[Federal Register Volume 83, Number 162 (Tuesday, August 21, 2018)]
[Rules and Regulations]
[Pages 42225-42227]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-17947]


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DEPARTMENT OF HEALTH AND HUMAN SERVICES

Administration for Children and Families

45 CFR Part 1355

RIN 0970-AC76


Adoption and Foster Care Analysis and Reporting System

AGENCY: Children's Bureau (CB); Administration on Children, Youth and 
Families (ACYF); Administration for Children and Families (ACF); 
Department of Health and Human Services (HHS).

ACTION: Final rule; delay of compliance and effective dates.

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SUMMARY: The Children's Bureau will delay the compliance and effective 
dates in the Adoption and Foster Care Analysis and Reporting System 
(AFCARS) 2016 final rule for title IV-E agencies to comply with agency 
rules for an additional one fiscal year. We are delaying the effective 
date due to our advanced notice of proposed rulemaking (ANPRM), 
published on March 15, 2018, seeking public comment on suggestions for 
streamlining the AFCARS data elements and removing any undue burden 
related to reporting AFCARS data.

DATES: This rule is effective on August 21, 2018. As of August 21, 
2018, the effective date for amendatory instructions 3 and 5, published 
December 14, 2016 at 81 FR 90524, is delayed to October 1, 2020.

FOR FURTHER INFORMATION CONTACT: Kathleen McHugh, Division of Policy, 
Children's Bureau at (202) 401-5789, <a href="/cdn-cgi/l/email-protection#cd8e8f8ea2a0a0a8a3b9be8dacaeabe3a5a5bee3aaa2bb"><span class="__cf_email__" data-cfemail="ecafaeaf8381818982989fac8d8f8ac284849fc28b839a">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION: In the AFCARS final rule issued on December 
14, 2016 (81 FR 90524), ACF provided an implementation timeframe of two 
fiscal years for title IV-E agencies to comply with Sec. Sec.  1355.41 
through 1355.47 (81 FR 90529). On February 24, 2017, the President 
issued Executive Order 13777 entitled ``Enforcing the Regulatory Reform 
Agenda''. In response to the President's direction that federal 
agencies establish a Regulatory Reform Task Force to review existing 
regulations and make recommendations regarding their repeal, 
replacement, or modification, the HHS Task Force identified the AFCARS 
regulation as one where there may be areas for reducing reporting 
burden.
    On March 15, 2018, ACF published a notice of proposed rulemaking 
(NPRM) proposing to revise the effective date in the regulation to 
provide an additional two fiscal years to comply with Sec. Sec.  
1355.41 through 1355.47 (83 FR 11450). The comment period ended on 
April 16, 2018. In response to the NPRM, we received 43 comments from 
12 states, six Indian tribes or consortia, three organizations 
representing tribal interests, and 22 other organizations and anonymous 
entities. The analysis of the comments may be found in the section-by-
section discussion of this final rule.
    Based on our analysis of the comments, in this final rule ACF 
revised Sec.  1355.40 to provide an additional fiscal year to comply 
with Sec. Sec.  1355.41 through 1355.47. This also serves as a notice 
to title IV-E agencies that we are delaying the implementation 
timeframe for title IV-E agencies to make revisions to their systems to 
comply with Sec. Sec.  1355.41 through 1355.47.
    ACF finds good cause for these amendments to become effective on 
the date of publication of this action. The APA allows an effective 
date less than 30 days after publication as ``provided by the agency 
for good cause found and published with the rule'' (5 U.S.C. 
553(d)(3)). A delayed effective date is unnecessary in this case 
because, as stated above, any delay might lead to

[[Page 42226]]

title IV-E agencies diverting resources to unnecessary changes to their 
data systems. Furthermore, this rule does not establish additional 
regulatory obligations or impose any additional burden on regulated 
entities. As a result, affected parties do not need time to prepare 
before the rule takes effect. Therefore, ACF finds good cause for these 
amendments to become effective on the date of publication of this 
action.

Section-by-Section Discussion

Section 1355.40 Foster Care and Adoption Data Collection

    We revised the effective dates in the regulation to provide an 
additional fiscal year to comply with Sec. Sec.  1355.41 through 
1355.47. State and tribal title IV-E agencies must continue to report 
AFCARS data in the same manner they do currently, per Sec.  1355.40 and 
appendices A through E of part 1355 until September 30, 2020. As of 
October 1, 2020, state and tribal title IV-E agencies must comply with 
Sec. Sec.  1355.41 through 1355.47.

Comment Analysis

    In general, all state commenters supported the delay and all of the 
Indian tribes, organizations representing tribal interests, and all but 
one organization opposed delaying implementation of the AFCARS 2016 
final rule. Commenters in support of the delay stated that the delay 
will provide time for states to fully analyze system, cost, and 
training work needed to meet new AFCARS requirements, revise and update 
systems (which may include instituting a Comprehensive Child Welfare 
Information System) to move to a CCWIS, and allows ACF time to provide 
needed technical assistance and guidance on the new AFCARS 
requirements. Commenters in opposition of a delay of the 2016 final 
rule stated that a delay deprives federal, state, and tribal 
governments of critical case-level data on information that is not 
currently reported to AFCARS that can be used to build an evidence base 
for federal, state, and tribal policymaking and guide budget decisions 
for achieving positive outcomes. They also stated that interested 
parties were already provided ample notice and opportunities to comment 
and the 2016 final rule thoroughly responded to comments.
    We understand both the support and opposition for a delay expressed 
by commenters. We understand that information reported to AFCARS is 
important and the 2016 final rule is the first update to the AFCARS 
regulations since 1993. We must balance the need for updated data with 
the needs of our grantees, the title IV-E agencies, that must revise 
their systems to meet new AFCARS requirements and will ultimately be 
held accountable via compliance and penalties to report the data (see 
45 CFR 1355.46 and 1355.47). Therefore, we believe that a balanced 
compromise is to delay implementation of the 2016 final rule for one 
year. This means that as of October 1, 2020, state and tribal title IV-
E agencies must comply with the revision to AFCARS made by the 2016 
final rule (Sec. Sec.  1355.41 through 1355.47).

Regulatory Impact Analysis

Executive Orders 12866, 13563, and 13771

    Executive Orders 12866 and 13563 direct agencies to assess all 
costs and benefits of available regulatory alternatives and, if 
regulation is necessary, to select regulatory approaches that maximize 
net benefits (including potential economic, environmental, public 
health and safety effects, distributive impacts, and equity). Executive 
Order 13563 emphasizes the importance of quantifying both costs and 
benefits, of reducing costs, of harmonizing rules, and of promoting 
flexibility. ACF consulted with the Office of Management and Budget 
(OMB) and determined that this rule does meet the criteria for a 
significant regulatory action under E.O. 12866. Thus, it was subject to 
OMB review. ACF determined that the costs to title IV-E agencies as a 
result of this rule will not be significant as defined in Executive 
Order 12866 (have an annual effect on the economy of $100 million or 
more or adversely affect in a material way the economy, a sector of the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or State, local, or tribal governments or 
communities). Because the rule is not economically significant as 
defined in E.O. 12866, no cost-benefit analysis needs to be included in 
this final rule. This final rule is considered an E.O. 13771 
deregulatory action.

Regulatory Flexibility Analysis

    The Secretary certifies, under 5 U.S.C. 605(b), as enacted by the 
Regulatory Flexibility Act (Pub. L. 96-354), that this final rule will 
not result in a significant impact on a substantial number of small 
entities. This final rule does not affect small entities because it is 
applicable only to state and tribal title IV-E agencies.

Unfunded Mandates Reform Act

    The Unfunded Mandates Reform Act (Pub. L. 104-4) requires agencies 
to prepare an assessment of anticipated costs and benefits before 
proposing any rule that may result in an annual expenditure by state, 
local, and tribal governments, in the aggregate, or by the private 
sector, of $100 million or more (adjusted annually for inflation). That 
threshold level is currently approximately $146 million. This final 
rule does not impose any mandates on state, local, or tribal 
governments, or the private sector that will result in an annual 
expenditure of $146 million or more.

Congressional Review

    This regulation is not a major rule as defined in 5 U.S.C. 8.

Executive Order 13132

    Executive Order 13132 requires that federal agencies consult with 
state and local government officials in the development of regulatory 
policies with Federalism implications. Consistent with E.O. 13132 and 
Guidance for Implementing E.O. 13132 issued on October 28, 1999, the 
Department must include in ``a separately identified portion of the 
preamble to the regulation'' a ``federalism summary impact statement'' 
(Secs. 6(b)(2)(B) & (c)(2)). The Department's ``federalism summary 
impact statement is as follows--
    <bullet> ``A description of the extent of the agency's prior 
consultation with State and local officials''--ACF held an 
informational call for the NPRM on April 5, 2018 and the public comment 
period was open from March 15, 2018 to April 16, 2018 where we 
solicited comments via regulations.gov, email, and postal mail.
    <bullet> ``A summary of the nature of their concerns and the 
agency's position supporting the need to issue the regulation''--As we 
discussed in the preamble to this final rule, state commenters support 
delaying the compliance date for the 2016 AFCARS final rule; however, 
Indian tribes, organizations representing tribal interests, and all but 
one organization opposed delaying implementation of the 2016 final 
rule. Our need for issuing this final rule is to provide the title IV-E 
agencies that must submit AFCARS time to revise systems to meet new 
AFCARS requirements. We provide an additional year to balance the need 
for updated data with the needs of our grantees.
    <bullet> ``A statement of the extent to which the concerns of State 
and local officials have been met'' (Secs. 6(b)(2)(B) &

[[Page 42227]]

6(c)(2))--As we discuss in the section-by-section discussion preamble, 
we proposed in the NPRM to delay for an additional two fiscal years the 
date by which title IV-E agencies must comply with the 2016 final rule. 
Our balance to meet the states' needs for a delay, as expressed in 
their comments, is to provide an additional one year.

Assessment of Federal Regulations and Policies on Families

    Section 654 of the Treasury and General Government Appropriations 
Act of 2000 (Pub. L. 106-58) requires federal agencies to determine 
whether a policy or regulation may affect family well-being. If the 
agency's determination is affirmative, then the agency must prepare an 
impact assessment addressing seven criteria specified in the law. This 
final rule will not have an impact on family well-being as defined in 
the law.

Paperwork Reduction Act

    Under the Paperwork Reduction Act (44 U.S.C. 35, as amended) (PRA), 
all Departments are required to submit to OMB for review and approval 
any reporting or recordkeeping requirements inherent in a proposed or 
final rule. PRA rules require that ACF estimate the total burden 
created by this proposed rule regardless of what information is 
available. ACF provides burden and cost estimates using the best 
available information. Information collection for AFCARS is currently 
authorized under OMB number 0970-0422. This final rule does not make 
changes to the AFCARS requirements for title IV-E agencies; it delays 
the effective date and provides title IV-E agencies with additional 
time to comply with Sec. Sec.  1355.41 through 1355.47. Thus, the 
annual burden hours for recordkeeping and reporting does not change 
from those currently authorized under OMB number 0970-0422. Therefore, 
we are not seeking comments on any information collection requirements 
through this final rule.

Tribal Consultation Statement

    ACF is committed to consulting with Indian tribes and tribal 
leadership to the extent practicable and permitted by law, prior to 
promulgating any regulation that has tribal implications. During the 
comment period, CB held an information session on April 5, 2018 where 
the NPRM was presented by CB officials. Prior to this information 
session, the NPRM was linked to on the CB website, a link to the NPRM 
was emailed to CB's tribal lists (on March 13, 2018 when the NPRM was 
available for public inspection and March 15, 2018 when the NPRM was 
published), and CB issued ACYF-CB-IM-18-01 (issued March 16, 2018). 
Additionally, ACF held a tribal consultation on November 6, 2017 during 
which tribes requested that ACF leave the 2016 final rule in place, 
stating that the ICWA-related data elements are very important for 
accountability. At a meeting with tribal representatives at the 
Secretary's Tribal Advisory Committee on May 9 and 10, 2018, 
representatives stated the following: they support the 2016 final rule; 
they have concerns that states are not following ICWA; the ICWA-related 
data elements are critical to informing Congress, HHS, states, and 
tribes on how Native children and families are doing in state child 
welfare systems; and AFCARS information would help inform issues such 
as foster care disproportionality.
    As we developed this final rule, we carefully considered the 
comments from Indian tribes and organizations representing tribal 
interests, whose comments were to not delay the implementation of the 
2016 final rule. However, we must balance the need for data with the 
needs of our grantees, the title IV-E agencies, that must revise their 
systems to meet new AFCARS requirements and will ultimately be held 
accountable via compliance and penalties to report the data.

List of Subjects in 45 CFR Part 1355

    Adoption and foster care, Child welfare, Grant programs--social 
programs.

(Catalog of Federal Domestic Assistance Program Number 93.658, 
Foster Care Maintenance; 93.659, Adoption Assistance; 93.645, Child 
Welfare Services--State Grants).

    Dated: July 20, 2018.
Steven Wagner,
Acting Assistant Secretary for Children and Families.
    Approved: July 25, 2018
Alex M. Azar II,
Secretary.

    For the reasons set forth in the preamble, we amend 45 CFR part 
1355 as follows:

PART 1355--GENERAL

0
1. The authority citation for part 1355 continues to read as follows:

    Authority: 42 U.S.C. 620 et seq., 42 U.S.C. 670 et seq.; 42 
U.S.C. 1302.


0
2. Amend Sec.  1355.40 by revising paragraph (a) to read as follows:


Sec.  1355.40  Foster care and adoption data collection.

    (a) Scope. State and tribal title IV-E agencies must follow the 
requirements of this section and appendices A through E of this part 
until September 30, 2020. As of October 1, 2020, state and tribal title 
IV-E agencies must comply with Sec. Sec.  1355.41 through 1355.47.
* * * * *
[FR Doc. 2018-17947 Filed 8-20-18; 8:45 am]
BILLING CODE 4184-25-P


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