Document Headings

                    Document headings vary by document type but may contain                    the following:                  
                -                       the agency or agencies that issued and signed a document                    
                -                       the number of the CFR title and the number of each part                      the document amends, proposes to amend, or is directly                      related to                    
                -                       the agency docket number / agency internal file number                    
                -                       the RIN which identifies each regulatory action listed in                      the Unified Agenda of Federal Regulatory and Deregulatory                      Actions                    

                    See the                                          Document Drafting Handbook                                        for more details.                  

###### Department of Health and Human Services

###### Administration for Children and Families

# AGENCY:

Administration for Children and Families (ACF), DHHS.

# ACTION:

Notice of appeal. 

# SUMMARY:

                        By designation of the Administration for Children and Families, a member of the Departmental Appeals Board will be the presiding officer for appeals concerning ACF's imposition of Adoption and Foster Care Analysis and Reporting System penalties for the States of California, Florida, Iowa, Kansas, Maryland, Minnesota, New York North Carolina,                               ( print page 31336)                            Ohio, South Dakota, Texas, Virginia, and Wisconsin.                    

# REQUESTS TO PARTICIPATE:

Requests to participate as a party or as amicus curiae must be submitted to the Board in the form specified at 45 CFR 213.15 by June 1, 2000.

# FOR FURTHER INFORMATION CONTACT:

Sara Anderson, Staff Attorney, Departmental Appeals Board, Department of Health and Human Services, Room 637-D, Hubert H. Humphrey Building, 200 Independence Avenue, SW, Washington, DC 20201, Telephone Number (202) 690-6044.

# SUPPLEMENTARY INFORMATION:

Notice of appeal is hereby given as set forth in the following letter, which has been sent to the following addressees:

Phyllis D. Thompson, Attorney for the States of California, Florida, Kansas, Maryland, Minnesota, New York, Ohio, South Dakota, Texas, Virginia, and Wisconsin, Covington & Burling, 1201 Pennsylvania Avenue, NW, Washington, DC 20004-2401

and

Belinda A. Smith, Assistant Attorney General, State of North Carolina, P.O. Box 629, Raleigh, North Carolina 27602-0629

and

Vern Armstrong, Iowa Department of Human Services, Hoover State Office Building, 5th Floor, Des Moine, Iowa 50319

and

Madeline Nesse, Llewellyn Woolford, Office of the General Counsel, Department of Health and Human Services, Room 411-D, 200 Independence Avenue, SW, Washington, DC 20201

## Counsel

This letter constitutes notice of a proceeding pursuant to 45 CFR part 213 to review the imposition of penalties by the Administration for Children and Families (ACF) for noncompliance with the Adoption and Foster Care Analysis and Reporting System requirements.

Section 479 of the Social Security Act (42 U.S.C. 6779) required the Department of Health and Human Services to provide for the implementation of an Adoption and Foster Care Analysis and Reporting System (AFCARS) for the collection of data relating to adoption and foster care in the United States. The regulation implementing section 479, found at 45 CFR 1355.40, set forth standards for the collection and reporting of this data and penalties for failure to comply with those standards. 

Beginning 1999, the Administration for Children and Families (ACF) imposed a series of penalties for State's failure to meet the requirements of 45 CFR 1355.40 for the report periods October 1, 1997 through March 31, 1998, April 1, 1998 through September 30, 1998; and October 1, 1998 through March 31, 1999. 

The States of California, Florida, Iowa, Kansas, Maryland, Minnesota, New York, North Carolina, Ohio, South Dakota, Texas, Virginia, and Wisconsin (the Appellants) appealed the imposition of such penalties. Initially, the Appellants appealed the penalties pursuant to section 1123A(c) of the Act and 45 CFR part 16. Subsequently, the Appellants and ACF agreed that the penalties would be reviewed pursuant to 45 CFR part 213. 

The issue to be addressed in this Part 213 hearing is whether Appellants are subject to penalties under the AFCARS regulations on the ground that their AFCARS submissions were noncompliant and thereby constituted substantial failures of title IV-E State plan compliance. 

This hearing will be upon briefs and other written submissions in lieu of live testimony unless the presiding officer determines, either sua sponte or in response to a request by any party, that the presentation of live testimony is necessary to assist the presiding officer in arriving at a recommended decision in any case. If a hearing for testimony is found to be necessary, it will be held on June 29 and 30, 2000, in the Departmental Appeals Board Hearing Room, Room 644-G, Hubert Humphrey Building, 200 Independence Avenue, SW, Washington, DC, 20201.

Further, the parties have agreed as follows:

ACF will refund penalty payments made by Appellants and Appellants may retain all AFCARS penalty amounts without interest, pending a determination by the Assistant Secretary for ACF.

ACF will not require payment of additional penalties for noncomplaint AFCARS submissions, and no interest shall run on such unpaid penalties, until after a final determination in these Part 213 proceedings by the Assistant Secretary.

The merits of all AFCARS penalties appealed in these cases, as well as subsequent penalties issued against the Appellants prior to the Assistant Secretary's final determination will be incorporated into the Part 213 proceedings. 

Discovery proceedings in the prior Board cases will be made part of the Part 213 proceeding.

The Assistant Secretary's decision will be the final decision of the Department.

I have designated Judith A. Ballard, a Departmental Appeals Board Member, as the presiding officer pursuant to 45 CFR 213.21. ACF and the Appellants are now parties in this matter. 45 CFR 213.15(a).

                    A copy of this letter will appear as a Notice in the                     **Federal Register**                     and any person wishing to request recognition as a party will entitled to file a petition pursuant to 45 CFR 213.15(b) with the Departmental Appeals Board within 15 days after that notice has been published. A copy of the petition should be served on each party of record at that time. The petition must explain how the issues to be considered have caused them injury and how their interest is within the zone of interests to be protected by the governing Federal statute. 45 CFR 213.15(b)(1). In addition, the petition must concisely state petitioner's interest in the proceeding, who will represent the petitioner, and the issues on which petitioner wishes to participate. 45 CFR 213.15(b)(2). Additionally, if the petitioner believes that there are disputed issues of fact which require an in-person evidentiary hearing, the petitioner should concisely specify the disputed issues of fact in the petition, and also state whether petitioner intends to present witnesses. Any party may, within 5 days of receipt of such petition, file comments thereon; the presiding officer will subsequently issue a ruling on whether and on what basis participation will be permitted.                

Any interested person or organization wishing to participate as amicus curiae may also file a petition with the presiding officer, which shall conform to the requirements at 45 CFR 213.15(c)(2). This petition should be filed within 15 days after this notice, in time to permit the presiding officer an adequate opportunity to consider and rule upon it.

                    Any further inquiries, submissions, or correspondence regarding this matter should be filed in an original and two copies with Ms. Ballard at the Departmental Appeals Board, Room 637-D, Hubert H. Humphrey, Building, 200 Independence Avenue, SW, Washington, DC 20201, where the record in this matter will be kept. Each submission must include a statement that a copy of the material has been sent to the other party, identifying when and to whom the copy was sent. Please refer to Board Docket Nos. A-2000-59 (California, Florida, Kansas, Maryland, Minnesota, New York, Ohio, South Dakota, Texas, Virginia, and Wisconsin);                           ( print page 31337)                        A-2000-60 (Iowa), A-2001-61 (North Carolina).                

Dated: May 10, 2000.

Olivia A. Golden,

Assistant Secretary for Children and Families.

[FR Doc. 00-12374 Filed 5-16-00; 8:45 am]

BILLING CODE 4184-01-M