14880 Federal Register / Vol. 80, No. 54 / Friday, March 20, 2015 / Proposed Rules 

the public to submit comments; the 

comment period as set in the NPR ends 

March 16, 2015. The Commission is 

extending the comment period until 

April 15, 2015. 

DATES: Submit comments by April 15, 

2015. 

ADDRESSES: You may submit comments, 

identified by Docket No. CPSC–2014– 

0033, by any of the following methods: 

Electronic Submissions 

Submit electronic comments in the 

following way: 

Federal eRulemaking Portal: http://

www.regulations.gov. Follow the 

instructions for submitting comments. 

The Commission does not accept 

comments submitted by electronic mail 

(email), except through: http://

www.regulations.gov. The Commission 

encourages you to submit electronic 

comments by using the Federal 

eRulemaking Portal, as described above. 

Written Submissions 

Submit written submissions in the 

following way: 

Mail/Hand delivery/Courier to: Office 

of the Secretary, Consumer Product 

Safety Commission, Room 820, 4330 

East West Highway, Bethesda, MD 

20814; telephone (301) 504–7923. 

Instructions: All submissions received 

must include the agency name and 

docket number for this notice. All 

comments received may be posted 

without change, including any personal 

identifiers, contact information, or other 

personal information provided, to: 

http://www.regulations.gov. Do not 

submit confidential business 

information, trade secret information, or 

other sensitive or protected information 

electronically. Such information should 

be submitted in writing. 

Docket: For access to the docket to 

read background documents or 

comments received, go to: http://

www.regulations.gov and insert the 

Docket No. CPSC–2014–0033 into the 

‘‘Search’’ box and follow the prompts. 

SUPPLEMENTARY INFORMATION: On 

December 30, 2014, the Commission 

published an NPR in the Federal 

Register proposing to prohibit 

children’s toys and child care articles 

containing specified phthalates. (79 FR 

78324). The Commission issued the 

proposed rule under the authority of 

section 108 of the Consumer Product 

Safety Improvement Act of 2008 

(CPSIA). The Commission is extending 

the comment period until April 15, 2015 

to allow additional time for public 

comment on the NPR. 

Alberta E. Mills, 

Acting Secretary, U.S. Consumer Product 

Safety Commission. 

[FR Doc. 2015–06389 Filed 3–19–15; 8:45 am] 

BILLING CODE 6355–01–P 

DEPARTMENT OF THE INTERIOR 

Bureau of Indian Affairs 

25 CFR 23 

[K00103 12/13 A3A10; 134D0102DR– 

DS5A300000–DR.5A311.IA000113] 

RIN 1076–AF25 

Regulations for State Courts and 

Agencies in Indian Child Custody 

Proceedings 

AGENCY: Bureau of Indian Affairs, 

Interior. 

ACTION: Proposed rule. 

SUMMARY: This proposed rule would add 

a new subpart to the Department of the 

Interior’s (Department) regulations 

implementing the Indian Child Welfare 

Act (ICWA), to improve ICWA 

implementation by State courts and 

child welfare agencies. These 

regulations complement recently 

published Guidelines for State Courts 

and Agencies in Indian Child Custody 

Proceedings, reflect recommendations 

made by the Attorney General’s 

Advisory Committee on American 

Indian/Alaska Native Children Exposed 

to Violence, and address significant 

developments in jurisprudence since 

ICWA’s inception. This publication also 

announces the dates and locations for 

tribal consultation sessions and public 

meetings to receive comment on this 

proposed rule. 

DATES: Comments must be received on 

or before May 19, 2015. Comments on 

the information collections contained in 

this proposed regulation are separate 

from those on the substance of the 

proposed rule. Comments on the 

information collection burden should be 

received by April 20, 2015 to ensure 

consideration, but must be received no 

later than May 19, 2015. See the 

SUPPLEMENTARY INFORMATION section of 

this document for dates of public 

meetings and tribal consultation 

sessions. 

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’’ or ‘‘BIA.’’ The rule 

has been assigned Docket ID: BIA– 

2015–0001. 

—Email: comments@bia.gov. Include 

‘‘ICWA’’ in the subject line of the 

message. 

—Mail or hand-delivery: Ms. Elizabeth 

Appel, Office of Regulatory Affairs & 

Collaborative Action—Indian Affairs, 

U.S. Department of the Interior, 1849 

C Street NW., MS 3642, Washington, 

DC 20240, (202) 273–4680. 

Comments on the Paperwork 

Reduction Act information collections 

contained in this rule are separate from 

comments on the substance of the rule. 

Submit comments on the information 

collection requirements in this rule to 

the Desk Officer for the Department of 

the Interior by email at OIRA_

Submission@omb.eop.gov or by 

facsimile at (202) 395–5806. Please also 

send a copy of your comments to 

comments@bia.gov. 

See the SUPPLEMENTARY INFORMATION

section of this document for locations of 

public meetings and tribal consultation 

sessions. 

FOR FURTHER INFORMATION CONTACT: Ms. 

Elizabeth Appel, Office of Regulatory 

Affairs & Collaborative Action—Indian 

Affairs, U.S. Department of the Interior, 

1849 C Street NW., MS 3642, 

Washington, DC 20240, (202) 273–4680; 

elizabeth.appel@bia.gov. You may 

review the information collection 

request online at http://

www.reginfo.gov. Follow the 

instructions to review Department of the 

Interior collections under review by 

OMB. 

SUPPLEMENTARY INFORMATION: 

I. Executive Summary 

Since ICWA was enacted by Congress 

in 1978, it has improved child welfare 

practices regarding Indian children. 

Commentators have asserted, however, 

that it has not reached its full potential 

due largely to ineffective or inconsistent 

implementation in some case. This 

proposed rule would establish a new 

subpart to regulations implementing 

ICWA at 25 CFR 23 to address Indian 

child welfare proceedings in State 

courts. This proposed rule is published 

in response to comments received 

during several listening sessions, 

written comments submitted throughout 

2014, and recommendations that 

regulations are needed to fully 

implement ICWA. See, e.g., Attorney 

General’s Advisory Committee on 

American Indian and Alaska Native 

Children Exposed to Violence: Ending 

Violence So Children Can Thrive 

(November 2014), p. 77. This proposed 

rule would also respond to significant 

developments in jurisprudence since 

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Federal Register / Vol. 80, No. 54 / Friday, March 20, 2015 / Proposed Rules 14881 

the regulations were established in 1979 

and last substantively updated in 1994. 

This proposed rule would incorporate 

many of the changes made to the 

recently revised guidelines into 

regulations, establishing the 

Department’s interpretation of ICWA as 

a binding interpretation to ensure 

consistency in implementation of ICWA 

across all States. This consistency is 

necessary to ensure that the goals of 

ICWA are carried out with each Indian 

child custody proceeding, regardless of 

the child welfare worker, judge, and 

State involved. The proposed rule 

would establish the following 

procedures to ensure compliance with 

ICWA: Determining whether ICWA 

applies to any child custody proceeding, 

providing notice to the parents or Indian 

custodian and Indian tribe(s), requesting 

and responding to requests to transfer 

proceedings to tribal court, adjudication 

of involuntary placements, adoptions, 

and terminations of parental rights, 

undertaking voluntary proceedings, 

identifying and applying placement 

preferences, and post-proceeding 

actions. 

The Department requests comment on 

this proposed rule. 

II. Background 

Congress enacted ICWA in 1978 to 

address the Federal, State, and private 

agency policies and practices that 

resulted in the ‘‘wholesale separation of 

Indian children from their families.’’ H. 

Rep. 95–1386 (July 24, 1978), at 9. 

Congress found ‘‘that an alarmingly high 

percentage of Indian families are broken 

up by the removal, often unwarranted, 

of their children from them by nontribal 

public and private agencies and that an 

alarmingly high percentage of such 

children are placed in non-Indian foster 

and adoptive homes and institutions 

. . . .’’ 25 U.S.C. 1901(4). Congress 

determined that cultural ignorance and 

biases within the child welfare system 

were significant causes of this problem 

and that state administrative and 

judicial bodies ‘‘have often failed to 

recognize the essential tribal relations of 

Indian people and the cultural and 

social standards prevailing in Indian 

communities and families.’’ 25 U.S.C. 

1901(5); H. Rep. 95–1386, at 10. 

Congress enacted ICWA to ‘‘protect the 

best interests of Indian children and to 

promote the stability and security of 

Indian tribes and families by 

establishing minimum Federal 

standards for the removal of Indian 

children from their families and the 

placement of such children in foster or 

adoptive homes or institutions which 

will reflect the unique values of Indian 

culture.’’ H. Rep. 95–1386, at 8. The 

ICWA thus articulates a strong ‘‘federal 

policy that, where possible, an Indian 

child should remain in the Indian 

community.’’ Mississippi Band of 

Choctaw Indians v. Holyfield, 490 U.S. 

30, 37 (1989) (citing H. Rep. 95–1386 at 

24). 

Following ICWA’s enactment, in July 

1979, the Department issued regulations 

addressing notice procedures for 

involuntary child custody proceedings 

involving Indian children, as well as 

governing the provision of funding for 

and administration of Indian child and 

family service programs as authorized 

by ICWA. See 25 CFR part 23. Those 

regulations did not address the specific 

requirements and standards that ICWA 

imposes upon State court child custody 

proceedings, beyond the requirements 

for contents of the notice. Also, in 1979, 

BIA published guidelines for State 

courts to use in interpreting many of 

ICWA’s requirements in Indian child 

custody proceedings. 44 FR 67584 (Nov. 

26, 1979). 

In 2014, the Department invited 

comments to determine whether to 

update its guidelines and if so, what 

changes should be made. The 

Department held several listening 

sessions, including sessions with 

representatives of federally recognized 

Indian tribes, State court representatives 

(e.g., the National Council of Juvenile 

and Family Court Judges and the 

National Center for State Courts’ 

Conference of Chief Justices Tribal 

Relations Committee), the National 

Indian Child Welfare Association, and 

the National Congress of American 

Indians. The Department received 

comments from those at the listening 

sessions and also received written 

comments, including comments from 

individuals and additional 

organizations. An overwhelming 

proportion of the commenters requested 

not only that the Department update its 

ICWA guidelines but that the 

Department also issue regulations 

addressing the requirements and 

standards that ICWA imposes upon 

State court child custody proceedings. 

The Department reviewed and 

considered each comment in developing 

this proposed rule. 

The Department has examined its 

authority to interpret and implement 

ICWA, including through a rulemaking, 

and has concluded that it possesses 

authority to implement the statute 

through rulemaking. ICWA instructs 

that ‘‘[w]ithin [180] days after November 

8, 1978, the Secretary shall promulgate 

such rules and regulations as may be 

necessary to carry out the provisions of 

this chapter.’’ 25 U.S.C. 1952. This is a 

broad grant of authority to the Secretary 

of the Interior (Secretary) to issue rules 

in order to ensure that the statute is 

fully and properly implemented. In 

addition to this express authority in 

ICWA, the Secretary is charged with 

‘‘the management of all Indian affairs 

and of all matters arising out of Indian 

relations,’’ 25 U.S.C. 2, and may 

‘‘prescribe such regulations as [s]he may 

think fit for carrying into effect the 

various provisions of any act relating to 

Indian affairs.’’ 25 U.S.C. 9. Finally, the 

United States has long been understood 

to have a special relationship with 

Indian nations, which includes the duty 

and power to protect them. Congress 

referred to this inherent authority in the 

opening language of ICWA, which 

explains that the ‘‘United States has a 

direct interest, as trustee, in protecting 

Indian children.’’ 25 U.S.C. 1901(3). 

These regulations, which are intended 

to improve the implementation of 

ICWA, uphold this Federal interest. 

The Department has concluded that 

these regulations are now necessary to 

effectively carry out the provisions of 

ICWA. In issuing the guidelines in 1979, 

the Department found that primary 

responsibility for interpreting many of 

ICWA’s provisions rests with the State 

courts that decide Indian child custody 

cases. See, e.g., 44 FR 67,584 (November 

26, 1979). At the time, the Department 

opined that the promulgation of 

regulations was not necessary to carry 

out ICWA. Since that time, it has 

become clear that a uniform 

interpretation of key provisions is 

necessary to ensure compliance with 

ICWA. These regulations will provide a 

stronger measure of consistency in the 

implementation of ICWA, which has 

been interpreted in different, and 

sometimes conflicting, ways by various 

State courts and agencies and has 

resulted in different minimum 

standards being applied across the 

United States, contrary to Congress’ 

intent. Moreover, conflicting 

interpretations can lead to arbitrary 

outcomes, and certain interpretations 

and applications threaten the rights that 

ICWA was intended to protect. See, e.g., 

Holyfield, 490 U.S. at 45–46 (describing 

the need for uniformity in defining 

‘‘domicile’’ under ICWA). 

III. Overview of the Proposed Rule 

This proposed rule addresses ICWA 

implementation by State courts and 

child welfare agencies, including 

updating definitions, and replacing 

current notice provisions at 25 CFR 

23.11 with a proposed new subpart I to 

25 CFR part 23. The proposed new 

subpart also addresses other aspects of 

ICWA compliance by State courts and 

child welfare agencies including, but 

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14882 Federal Register / Vol. 80, No. 54 / Friday, March 20, 2015 / Proposed Rules 

not limited to, other pretrial 

requirements, procedures for requesting 

transfer of an Indian child custody 

proceeding to tribal court, adjudications 

of involuntary placements, adoptions, 

and termination of parental rights, 

voluntary proceedings, dispositions, 

and post-trial rights. For example, the 

proposed rule clarifies ICWA 

applicability and codifies that there is 

no ‘‘Existing Indian Family Exception 

(EIF)’’ to ICWA. Since first 

identification of the EIF in 1982, the 

majority of State appellate courts that 

have considered the EIF have rejected it 

as contrary to the plain language of 

ICWA. Some State legislatures have also 

explicitly rejected the EIF within their 

State ICWA statutes. When Congress 

enacted ICWA, it intended that an 

‘‘Indian child’’ was the threshold for 

application of ICWA. The Department 

agrees with the States that have 

concluded that there is no existing 

Indian family exception to application 

of ICWA. The proposed rule also 

promotes the early identification of 

ICWA applicability. Such 

identifications will promote proper 

implementation of ICWA at an early 

stage, to prevent—as much as possible— 

delayed discoveries that ICWA applies. 

We welcome comments on all aspects 

of this rule. We are particularly 

interested in the use of ‘‘should’’ versus 

‘‘must.’’ The proposed rule makes 

several of the provisions issued in the 

recently published Guidelines for State 

Courts and Agencies in Indian Child 

Custody Proceedings, 80 FR 10146 

(February 25, 2015), binding as 

regulation. These proposed mandatory 

provisions (indicating an action ‘‘must’’ 

be taken, for example) are authorized by 

ICWA. Some proposed provisions 

indicate that certain actions ‘‘should’’ be 

taken. We welcome comment on 

whether mandatory language is 

authorized by ICWA in those instances 

and any appropriate revisions to further 

promote compliance with ICWA. 

IV. Public Meetings & Tribal 

Consultation Sessions 

The Department will host both public 

meetings and tribal consultation 

sessions on this proposed rule. 

A. Public Meetings 

All are invited to the public meetings. 

Dates and locations for the public 

meetings are as follows: 

Date Time Location Venue 

Wednesday, April 22, 2015 ........... 9 a.m.–noon Local Time ............... Portland, Oregon .......................... BIA Regional Office, 911 NE 11th 

Ave, Portland, OR 97232*. 

Thursday, April 23, 2015 ............... 1–4 p.m. Local Time ..................... Rapid City, South Dakota ............. Best Western Ramkota Hotel, 

2111 N Lacrosse St., Rapid 

City, SD 57701. 

Tuesday, May 5, 2015 ................... 1–4 p.m. Local Time ..................... Albuquerque, New Mexico ........... National Indian Programs Training 

Center, 1011 Indian School 

Road NW., Suite 254 Albuquerque, NM 87104*. 

Thursday, May 7, 2015 .................. 1–4 p.m. Local Time ..................... Prior Lake, Minnesota .................. Mystic Lake Casino Hotel, 2400 

Mystic Lake Blvd., Prior Lake, 

MN 55372. 

Tuesday, May 12, 2015 ................. 1 p.m.–4 p.m. Eastern Time ......... Via teleconference ........................ 888–730–9138, Passcode: INTERIOR. 

Thursday, May 14, 2015 ................ 1–4 p.m. Local Time ..................... Tulsa, Oklahoma .......................... Tulsa Marriott Southern Hills, 

1902 East 71st, Tulsa, OK 

74136. 

* Please RSVP for the Portland and Albuquerque meetings to consultation@bia.gov, bring photo identification, and arrive early to allow for time 

to get through security, as these are Federal buildings. No RSVP is necessary for the other locations. 

B. Tribal Consultation Sessions 

Tribal consultation sessions are for 

representatives of currently federally 

recognized tribes only, to discuss the 

rule on a government-to-government 

basis with the Department. These 

sessions may be closed to the public. 

The dates and locations for the tribal 

consultations are as follows: 

Date Time Location Venue 

Monday, April 20, 2015 ................... 3:30 p.m.–5:30 p.m. Local Time .. Portland, Oregon .......................... Hilton Portland & Executive Towers, 921 SW. Sixth Avenue, 

Portland, OR 97204, (at the 

same location as NICWA conference). 

Thursday, April 23, 2015 ................. 9 a.m.–12 p.m. Local Time .......... Rapid City, South Dakota ............ Best Western Ramkota Hotel, 

2111 N Lacrosse St, Rapid 

City, SD 57701. 

Tuesday, May 5, 2015 .................... 9 a.m.–12 p.m. Local Time .......... Albuquerque, New Mexico ........... National Indian Programs Training Center, 1011 Indian School 

Road, NW., Suite 254, Albuquerque, NM 87104*. 

Thursday, May 7, 2015 ................... 9 a.m.–12 p.m. Local Time .......... Prior Lake, Minnesota .................. Mystic Lake Casino Hotel, 2400 

Mystic Lake Blvd., Prior Lake, 

MN 55372. 

Monday, May 11, 2015 ................... 1 p.m.–4 p.m. Eastern Time ........ Via teleconference ....................... Call-in number: 888–730–9138 

Passcode: INTERIOR =. 

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Date Time Location Venue 

Thursday, May 14, 2015 ................. 9 a.m.–12 p.m. Local Time .......... Tulsa, Oklahoma .......................... Tulsa Marriott Southern Hills, 

1902 East 71st, Tulsa, OK 

74136. 

V. Statutory Authority 

The Department is issuing this 

proposed rule pursuant to ICWA, 25 

U.S.C. 1901 et seq., and its authority 

over the management of all Indian 

affairs under 25 U.S.C. 2, 9. 

VI. Procedural Requirements 

1. Regulatory Planning and Review (E.O. 

12866 and 13563) 

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. The Department has 

developed this rule in a manner 

consistent with these requirements. 

2. Regulatory Flexibility Act 

The Department 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.). 

3. 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. It 

will not result in the expenditure by 

State, local, or tribal governments, in the 

aggregate, or by the private sector of 

$100 million or more in any one year. 

The rule’s requirements will not result 

in a major increase in costs or prices for 

consumers, individual industries, 

Federal, State, or local government 

agencies, or geographic regions. Nor will 

this rule have significant adverse effects 

on competition, employment, 

investment, productivity, innovation, or 

the ability of the U.S.-based enterprises 

to compete with foreign-based 

enterprises. 

4. 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. 

5. Takings (E.O. 12630) 

Under the criteria in Executive Order 

12630, this rule does not affect 

individual property rights protected by 

the Fifth Amendment nor does it 

involve a compensable ‘‘taking.’’ A 

takings implication assessment is 

therefore not required. 

6. Federalism (E.O. 13132) 

Under the criteria in Executive Order 

13132, this rule has no substantial direct 

effect on the States, on the relationship 

between the national government and 

the States, or on the distribution of 

power and responsibilities among the 

various levels of government. The 

Department has determined that this 

rule complies with the fundamental 

Federalism principles and policymaking 

criteria established in EO 13132. 

Congress determined that the issue of 

Indian child welfare is sufficiently 

national in scope and significance to 

justify a statute that applies uniformly 

across States. This rule invokes the 

United States’ special relationship with 

Indian tribes and children by 

establishing a regulatory baseline for 

implementation to further the goals of 

ICWA. Such goals include protecting 

the best interests of Indian children and 

promoting the stability and security of 

Indian tribes and families by 

establishing minimum Federal 

standards for the removal of Indian 

children from their families and the 

placement of such children in foster or 

adoptive homes that reflect the unique 

values of Indian culture. States are 

required to comply with ICWA even in 

the absence of this rule, and that 

requirement has existed since ICWA’s 

passage in 1978. In the spirit of EO 

13132, the Department specifically 

solicits comment on this proposed rule 

from State officials, including 

suggestions for how the rule could be 

made more flexible for State 

implementation. 

7. Civil Justice Reform (E.O. 12988) 

This rule complies with the 

requirements of Executive Order 12988. 

Specifically, this rule has been reviewed 

to eliminate errors and ambiguity and 

written to minimize litigation; and is 

written in clear language and contains 

clear legal standards. 

8. Consultation With Indian Tribes (E.O. 

13175) 

In accordance with the President’s 

memorandum of April 29, 1994, 

‘‘Government-to-Government Relations 

with Native American Tribal 

Governments,’’ Executive Order 13175 

(59 FR 22951, November 6, 2000), and 

512 DM 2, we have evaluated the 

potential effects on federally recognized 

Indian tribes and Indian trust assets. 

The Department hosted several listening 

sessions on the ICWA guidelines and 

notified each federally recognized tribal 

leader of the sessions. Several federally 

recognized Indian tribes submitted 

written comments and many suggested 

developing regulations. The Department 

considered each tribe’s comments and 

concerns and have addressed them, 

where possible, in the proposed rule. 

The Department will be continuing to 

consult with tribes during the public 

comment period on this rule. The dates 

and locations of consultation sessions 

are listed in section IV, above. 

9. Paperwork Reduction Act 

OMB Control Number: 1076–NEW 

Title: Indian Child Welfare Act 

(ICWA) Proceedings in State Court 

Brief Description of Collection: This 

collection addresses the reporting, thirdparty disclosure, and recordkeeping 

requirements of ICWA, which requires 

State courts and agencies to provide 

notice to tribes and parents/custodians 

of any child custody proceeding that 

may involve an ‘‘Indian child,’’ and 

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*The following table shows estimates of the hour 

burden above what a State court or agency would 

do in a child custody proceeding that does not 

involve ICWA requirements: 

** In many cases, there are no start-up costs 

associated with these information collections 

because State courts are agencies are already 

implementing child custody actions. However, it is 

possible that some States may not yet have a single 

location, or electronic database accessible from 

anywhere, housing all placement records. For this 

reason, we are estimating a start-up cost of $487,500 

(or just under $10,000 per state on average, with the 

understanding that there will be no start-up costs 

in some states and up to $20,000 or more in others). 

The annual cost burden to respondents associated 

with providing notice by registered mail is $11.95 

and the cost of a return receipt green card is $2.70. 

For each Indian child custody proceeding, at least 

two notices must be sent—one to the parent and 

one to the tribe, totaling $29.30. At an annual 

estimated 13,000 child welfare proceedings that 

may involve an ‘‘Indian child,’’ this totals: 

$380,900. Together with the start-up cost, the total 

non-hour cost burden for all 50 States is $868,400. 

requires State courts and agencies to 

document certain actions and maintain 

certain records regarding the removal 

and placement of an ‘‘Indian child.’’ 

Type of Review: Existing collection in 

use without OMB control number. 

Respondents: State governments and 

individuals. 

Number of Respondents: 5,500 on 

average (each year). 

Number of Responses: 116,100 on 

average (each year).* 

Frequency of Response: On occasion. 

Estimated Time per Response: Ranges 

from 15 minutes to 12 hours. 

Estimated Total Annual Hour Burden: 

277,276 hours. 

Estimated Total Annual Non-Hour 

Cost: $868,400.** 

Sec. Information collection 

Annual 

number of 

respondents 

Frequency of 

responses 

Annual 

number of 

responses 

Completion 

time per 

response 

Total annual 

burden hours 

23.107 ...................... Obtain information on whether 

child is ‘‘Indian child’’.

50 260 13,000 12 156,000 

23.109(c)(3) ............. Notify of tribal membership where 

more than 1 tribe.

50 130 6,500 1 6,500 

23.111, 23.113 ........ Notify tribe, parents, Indian custodian of child custody proceeding.50 260 13,000 6 78,000 

23.113 ...................... Document basis for emergency removal/placement.50 260 13,000 0.5 6,500 

23.113 ...................... Maintain records detailing steps to 

provide notice.

50 260 13,000 0.5 6,500 

23.113 ...................... Petition for court order authorizing 

emergency removal/placement 

(with required contents).

50 260 13,000 0.5 6,500 

23.118 ...................... Notify tribal court of transfer, provide records.50 5 250 0.25 63 

23.120 ...................... Document ‘‘active efforts’’ .............. 50 130 6,500 0.5 3,250 

23.125 ...................... Parental consent to termination or 

adoption (with required contents).

5,000 1 5,000 0.5 2,500 

23.126, 127 ............. Notify placement of withdrawal of 

consent.

50 2 100 0.25 25 

23.128 ...................... Document each placement (including required documents).50 130 6,500 0.5 3,250 

23.128 ...................... Maintain records of placements ..... 50 130 6,500 0.5 3,250 

23.132 ...................... Notify of petition to vacate ............. 50 5 250 0.25 63 

23.135 ...................... Notify of change in status quo ....... 50 130 6,500 0.25 1,625 

23.136 ...................... Notify of final adoption decree/

order.

50 130 6,500 0.25 1,625 

23.137 ...................... Maintain records in a single location and respond to inquiries.50 130 6,500 0.25 1,625 

116,100 6.75 277,276 

10. National Environmental Policy Act 

This rule does not constitute a major 

Federal action significantly affecting the 

quality of the human environment 

because it is of an administrative, 

technical, and procedural nature. See, 

43 CFR 46.210(i). No extraordinary 

circumstances exist that would require 

greater review under the National 

Environmental Policy Act. 

11. 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. 

12. Clarity of This Regulation 

We are required by Executive Orders 

12866 and 12988 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 believe that we have not met 

these requirements, send us comments 

by one of the methods listed in the 

‘‘COMMENTS’’ section. To better help 

revise the rule, your comments should 

be as specific as possible. For example, 

include the numbers of the sections or 

paragraphs that are unclearly written, 

which sections or sentences are too 

long, the sections where lists or tables 

would be useful, etc. 

13. 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 

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information from public review, we 

cannot guarantee that we will be able to 

do so. 

The Department 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. 

List of Subjects in 25 CFR Part 23 

Administrative practice and 

procedure, Child welfare, Indians, 

Reporting and recordkeeping 

requirements. 

For the reasons stated in the 

preamble, the Department of the 

Interior, Bureau of Indian Affairs, 

proposes to amend part 23 in Title 25 

of the Code of Federal Regulations as 

follows: 

PART 23—INDIAN CHILD WELFARE 

ACT 

■ 1. The authority citation for part 23 

continues to read as follows: 

Authority: 5 U.S.C. 301; 25 U.S.C. 2, 9, 

1901–1952. 

■ 2. In § 23.2: 

■ a. Add a definition for ‘‘active 

efforts’’; 

■ b. Revise the definition of ‘‘child 

custody proceeding’’; 

■ c. Add definitions for ‘‘continued 

custody’’, ‘‘custody’’, and ‘‘domicile’’; 

■ d. Revise the definition of ‘‘extended 

family member’’; 

■ e. Add a definition for ‘‘imminent 

physical danger or harm’’; 

■ f. Revise the definition of ‘‘Indian 

child’s tribe’’, ‘‘Indian custodian’’, 

‘‘parent’’, ‘‘reservation’’, and 

‘‘Secretary’’; 

■ g. Add a definition for ‘‘status 

offenses’’; 

■ h. Revise the definition of ‘‘tribal 

court’’; and 

■ i. Add definitions for ‘‘upon demand’’ 

and ‘‘voluntary placement’’. 

The additions and revisions read as 

follows: 

Revise the following definitions to 

read as follows: 

§ 23.2 Definitions. 

* * * * * 

Active efforts means actions intended 

primarily to maintain and reunite an 

Indian child with his or her family or 

tribal community and constitute more 

than reasonable efforts as required by 

Title IV–E of the Social Security Act (42 

U.S.C. 671(a)(15)). Active efforts 

include, for example: 

(1) Engaging the Indian child, the 

Indian child’s parents, the Indian 

child’s extended family members, and 

the Indian child’s custodian(s); 

(2) Taking steps necessary to keep 

siblings together; 

(3) Identifying appropriate services 

and helping the parents to overcome 

barriers, including actively assisting the 

parents in obtaining such services; 

(4) Identifying, notifying, and inviting 

representatives of the Indian child’s 

tribe to participate; 

(5) Conducting or causing to be 

conducted a diligent search for the 

Indian child’s extended family members 

for assistance and possible placement; 

(6) Taking into account the Indian 

child’s tribe’s prevailing social and 

cultural conditions and way of life, and 

requesting the assistance of 

representatives designated by the Indian 

child’s tribe with substantial knowledge 

of the prevailing social and cultural 

standards; 

(7) Offering and employing all 

available and culturally appropriate 

family preservation strategies; 

(8) Completing a comprehensive 

assessment of the circumstances of the 

Indian child’s family, with a focus on 

safe reunification as the most desirable 

goal; 

(9) Notifying and consulting with 

extended family members of the Indian 

child to provide family structure and 

support for the Indian child, to assure 

cultural connections, and to serve as 

placement resources for the Indian 

child; 

(10) Making arrangements to provide 

family interaction in the most natural 

setting that can ensure the Indian 

child’s safety during any necessary 

removal; 

(11) Identifying community resources 

including housing, financial, 

transportation, mental health, substance 

abuse, and peer support services and 

actively assisting the Indian child’s 

parents or extended family in utilizing 

and accessing those resources; 

(12) Monitoring progress and 

participation in services; 

(13) Providing consideration of 

alternative ways of addressing the needs 

of the Indian child’s parents and 

extended family, if services do not exist 

or if existing services are not available; 

(14) Supporting regular visits and trial 

home visits of the Indian child during 

any period of removal, consistent with 

the need to ensure the safety of the 

child; and 

(15) Providing post-reunification 

services and monitoring. 

* * * * * 

Child custody proceeding means and 

includes any proceeding or action that 

involves: 

(1) Foster care placement, which is 

any action removing an Indian child 

from his or her parent or Indian 

custodian for temporary placement in a 

foster home or institution or the home 

of a guardian or conservator where the 

parent or Indian custodian cannot have 

the child returned upon demand, 

although parental rights have not been 

terminated; 

(2) Termination of parental rights, 

which is any action resulting in the 

termination of the parent-child 

relationship; 

(3) Preadoptive placement, which is 

the temporary placement of an Indian 

child in a foster home or institution 

after the termination of parental rights, 

but prior to or in lieu of adoptive 

placement; or 

(4) Adoptive placement, which is the 

permanent placement of an Indian child 

for adoption, including any action 

resulting in a final decree of adoption. 

* * * * * 

Continued custody means physical 

and/or legal custody that a parent 

already has or had at any point in the 

past. The biological mother of a child 

has had custody of a child. 

Custody means physical and/or legal 

custody under any applicable tribal law 

or tribal custom or State law. A party 

may demonstrate the existence of 

custody by looking to tribal law or tribal 

custom or State law. 

Domicile means: 

(1) For a parent or any person over the 

age of eighteen, physical presence in a 

place and intent to remain there; 

(2) For an Indian child, the domicile 

of the Indian child’s parents. In the case 

of an Indian child whose parents are not 

married to each other, the domicile of 

the Indian child’s mother. 

Extended family member is defined 

by the law or custom of the Indian 

child’s tribe or, in the absence of such 

law or custom, is a person who has 

reached the age of eighteen and who is 

the Indian child’s grandparent, aunt or 

uncle, brother or sister, brother-in-law 

or sister-in-law, niece or nephew, first 

or second cousin, or stepparent. 

* * * * * 

Imminent physical damage or harm 

means present or impending risk of 

serious bodily injury or death. 

* * * * * 

Indian child’s tribe means: 

(1) The Indian tribe in which an 

Indian child is a member or eligible for 

membership; or 

(2) In the case of an Indian child who 

is a member of or eligible for 

membership in more than one tribe, the 

Indian tribe with which the Indian child 

has more significant contacts. 

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Indian custodian means any Indian 

person who has legal custody of an 

Indian child under tribal law or custom 

or under State law, or to whom 

temporary physical care, custody, and 

control has been transferred by the 

parent of such child. An Indian person 

may demonstrate that he or she is an 

Indian custodian by looking to tribal 

law or tribal custom or State law. 

* * * * * 

Parent means any biological parent or 

parents of an Indian child or any Indian 

person who has lawfully adopted an 

Indian child, including adoptions under 

tribal law or custom. It does not include 

an unwed father where paternity has not 

been acknowledged or established. 

Reservation means Indian country as 

defined in 18 U.S.C. 1151, including 

any lands, title to which is held by the 

United States in trust for the benefit of 

any Indian tribe or individual or held by 

any Indian tribe or individual subject to 

a restriction by the United States against 

alienation. 

Secretary means the Secretary of the 

Interior or the Secretary’s authorized 

representative acting under delegated 

authority. 

* * * * * 

Status offenses mean offenses that 

would not be considered criminal if 

committed by an adult; they are acts 

prohibited only because of a person’s 

status as a minor (e.g., truancy, 

incorrigibility). 

* * * * * 

Tribal court means a court with 

jurisdiction over child custody 

proceedings, including a Court of Indian 

Offenses, a court established and 

operated under the code or custom of an 

Indian tribe, or any other administrative 

body of a tribe vested with authority 

over child custody proceedings. 

* * * * * 

Upon demand means that the parent 

or Indian custodians can regain custody 

simply upon request, without any 

contingencies such as repaying the 

child’s expenses. 

* * * * * 

Voluntary placement means a 

placement that either parent has, of his 

or her free will, chosen for the Indian 

child, including private adoptions. 

■ 3. In § 23.11, revise paragraph (d) and 

remove paragraphs (e), (f), and (g). 

The revision reads as follows: 

§ 23.11 Notice. 

* * * * * 

(d) Notice to the appropriate BIA Area 

Director pursuant to paragraph (b) of 

this section must be sent by registered 

mail with return receipt requested and 

must include the information required 

by § 23.111 of these regulations. 

* * * * * 

■ 4. Add subpart I to read as follows: 

Subpart I—Indian Child Welfare Act 

Proceedings 

General Provisions 

Sec. 

23.101 What is the purpose of this subpart? 

23.102 What terms do I need to know? 

23.103 When does ICWA apply? 

23.104 How do I contact a tribe under the 

regulations in this subpart? 

23.105 How does this subpart interact with 

State laws? 

Pretrial Requirements 

23.106 When does the requirement for 

active efforts begin? 

23.107 What actions must an agency and 

State court undertake to determine 

whether a child is an Indian child? 

23.108 Who makes the determination as to 

whether a child is a member of a tribe? 

23.109 What is the procedure for 

determining an Indian child’s tribe when 

the child is a member or eligible for 

membership in more than one tribe? 

23.110 When must a State court dismiss an 

action? 

23.111 What are the notice requirements for 

a child custody proceeding involving an 

Indian child? 

23.112 What time limits and extensions 

apply? 

23.113 What is the process for the 

emergency removal of an Indian child? 

23.114 What are the procedures for 

determining improper removal? 

Procedures for Making Requests for Transfer 

to Tribal Court 

23.115 How are petitions for transfer of 

proceeding made? 

23.116 What are the criteria and procedures 

for ruling on transfer petitions? 

23.117 How is a determination of ‘‘good 

cause’’ not to transfer made? 

23.118 What happens when a petition for 

transfer is made? 

Adjudication of Involuntary Placements, 

Adoptions, or Terminations of Parental 

Rights 

23.119 Who has access to reports or 

records? 

23.120 What steps must a party take to 

petition a State court for certain actions 

involving an Indian child? 

23.121 What are the applicable standards of 

evidence? 

23.122 Who may serve as a qualified expert 

witness? 

Voluntary Proceedings 

23.123 What actions must an agency and 

State court undertake in voluntary 

proceedings? 

23.124 How is consent obtained? 

23.125 What information should the 

consent document contain? 

23.126 How is withdrawal of consent 

achieved in a voluntary foster care 

placement? 

23.127 How is withdrawal of consent to a 

voluntary adoption achieved? 

Dispositions 

23.128 When do the placement preferences 

apply? 

23.129 What placement preferences apply 

in adoptive placements? 

23.130 What placement preferences apply 

in foster care or preadoptive placements? 

23.131 How is a determination for ‘‘good 

cause’’ to depart from the placement 

preferences made? 

Post-Trial Rights & Recordkeeping 

23.132 What is the procedure for 

petitioning to vacate an adoption? 

23.133 Who can make a petition to 

invalidate an action? 

23.134 What are the rights of adult 

adoptees? 

23.135 When must notice of a change in 

child’s status be given? 

23.136 What information must States 

furnish to the Bureau of Indian Affairs? 

23.137 How must the State maintain 

records? 

23.138 How does the Paperwork Reduction 

Act affect this subpart? 

General Provisions 

§ 23.101 What is the purpose of this 

subpart? 

These regulations clarify the 

minimum Federal standards governing 

implementation of the Indian Child 

Welfare Act (ICWA) to ensure that 

ICWA is applied in all States consistent 

with the Act’s express language, 

Congress’ intent in enacting the statute, 

and the canon of construction that 

statutes enacted for the benefit of 

Indians are to be liberally construed to 

their benefit. In order to fully 

implement ICWA, these regulations 

apply in all proceedings and stages of a 

proceeding in which ICWA is or 

becomes applicable. 

§ 23.102 What terms do I need to know? 

The following terms and their 

definitions apply to this subpart. All 

other terms have the meanings assigned 

in § 23.2. 

Agency means a private State-licensed 

agency or public agency and their 

employees, agents or officials involved 

in and/or seeking to place a child in a 

child custody proceeding. 

Indian organization means any group, 

association, partnership, corporation, or 

other legal entity owned or controlled 

by Indians or a tribe, or a majority of 

whose members are Indians. 

§ 23.103 When does ICWA apply? 

(a) ICWA applies whenever an Indian 

child is the subject of a State child 

custody proceeding as defined by the 

Act. ICWA also applies to proceedings 

involving status offenses or juvenile 

delinquency proceedings if any part of 

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those proceedings results in the need for 

placement of the child in a foster care, 

preadoptive or adoptive placement, or 

termination of parental rights. 

(b) There is no exception to 

application of ICWA based on the socalled ‘‘existing Indian family doctrine’’ 

and, the following non-exhaustive list of 

factors that have been used by courts in 

applying the existing Indian family 

doctrine may not be considered in 

determining whether ICWA is 

applicable: 

(1) The extent to which the parent or 

Indian child 

(i) Participates in or observes tribal 

customs, 

(ii) Votes in tribal elections or 

otherwise participates in tribal 

community affairs, 

(iii) Contributes to tribal or Indian 

charities, subscribes to tribal newsletters 

or other periodicals of special interest in 

Indians, 

(iv) Participates in Indian religious, 

social, cultural, or political events, or 

maintains social contacts with other 

members of the tribe; 

(2) The relationship between the 

Indian child and his/her Indian parents; 

(3) The extent of current ties either 

parent has to the tribe; 

(4) Whether the Indian parent ever 

had custody of the child; 

(5) The level of involvement of the 

tribe in the State court proceedings; 

and/or 

(6) Blood quantum. 

(c) Agencies and State courts, in every 

child custody proceeding, must ask 

whether the child is or could be an 

Indian child and conduct an 

investigation into whether the child is 

an Indian child. 

(d) If there is any reason to believe the 

child is an Indian child, the agency and 

State court must treat the child as an 

Indian child, unless and until it is 

determined that the child is not a 

member or is not eligible for 

membership in an Indian tribe. 

(e) ICWA and these regulations or any 

associated Federal guidelines do not 

apply to: 

(1) Tribal court proceedings; 

(2) Placements based upon an act by 

the Indian child which, if committed by 

an adult, would be deemed a criminal 

offense; or 

(3) An award, in a divorce proceeding, 

of custody of the Indian child to one of 

the parents. 

(f) Voluntary placements that do not 

operate to prohibit the child’s parent or 

Indian custodian from regaining custody 

of the child upon demand are not 

covered by ICWA. Such placements 

should be made pursuant to a written 

agreement, and the agreement should 

state explicitly the right of the parent or 

Indian custodian to regain custody of 

the child upon demand. 

(g) Voluntary placements in which a 

parent consents to a foster care 

placement or seeks to permanently 

terminate his or her rights or to place 

the child in a preadoptive or adoptive 

placement are covered by ICWA. 

§ 23.104 How do I contact a tribe under the 

regulations in this subpart? 

To contact a tribe to provide notice or 

obtain information or verification under 

these regulations, you should direct the 

notice or inquiry as follows: 

(a) Many tribes designate an agent for 

receipt of ICWA notices. The BIA 

publishes a list of tribes’ designated 

tribal agents for service of ICWA notice 

in the Federal Register each year and 

makes the list available on its Web site 

at www.bia.gov. 

(b) For tribes without a designated 

tribal agent for service of ICWA notice, 

contact the tribe(s) to be directed to the 

appropriate individual or office. 

(c) If you do not have accurate contact 

information for the tribe(s) or the tribe(s) 

contacted fail(s) to respond to written 

inquiries, you may seek assistance in 

contacting the Indian tribe(s) from the 

BIA Regional Office and/or Central 

Office in Washington, DC (see 

www.bia.gov). 

§ 23.105 How does this subpart interact 

with State laws? 

(a) These regulations provide 

minimum Federal standards to ensure 

compliance with ICWA and are 

applicable in all child custody 

proceedings in which ICWA applies. 

(b) In any child custody proceeding 

where applicable State or other Federal 

law provides a higher standard of 

protection to the rights of the parent or 

Indian custodian than the protection 

accorded under the Act, ICWA requires 

that the State court must apply the 

higher standard. 

Pretrial Requirements 

§ 23.106 When does the requirement for 

active efforts begin? 

(a) The requirement to engage in 

‘‘active efforts’’ begins from the moment 

the possibility arises that an agency case 

or investigation may result in the need 

for the Indian child to be placed outside 

the custody of either parent or Indian 

custodian in order to prevent removal. 

(b) Active efforts to prevent removal 

of the child must be conducted while 

investigating whether the child is a 

member of the tribe, is eligible for 

membership in the tribe, or whether a 

biological parent of the child is or is not 

a member of a tribe. 

§ 23.107 What actions must an agency and 

State court undertake in order to determine 

whether a child is an Indian child? 

(a) Agencies must ask whether there 

is reason to believe a child that is 

subject to a child custody proceeding is 

an Indian child. If there is reason to 

believe that the child is an Indian child, 

the agency must obtain verification, in 

writing, from all tribes in which it is 

believed that the child is a member or 

eligible for membership, as to whether 

the child is an Indian child. 

(b) State courts must ask, as a 

threshold question at the start of any 

State court child custody proceeding, 

whether there is reason to believe the 

child who is the subject of the 

proceeding is an Indian child by asking 

each party to the case, including the 

guardian ad litem and the agency 

representative, to certify on the record 

whether they have discovered or know 

of any information that suggests or 

indicates the child is an Indian child. 

(1) In requiring this certification, 

courts may wish to consider requiring 

the agency to provide: 

(i) Genograms or ancestry charts for 

both parents, including all names 

known (maiden, married and former 

names or aliases); current and former 

addresses of the child’s parents, 

maternal and paternal grandparents and 

great grandparents or Indian custodians; 

birthdates; places of birth and death; 

tribal affiliation including all known 

Indian ancestry for individuals listed on 

the charts, and/or other identifying 

information; and/or 

(ii) The addresses for the domicile 

and residence of the child, his or her 

parents, or the Indian custodian and 

whether either parent or Indian 

custodian is domiciled on or a resident 

of an Indian reservation or in a 

predominantly Indian community. 

(2) If there is reason to believe the 

child is an Indian child, the court must 

confirm that the agency used active 

efforts to work with all tribes of which 

the child may be a member to verify 

whether the child is in fact a member or 

eligible for membership in any tribe, 

under paragraph (a) of this section. 

(c) An agency or court has reason to 

believe that a child involved in a child 

custody proceeding is an Indian child if: 

(1) Any party to the proceeding, 

Indian tribe, Indian organization or 

public or private agency informs the 

agency or court that the child is an 

Indian child; 

(2) Any agency involved in child 

protection services or family support 

has discovered information suggesting 

that the child is an Indian child; 

(3) The child who is the subject of the 

proceeding gives the agency or court 

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reason to believe he or she is an Indian 

child; 

(4) The domicile or residence of the 

child, parents, or the Indian custodian 

is known by the agency or court to be, 

or is shown to be, on an Indian 

reservation or in a predominantly 

Indian community; or 

(5) An employee of the agency or 

officer of the court involved in the 

proceeding has knowledge that the child 

may be an Indian child. 

(d) In seeking verification of the 

child’s status, in a voluntary placement 

proceeding where a consenting parent 

evidences a desire for anonymity, the 

agency or court must keep relevant 

documents confidential and under seal. 

A request for anonymity does not 

relieve the obligation to obtain 

verification from the tribe(s) or to 

provide notice. 

§ 23.108 Who makes the determination as 

to whether a child is a member of a tribe? 

(a) Only the Indian tribe(s) of which 

it is believed a biological parent or the 

child is a member or eligible for 

membership may make the 

determination whether the child is a 

member of the tribe(s), is eligible for 

membership in the tribe(s), or whether 

a biological parent of the child is a 

member of the tribe(s). 

(b) The determination by a tribe of 

whether a child is a member, is eligible 

for membership, or whether a biological 

parent is or is not a member, is solely 

within the jurisdiction and authority of 

the tribe. 

(c) No other entity or person may 

authoritatively make the determination 

of whether a child is a member of the 

tribe or is eligible for membership in the 

tribe. 

(d) The State court may not substitute 

its own determination regarding a 

child’s membership or eligibility for 

membership in a tribe or tribes. 

§ 23.109 What is the procedure for 

determining an Indian child’s tribe when the 

child is a member or eligible for 

membership in more than one tribe? 

(a) Agencies must notify all tribes, of 

which the child may be a member or 

eligible for membership, that the child 

is involved in a child custody 

proceeding. The notice should specify 

the other tribe or tribes of which the 

child may be a member or eligible for 

membership. 

(b) If the Indian child is a member or 

eligible for membership in only one 

tribe, that tribe should be designated as 

the Indian child’s tribe. 

(c) If an Indian child is a member or 

eligible for membership in more than 

one tribe, ICWA requires that the Indian 

tribe with which the Indian child has 

the more significant contacts be 

designated as the Indian child’s tribe. 

(1) In determining significant 

contacts, the following may be 

considered: 

(i) Preference of the parents for 

membership of the child; 

(ii) Length of past domicile or 

residence on or near the reservation of 

each tribe; 

(iii) Tribal membership of custodial 

parent or Indian custodian; and 

(iv) Interest asserted by each tribe in 

response to the notice that the child is 

involved in a child custody proceeding; 

(2) When an Indian child is already a 

member of a tribe, but is also eligible for 

membership in another tribe, deference 

should be given to the tribe in which the 

Indian child is a member, unless 

otherwise agreed to by the tribes. 

However, if the Indian child is not a 

member of any tribe, an opportunity 

should be provided to allow the tribes 

to determine which of them should be 

designated as the Indian child’s tribe. 

(i) If the tribes are able to reach an 

agreement, the agreed upon tribe should 

be designated as the Indian child’s tribe. 

(ii) If the tribes do not agree, the 

following factors should be considered 

in designating the Indian child’s tribe: 

(A) The preference of the parents or 

extended family members who are 

likely to become foster care or adoptive 

placements; and/or 

(B) Tribal membership of custodial 

parent or Indian custodian; and/or 

(C) If applicable, length of past 

domicile or residence on or near the 

reservation of each tribe; and/or 

(D) Whether there has been a previous 

adjudication with respect to the child by 

a court of one of the tribes; and/or 

(E) Self-identification by the child; 

and/or 

(F) Availability of placements. 

(3) Once an Indian tribe is designated 

as the child’s Indian tribe, all tribes 

which received notice of the child 

custody proceeding must be notified in 

writing of the determination and a copy 

of that document must be filed with the 

court and sent to each party to the 

proceeding and to each person or 

governmental agency that received 

notice of the proceeding. 

(4) A determination of the Indian 

child’s tribe for purposes of ICWA and 

these regulations does not constitute a 

determination for any other purpose or 

situation. 

(d) The tribe designated as the Indian 

child’s tribe may authorize another tribe 

to act as a representative for the tribe in 

a child custody case. 

§ 23.110 When must a State court dismiss 

an action? 

Subject to § 23.113 (emergency 

procedures), the following limitations 

on a State court’s jurisdiction apply: 

(a) The court must dismiss any child 

custody proceeding as soon as the court 

determines that it lacks jurisdiction. 

(b) The court must make a 

determination of the residence and 

domicile of the Indian child. If either 

the residence or domicile is on a 

reservation where the tribe exercises 

exclusive jurisdiction over child 

custody proceedings, the State court 

must dismiss the State court 

proceedings, the agency must notify the 

tribe of the dismissal based on the 

tribe’s exclusive jurisdiction, and the 

agency must transmit all available 

information regarding the Indian child 

custody proceeding to the tribal court. 

(c) If the Indian child has been 

domiciled or previously resided on an 

Indian reservation, the State court must 

contact the tribal court to determine 

whether the child is a ward of the tribal 

court. If the child is a ward of a tribal 

court, the State court must dismiss the 

State court proceedings, the agency 

must notify the tribe of the dismissal, 

and the agency must transmit all 

available information regarding the 

Indian child custody proceeding to the 

tribal court. 

§ 23.111 What are the notice requirements 

for a child custody proceeding involving an 

Indian child? 

(a) When an agency or court knows or 

has reason to believe that the subject of 

a voluntary or involuntary child custody 

proceeding is an Indian child, the 

agency or court must send notice of 

each such proceeding (including but not 

limited to a temporary custody 

proceeding, any removal or foster care 

placement, any adoptive placement, or 

any termination of parental or custodial 

rights) by registered mail with return 

receipt requested to: 

(1) Each tribe where the child may be 

a member or eligible for membership; 

(2) The child’s parents; and 

(3) If applicable, the Indian custodian. 

(b) Notice may be sent via personal 

service or electronically in addition to 

the methods required by ICWA, but 

such alternative methods do not replace 

the requirement for notice to be sent by 

registered mail with return receipt 

requested. 

(c) Notice must be in clear and 

understandable language and include 

the following: 

(1) Name of the child, the child’s 

birthdate and birthplace; 

(2) Name of each Indian tribe(s) in 

which the child is a member or may be 

eligible for membership; 

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(3) A copy of the petition, complaint 

or other document by which the 

proceeding was initiated; 

(4) Statements setting out: 

(i) The name of the petitioner and 

name and address of petitioner’s 

attorney; 

(ii) The right of the parent or Indian 

custodian to intervene in the 

proceedings. 

(iii) The Indian tribe’s right to 

intervene at any time in a State court 

proceeding for the foster care placement 

of or termination of a parental right. 

(iv) If the Indian parent(s) or, if 

applicable, Indian custodian(s) is unable 

to afford counsel based on a 

determination of indigency by the court, 

counsel will be appointed to represent 

the parent or Indian custodian where 

authorized by State law. 

(v) The right to be granted, upon 

request, a specific amount of additional 

time (up to 20 additional days) to 

prepare for the proceedings due to 

circumstances of the particular case. 

(vi) The right to petition the court for 

transfer of the proceeding to tribal court 

under 25 U.S.C. 1911, absent objection 

by either parent: Provided, that such 

transfer is subject to declination by the 

tribal court. 

(vii) The mailing addresses and 

telephone numbers of the court and 

information related to all parties to the 

proceeding and individuals notified 

under this section. 

(viii) The potential legal 

consequences of the proceedings on the 

future custodial and parental rights of 

the Indian parents or Indian custodians. 

(d) If the identity or location of the 

Indian parents, Indian custodians or 

tribes in which the Indian child is a 

member or eligible for membership 

cannot be ascertained, but there is 

reason to believe the child is an Indian 

child, notice of the child custody 

proceeding must be sent to the 

appropriate Bureau of Indian Affairs 

Regional Director (see www.bia.gov). To 

establish tribal identity, as much 

information as is known regarding the 

child’s direct lineal ancestors should be 

provided (see § 23.111 of this subpart 

regarding notice requirements). The 

Bureau of Indian Affairs will not make 

a determination of tribal membership, 

but may, in some instances, be able to 

identify tribes to contact. 

(e) The original or a copy of each 

notice sent under this section should be 

filed with the court together with any 

return receipts or other proof of service. 

(f) If a parent or Indian custodian 

appears in court without an attorney, 

the court must inform him or her of the 

right to appointed counsel, the right to 

request that the proceeding be 

transferred to tribal court, the right to 

object to such transfer, the right to 

request additional time to prepare for 

the proceeding and the right (if the 

parent or Indian custodian is not 

already a party) to intervene in the 

proceedings. 

(g) If the court or an agency has reason 

to believe that a parent or Indian 

custodian possesses limited English 

proficiency and is therefore not likely to 

understand the contents of the notice, 

the court or agency must, at no cost, 

provide a translated version of the 

notice or have the notice read and 

explained in a language that the parent 

or Indian custodian understands. To 

secure such translation or interpretation 

support, a court or agency should 

contact the Indian child’s tribe or the 

local BIA agency for assistance in 

locating and obtaining the name of a 

qualified translator or interpreter. 

(h) No substantive proceedings, 

rulings or decisions on the merits 

related to the involuntary placement of 

the child or termination of parental 

rights may occur until the notice and 

waiting periods in this section have 

elapsed. 

(i) If the child is transferred interstate, 

regardless of whether the Interstate 

Compact on the Placement of Children 

(ICPC) applies, both the originating 

State court and receiving State court 

must provide notice to the tribe(s) and 

seek to verify whether the child is an 

Indian child. 

§ 23.112 What time limits and extensions 

apply? 

(a) No proceedings regarding 

decisions for the foster care or 

termination of parental rights may begin 

until the waiting periods to which the 

parents or Indian custodians and to 

which the Indian child’s tribe are 

entitled have passed. Additional 

extensions of time may also be granted 

beyond the minimum required by 

ICWA. 

(b) A tribe, parent or Indian custodian 

entitled to notice of the pendency of a 

child custody proceeding has a right, 

upon request, to be granted an 

additional 20 days from the date upon 

which notice was received in 

accordance with 25 U.S.C. 1912(a) to 

prepare for participation in the 

proceeding. 

(c) The proceeding may not begin 

until all of the following dates have 

passed: 

(1) 10 days after each parent or Indian 

custodian (or Secretary where the parent 

or Indian custodian is unknown to the 

petitioner) has received notice in 

accordance with 25 U.S.C. 1912(a); 

(2) 10 days after the Indian child’s 

tribe (or the Secretary if the Indian 

child’s tribe is unknown to the party 

seeking placement) has received notice 

in accordance with 25 U.S.C. 1912(a); 

(3) 30 days after the parent or Indian 

custodian has received notice in 

accordance with 25 U.S.C. 1912(a), if 

the parent or Indian custodian has 

requested an additional 20 days to 

prepare for the proceeding; and 

(4) 30 days after the Indian child’s 

tribe has received notice in accordance 

with 25 U.S.C. 1912(a), if the Indian 

child’s tribe has requested an additional 

20 days to prepare for the proceeding. 

(d) The court should allow, if it 

possesses the capability, alternative 

methods of participation in State court 

proceedings by family members and 

tribes, such as participation by 

telephone, videoconferencing, or other 

methods. 

§ 23.113 What is the process for the 

emergency removal of an Indian child? 

(a) Any emergency removal or 

emergency placement of any Indian 

child under State law must be as short 

as possible. Each involved agency or 

court must: 

(1) Diligently investigate and 

document whether the removal or 

placement is proper and continues to be 

necessary to prevent imminent physical 

damage or harm to the child; 

(2) Promptly hold a hearing to hear 

evidence and evaluate whether the 

removal or placement continues to be 

necessary whenever new information is 

received or assertions are made that the 

emergency situation has ended; and 

(3) Immediately terminate the 

emergency removal or placement once 

the court possesses sufficient evidence 

to determine that the emergency has 

ended. 

(b) If the agency that conducts an 

emergency removal of a child whom the 

agency knows or has reason to believe 

is an Indian child, the agency must: 

(1) Treat the child as an Indian child 

until the court determines that the child 

is not an Indian child; 

(2) Conduct active efforts to prevent 

the breakup of the Indian family as early 

as possible, including, if possible, before 

removal of the child; 

(3) Immediately take and document 

all practical steps to confirm whether 

the child is an Indian child and to verify 

the Indian child’s tribe; 

(4) Immediately notify the child’s 

parents or Indian custodians and Indian 

tribe of the removal of the child; 

(5) Take all practical steps to notify 

the child’s parents or Indian custodians 

and Indian tribe about any proceeding, 

or hearings within a proceeding, 

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regarding the emergency removal or 

emergency placement of the child; and 

(6) Maintain records that detail the 

steps taken to provide any required 

notifications under § 23.111. 

(d) A petition for a court order 

authorizing emergency removal or 

continued emergency physical custody 

must be accompanied by an affidavit 

containing the following information: 

(1) The name, age and last known 

address of the Indian child; 

(2) The name and address of the 

child’s parents and Indian custodians, if 

any; 

(3) If such persons are unknown, a 

detailed explanation of what efforts 

have been made to locate them, 

including notice to the appropriate BIA 

Regional Director (see www.bia.gov); 

(4) Facts necessary to determine the 

residence and the domicile of the Indian 

child; 

(5) If either the residence or domicile 

is believed to be on an Indian 

reservation, the name of the reservation; 

(6) The tribal affiliation of the child 

and of the parents and/or Indian 

custodians; 

(7) A specific and detailed account of 

the circumstances that led the agency 

responsible for the emergency removal 

of the child to take that action; 

(8) If the child is believed to reside or 

be domiciled on a reservation where the 

tribe exercises exclusive jurisdiction 

over child custody matters, a statement 

of efforts that have been made and are 

being made to transfer the child to the 

tribe’s jurisdiction; 

(9) A statement of the specific active 

efforts that have been taken to assist the 

parents or Indian custodians so the 

child may safely be returned to their 

custody; and 

(10) A statement of the imminent 

physical damage or harm expected and 

any evidence that the removal or 

emergency custody continues to be 

necessary to prevent such imminent 

physical damage or harm to the child. 

(e) At any court hearing regarding the 

emergency removal or emergency 

placement of an Indian child, the court 

must determine whether the removal or 

placement is no longer necessary to 

prevent imminent physical damage or 

harm to the child. 

(f) Temporary emergency custody 

should not be continued for more than 

30 days. Temporary emergency custody 

may be continued for more than 30 days 

only if: 

(1) A hearing, noticed in accordance 

with these regulations, is held and 

results in a determination by the court, 

supported by clear and convincing 

evidence and the testimony of at least 

one qualified expert witness, that 

custody of the child by the parent or 

Indian custodian is likely to result in 

imminent physical damage or harm to 

the child; or 

(2) Extraordinary circumstances exist. 

(g) The emergency removal or 

placement must terminate as soon as the 

imminent physical damage or harm to 

the child which resulted in the 

emergency removal or placement no 

longer exists, or, if applicable, as soon 

as the tribe exercises jurisdiction over 

the case, whichever is earlier. 

(h) Once an agency or court has 

terminated the emergency removal or 

placement, it must expeditiously: 

(1) Return the child to the parent or 

Indian custodian within one business 

day; or 

(2) Transfer the child to the 

jurisdiction of the appropriate Indian 

tribe if the child is a ward of a tribal 

court or a resident of or domiciled on 

a reservation; or 

(3) Initiate a child custody proceeding 

subject to the provisions of ICWA and 

these regulations. 

(i) The court should allow, if it 

possesses the capability, alternative 

methods of participation in State court 

proceedings by family members and 

tribes, such as participation by 

telephone, videoconferencing, or other 

methods. 

§ 23.114 What are the procedures for 

determining improper removal? 

(a) If, in the course of any Indian child 

custody proceeding, any party asserts or 

the court has reason to believe that the 

Indian child may have been improperly 

removed from the custody of his or her 

parent or Indian custodian, or that the 

Indian child has been improperly 

retained, such as after a visit or other 

temporary relinquishment of custody, 

the court must immediately stay the 

proceeding until a determination can be 

made on the question of improper 

removal or retention, and such 

determination must be conducted 

expeditiously. 

(b) If the court finds that the Indian 

child was improperly removed or 

retained, the court must terminate the 

proceeding and the child must be 

returned immediately to his or her 

parents or Indian custodian, unless 

returning the child to his parent or 

custodian would subject the child to 

imminent physical damage or harm. 

Procedures for Making Requests for 

Transfer to Tribal Court 

§ 23.115 How are petitions for transfer of 

proceeding made? 

(a) Either parent, the Indian 

custodian, or the Indian child’s tribe 

may request, orally on the record or in 

writing, that the State court transfer 

each distinct Indian child custody 

proceeding to the tribal court of the 

child’s tribe. 

(b) The right to request a transfer 

occurs with each proceeding. 

(c) The right to request a transfer is 

available at any stage of an Indian child 

custody proceeding, including during 

any period of emergency removal. 

(d) The court should allow, if 

possible, alternative methods of 

participation in State court proceedings 

by family members and tribes, such as 

participation by telephone, 

videoconferencing, or other methods. 

§ 23.116 What are the criteria and 

procedures for ruling on transfer petitions? 

(a) Upon receipt of a petition to 

transfer by a parent, Indian custodian or 

the Indian child’s tribe, the State court 

must transfer the case unless any of the 

following criteria are met: 

(1) Either parent objects to such 

transfer; 

(2) The tribal court declines the 

transfer; or 

(3) The court determines that good 

cause exists for denying the transfer. 

(b) The court should expeditiously 

provide all records related to the 

proceeding to the tribal court. 

§ 23.117 How is a determination of ‘‘good 

cause’’ not to transfer made? 

(a) If the State court believes, or any 

party asserts, that good cause not to 

transfer exists, the reasons for such 

belief or assertion must be stated on the 

record or in writing and made available 

to the parties who are petitioning for 

transfer. 

(b) Any party to the proceeding must 

have the opportunity to provide the 

court with views regarding whether 

good cause to deny transfer exists. 

(c) In determining whether good cause 

exists, the court may not consider 

whether the case is at an advanced stage 

or whether transfer would result in a 

change in the placement of the child. 

(d) In addition, in determining 

whether there is good cause to deny the 

transfer, the court may not consider: 

(1) The Indian child’s contacts with 

the tribe or reservation; 

(2) Socio-economic conditions or any 

perceived inadequacy of tribal or BIA 

social services or judicial systems; or 

(3) The tribal court’s prospective 

placement for the Indian child. 

(e) The burden of establishing good 

cause not to transfer is on the party 

opposing the transfer. 

§ 23.118 What happens when a petition for 

transfer is made? 

(a) Upon receipt of a transfer petition 

the State court must promptly notify the 

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tribal court in writing of the transfer 

petition and request a response 

regarding whether the tribal court 

wishes to decline the transfer. The 

notice should specify how much time 

the tribal court has to make its decision; 

provided that the tribal court must be 

provided 20 days from the receipt of 

notice of a transfer petition to decide 

whether to accept or decline the 

transfer. 

(b) If the tribal court accepts the 

transfer, the State court should 

promptly provide the tribal court with 

all court records. 

Adjudication of Involuntary 

Placements, Adoptions, or 

Terminations or Terminations of 

Parental Rights 

§ 23.119 Who has access to reports or 

records? 

(a) The court must inform each party 

to a foster care placement or termination 

of parental rights proceeding under 

State law involving an Indian child of 

his or her right to timely examination of 

all reports or other documents filed with 

the court and all files upon which any 

decision with respect to such action 

may be based. 

(b) Decisions of the court may be 

based only upon reports, documents or 

testimony presented on the record. 

§ 23.120 What steps must a party take to 

petition a State court for certain actions 

involving an Indian child? 

(a) Any party petitioning a State court 

for foster care placement or termination 

of parental rights to an Indian child 

must demonstrate to the court that prior 

to, and until the commencement of, the 

proceeding, active efforts have been 

made to avoid the need to remove the 

Indian child from his or her parents or 

Indian custodians and show that those 

efforts have been unsuccessful. 

(b) Active efforts must be documented 

in detail and, to the extent possible, 

should involve and use the available 

resources of the extended family, the 

child’s Indian tribe, Indian social 

service agencies and individual Indian 

care givers. 

§ 23.121 What are the applicable standards 

of evidence? 

(a) The court may not issue an order 

effecting a foster care placement of an 

Indian child unless clear and 

convincing evidence is presented, 

including the testimony of one or more 

qualified expert witnesses, 

demonstrating that the child’s 

continued custody with the child’s 

parents or Indian custodian is likely to 

result in serious physical damage or 

harm to the child. 

(b) The court may not order a 

termination of parental rights unless the 

court’s order is supported by evidence 

beyond a reasonable doubt, supported 

by the testimony of one or more 

qualified expert witnesses, that 

continued custody of the child by the 

parent or Indian custodian is likely to 

result in serious physical damage or 

harm to the child. 

(c) Clear and convincing evidence 

must show a causal relationship 

between the existence of particular 

conditions in the home that are likely to 

result in serious emotional or physical 

damage to the particular child who is 

the subject of the proceeding. 

(d) Evidence that only shows the 

existence of community or family 

poverty, isolation, single parenthood, 

custodian age, crowded or inadequate 

housing, substance abuse, or 

nonconforming social behavior does not 

by itself constitute clear and convincing 

evidence that continued custody is 

likely to result in serious emotional or 

physical-damage to the child. 

§ 23.122 Who may serve as a qualified 

expert witness? 

(a) A qualified expert witness should 

have specific knowledge of the Indian 

tribe’s culture and customs. 

(b) Persons with the following 

characteristics, in descending order, are 

presumed to meet the requirements for 

a qualified expert witness: 

(1) A member of the Indian child’s 

tribe who is recognized by the tribal 

community as knowledgeable in tribal 

customs as they pertain to family 

organization and childrearing practices. 

(2) A member of another tribe who is 

recognized to be a qualified expert 

witness by the Indian child’s tribe based 

on their knowledge of the delivery of 

child and family services to Indians and 

the Indian child’s tribe. 

(3) A layperson who is recognized by 

the Indian child’s tribe as having 

substantial experience in the delivery of 

child and family services to Indians, 

and knowledge of prevailing social and 

cultural standards and childrearing 

practices within the Indian child’s tribe. 

(4) A professional person having 

substantial education and experience in 

the area of his or her specialty who can 

demonstrate knowledge of the 

prevailing social and cultural standards 

and childrearing practices within the 

Indian child’s tribe. 

(c) The court or any party may request 

the assistance of the Indian child’s tribe 

or the BIA agency serving the Indian 

child’s tribe in locating persons 

qualified to serve as expert witnesses. 

Voluntary Proceedings 

§ 23.123 What actions must an agency and 

State court undertake in voluntary 

proceedings? 

(a) Agencies and State courts must ask 

whether a child is an Indian child in 

any voluntary proceeding under 

§ 23.107 of these regulations. 

(b) Agencies and State courts must 

provide the Indian tribe with notice of 

the voluntary child custody 

proceedings, including applicable 

pleadings or executed consents, and 

their right to intervene under § 23.111 of 

this part. 

§ 23.124 How is consent obtained? 

(a) A voluntary termination of 

parental rights, foster care placement or 

adoption must be executed in writing 

and recorded before a court of 

competent jurisdiction. 

(b) Prior to accepting the consent, the 

court must explain the consequences of 

the consent in detail, such as any 

conditions or timing limitations for 

withdrawal of consent and, if 

applicable, the point at which such 

consent is irrevocable. 

(c) A certificate of the court must 

accompany a written consent and must 

certify that the terms and consequences 

of the consent were explained in detail 

in the language of the parent or Indian 

custodian, if English is not the primary 

language, and were fully understood by 

the parent or Indian custodian. 

(d) Execution of consent need not be 

made in open court where 

confidentiality is requested or indicated. 

(e) A consent given prior to or within 

10 days after birth of the Indian child is 

not valid. 

§ 23.125 What information should a 

consent document contain? 

(a) The consent document must 

contain the name and birthdate of the 

Indian child, the name of the Indian 

child’s tribe, identifying tribal 

enrollment number, if any, or other 

indication of the child’s membership in 

the tribe, and the name and address of 

the consenting parent or Indian 

custodian. If there are any conditions to 

the consent, the consent document must 

clearly set out the conditions. 

(b) A consent to foster care placement 

should contain, in addition to the 

information specified in paragraph (a) of 

this section, the name and address of 

the person or entity by or through whom 

the placement was arranged, if any, or 

the name and address of the prospective 

foster parents, if known at the time. 

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§ 23.126 How is withdrawal of consent 

achieved in a voluntary foster care 

placement? 

(a) Withdrawal of consent must be 

filed in the same court where the 

consent document was executed. 

(b) When a parent or Indian custodian 

withdraws consent to foster care 

placement, the child must be returned 

to that parent or Indian custodian 

immediately. 

§ 23.127 How is withdrawal of consent to 

a voluntary adoption achieved? 

(a) A consent to termination of 

parental rights or adoption may be 

withdrawn by the parent at any time 

prior to entry of a final decree of 

voluntary termination or adoption, 

whichever occurs later. To withdraw 

consent, the parent must file, in the 

court where the consent is filed, an 

instrument executed under oath 

asserting his or her intention to 

withdraw such consent. 

(b) The clerk of the court in which the 

withdrawal of consent is filed must 

promptly notify the party by or through 

whom any preadoptive or adoptive 

placement has been arranged of such 

filing and the child must be returned to 

the parent or Indian custodian as soon 

as practicable. 

Dispositions 

§ 23.128 When do the placement 

preferences apply? 

(a) In any preadoptive, adoptive or 

foster care placement of an Indian child, 

ICWA’s placement preferences apply; 

except that, if the Indian child’s tribe 

has established by resolution a different 

order of preference than that specified 

in ICWA, the agency or court effecting 

the placement must follow the tribe’s 

placement preferences. 

(b) The agency seeking a preadoptive, 

adoptive or foster care placement of an 

Indian child must always follow the 

placement preferences. If the agency 

determines that any of the preferences 

cannot be met, the agency must 

demonstrate through clear and 

convincing evidence that a diligent 

search has been conducted to seek out 

and identify placement options that 

would satisfy the placement preferences 

specified in §§ 23.129 and 23.130 of 

these regulations, and explain why the 

preferences could not be met. A search 

should include notification about the 

placement proceeding and an 

explanation of the actions that must be 

taken to propose an alternative 

placement to: 

(1) The Indian child’s parents or 

Indian custodians; 

(2) All of the known, or reasonably 

identifiable, members of the Indian 

child’s extended family members; 

(3) The Indian child’s tribe; 

(4) In the case of a foster care or 

preadoptive placement: 

(i) All foster homes licensed, 

approved, or specified by the Indian 

child’s tribe; and 

(ii) All Indian foster homes located in 

the Indian child’s State of domicile that 

are licensed or approved by any 

authorized non-Indian licensing 

authority. 

(c) Where there is a request for 

anonymity, the court should consider 

whether additional confidentiality 

protections are warranted, but a request 

for anonymity does not relieve the 

agency or the court of the obligation to 

comply with the placement preferences. 

(d) Departure from the placement 

preferences may occur only after the 

court has made a determination that 

good cause exists to place the Indian 

child with someone who is not listed in 

the placement preferences. 

(e) Documentation of each 

preadoptive, adoptive or foster care 

placement of an Indian child under 

State law must be provided to the State 

for maintenance at the agency. Such 

documentation must include, at a 

minimum: The petition or complaint; all 

substantive orders entered in the 

proceeding; the complete record of, and 

basis for, the placement determination; 

and, if the placement deviates from the 

placement preferences, a detailed 

explanation of all efforts to comply with 

the placement preferences and the court 

order authorizing departure from the 

placement preferences. 

§ 23.129 What placement preferences 

apply in adoptive placements? 

(a) In any adoptive placement of an 

Indian child under State law, preference 

must be given in descending order, as 

listed below, to placement of the child 

with: 

(1) A member of the child’s extended 

family; 

(2) Other members of the Indian 

child’s tribe; or 

(3) Other Indian families, including 

families of unwed individuals. 

(b) The court should, where 

appropriate, also consider the 

preference of the Indian child or parent. 

§ 23.130 What placement preferences 

apply in foster care or preadoptive 

placements? 

In any foster care or preadoptive 

placement of an Indian child: 

(a) The child must be placed in the 

least restrictive setting that: 

(1) Most approximates a family; 

(2) Allows his or her special needs to 

be met; and 

(3) Is in reasonable proximity to his or 

her home, extended family, and/or 

siblings. 

(b) Preference must be given, in 

descending order as listed below, to 

placement of the child with: 

(1) A member of the Indian child’s 

extended family; 

(2) A foster home, licensed, approved 

or specified by the Indian child’s tribe, 

whether on or off the reservation; 

(3) An Indian foster home licensed or 

approved by an authorized non-Indian 

licensing authority; or 

(4) An institution for children 

approved by an Indian tribe or operated 

by an Indian organization which has a 

program suitable to meet the child’s 

needs. 

§ 23.131 How is a determination for ‘‘good 

cause’’ to depart from the placement 

preferences made? 

(a) If any party asserts that good cause 

not to follow the placement preferences 

exists, the reasons for such belief or 

assertion must be stated on the record 

or in writing and made available to the 

parties to the proceeding and the Indian 

child’s tribe. 

(b) The party seeking departure from 

the preferences bears the burden of 

proving by clear and convincing 

evidence the existence of ‘‘good cause’’ 

to deviate from the placement 

preferences. 

(c) A determination of good cause to 

depart from the placement preferences 

must be based on one or more of the 

following considerations: 

(1) The request of the parents, if both 

parents attest that they have reviewed 

the placement options that comply with 

the order of preference. 

(2) The request of the child, if the 

child is able to understand and 

comprehend the decision that is being 

made. 

(3) The extraordinary physical or 

emotional needs of the child, such as 

specialized treatment services that may 

be unavailable in the community where 

families who meet the criteria live, as 

established by testimony of a qualified 

expert witness; provided that 

extraordinary physical or emotional 

needs of the child does not include 

ordinary bonding or attachment that 

may have occurred as a result of a 

placement or the fact that the child has, 

for an extended amount of time, been in 

another placement that does not comply 

with ICWA. 

(4) The unavailability of a placement 

after a showing by the applicable agency 

in accordance with § 23.128(b) of this 

subpart, and a determination by the 

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court that active efforts have been made 

to find placements meeting the 

preference criteria, but none have been 

located. For purposes of this analysis, a 

placement may not be considered 

unavailable if the placement conforms 

to the prevailing social and cultural 

standards of the Indian community in 

which the Indian child’s parent or 

extended family resides or with which 

the Indian child’s parent or extended 

family members maintain social and 

cultural ties. 

(d) The court should consider only 

whether a placement in accordance with 

the preferences meets the physical, 

mental and emotional needs of the 

child; and may not depart from the 

preferences based on the socioeconomic status of any placement 

relative to another placement. 

Post-Trial Rights 

§ 23.132 What is the procedure for 

petitioning to vacate an adoption? 

(a) Within two years after a final 

decree of adoption of any Indian child 

by a State court, or within any longer 

period of time permitted by the law of 

the State, a parent who executed a 

consent to termination of paternal rights 

or adoption of that child may petition 

the court in which the final adoption 

decree was entered to vacate the decree 

and revoke the consent on the grounds 

that consent was obtained by fraud or 

duress, or that the proceeding failed to 

comply with ICWA. 

(b) Upon the filing of such petition, 

the court must give notice to all parties 

to the adoption proceedings and the 

Indian child’s tribe. 

(c) The court must hold a hearing on 

the petition. 

(d) Where the court finds that the 

parent’s consent was obtained through 

fraud or duress, the court must vacate 

the decree of adoption, order the 

consent revoked and order that the child 

be returned to the parent. 

§ 23.133 Who can make a petition to 

invalidate an action? 

(a) Any of the following may petition 

any court of competent jurisdiction to 

invalidate an action for foster care 

placement or termination of parental 

rights where it is alleged that ICWA has 

been violated: 

(1) An Indian child who is the subject 

of any action for foster care placement 

or termination of parental rights; 

(2) A parent or Indian custodian from 

whose custody such child was removed; 

and 

(3) The Indian child’s tribe. 

(b) Upon a showing that an action for 

foster care placement or termination of 

parental rights violated any provision of 

25 U.S.C. 1911, 1912, or 1913, the court 

must determine whether it is 

appropriate to invalidate the action. 

(c) There is no requirement that the 

particular party’s rights under ICWA be 

violated to petition for invalidation; 

rather, any party may challenge the 

action based on violations in 

implementing ICWA during the course 

of the child custody proceeding. 

(d) The court should allow, if it 

possesses the capability, alternative 

methods of participation in State court 

proceedings by family members and 

tribes, such as participation by 

telephone, videoconferencing, or other 

methods. 

§ 23.134 What are the rights of adult 

adoptees? 

(a) Upon application by an Indian 

individual who has reached age 18 who 

was the subject of an adoptive 

placement, the court that entered the 

final decree must inform such 

individual of the tribal affiliations, if 

any, of the individual’s biological 

parents and provide such other 

information necessary to protect any 

rights, which may include tribal 

membership, resulting from the 

individual’s tribal relationship. 

(b) Where State law prohibits 

revelation of the identity of the 

biological parent, assistance of the BIA 

should be sought to help an adoptee 

who is eligible for membership in a tribe 

to become a tribal member without 

breaching the Privacy Act or 

confidentiality of the record. 

(c) In States where adoptions remain 

closed, the relevant agency should 

communicate directly with the tribe’s 

enrollment office and provide the 

information necessary to facilitate the 

establishment of the adoptee’s tribal 

membership. 

(d) Agencies should work with the 

tribe to identify at least one tribal 

designee familiar with 25 U.S.C. 1917 to 

assist adult adoptees statewide with the 

process of reconnecting with their tribes 

and to provide information to State 

judges about this provision on an 

annual basis. 

§ 23.135 When must notice of a change in 

child’s status be given? 

(a) Notice by the court, or an agency 

authorized by the court, must be given 

to the child’s biological parents or prior 

Indian custodians and the Indian child’s 

tribe whenever: 

(1) A final decree of adoption of an 

Indian child has been vacated or set 

aside; or 

(2) The adoptive parent has 

voluntarily consented to the termination 

of his or her parental rights to the child; 

or 

(3) Whenever an Indian child is 

removed from a foster care home or 

institution to another foster care 

placement, preadoptive placement, or 

adoptive placement. 

(b) The notice must inform the 

recipient of the right to petition for 

return of custody of the child. 

(c) A parent or Indian custodian may 

waive his or her right to such notice by 

executing a written waiver of notice 

filed with the court. The waiver may be 

revoked at any time by filing with the 

court a written notice of revocation. A 

revocation of the right to receive notice 

does not affect any proceeding which 

occurred before the filing of the notice 

of revocation. 

§ 23.136 What information must States 

furnish to the Bureau of Indian Affairs? 

(a) Any state entering a final adoption 

decree or order must furnish a copy of 

the decree or order to the Bureau of 

Indian Affairs, Chief, Division of Human 

Services, 1849 C Street NW., Mail Stop 

4513 MIB, Washington, DC 20240, along 

with the following information: 

(1) Birth name of the child, tribal 

affiliation and name of the child after 

adoption; 

(2) Names and addresses of the 

biological parents; 

(3) Names and addresses of the 

adoptive parents; 

(4) Name and contact information for 

any agency having files or information 

relating to the adoption; 

(5) Any affidavit signed by the 

biological parent or parents asking that 

their identity remain confidential; and 

(6) Any information relating to tribal 

membership or eligibility for tribal 

membership of the adopted child. 

(b) Confidentiality of such 

information must be maintained and is 

not subject to the Freedom of 

Information Act, 5 U.S.C. 552, as 

amended. 

§ 23.137 How must the State maintain 

records? 

(a) The State must establish a single 

location where all records of every 

voluntary or involuntary foster care, 

preadoptive placement and adoptive 

placement of Indian children by courts 

of that State will be available within 

seven days of a request by an Indian 

child’s tribe or the Secretary. 

(b) The records must contain, at a 

minimum, the petition or complaint, all 

substantive orders entered in the 

proceeding, and the complete record of 

the placement determination (including, 

but not limited to the findings in the 

court record and social worker’s 

statement). 

mstockstill on DSK4VPTVN1PROD with PROPOSALS

14894 Federal Register / Vol. 80, No. 54 / Friday, March 20, 2015 / Proposed Rules 

§ 23.138 How does the Paperwork 

Reduction Act affect this subpart? 

The collections of information 

contained in this part have been 

approved by the Office of Management 

and Budget under 44 U.S.C. 3501 et seq. 

and assigned OMB Control Number 

1076–XXXX. Response is required to 

obtain a benefit. A Federal agency may 

not conduct or sponsor, and you are not 

required to respond to, a collection of 

information unless the form or 

regulation requesting the information 

displays a currently valid OMB Control 

Number. Send comments regarding this 

collection of information, including 

suggestions for reducing the burden, to 

the Information Collection Clearance 

Officer—Indian Affairs, 1849 C Street 

NW., Washington, DC 20240. 

Dated: March 16, 2015. 

Kevin K. Washburn, 

Assistant Secretary—Indian Affairs. 

[FR Doc. 2015–06371 Filed 3–18–15; 11:15 am] 

BILLING CODE 4310–6W–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 271 

[EPA–R04–RCRA–2014–0712; FRL–9924– 

82–Region–4] 

Tennessee: Final Authorization of 

State Hazardous Waste Management 

Program Revisions 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: Tennessee has applied to the 

Environmental Protection Agency (EPA) 

for final authorization of changes to its 

hazardous waste program under the 

Resource Conservation and Recovery 

Act (RCRA). These changes correspond 

to certain Federal rules promulgated 

between July 1, 2004 and June 30, 2006 

(also known as RCRA Clusters XV and 

XVI). With this proposed rule, EPA is 

proposing to grant final authorization to 

Tennessee for these changes. 

DATES: Send your written comments by 

April 20, 2015. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–R04– 

RCRA–2014–0712, by one of the 

following methods: 

• Federal eRulemaking Portal: 

www.regulations.gov. Follow the on-line 

instructions for submitting comments. 

• Email: merizalde.carlos@epa.gov. 

• Fax: (404) 562–9964 (prior to 

faxing, please notify the EPA contact 

listed below) 

• Mail: Send written comments to 

Carlos E. Merizalde, RCRA Corrective 

Action and Permitting Section, RCRA 

Cleanup and Brownfields Branch, 

Resource Conservation and Restoration 

Division, U.S. Environmental Protection 

Agency, Atlanta Federal Center, 61 

Forsyth Street SW., Atlanta, Georgia 

30303–8960. 

• Hand Delivery or Courier: Deliver 

your comments to Carlos E. Merizalde, 

RCRA Corrective Action and Permitting 

Section, RCRA Cleanup and 

Brownfields Branch, Resource 

Conservation and Restoration Division, 

U.S. Environmental Protection Agency, 

Atlanta Federal Center, 61 Forsyth 

Street SW., Atlanta, Georgia 30303– 

8960. Such deliveries are only accepted 

during the Regional Office’s normal 

hours of operation, and special 

arrangements should be made for 

deliveries of boxed information. 

Please see the direct final rule in the 

‘‘Rules and Regulations’’ section of this 

issue of the Federal Register for detailed 

instructions on how to submit 

comments. 

FOR FURTHER INFORMATION CONTACT: 

Carlos E. Merizalde, RCRA Corrective 

Action and Permitting Section, RCRA 

Cleanup and Brownfields Branch, 

Resource Conservation and Restoration 

Division, U.S. Environmental Protection 

Agency, Atlanta Federal Center, 61 

Forsyth Street SW., Atlanta, Georgia 

30303; telephone number: (404) 562– 

8606; fax number: (404) 562–9964; 

email address: merizalde.carlos@

epa.gov. 

SUPPLEMENTARY INFORMATION: Along 

with this proposed rule, EPA is 

publishing a direct final rule in the 

‘‘Rules and Regulations’’ section of this 

issue of the Federal Register pursuant to 

which EPA is authorizing these changes. 

EPA did not issue a proposed rule 

before today because EPA believes this 

action is not controversial and does not 

expect comments that oppose it. EPA 

has explained the reasons for this 

authorization in the direct final rule. 

Unless EPA receives written comments 

that oppose this authorization during 

the comment period, the direct final 

rule in this issue of the Federal Register 

will become effective on the date it 

establishes, and EPA will not take 

further action on this proposal. If EPA 

receives comments that oppose this 

action, EPA will withdraw the direct 

final rule and it will not take effect. EPA 

will then respond to public comments 

in a later final rule based on this 

proposed rule. You may not have 

another opportunity to comment on 

these State program changes. If you 

want to comment on this action, you 

must do so at this time. For additional 

information, please see the direct final 

rule published in the ‘‘Rules and 

Regulations’’ section of this issue of the 

Federal Register. 

Dated: March 2, 2015. 

Heather McTeer Toney, 

Regional Administrator, Region 4. 

[FR Doc. 2015–06511 Filed 3–19–15; 8:45 am] 

BILLING CODE 6560–50–P 

FEDERAL COMMUNICATIONS 

COMMISSION 

47 CFR Part 76 

[MB Docket No. 15–53; FCC 15–30] 

Amendment to the Commission’s 

Rules Concerning Effective 

Competition; Implementation of 

Section 111 of the STELA 

Reauthorization Act 

AGENCY: Federal Communications 

Commission. 

ACTION: Proposed rule. 

SUMMARY: In this document, the 

Commission asks whether it should 

adopt a rebuttable presumption that 

cable operators are subject to effective 

competition. A franchising authority is 

permitted to regulate basic cable rates 

only if the cable system is not subject to 

effective competition. This proceeding 

will also implement section 111 of the 

STELA Reauthorization Act of 2014, 

which directs the Commission to adopt 

a streamlined effective competition 

process for small cable operators. 

DATES: Comments are due on or before 

April 9, 2015; reply comments are due 

on or before April 20, 2015. Written 

comments on the Paperwork Reduction 

Act proposed information collection 

requirements must be submitted by the 

public, Office of Management and 

Budget (OMB), and other interested 

parties on or before May 19, 2015. 

ADDRESSES: You may submit comments, 

identified by MB Docket No. 15–53, by 

any of the following methods: 

• Federal eRulemaking Portal: http:// 

www.regulations.gov. Follow the 

instructions for submitting comments. 

• Federal Communications 

Commission’s Web site: http://

fjallfoss.fcc.gov/ecfs2/. Follow the 

instructions for submitting comments. 

• Mail: Filings can be sent by hand or 

messenger delivery, by commercial 

overnight courier, or by first-class or 

overnight U.S. Postal Service mail. All 

filings must be addressed to the 

Commission’s Secretary, Office of the 

Secretary, Federal Communications 

Commission. 

mstockstill on DSK4VPTVN1PROD with PROPOSALS