly written, which sections or sentences 
are too long, the sections where you believe 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.

List of Subjects in 25 CFR Part 273

    Government contracts, Indians--education, Reporting and 
recordkeeping requirements.

    For the reasons stated in the preamble, the Department of the 
Interior, Bureau of Indian Affairs, proposes to amend part 273 in Title 
25 of the Code of Federal Regulations as follows:

PART 273--EDUCATION CONTRACTS UNDER JOHNSON-O'MALLEY ACT

0
1. The authority citation for part 273 continues to read as follows:

    Authority: Secs. 201-203, Pub. L. 93-638, 88 Stat. 2203, 2213-
2214 (25 U.S.C. 455-457), unless otherwise noted.

0
2. Revise Sec.  273.12 to read as follows:


Sec.  273.12  Eligible students.

    Indian students, from age 3 years through grade(s) 12, except those 
who are enrolled in Bureau or sectarian operated schools, shall be 
eligible for benefits provided by a contract pursuant to this part if 
they are recognized by the Secretary as being eligible for Bureau 
services. Priority shall be given to contracts:
    (a) Which would serve Indian students on or near reservations; and
    (b) Where a majority of such Indian students will be members of the 
Tribe(s) of such reservations (as defined in Sec.  273.2(o)).

    Dated: February 27, 2018.
John Tahsuda,
Principal Deputy Assistant Secretary--Indian Affairs, Exercising the 
Authority of the Assistant Secretary--Indian Affairs.
[FR Doc. 2018-05749 Filed 3-20-18; 8:45 am]
BILLING CODE 4337-15-P