[Federal Register Volume 89, Number 37 (Friday, February 23, 2024)]
[Proposed Rules]
[Pages 13652-13667]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-03373]


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DEPARTMENT OF HEALTH AND HUMAN SERVICES

Administration for Children and Families

45 CFR Part 1355

RIN 0970-AC98


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), U.S. 
Department of Health and Human Services (HHS).

ACTION: Notice of proposed rulemaking.

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SUMMARY: ACF proposes to amend the Adoption and Foster Care Analysis 
and Reporting System (AFCARS) regulations that require title IV-E 
agencies to collect and report data to ACF on children who enter out-
of-home care, their providers, and children who have a title IV-E 
adoption or guardianship assistance agreement to collect additional 
data related to Indian children.

DATES: In order to be considered, we must receive written comments on 
or before April 23, 2024.

ADDRESSES: ACF encourages the public to submit comments electronically 
to ensure they are received in a timely manner. Please be sure to 
include identifying information on correspondence. To download an 
electronic version of the proposed rule, please go to https://www.regulations.gov/. You may submit comments, identified by docket 
number and/or RIN number, by any of the following methods:
    <bullet> Federal eRulemaking Portal: https://www.regulations.gov. 
Follow the instructions for submitting comments.
    <bullet> Email: <a href="/cdn-cgi/l/email-protection#a8ebeaebc7c5c5cdc6dcdbe8c9cbce86c0c0db86cfc7de"><span class="__cf_email__" data-cfemail="327170715d5f5f575c4641725351541c5a5a411c555d44">[email protected]</span></a>. Include docket number and/
or RIN number in subject line of the message.
    Instructions: All submissions received must include the agency name 
and docket number or Regulatory Information Number (RIN) for this 
rulemaking. All comments received will be posted without change to 
www.regulations.gov, including any personal information provided.
    Docket: Go to the Federal eRulemaking Portal at https://www.regulations.gov for access to the rulemaking docket, including any 
background documents and the plain-language summary of the proposed 
rule of not more than 100 words in length required by the Providing 
Accountability Through Transparency Act of 2023.

FOR FURTHER INFORMATION CONTACT: Joe Bock, The Children's Bureau, (202) 
205-8618. Telecommunications Relay users may dial 711 first. Email 
inquiries to <a href="/cdn-cgi/l/email-protection" class="__cf_email__" data-cfemail="f6959495999b9b93988285b6979590d89e9e85d8919980">[email protected]</a>.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Statutory Authority To Issue NPRM
II. Background on AFCARS and Proposed Rule Development
III. Implementation Timeframe
IV. Public Participation
V. Section-by-Section Discussion of Regulatory Provisions
VI. Regulatory Impact Analysis
VII. Tribal Consultation Statement

I. Statutory Authority To Issue NPRM

    This NPRM is published under the authority granted to the Secretary 
of Health and Human Services (HHS) by section 1102 of the Social 
Security Act (the Act), 42 U.S.C. 1302. Section 1102 of the Act 
authorizes HHS to publish regulations, not inconsistent with the Act, 
as may be necessary for the efficient administration of the functions 
for which HHS is responsible under the Act. Section 479 of the Act (42 
U.S.C. 679) mandates HHS regulate a data collection system for national 
adoption and foster care data. Section 474(f) of the Act (42 U.S.C. 
674(f)) requires HHS to impose penalties for non-compliant AFCARS data.

II. Background on AFCARS and Proposed Rule Development

Statute

    AFCARS is authorized by section 479 of the Act (42 U.S.C. 679), 
which mandates that HHS regulate a data collection system for national 
adoption and foster care data. The regulation at 45 CFR 1356.60(d) and 
the statute at 42 U.S.C. 674(a)(3) detail cost-sharing requirements for 
the Federal and non-Federal share of data collection system initiation, 
implementation, and operation. A title IV-E agency may claim Federal 
Financial Participation (FFP) at the rate of 50 percent for costs of a 
data collection system specified by section 479 of the Act (42 U.S.C. 
679). AFCARS data is used for a variety of requirements, including but 
not limited to, providing national statistics on the child welfare 
population, budgeting, providing reports to Congress, and monitoring 
compliance with the title IV-B and IV-E requirements. Title IV-E 
agencies must submit data files on a semi-annual basis to ACF. AFCARS 
regulations were first published in 1993 and states began submitting 
data in fiscal year (FY) 1995. AFCARS is regulated at 45 CFR 
1355.41-.47.

[[Page 13653]]

Recent Regulatory History

    ACF published a final rule revising the AFCARS regulations on 
December 14, 2016 (81 FR 90524, hereafter referred to as the ``2016 
final rule''). The rule reflected child welfare legislative changes 
that occurred since 1993 and included many new data elements including 
information related to the Indian Child Welfare Act of 1978 (ICWA), and 
about the sexual orientation of the child and their providers (i.e., 
foster parents, adoptive parents, and legal guardians), and implemented 
statutory fiscal penalties for non-compliant AFCARS data. This rule was 
never implemented. Before that rule became effective, ACF published a 
rule delaying the implementation timeframe (83 FR 42225, August 21, 
2018). On May 12, 2020, ACF published a final rule to again amend the 
AFCARS regulations (85 FR 28410, hereafter referred to as the ``2020 
final rule''). The 2020 final rule eliminated some of the data elements 
that were promulgated in the 2016 final rule and reduced the level of 
detail in others. The Executive Orders and actions leading to the 2020 
final rule are explained in detail in the preambles to the following 
issuances: Advance Notice of Proposed Rulemaking (ANPRM) issued March 
15, 2018 (83 FR 11449); NPRM issued April 19, 2019 (84 FR 16572); and 
the 2020 final rule, issued May 12, 2020 (85 FR 28410). The 2020 final 
rule was implemented on October 1, 2022, and title IV-E agencies are 
now required to report AFCARS data as codified in the regulation at 45 
CFR 1355.41-.47. Title IV-E agencies were required to submit the first 
data files with this information to ACF in May 2023. More information 
is available on the CB website at: https://www.acf.hhs.gov/cb/data-research/afcars-technical-assistance.
    Some of the data elements that were eliminated or altered in the 
2020 final rule related to reporting on the details of ICWA's 
procedural protections (see also discussion at 84 FR 16573, 16575, 
16577, and 85 FR 28411, and 28412). Other data elements, such as 
reporting on transition plans, educational stability, and health 
assessment dates and whether they were timely, were also eliminated or 
altered (see also 84 FR 16576 and 85 FR 28411).

Current NPRM Development

    We are now proposing adding data elements and revising some of the 
current data elements to report more detailed information related to 
ICWA's procedural protections to AFCARS, in order to fulfill the AFCARS 
statutory mandate to provide comprehensive national information on the 
demographics of ``adoptive and foster children and their biological and 
adoptive foster parents'', ``the status of the foster care 
population'', and ``the extent and nature of assistance provided by 
Federal, state, and local adoption and foster care programs and the 
characteristics of the children with respect to whom such assistance is 
provided'' (section 479(c)(3) of the Act (42 U.S.C. 679(c)(3))).
    For American Indian and Alaska Native (AI/AN) children, who are 
subject to both Title IV-E of the Social Security Act and ICWA, it is 
impossible to fully understand their experiences in foster care without 
understanding the extent to which they receive the procedural 
protections of ICWA. ICWA was enacted in 1978 to ``promote the 
stability and security of Indian tribes and families by the 
establishment of minimum Federal standards for the removal of Indian 
children from their families and the placement of such children in 
foster or adoptive homes which will reflect the unique values of Indian 
culture.'' \1\ 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; and that the States, 
exercising their recognized jurisdiction over Indian child custody 
proceedings through 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.'' \2\ These longstanding practices cause significant harm to 
Indian children by unnecessarily separating them from their families 
and communities. As the Supreme Court affirmed in its 2023 decision 
upholding ICWA:
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    \1\ 25 U.S.C. 1902.
    \2\ 25 U.S.C. 1901(4) and (5).
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    In 1978, Congress enacted the Indian Child Welfare Act (ICWA) out 
of concern 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.'' 92 Stat. 3069, 25 
U.S.C. 1901(4). Congress found that many of these children were being 
``placed in non-Indian foster and adoptive homes and institutions,'' 
and that the States had contributed to the problem by ``fail[ing] to 
recognize the essential tribal relations of Indian people and the 
cultural and social standards prevailing in Indian communities and 
families.'' Sec. Sec.  1901(4), (5). . . . The Act thus aims to keep 
Indian children connected to Indian families.
Haaland v. Brackeen, 143 S. Ct. 1609, 1623 (2023)
    Congress recognized when it passed ICWA that the minimum Federal 
standards established by ICWA ``for the removal of Indian children from 
their families and the placement of these children in foster or 
adoptive homes'' were needed to counter the longstanding state policies 
and practices that contributed to the disproportionate removal of 
Indian children from their families and communities (see 81 FR 38779, 
June 14, 2016). ICWA's key protections include:

--A presumption that cases regarding foster care placement or 
termination of parental rights should be transferred to tribal courts 
if the parent, Indian custodian, or Indian tribe so requests (25 U.S.C. 
1911(b));
--The right for Indian tribes and Indian custodians to intervene in 
state court proceedings regarding foster care placement and termination 
of parental rights (25 U.S.C. 1911(c));
--Requirement that a party seeking foster care placement or termination 
of parental rights for an Indian child must notify the parent or Indian 
custodian and the Indian child's tribe (25 U.S.C. 1912(a));
--Requirement to make active efforts to provide services to prevent the 
breakup of the Indian family before seeking foster care placement or 
termination of parental rights to an Indian child (25 U.S.C. 1912(d));
--Requirement that termination of parental rights may only be ordered 
if the court has determined that continued custody of the child by the 
parent or Indian custodian is likely to result in serious emotional or 
physical damage to the child. The determination must be supported by 
evidence beyond a reasonable doubt, including the testimony of 
qualified expert witnesses (25 U.S.C. 1912(f) and 25 CFR 23.122).

    However, inconsistent state practices in implementation ``ha[ve] 
led to significant variation in applying ICWA's statutory terms and 
protections'' (see 81 FR 38779, June 14, 2016). A final rule issued by 
the Department of Interior, Bureau of Indian Affairs (BIA) noted that 
at the time of ICWA's passage, ``Congress found that removal of 
children and unnecessary termination of parental rights were utilized 
to separate Indian children from their Indian

[[Page 13654]]

communities'' and that ``[t]he standards used by State and private 
child-welfare agencies to assess Indian parental fitness promoted 
unrealistic non-Indian socioeconomic norms and failed to account for 
legitimate cultural differences in Indian families'' (81 FR 38780, June 
14, 2016). Additionally, there have been studies indicating that 
implementation of ICWA is inconsistent.\3\ Forty-five years after the 
passage of ICWA, AI/AN children continue to be over-represented in the 
child welfare system: during FY 2021, AI/AN children made up one 
percent of the U.S. child population, but two percent of the child 
welfare population.\4\ Additionally, recent data shows that AI/AN 
children are at greater risk than other children of being confirmed for 
maltreatment and placed in out-of-home care.\5\ The American Academy of 
Pediatrics (AAP) recently stated in their Amicus brief to the Supreme 
Court for Haaland v. Brackeen, ``[R]emoving an AI/AN child from the 
child's parents and then failing to foster the child in an AI/AN 
community where possible would present a significant risk of 
exacerbating existing trauma--particularly by precluding the 
opportunity for the child to experience, internalize, and gain strength 
from the child's AI/AN community and culture, as well as the 
relationships that come with that community.'' \6\ And generally, 
studies show that procedural bias, such as lack of notice to Tribal 
parents in child welfare cases, contributed to displacements of AI/AN 
children from their communities.\7\ Additionally, adverse childhood 
experiences \8\ and generational/historical trauma \9\ contribute to 
disparate outcomes of AI/AN youth. Specifically related to adverse 
childhood experiences, AI/AN children are more likely than children in 
the total U.S. population to have lived in poverty (27.8 versus 19.5 
percent), been a victim of violence or witnessed violence in their 
neighborhood (15.9 versus 11.6 percent) and lived with a person with a 
substance use disorder (23.6 versus 11.6 percent).\10\
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    \3\ See also A Research and Practice Brief: Measuring Compliance 
with the Indian Child Welfare Act, Casey Family Programs (2015) 
https://www.casey.org/media/measuring-compliance-icwa.pdf.
    \4\ 4,622 children with a reported race (per 45 CFR 
1355.44(b)(7)) of AI/AN entered foster care during FY 2021 (AFCARS 
Report 29). While that is two percent of the child welfare 
population, AI/AN children made up one percent of the child 
population (Child Welfare Information Gateway (2021) Child Welfare 
Practice to Address Racial Disproportionality and Disparity, https://www.childwelfare.gov/pubs/issue-briefs/racial-disproportionality/). 
We also want to note that the reported race of AI/AN is the closest 
we have to understanding whether a child is an ``Indian child'' as 
defined in ICWA at 25 U.S.C. 1903, as of FY 2021.
    \5\ Ibid.
    \6\ See page 21, retrieved from https://www.supremecourt.gov/DocketPDF/21/21-376/234042/20220819140750948_21-376.amics.brief.FINAL.pdf.
    \7\ Ryan Seelau, Regaining Control Over the Children: Reversing 
the Legacy of Assimilative Policies in Education, Child Welfare, and 
Juvenile Justice that Targeted Native American Youth, 37 a.m. INDIAN 
L. REV. 63 (2012), https://digitalcommons.law.ou.edu/ailr/vol37/iss1/3.
    \8\ National Indian Child Welfare Association, State of American 
Indian/Alaska Native Children and Families, Part 3: Adverse 
Childhood Experiences and Historical Trauma, (2022) https://www.nicwa.org/wp-content/uploads/2022/11/NICWA-State-of-AIAN-Children-and-Families-Report-PART-3.pdf.
    \9\ Ehlers CL, Gizer IR, Gilder DA, Ellingson JM, Yehuda R. 
Measuring historical trauma in an American Indian community sample: 
contributions of substance dependence, affective disorder, conduct 
disorder and PTSD. Drug Alcohol Depend. 2013 Nov 1;133(1):180-7. 
doi: 10.1016/j.drugalcdep.2013.05.011. Epub 2013 Jun 20. PMID: 
23791028; PMCID: PMC3810370. https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3810370/.
    \10\ Around Him, D. & DeMand A., American Indians and Alaska 
Natives Must Be Included in Research on Adverse Childhood 
Experiences Child Trends, (2018) https://www.childtrends.org/blog/american-indians-alaska-natives-adverse-childhood-experiences.
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    We anticipate that gathering more ICWA-related data would help ACF, 
researchers, and other policymakers better understand the status and 
experiences of AI/AN children and families interacting with the state 
child welfare systems and better address the continuing 
overrepresentation in foster care and other poor outcomes that AI/AN 
children experience. More complete data collection would provide a 
foundation for improved policy development, targeted technical 
assistance, and focused resource. This could assist in efforts to 
mitigate disproportionality for AI/AN children and families, support 
pathways to timely permanency for these children, and help maintain the 
integrity of tribal communities.
    ACF also seeks additional input on how the data from this NPRM may 
be used and particularly seeks to understand how this data may be of 
utility via national statistics. ACF wishes to understand from states 
specifically on the utility of the data. Since it has been many years 
since the 2016 final rule and states have submitted data files under 
the 2020 final rule, ACF wishes to understand the state perspective for 
today's NPRM.
    Under the 2020 rule, the ICWA-related information currently 
reported to AFCARS is:
    <bullet> whether the child, mother, father, foster parents, 
adoptive parents, and legal guardians are tribal members,
    <bullet> whether the state made inquiries whether the child is an 
Indian child as defined in ICWA,
    <bullet> the date that the state was notified by the Indian tribe 
or state or tribal court that ICWA applies, and
    <bullet> whether the Indian child's tribe(s) was sent legal notice.
    While that is helpful, it does not provide sufficient information 
about the unique factors particular to AI/AN children to meaningfully 
inform policymaking. Collecting more data elements related to ICWA's 
procedural protections would enable HHS, other Federal agencies, and 
the states to target policy development, training, and technical 
assistance to specific areas of need.
    ACF recognizes that this proposed rulemaking represents a change in 
approach from our most recent AFCARS rulemaking, the 2020 final rule, 
which had substantially reduced the number of ICWA data elements to be 
collected in AFCARS from those that were required under the 2016 final 
rule. This proposed rulemaking includes nearly all of the ICWA data 
elements from the 2016 final rule that were not included in the 2020 
final rule, with some modified to reduce the reporting burden. As ACF 
has given the matter further consideration since issuing the 2020 final 
rule, ACF has determined that it is in the best interest to collect 
these additional data elements. Collecting these additional data 
elements related to ICWA's protections would provide critical 
information about ICWA's procedural protections. These procedural 
protections were affirmed in the 2023 Brackeen decision upholding ICWA, 
reaffirming ICWA's importance in addressing the longstanding practices 
that caused harm to Indian children by unnecessarily separating them 
from their families and communities. Also, collecting this data may 
provide insight into potential areas for technical assistance and 
supports to help improve child welfare outcomes. As we explained in the 
Supplemental Notice of Proposed Rulemaking in 2016, we view robust 
ICWA-related data as necessary to allow ACF to: assess the current 
state of adoption and foster care programs and relevant trends that 
affect AI/AN families; address the unique needs of AI/AN children in 
foster care and their families by clarifying how the ICWA requirements 
and title IV-E/IV-B requirements interact in practice; improve training 
and technical assistance to help states comply with titles IV-E and IV-
B of the Social Security Act for AI/AN children; develop future 
national policies concerning AI/AN children served by

[[Page 13655]]

child welfare programs; and inform and expand partnerships across 
Federal agencies that invest in Indian families and promote resilient, 
thriving tribal communities (81 FR 20283, April 17, 2016). Upon further 
consideration, ACF believes that these reasons remain equally valid now 
in determining the need for ICWA-related data collection.
    While ACF's role is not to enforce state compliance with ICWA--that 
role falls to the Department of Interior's Bureau of Indian Affairs--it 
is ACF's role, in part, to ensure that state child welfare systems 
appropriately serve all children, including AI/AN children, and to set 
national child welfare policy that takes into account the needs of all 
foster and adoptive children. Additionally, there is no other 
comprehensive, national data collection related to ICWA that can inform 
our understanding of the experiences of tribal children in the child 
welfare system. Given the long history of removal of AI/AN children 
from their families and communities, the unique cultural considerations 
that apply to tribes,\11\ and Congress's determination that the ICWA 
procedural protections are essential for AI/AN children and 
families,\12\ we have determined that collecting robust ICWA-related 
data concerning AI/AN children in the child welfare system can provide 
valuable insights for ACF, states, tribes and policymakers. ACF is the 
most appropriate agency in the Federal government to collect data from 
state child welfare agencies. The proposed collection of ICWA-related 
data will allow ACF and other stakeholders to better understand how the 
ICWA procedural protections are operating in the context of child 
welfare, whether implementation of those protections results in 
improved outcomes for children, and where states are struggling to 
implement them or in need of additional resources.
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    \11\ EagleWoman (Wambdi A. WasteWin), Sisseton-Wahpeton Dakota 
Oyate of the Lake Traverse Reservation, Angelique and G. William 
Rice, United Keetoowah Band of Cherokee Indians in Oklahoma. 
American Indian Children and U.S. Policy. Tribal Law Journal 16, 1 
(2016). https://digitalrepository.unm.edu/tlj/vol16/iss1/2.
    \12\ 25 U.S.C. 1901 and 1902.
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    We understand that in establishing these additional data elements, 
this proposed data collection would put an additional burden on state 
child welfare agencies. However, this will be the case for any 
additional data collection requirements. We have given this serious 
consideration, both out of concern for the effective functioning of 
those systems in their core function of serving at-risk families and 
because the AFCARS statute requires ACF to ``avoid unnecessary 
diversion of resources from agencies responsible for adoption and 
foster care'' when regulating AFCARS (section 479(c)(1) of the Act (42 
U.S.C. 679(c)(1))). We are mindful of the cost to state title IV-E 
agencies of collecting this data, but at the same time, we are mindful 
of the costs to AI/AN children, families, and tribes, as well as ACF, 
states, and policymakers, of not collecting the data. While any data 
collection requirement imposes costs, the key consideration under the 
statute is whether such costs result in an ``unnecessary diversion of 
resources'' from agencies. ACF proposes to collect robust ICWA-related 
data in order to understand and identify policies to address the 
disproportionality of AI/AN child involvement in the child welfare 
system.<SUP>13 14</SUP> On balance, we have determined that the value 
of collecting the data outweighs the burden it imposes, and that any 
cost imposition is not ``unnecessary.''
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    \13\ Child Welfare Information Gateway (2021) Child Welfare 
Practice to Address Racial Disproportionality and Disparity, https://www.childwelfare.gov/pubs/issue-briefs/racial-disproportionality/.
    \14\ See literature review on protective factors research and 
calls for further research to assess protective factors for AI/AN 
children: Henson M., Sabo S., Trujillo A., Teufel-Shone N. 
Identifying Protective Factors to Promote Health in American Indian 
and Alaska Native Adolescents: A Literature Review. J Prim Prev. 
2017 Apr;38(1-2):5-26. doi: 10.1007/s10935-016-0455-2. PMID: 
27826690; PMCID: PMC5313316.
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    In coming to this conclusion, we have considered the comments that 
we received on the 2018 ANPRM and the 2019 NPRM. Thirty-three states 
commented in 2018 and nine state/local agencies in 2019 expressing 
concern with the 2016 ICWA data reporting requirements.\15\ They 
expressed concern that the requirements were too specific for a 
national data set and are better suited for a qualitative review.\16\ 
Four states also reported that under one percent of the children in 
their out-of-home care population were ICWA-applicable. Of the few 
states that supported including the ICWA-related data elements (three 
in 2018 and three in 2019), they said that they had higher numbers of 
tribal children and supported including some additional ICWA-related 
data elements to better inform policy decisions and program management.
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    \15\ 84 FR 16,572 at 74.
    \16\ 84 FR 16,572 at 74.

--In contrast, all of the Indian tribes/consortiums and organizations 
that represent Tribal interests that commented, supported maintaining 
all of the ICWA-related data elements from the 2016 final rule. They 
argued that the data elements should be maintained because: ICWA has 
been law for 40 years but there has been little in-depth data and 
limited Federal oversight regarding this law.
--Collecting ICWA-related data in AFCARS is a step in the right 
direction to ensure that Indian families are kept together when 
possible and provide insight into state compliance with ICWA's 
requirements.
--Without any uniform, national data regarding ICWA's requirements, 
policymakers do not understand the scope of issues to inform policy 
changes.
--While some Indian tribes reported good working relationships with 
some states, the commenters expressed concerns that there are children 
in state custody who are not identified as Indian children and thus are 
not protected under ICWA.\17\
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    \17\ 84 FR 16,572 at 74.

    We also note that in both 2018 and 2019, there were significant 
comments submitted by researchers, non-governmental organizations with 
relevant expertise, and other stakeholders and advocates. While these 
commenters were typically not in a position to address issues relating 
to costs of compliance, their comments were informative in considering 
the utility of the potential data collection. In the 2019 preamble, ACF 
stated that the ``majority of these commenters opposed streamlining the 
data [as compared with what was required in 2016] for reasons similar 
to the commenters representing tribal interests, such as underscoring 
the importance of certain casework activities and showing national 
trends. The advocates, tribes, and commenters representing tribal 
interests expressed that:
    <bullet> Currently, there are few data collection efforts at the 
state and Federal level that provide meaningful data on American Indian 
and Alaska Native (AI/AN) children under the custody of state child 
welfare authorities and how ICWA is applied in their cases. This 
population is overrepresented within state foster care systems 
nationally--in some states by as much as 10 times their population 
rate. The Federal protections that ICWA provides these children and 
their families have the potential to reduce disproportionality and 
achieve permanency for these children. However, without the Federal 
government collecting more detailed case-level data, it is impossible 
to know how many AI/AN children are receiving ICWA protections. 
Collecting this data will also help the Administration for

[[Page 13656]]

Children and Families (ACF) provided targeted assistance to states 
where there are implementation concerns.'' This comment was provided by 
the National Indian Child Welfare Association.
    <bullet> States should currently be asking questions that ascertain 
whether a child is an Indian child as defined in ICWA, including 
inquiring about the family's tribal membership status;
    <bullet> Specific data elements on notification of proceedings and 
transfers to tribal court are important because the timelines in ICWA 
are rarely met; and
    <bullet> Information on termination of parental rights, removals 
under ICWA, and placement preferences are important for determining 
ICWA compliance (84 FR 16574).
    Most other advocacy organizations opposed reducing the data 
elements as compared with what was required under the 2016 rule for 
reasons similar to the commenters representing tribal interests, such 
as underscoring the importance of certain casework activities and 
showing national trends. The commenters provided broad commentary on 
the benefit of having new data outweighs the burden of having to report 
it (84 FR 16574). In the 2020 final rule preamble, all Indian tribes, 
tribal organizations or consortiums, and organizations representing 
tribal interests opposed reducing the ICWA-related data elements 
primarily because they felt that all data elements in the 2016 final 
rule were needed to assess ICWA compliance, and that national 
information is important to address disparities, analyze outcomes, and 
help in working with Indian children and families (85 FR 28411). The 
national advocacy organizations and other individuals or entities that 
commented expressed general opposition to the reduction of required 
data elements for various reasons with the general sentiment being that 
the 2016 final rule would provide more insight into the foster care 
population, promote visibility for marginalized groups, and allow data-
informed legislating, policy, and program decisions (85 FR 28411). The 
reasons set forth above align with ACF's need for including the 
expanded ICWA-related data elements.
    In the 2019 NPRM, we had concluded that the concerns articulated by 
a set of states weighed in favor of significantly reducing the number 
of ICWA-related data elements from the 2016 final rule and proposed to 
reduce required ICWA reporting. In coming to that conclusion, among 
other reasons, we took the position that it was overly burdensome to 
require all states to modify their data systems to collect data that 
would only apply to a small percentage of children. However, while all 
states would have to modify their data systems to allow for collection 
of the proposed data elements, and report information from court 
orders, agency caseworkers will only have to actually collect and enter 
the new ICWA-related data elements proposed here for those children to 
whom ICWA in fact applies, so the ongoing burden on states with small 
AI/AN populations would be low (84 FR 16572, April 19, 2019).
    In the 2020 final rule, we provided additional justification for 
the decision not to include additional ICWA-related data elements: (1) 
HHS is not the cognizant agency over implementing, overseeing, or 
assessing compliance with ICWA and thus is not able to interpret 
various ICWA requirements; (2) the IV-B statute at section 422(b)(9) of 
the Act (42 U.S.C. 622(b)(9)) does not provide authority for ACF to 
collect ICWA-related data in AFCARS; (3) the AFCARS statute does not 
authorize ACF to collect data in AFCARS for purposes of assessing 
states' compliance with ICWA; and (4) ACF would not be able to release 
specific information regarding a child's tribal membership or ICWA 
applicability to requestors, except to the Indian tribe in which the 
child is or may be a member, in order to protect confidentiality given 
the low numbers of children to whom ICWA applies. 85 FR at 28, 412-13.
    Upon further consideration, we do not consider any of these points 
reasons to not collect the proposed data. First, ACF has never 
contended that HHS is the cognizant agency with responsibilities over 
implementing, overseeing, or assessing compliance with ICWA. Collecting 
the proposed data would provide valuable insights into the experiences 
of tribal children in the child welfare system, and the data would not 
be collected to implement, oversee or assess compliance with ICWA. ACF 
will consult with BIA to ensure that ACF's guidance is consistent with 
BIA's interpretations of the ICWA statute and regulations, but not 
because ACF has any role in ICWA enforcement.
    Second, Section 422(b)(9) of the Act (42 U.S.C. 622(b)(9)) requires 
states to include in their child welfare services plans a description, 
developed after consultation with tribal organizations of the specific 
measures taken by the State to comply with ICWA. Neither in 2016 nor 
now is ACF relying on Section 422(b)(9) as authority for this proposed 
regulation, though the existence of Section 422(b)(9) does underscore 
Congress' recognition of the importance of ICWA compliance in the work 
of child welfare agencies.
    The third point noted above--that the AFCARS statute does not 
authorize ACF to collect data in AFCARS for purposes of assessing 
states' compliance with ICWA--largely misses the point of this data 
collection. As discussed above, it is not to assess ICWA compliance, 
but rather to better understand the experiences of tribal children 
whose cases are subject to the requirements of ICWA.
    The fourth point above was that ACF would not be able to release 
specific information regarding a child's tribal membership or ICWA 
applicability except to the Indian tribe in which the child is or may 
be a member in order to protect confidentiality. ACF had reached this 
decision in light of the need to ensure privacy and confidentiality as 
several states have less than a handful of Indian children in foster 
care. There is a significant privacy interest in that the information 
given could reveal a child's identity, which could allow the 
identification of children. Safeguarding information of children in 
small jurisdictions is consistent with existing practice. The current 
practice for small populations in jurisdictions is to aggregate the 
data into larger groups so that those children cannot be identified. 
This current practice would not change under this NPRM. Accordingly, 
this reduces the availability of data on Indian children to non-tribal 
members when there are small numbers of children in foster care. 
Nevertheless, ACF does not believe this is a sufficient basis for not 
moving forward with the rule.
    In the 2020 Final Rule, ACF also based the decision not to 
reinstate additional ICWA-related data elements in part on concerns 
about the reliability and consistency of the data (85 FR 28411 and 
28419). ACF's current understanding is that caseworkers would have to 
draw language from court orders and possibly transcripts to be able to 
report the specific information in these proposed data elements, and 
that this may be difficult at times. Furthermore, ACF's current belief 
is that information and actions taken to meet ICWA's requirements may 
be performed by the courts themselves, and therefore the state title 
IV-E agency currently cannot always guarantee they have the accurate 
information for reporting the AFCARS data elements. Both of these 
possibilities may raise questions about reliability, but they can be 
addressed through training and technical assistance. In order to better 
inform its understanding, ACF seeks comment from states on how this 
work is done currently, whether the information is available in the 
case management

[[Page 13657]]

system or data fields that could be extracted for AFCARS reporting, and 
what measures states are taking to ensure the reliability of the data. 
With this information, ACF believes that it can provide specific and 
tailored technical assistance and training to states to address any 
reliability concerns. ACF plans to work with BIA on implementation of 
an eventual final rule and will work with BIA to clarify what 
information is required to be reviewed and interpreted so that agencies 
can input and report the proper data for AFCARS. ACF will also work 
with BIA to address instances where court orders are not clear or if 
specific information is missing within and how that affects AFCARS 
reporting. Given the importance of this data and why AFCARS is the 
right mechanism to collect it, as explained in the preamble, ACF is 
committed to providing the tailored technical assistance and training 
needed to help address any data reliability issues that may arise and 
believes it is sufficiently reliable to be worth collecting.
    As studies cited previously in this preamble demonstrate, there are 
disproportionately negative outcomes generally for AI/AN children, 
youth, and families, AI/AN children continue to be over-represented in 
the child welfare system and are at greater risk than other children of 
being confirmed for maltreatment and placed in out-of-home care. Having 
more data on ICWA's procedural requirements may help these issues. ACF 
realizes that all states have or are in the process of modifying their 
data systems to collect the new data elements, largely unrelated to 
ICWA, required by the 2020 final rule. ACF also realizes that adding 
additional data elements to state data collection systems will present 
an additional financial and personnel cost and that the data is 
qualitative in nature, meaning that it likely will be more costly and 
time-consuming to report because, we understand, that the information 
is in paper files or case notes, and not already within data fields 
ready for reporting. However, ACF no longer sees these as sufficient 
reasons to not require reporting of ICWA procedural requirements in 
AFCARS. AFCARS may be modified when needed, for example, to reflect 
legislative changes and other changing needs for particular kinds of 
data. We plan to build in time for states to make the needed 
modifications and invite comments on what timeframe they would see as 
sufficient.
    Regarding reliance interests of states for this AFCARS NPRM, ACF 
interprets this to mean that states may be relying on the 2020 final 
rule remaining in place the way it is. States are in the process of 
updating information systems to be able to report the 2020 final rule 
appropriately because most were not compliant in the first data file 
submission that occurred in May 2023. State will have to expend costs 
to implement an eventual final rule, as estimated in the Burden 
estimate section of this preamble. However, the AFCARS regulations may 
be amended at any time to accommodate changes in law, policy, or other 
matters that are tied to the title IV-B/IV-E programs. Accordingly, ACF 
does not view this NPRM as implicating states' reliance interests.

Executive Orders 13985 and 14091

    This NPRM is consistent with the administration's priority of 
advancing equity for those historically underserved and adversely 
affected by persistent poverty and inequality (Executive Order 13985 
Advancing Racial Equity and Support for Underserved Communities Through 
the Federal Government, Jan. 20, 2021 and 14091 Further Advancing 
Racial Equity and Support for Underserved Communities Through the 
Federal Government, Feb. 16, 2023). Research well-documents the 
overrepresentation of certain racial and ethnic groups in foster care 
relative to their representation in the general population. American 
Indian or Alaska Native children are at greater risk than other 
children of being confirmed for maltreatment and placed in out-of-home 
care. They stay in foster care longer. For example, they are less 
likely to reunify with their families.\18\ Additionally, ACF, in using 
the additional data proposed in this NPRM, could use it to better 
understand opportunities to advance equity related to the disparate 
outcomes faced by AI/AN children in foster care.
---------------------------------------------------------------------------

    \18\ Child Welfare Information Gateway, 2021, Child welfare 
practice to address racial disproportionality and disparity, U.S. 
Department of Health and Human Services, Administration for Children 
and Families, Children's Bureau. https://www.childwelfare.gov/pubs/issue-briefs/racial-disproportionality/.
---------------------------------------------------------------------------

Summary of Proposal

    Currently, state title IV-E agencies report the following related 
to ICWA in AFCARS:
    <bullet> Tribal membership of the child, mother, father, foster 
parents, adoptive parents, and legal guardians--Sec.  1355.44(b)(4), 
(c)(3) and (4), (e)(10) and (15), and (h)(4) and (9).
    <bullet> Whether the state made inquiries whether the child is an 
Indian child as defined in ICWA--Sec.  1355.44(b)(3).
    <bullet> Whether ICWA applies for the child and the date that the 
state was notified by the Indian tribe or state or tribal court that 
ICWA applies--Sec.  1355.44(b)(5).
    <bullet> Whether the Indian child's tribe(s) was sent legal 
notice--Sec.  1355.44(b)(6).
    Our proposal is to require state title IV-E agencies to revise some 
of the current data elements to report more detailed information on 
ICWA's procedural protections in section 1355.43(b) and to add data 
elements on certain aspects of ICWA's procedural protections for 
requests for transfers to tribal court, termination/modification of 
parental rights, and foster care, pre-adoptive and adoptive placement 
preferences, in a new Sec.  1355.44(i).
    In summary, we propose to require state title IV-E agencies to 
report the following additional information related to ICWA's 
procedural protections:
    <bullet> Whether the state inquired with certain individuals as to 
whether the child is an Indian child as defined in ICWA and when the 
agency first discovered information indicating that the child is or may 
be an Indian child as defined in ICWA (section 1355.44(b)(3) and (4)).
    <bullet> Information on whether a court determined that ICWA 
applies for the child, and whether the court decision included 
testimony of one or more qualified expert witnesses was included for 
voluntary and involuntary terminations of parental rights, and removals 
(section 1355.44(b)(6), (i)(2), (3), and (4)).
    <bullet> Whether the child's parent or Indian custodian was sent 
notice in accordance with ICWA (section 1355.44(b)(5)).
    <bullet> Information on requests to transfer cases to Tribal court 
(section 1355.44(i)(1)).
    <bullet> Information on meeting the placement preferences under 
ICWA (section 1355.44(i)(5)-(8) and (10)-(13)).
    <bullet> Whether the court determined that the IV-E agency made 
active efforts to prevent the breakup of the Indian family (section 
1355.44(i)(9)).
    The section-by-section preamble explains in detail how we propose 
the current CFR be amended to include the new information to report.

III. Implementation Timeframe

    Implementation of changes to the AFCARS data elements as described 
in this NPRM and a precise effective date are dependent on the issuance 
of a final rule. We anticipate providing state title IV-E agencies with 
at least two full fiscal years before we will require them to collect 
and report additional data elements. We seek state title IV-E

[[Page 13658]]

agency comments on the timeframe based on their experiences with 
implementation of the 2020 final rule.

IV. Public Participation

    ACF welcomes comments on all aspects of this proposed rule. ACF 
specifically seeks comments on the potential benefits and disadvantages 
of including this data in AFCARS, and from state title IV-E agencies on 
the cost and burden to incorporate this proposal into their 
administrative data sets, including information on the following 
because this will be used to inform the burden estimates in the 
Paperwork Reduction Act section of an eventual final rule (see VI. 
Regulatory Impact Analysis):
    <bullet> An estimate of recordkeeping hours to be spent annually to 
gather and enter the information proposed in this NPRM into the 
agency's electronic case management system, training and administrative 
tasks associated with training personnel on these requirements (e.g., 
reviewing instructions, developing training and manuals), and 
developing or modifying procedures and systems to collect, validate, 
and verify the information and adjusting existing ways to comply with 
AFCARS requirements.
    <bullet> Reporting hours spent annually extracting the information 
proposed in this NPRM for AFCARS reporting and transmitting to ACF.

V. Section-By-Section Discussion of Regulatory Provisions

    References throughout this proposed rule to ``child'' or 
``children'' are inclusive of youth and young adults aged 18 or older 
who are served by the title IV-E and IV-B programs. We use these terms 
in the regulatory text and section-by-section preamble discussion 
because these are used throughout the title IV-E and IV-B statute and 
regulations.

Severability

    For the reasons described above, ACF believes that its authority to 
implement each of the provisions in the proposed regulation is well-
supported in law and practice and should be upheld in any legal 
challenge. ACF also believes that its exercise of its authority 
reflects sound policy. However, in the event that any portion of the 
proposed rule is declared invalid, ACF intends that the other 
provisions be severable.
Section 1355.43 Data Reporting Requirements
    This section contains data reporting requirements for AFCARS, such 
as report periods and deadlines for submitting data files, and 
descriptions of data quality errors. We propose technical edits to 
amend paragraphs (b)(1) and (2) to correct cross references to data 
elements in Sec.  1355.44 and remove paragraph (b)(3) to eliminate 
obsolete dates.
Section 1355.44 Out-of-Home Care Data File Elements
    This section contains the data element descriptions for the Out-of-
Home Care Data File.
Section 1355.44(b) Child Information
    Paragraph (b) contains specific information for the identified 
child who is in the Out-of-Home Care Reporting Population.
    Researching reason to know a child is an ``Indian Child'' as 
defined in ICWA. In paragraph (b)(3), we propose that the state title 
IV-E agency report whether it researched whether there is reason to 
know that the child is an Indian child as defined in ICWA. We propose 
to require that the information in each paragraph (b)(3)(i) through 
(vi) is reported by the state title IV-E agency, which is whether it 
inquired with the following entities: the child; the child's biological 
or adoptive mother and father; the child's Indian custodian; and the 
child's extended family (as defined in ICWA). The state title IV-E 
agency must also indicate whether the domicile or residence of the 
child, the child's parent, or the child's Indian custodian is on a 
reservation or in an Alaska Native village. This proposal replaces and 
expands the current data element in Sec.  1355.44(b)(3) that asks 
whether the state title IV-E agency made inquiries as to whether the 
child is an Indian child as defined in ICWA, with a yes/no response 
option.
    Child's tribal membership and reason to know. In paragraph (b)(4), 
we propose that the state title IV-E agency continue to report 
information on the child's tribal membership and the state's discovery 
of information that the child may be an Indian child as defined in 
ICWA. In paragraphs (b)(4)(i) and (ii), we propose that the state title 
IV-E agency continue to report whether the child is a member of or 
eligible for membership in a Federally recognized Indian tribe, and if 
``yes,'' the state title IV-E agency must indicate all Federally 
recognized Indian tribe(s) that may potentially be the Indian child's 
tribe(s). This information is currently reported in Sec.  
1355.44(b)(4)(i) and (ii) and is used to help identify children in the 
out-of-home care reporting population who are or may be tribal members.
    In paragraphs (b)(4)(iii) and (iv), we propose to require the state 
title IV-E agency to indicate whether it knows or has reason to know 
that the child is an Indian child as defined in ICWA, and if ``yes,'' 
then the state title IV-E agency must indicate the date that it first 
discovered the information indicating the child is or may be an Indian 
child as defined in ICWA. The information reported for paragraphs 
(b)(4)(iii) and (iv) and (6) (discussed below) would replace the 
current data element in Sec.  1355.44(b)(5), which requires the state 
IV-E agency to report only whether ICWA applies and if so, the date the 
state title IV-E agency was notified, because this proposal is 
requiring a state title IV-E agency to report more details related to 
ICWA's procedural requirements on ``reason to know''.
    Notification. In paragraph (b)(5), we propose to require that the 
state title IV-E agency report whether certain entities were sent 
notice in accordance with ICWA. In paragraph (b)(5)(i) and (ii), we 
propose that the state title IV-E agency report whether the Indian 
child's tribe(s) was sent legal notice in accordance with 25 U.S.C. 
1912(a) (which is currently required in Sec.  1355.44(b)(6)) and newly 
require that if ``yes,'' the state title IV-E agency must report the 
Indian tribe(s) that were sent notice. In paragraph (b)(5)(iii), we 
propose that the state title IV-E agency report whether the Indian 
child's parent or Indian custodian was sent legal notice prior to the 
first child custody proceeding in accordance with 25 U.S.C. 1912(a). 
These data elements replace and expand on the information reported for 
the current data element in Sec.  1355.44(b)(6) that asks whether the 
Indian child's tribe(s) was sent legal notice with yes/no response 
options.
    Application of ICWA. In paragraph (b)(6), we propose that the state 
title IV-E agency report information related to ICWA's application. In 
paragraph (b)(6)(i), we propose to require the state title IV-E agency 
to report whether a court determined that ICWA applies or that the 
court is applying ICWA because it knows or has reason to know a child 
is an Indian child as defined in ICWA in accordance with 25 CFR 
23.107(b)(2). If the state title IV-E agency indicates ``yes, ICWA 
applies,'' then it must complete paragraphs (b)(6)(ii) and (iii) and 
new paragraph (i) of this section. In paragraphs (b)(6)(ii) and (iii), 
we propose to require that the state title IV-E agency report the date 
that the court determined that ICWA applies and the Indian tribe that 
the court determined is the Indian child's tribe for ICWA purposes. The 
information reported for paragraphs (b)(6) and (4)(iii) and (iv) (as 
discussed above) would replace and expand the current data element in

[[Page 13659]]

Sec.  1355.44(b)(5) which only requires reporting whether ICWA applies 
and if so, the date the state title IV-E agency was notified that ICWA 
applies. Additionally, we propose to require that the state title IV-E 
agency report the data elements in new paragraph (i) of this section, 
if it reports ``yes, ICWA applies'' in paragraph (b)(6)(i). If the 
state title IV-E agency indicates ``no'' or ``unknown'' in paragraph 
(b)(6)(i), then the state title IV-E agency must leave new paragraph 
(i) blank. This instruction prompts state title IV-E agencies to report 
additional information for children to whom ICWA applies in new 
paragraph (i) of this section.
Section 1355.44(i) Data Elements Related to ICWA
    In new paragraph (i), we propose to obtain information on certain 
requirements related to ICWA. This paragraph applies only to state 
title IV-E agencies that reported ``yes, ICWA applies'' in paragraph 
(b)(6)(i); otherwise, the state title IV-E agency must leave paragraph 
(i) blank. Tribal title IV-E agencies do not report information in 
paragraph (i). This section is new and is an expansion of the ICWA-
related information state title IV-E agencies are currently required to 
report under Sec.  1355.44. The information proposed to be reported 
relate to transfers to tribal court, involuntary and voluntary 
terminations/modifications or parental rights, active efforts, and 
placement preferences under ICWA.
    Request to transfer to tribal court. In paragraphs (i)(1)(i) and 
(ii), we propose to require the state title IV-E agency to report 
whether the child's case record indicated a request to transfer to 
tribal court for each removal date reported in Sec.  1355.44(d)(1). If 
the state title IV-E agency indicates ``yes,'' it must report whether 
the child's case record indicated that there was a denial of the 
request to transfer to tribal court in paragraph (i)(1)(ii).
    Involuntary termination/modification of parental rights under ICWA. 
In paragraph (i)(2), we propose to require that the state title IV-E 
agency report information on involuntary terminations or modifications 
of parental rights under ICWA. The state title IV-E agency must 
complete this paragraph if it indicated ``involuntary'' in Sec.  
1355.44(c)(5). In paragraph (i)(2)(i), we propose to require that the 
state title IV-E agency indicate whether the state court found beyond a 
reasonable doubt that continued custody of the Indian child by the 
parent or Indian custodian is likely to result in serious emotional or 
physical damage to the Indian child in accordance with 25 U.S.C. 
1912(f). In paragraph (i)(2)(ii), we propose to require that the state 
title IV-E agency report whether the court decision to involuntarily 
terminate parental rights included the testimony of one or more 
qualified expert witnesses in accordance with 25 U.S.C. 1912(f). In 
paragraph (i)(2)(iii), we propose to require that the state title IV-E 
agency report whether, prior to terminating parental rights, the court 
concluded that active efforts had been made to prevent the breakup of 
the Indian family and that those efforts were unsuccessful in 
accordance with 25 U.S.C. 1912(d).
    Voluntary termination/modification of parental rights under ICWA. 
In paragraph (i)(3), we propose to require the state title IV-E agency 
to report information on voluntary terminations or modifications of 
parental rights under ICWA. The state title IV-E agency must complete 
the information in this paragraph if it indicated the termination of 
parental rights was ``voluntary'' in Sec.  1355.44(c)(5). In paragraph 
(i)(3)(i) through (iii), we propose, in accordance with 25 CFR 23.125, 
that the state title IV-E agency indicate whether the consent to 
termination of parental or Indian custodian rights was:
    <bullet> Executed in writing.
    <bullet> Recorded before a court of competent jurisdiction.
    <bullet> Accompanied with a certification by the court that the 
terms and consequences of consent were explained on the record in 
detail and were fully understood by the parent or Indian custodian in 
accordance with 25 CFR 23.125(a) and (c).
    The state title IV-E agency must indicate ``yes'' or ``no'' for 
each paragraph.
    Removals under ICWA. In paragraph (i)(4), we propose to require 
that the state title IV-E agency report information on removals under 
ICWA, for each date reported in Sec.  1355.44(d)(1). In paragraph 
(i)(4)(i), we propose to require the state title IV-E agency to 
indicate whether the court order for foster care placement was made as 
a result of clear and convincing evidence that continued custody of the 
Indian child by the parent or Indian custodian was likely to result in 
serious emotional or physical damage to the Indian child in accordance 
with 25 U.S.C. 1912(e) and 25 CFR 23.121(a). In paragraph (i)(4)(ii), 
we propose to require that the state title IV-E agency indicate whether 
the evidence presented for foster care placement, as reported in 
paragraph (i)(4)(i), included the testimony of a qualified expert 
witness in accordance with 25 U.S.C. 1912(e) and 25 CFR 23.121(a). In 
paragraph (i)(4)(iii), we propose to require that the state title IV-E 
agency indicate whether the evidence presented for foster care 
placement, as reported in paragraph (i)(4)(i), indicates that prior to 
each removal date reported in paragraph (d)(1) of this section, active 
efforts have been made to prevent the breakup of the Indian family and 
that those efforts were unsuccessful in accordance with 25 U.S.C. 
1912(d).
    Available ICWA foster care and pre-adoptive placement preferences. 
In paragraph (i)(5), we propose to require that the state title IV-E 
agency report which foster care or pre-adoptive placements (reported in 
Sec.  1355.44(e)(1)) that meet the placement preferences of ICWA in 25 
U.S.C. 1915(b) and (c) were willing to accept placement for the child, 
from a list of five options. The following five options in paragraph 
(i)(5)(i) through (v) are: A member of the Indian child's extended 
family (as defined in ICWA); a foster home licensed, approved, or 
specified by the Indian child's tribe; an Indian foster home licensed 
or approved by an authorized non-Indian licensing authority; an 
institution for children approved by an Indian tribe or operated by an 
Indian organization which has a program suitable to meet the Indian 
child's needs; and a placement that complies with the order of 
preference for foster care or pre-adoptive placements established by an 
Indian child's tribe. The state title IV-E agency must indicate in each 
paragraph (i)(5)(i) through (v) ``yes,'' or ``no,'' or ``not 
applicable.'' If the Indian child's tribe established a different order 
of preference by resolution in accordance with 25 U.S.C. 1915(c), the 
state title IV-E agency must complete paragraph (i)(5)(v) and leave 
paragraph (i)(5)(i) through (iv) blank.
    Foster care and pre-adoptive placement preferences under ICWA. In 
paragraph (i)(6), we propose to require that the state title IV-E 
agency report whether each of the Indian child's foster care or pre-
adoptive placements (reported in Sec.  1355.44(e)(1)) meet the 
placement preferences of ICWA at 25 U.S.C. 1915(b) and (c) by 
indicating with whom the Indian child is placed from a list of six 
response options: a member of the Indian child's extended family; a 
foster home licensed, approved, or specified by the Indian child's 
tribe; an Indian foster home licensed or approved by an authorized non-
Indian licensing authority; an institution for children approved by an 
Indian tribe or operated by an Indian organization which has a program 
suitable to meet the Indian child's needs; placement that complies with 
the

[[Page 13660]]

order of preference for foster care or pre-adoptive placements 
established by an Indian child's tribe; or placement does not meet ICWA 
placement preferences.
    Good cause under ICWA and Basis for good cause, foster care. For 
placements that do not meet the ICWA placement preferences (reported in 
paragraph (i)(6)), we propose to require that the state title IV-E 
agency report in paragraph (i)(7) whether the court determined by clear 
and convincing evidence, on the record or in writing, a good cause to 
depart from the ICWA placement preferences in accordance with 25 U.S.C. 
1915(b) or to depart from the placement preferences of the Indian 
child's tribe in accordance with 25 U.S.C. 1915(c). If the response is 
``yes,'' then the state title IV-E agency must complete paragraph 
(i)(8), in which we propose to require that the state title IV-E agency 
report the state court's basis for determining good cause to depart 
from the ICWA placement preferences. The state title IV-E agency must 
indicate ``yes'' or ``no'' in each paragraph (i)(8)(i) through (v):
    <bullet> Request of one or both of the Indian child's parents.
    <bullet> Request of the Indian child.
    <bullet> The unavailability of a suitable placement after a 
determination by the court that a diligent search was conducted to find 
suitable placements meeting the placement preferences in ICWA at 25 
U.S.C. 1915, but none has been located.
    <bullet> The extraordinary physical, mental, or emotional needs of 
the Indian child, such as specialized treatment services that may be 
unavailable in the community where families who meet the placement 
preferences live.
    <bullet> The presence of a sibling attachment that can be 
maintained only through a particular placement.
    Active efforts. In paragraph (i)(9), we propose to require that the 
state title IV-E agency indicate whether it made active efforts to 
prevent the breakup of the Indian family in accordance with 25 U.S.C. 
1912(d) and 25 CFR 23.2.
    Available ICWA adoptive placements. If the state title IV-E agency 
indicated the child exited to adoption in Sec.  1355.44(g)(3) Exit 
reason, we propose in paragraph (i)(10) to require that the state title 
IV-E agency indicate which adoptive placements from a list of four were 
willing to accept placement of the child. The following four options in 
paragraphs (i)(10)(i) through (iv) are: a member of the Indian child's 
extended family; other members of the Indian child's tribe; other 
Indian families; a placement that complies with the order of preference 
placements established by an Indian child's tribe. If the Indian 
child's tribe established a different order of preference by resolution 
in accordance with 25 U.S.C. 1915(c), the state title IV-E agency must 
complete paragraph (i)(10)(iv) and leave paragraph (i)(10)(i) through 
(iii) blank.
    Adoption placement preferences under ICWA. If the state title IV-E 
agency indicated the child exited to adoption in Sec.  1355.44(g)(3) 
Exit reason, we propose to require in paragraph (i)(11) that the state 
title IV-E agency indicate whether the child's adoptive placement meets 
the adoptive placement preferences of ICWA in 25 U.S.C. 1915(a) or (c) 
by indicating with whom the Indian child is placed from a list of the 
following five options: a member of the Indian child's extended family; 
other members of the Indian child's tribe; other Indian families; 
placement that complies with the order of preference for adoptive 
placements established by an Indian child's tribe; or placement does 
not meet ICWA placement preferences.
    Good cause under ICWA and Basis for good cause, adoption. For 
placements that do not meet the ICWA placement preferences (as reported 
in paragraph (i)(11)), we propose to require that the state title IV-E 
agency indicate in paragraph (i)(12) whether the court determined by 
clear and convincing evidence, on the record or in writing, a good 
cause to depart from the ICWA placement preferences under 25 U.S.C. 
1915(a) or to depart from the placement preferences of the Indian 
child's tribe under 25 U.S.C. 1915(c). If the response for paragraph 
(i)(12) is ``yes,'' then the state title IV-E agency must complete 
paragraph (i)(13), in which we propose to require that the state title 
IV-E agency report the state court's basis for determining good cause 
to depart from the ICWA placement preferences. The state title IV-E 
agency must indicate ``yes'' or ``no'' in each paragraph (i)(13)(i) 
through (v):
    <bullet> Request of one or both of the child's parents.
    <bullet> Request of the Indian child.
    <bullet> The unavailability of a suitable placement after a 
determination by the court that a diligent search was conducted to find 
suitable placements meeting the adoptive placement preferences in ICWA 
at 25 U.S.C. 1915, but none has been located.
    <bullet> The extraordinary physical, mental, or emotional needs of 
the Indian child, such as specialized treatment services that may be 
unavailable in the community where families who meet the adoptive 
placement preferences live.
    <bullet> The presence of a sibling attachment that can be 
maintained only through a particular adoptive placement.

VI. Regulatory Impact Analysis

Regulatory Planning and Review Executive Orders 12866, 13563, and 14094

    Executive Orders 12866, 13563, and 14094 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 is supplemental to, and reaffirms the principles, 
structures, and definitions governing regulatory review as established 
in Executive Order 12866, emphasizing the importance of quantifying 
both costs and benefits, of reducing costs, of harmonizing rules, and 
of promoting flexibility. Section 3(f) of Executive Order 12866 defines 
``a significant regulatory action'' and was modified by Executive Order 
14094 to mean as ``any regulatory action that is likely to result in a 
rule that may: (1) have an annual effect on the economy of $200 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, territorial, or 
tribal governments or communities; (2) create a serious inconsistency 
or otherwise interfere with an action taken or planned by another 
agency; (3) materially alter the budgetary impacts of entitlement 
grants, user fees, or loan programs or the rights and obligations of 
recipients thereof; or (4) raise novel legal or policy issues for which 
centralized review would meaningfully further the President's 
priorities, or the principles set forth in the Executive Order, as 
specifically authorized in a timely manner by the Administrator of OIRA 
in each case''. A regulatory impact analysis must be prepared for rules 
determined to be significant regulatory actions within the scope of 
section 3(f)(1) of Executive Order 12866. ACF consulted OMB and 
determined that this proposed rule meets the criteria for a significant 
regulatory action under Executive Order 12866 and was subject to OMB 
review.
Costs and Benefits
    AFCARS is the only comprehensive case-level data set on the 
incidence and experiences of children who are in out-of-home care under 
the placement and care of the title IV-E agency or who are

[[Page 13661]]

under a title IV-E adoption or guardianship assistance agreement. The 
statute requires that AFCARS provide comprehensive national information 
with respect to these children. Collecting robust ICWA-related data 
will provide the major benefit of allowing ACF to better understand the 
underlying reasons for the disproportionality of AI/AN child 
involvement in the child welfare system.\19\
---------------------------------------------------------------------------

    \19\ Child Welfare Information Gateway (2021) Child Welfare 
Practice to Address Racial Disproportionality and Disparity, https://www.childwelfare.gov/pubs/issue-briefs/racial-disproportionality/.
---------------------------------------------------------------------------

    Federal reimbursement under title IV-E will be available for a 
portion of the costs that state title IV-E agencies will incur as a 
result of the revisions in this proposed rule, depending on each state 
title IV-E agency's cost allocation plan, information system, and other 
factors. Estimated costs to the Federal Government are provided below 
in the Burden estimate section. We estimate the Federal portion of the 
overall information collection costs to be $2,216,786.
Alternatives Considered
    Federal agencies must justify the need for regulatory action and 
consider a range of policy alternatives. We speak to two alternatives 
that were considered and rejected.
    <bullet> ACF considered not expanding the ICWA related data 
elements in AFCARS. An alternative course of action would be to do 
nothing and leave the requirements at Sec.  1355.44 in place because 
they were streamlined in the 2020 final rule in response to comments 
solicited at that time. We rejected this option because of the reasons 
described earlier in the NPRM. Under this alternative, state title IV-E 
agencies would continue to report the ICWA-related data required 
through the 2020 final rule. However, this information would not be 
robust enough to provide the data on AI/AN children needed to 
understand their experiences in the foster care system.
    <bullet> ACF also considered the alternative of implementing a 
process to monitor ICWA's procedural protections through a case review 
outside of AFCARS. We decided against that approach because we believe 
that requiring state title IV-E agencies to collect and report 
information related to the more detailed aspects of ICWA's procedural 
protections via AFCARS is preferable because it will result in 
comprehensive national data. AFCARS data is required to be ``reliable 
and consistent over time and among jurisdictions through the use of 
uniform definitions and methodologies'' and ``provide comprehensive 
national information'' for the reporting populations (section 479(c)(2) 
and (3) of the Act (42 U.S.C. 679(c)(2) and (3))). The fact that the 
statutory penalties for noncompliant AFCARS submissions apply to data 
proposed under this NPRM may incentivize agencies to provide timely and 
complete data submissions (section 474(f) of the Act (42 U.S.C. 674)). 
(Note that agencies are afforded an opportunity to correct and resubmit 
noncompliant data files, as outlined in 45 CFR 1355.46.)

Congressional Review

    The Congressional Review Act (CRA) allows Congress to review major 
rules issued by Federal agencies before the rules take effect (see 5 
U.S.C. 801(a)(1)(A)). The CRA defines a ``major rule'' as one that has 
resulted, or is likely to result, in (1) an annual effect on the 
economy of $100 million or more; (2) a major increase in costs or 
prices for consumers; individual industries; Federal, State, or local 
government agencies; or geographic regions; or (3) significant adverse 
effects on competition, employment, investment, productivity, or 
innovation, or on the ability of United States-based enterprises to 
compete with foreign-based enterprises in domestic and export markets 
(see 5 U.S.C. chapter 8). OMB's Office of Information and Regulatory 
Affairs has determined that this final rule does not meet the criteria 
set forth in 5 U.S.C. 804(2).

Regulatory Flexibility Analysis

    The Regulatory Flexibility Act (RFA) (see 5 U.S.C. 605(b) as 
amended by the Small Business Regulatory Enforcement Fairness Act) 
requires Federal agencies to determine, to the extent feasible, a 
rule's impact on small entities, explore regulatory options for 
reducing any significant impact on a substantial number of such 
entities, and explain their regulatory approach. The term ``small 
entities,'' as defined in the RFA, comprises small businesses, not-for-
profit organizations that are independently owned and operated and are 
not dominant in their fields, and governmental jurisdictions with 
populations of less than 50,000. HHS considers a rule to have a 
significant impact on a substantial number of small entities if it has 
at least a three percent impact on revenue on at least 5 percent of 
small entities. However, the Secretary proposes to certify, under 5 
U.S.C. 605(b), as enacted by the RFA (Pub. L. 96-354), that this 
rulemaking will not result in a significant impact on a substantial 
number of small entities. This proposed rule does not affect small 
entities because it is applicable only to state title IV-E agencies. 
Therefore, an initial regulatory flexibility analysis is not required 
for this proposed rule.

Unfunded Mandates Reform Act

    The Unfunded Mandates Reform Act of 1995 (UMRA) (Pub. L. 104-4) was 
enacted to avoid imposing unfunded Federal mandates on state, local, 
and tribal governments, or on the private sector. Section 202 of UMRA 
requires that agencies assess anticipated costs and benefits before 
issuing any rule whose mandates require spending in any one year of 
$100 million in 1995 dollars, updated annually for inflation. In 2023, 
that threshold is approximately $177 million. This proposed rule does 
not contain mandates that will impose spending costs on state, local, 
or tribal governments in the aggregate, or on the private sector, in 
excess of the threshold.

Assessment of Federal Regulations and Policies on Families

    Section 654 of the Treasury and General Government Appropriations 
Act of 2000 requires Federal agencies to determine whether a policy or 
regulation may negatively affect family well-being. If the agency 
determines a policy or regulation negatively affects family well-being, 
then the agency must prepare an impact assessment addressing seven 
criteria specified in the law. ACF believes it is not necessary to 
prepare a family policymaking assessment (see Pub. L. 105-277) because 
the action it takes in this NPRM would not have any impact on the 
autonomy or integrity of the family as an institution.

Executive Order 13132

    Executive Order 13132 on Federalism requires that Federal agencies 
consult with state and local government officials in the development of 
regulatory policies with Federalism implications. Consistent with 
Executive Order 13132, we specifically solicit comment from State and 
local government officials on this proposed rule.

Paperwork Reduction Act

    This proposed rule contains information collection requirements 
(ICRs) that are subject to review by OMB under the Paperwork Reduction 
Act (PRA) of 1995, 44 U.S.C. 3501-3520. PRA of 1995 sought to minimize 
government-imposed burden from information collections on the public. 
In keeping with the notion that

[[Page 13662]]

government information is an asset, it also is intended to improve the 
practical utility, quality, and clarity of information collected, 
maintained, and disclosed. The PRA defines ``information'' as any 
statement or estimate of fact or opinion, regardless of form or format, 
whether numerical, graphic, or narrative form, and whether oral or 
maintained on paper, electronic, or other media (5 CFR 1320.3(h)). A 
description of the PRA provisions is given in the following paragraphs 
with an estimate of the annual burden. To fairly evaluate whether an 
information collection should be approved by OMB, the Department 
solicits comment on the following issues:
    <bullet> The need for the information collection and its usefulness 
in carrying out the proper functions of our agency.
    <bullet> The accuracy of our estimate of the information collection 
burden.
    <bullet> The quality, utility, and clarity of the information to be 
collected.
    <bullet> Recommendations to minimize the information collection 
burden on the affected public, including automated collection 
techniques.
    Information collection for AFCARS is currently authorized under OMB 
number 0980-0267. This proposed rule contains information collection 
requirements in proposed Sec.  1355.44 the Out-Of-Home Care Data File 
that the Department has submitted to OMB for its review. We propose to 
require that state title IV-E agencies report ICWA-related information 
for children who are in the Out-of-Home Care Reporting Population 
(Sec.  1355.42(a)) for the data elements proposed in Sec.  1355.44(b) 
and (i).
Burden Estimate
    The following are estimates.
    Discussion: ACF estimates the burden and costs associated with this 
NPRM using the estimates from the 2020 final rule as a base by which to 
estimate the burden of adding the ICWA-related data elements as 
proposed in this NPRM. The 2020 final rule estimates can be seen 
beginning at 85 FR 28421. Through this comment solicitation, ACF 
anticipates further informing the burden estimate for an eventual final 
rule. This NPRM has a narrow focus in that we propose to add data 
elements related to ICWA's procedural protections applicable only to 
state title IV-E agencies. Because ICWA does not apply to tribal title 
IV-E agencies, they do not have to report the data elements proposed in 
this NPRM, thus they are not included in this burden estimate. ACF 
believes that the public comments on this proposal will provide 
valuable information regarding the cost and burden to implement the 
changes proposed in this NPRM. Specifically, state title IV-E agencies 
will be able to consider their cost and burden to implement the current 
AFCARS requirements finalized in 2020.
    Respondents: The respondents comprise 52 state title IV-E agencies.
    Recordkeeping burden: Searching data sources, gathering 
information, and entering the information into the system, developing 
or modifying procedures and systems to collect, validate, and verify 
the information and adjusting existing ways to comply with AFCARS 
requirements (including testing), administrative tasks associated with 
training personnel on the AFCARS requirements (e.g., reviewing 
instructions, developing the training and manuals), and training 
personnel on AFCARS requirements. We understand that actual burden 
hours and costs will vary due to sophistication and capacity of 
information systems and availability of staff and financial resources, 
thus this is an average across states. We want to note though, that 
regardless of the size of the state's population of children in out-of-
home care to whom ICWA applies, recordkeeping tasks such as training 
and modifications to IT systems will still need to occur because the 
state must be prepared to report the applicable AFCARS data elements 
should a child enter the reporting population.
    Reporting burden: Extracting the information for AFCARS reporting 
and transmitting the information to ACF, which includes modifying, or 
developing a new data file for reporting.

Assumptions for Estimates

    We made several assumptions when calculating the burden and costs:
    <bullet> Base Estimated Burden Hours: ACF used the recordkeeping 
and reporting burden hours from the 2020 final rule as the base for 
estimating the burden hours for state title IV-E agencies resulting 
from the additional data elements proposed. The 2020 final rule 
estimated 17,076 Recordkeeping and 34 Reporting total annual burden 
hours for each title IV-E agency.
    <bullet> Number of children in out-of-home care: To determine the 
number of children for which state title IV-E agencies will have to 
report the expanded ICWA-related data in the Out-of-Home Care Data File 
on average, ACF used the most recent FY 2021 AFCARS data available 
(report #29): 206,812 children entered in foster care during FY 2021. 
Of those, 4,622 children had a race of AI/AN reported in Sec.  
1355.44(b)(7). We used the number of children who entered foster care 
rather than the entire population of children in foster care because 
agencies will not have to collect and report all data elements on all 
children in foster care and using this number allows the estimate to 
accommodate those variances between individual child cases and 
circumstances.
    <bullet> Additional and Revised Data Elements for State Title IV-E 
Agencies: The current Out-of-Home Care Data File contains 186 data 
points (see Appendix A of Technical Bulletin #20). ACF proposes to 
revise or add in the Out-Of-Home Care Data File approximately 45 data 
points related to state title IV-E agencies reporting the expanded 
ICWA-related information. This represents revisions to some of the 
current ICWA-related data elements to expand information to be reported 
in Sec.  1355.44(b)(3) through (6), which is a 5 percent increase in 
data points for state title IV-E agencies to report for all children 
who enter foster care (10 new data points/186 current data points = 
0.05); and proposed new data points to be added in Sec.  1355.44(i), 
which is a 19 percent increase in data points for state title IV-E 
agencies to report for children to whom ICWA applies (35 new data 
points/186 current data points = 0.19). These percent increases in data 
points will be used in calculating the reporting and recordkeeping 
burden for state title IV-E agencies as a result of this NPRM. We 
understand from states during the implementation period of the 2020 
final rule and state comments in 2018 and 2019 (see 84 FR 16573 and 85 
FR 28411 respectively) that to report the new information related to 
ICWA, much work will need to be accomplished to examine paper or 
electronic case notes, court records, court orders, and other documents 
to locate the needed information and enter it into the case management 
system. We also understand that the burden associated with this bullet 
will vary across jurisdictions, depending on how robust the agency's 
electronic case management system is and the availability of documents.
    <bullet> Systems changes: As of May 2023, 46 state title IV-E 
agencies have declared that they are implementing or intend to 
implement a Comprehensive Child Welfare Information Systems (CCWIS) 
(see 45 CFR 1355.50 et seq. for requirements). ACF recognizes that 
state title IV-E agencies will require revisions to electronic case 
management systems to meet the requirements proposed in this NPRM, 
regardless of CCWIS status. As more title IV-E agencies build CCWIS, 
ACF anticipates it will lead to more efficiency in reporting, however, 
we understood from previous AFCARS

[[Page 13663]]

rulemakings that the bulk of the information that informs ICWA-related 
data elements is located in state agency paper files or court 
documents.
    <bullet> Labor rate: ACF assumes that there will be a mix of the 
following positions working to meet both the one-time and annual 
requirements of this proposed rule. We understand that approximately 
half of the state title IV-E agencies will utilize a contract to 
implement IT/case management systems changes to comply with an eventual 
final rule based on state advance planning documents approved by ACF. 
To inform this estimate, we also reviewed 2022 Bureau of Labor 
Statistics data for job roles in categories of information technology 
(IT) and computer programming, administrative, management, caseworkers, 
subject matter experts, and legal staff and used the average hourly 
wage for each job role. We used the job roles for social services and 
legal staff who may be employed by the child welfare agency and 
systems/engineer staff who may be employed by the agency or retained by 
a contract to build or revise case management systems. The wages are 
described below, and by averaging them, we get a labor rate of $92.
    [cir] Office and Administrative Support Occupations (43-0000) 
(e.g., administrative assistants, data entry, legal secretaries, 
government program eligibility interviewers, information and record 
clerks) at $21.90, Social and Community Service Managers (11-9151) at 
$38.13, Community and Social Service Operations (21-0000) (e.g., Social 
Workers, Child and Family Social Workers, Counselors, Social Service 
Specialists) at $26.81, Social Workers (21-1020) at $28.58, Child, 
Family, and School Social Workers (21-2021) at $27.25, and Paralegals 
and Legal Assistants (23-2011) at $30.21. Computer Information and 
Systems Managers (11-3021) at $83.49, Computer and Mathematical 
Occupations (15-0000) (e.g., computer and information analysts, 
computer programmers, and database and systems administrators) at 
$51.99, Information Security Analysts (15-1212) at $57.63, Computer 
Hardware Engineers (17-2061) at $67.71, Database Administrators (15-
1242) at $49.29, Database Architects (15-1243) at $65.65, and Computer 
Programmers (15-1251) at $49.42. The average labor rate for these wages 
is $46 and to account for associated overhead costs, ACF doubled this 
rate, which is $92.

Calculations for Estimates

    Recordkeeping Burden Estimate for State Title IV-E Agencies: Adding 
the burden hours estimated in the bullets below produced a total of 
48,183 recordkeeping hours annually, as summarized below.
    <bullet> Searching data sources, gathering information, and 
entering the information into the case management system for children 
who enter foster care, ACF estimates that this would take on average 
44,875 hours annually. The 2020 final rule estimated these tasks to be 
4.02 hours annually for each child who entered foster care for all 2020 
final rule data points. For this NPRM, the expanded ICWA related 
information proposed to be added in:
    [cir] Section 1355.44(b)(3) through (6) is a 5 percent increase in 
data points to report for all children who enter foster care (4.02 x 
0.05 = 0.20 hours). These data points apply to all children who enter 
foster care (0.20 hours x 206,812 children = 41,362 hours).
    [cir] Section 1355.44(i) is a 19 percent increase in data points to 
report for children to whom ICWA applies (4.02 x 0.19 = 0.76 hours). We 
are using a child's reported race as AI/AN as a proxy for a child to 
whom ICWA applies (0.76 hours x 4,622 children = 3,513 hours).
    [cir] The total estimate of searching/gathering/entering 
information into the case management system is 48,194 annual burden 
hours (41,362 + 3,513 = 44,875).
    <bullet> Developing or modifying standard operating procedures and 
IT systems to collect, validate, and verify the information and adjust 
existing ways to comply with the AFCARS requirements, and testing is 
estimated at 1,608 hours annually. The 2020 final rule estimated 6,700 
hours for these tasks for all 2020 final rule data points. For this 
NPRM, the expanded ICWA-related information proposed to be added in:
    [cir] Section 1355.44(b)(3) through (6) is a 5 percent increase in 
data points to report for all children who enter foster care (6,700 x 
0.05 = 335 hours).
    [cir] Section 1355.44(i) is a 19 percent increase in data points to 
report for children to whom ICWA applies (6,700 x 0.19 = 1,273 annual 
hours).
    <bullet> The total estimate of modifying IT systems and adjust 
existing ways to comply with the NPRM is 1,621 annual burden hours (335 
+ 1,273 = 1,608). Administrative tasks associated with training 
personnel on the NPRM requirements (e.g., reviewing instructions, 
developing training and manuals) and training personnel on the 
requirements of this NPRM, we estimate will take on average 1,700 
annual burden hours. We understand that training hours will vary 
depending on the size of the agency's workforce needing training, the 
current training conducted regarding ICWA, therefore ACF assumes that 
implementing the data elements proposed here will be incorporated in 
ongoing training efforts. The 2020 final rule estimated 7,086 hours for 
all 2020 final rule data points. For this NPRM, the information 
proposed to be added in:
    [cir] Section 1355.44(b)(3) through (6) is a 5 percent increase in 
data points to report for all children who enter foster care (7,086 x 
0.05 = 354 hours).
    [cir] Section 1355.44(i) is a 19 percent increase in data points to 
report for children to whom ICWA applies (7,086 x 0.19 = 1,346 hours).
    [cir] The total estimate of administrative tasks associated with 
training personnel to comply with the NPRM is 1,714 annual burden hours 
(354 + 1,346 = 1,700).
    Thus, the total recordkeeping burden estimate is 44,875 searching 
and gathering information + 1,608 developing or modifying IT systems + 
1,700 administrative tasks = 48,183 hours.
    Reporting Burden Estimate for State Title IV-E Agencies: We 
estimate that extracting the additional ICWA-related information for 
AFCARS reporting and transmitting the information to ACF would take on 
average eight hours annually. The 2020 final rule estimated reporting 
would take 34 hours annually extracting and reporting information for 
all 2020 final rule data points. For this NPRM, the expanded ICWA-
related information proposed to be added in:
    <bullet> Section 1355.44(b)(3) through (6) is a 5 percent increase 
in data points to report for all children who enter foster care (34 x 
0.05 = 2 hours).
    <bullet> Section 1355.44(i) is a 19 percent increase in data points 
to report for children to whom ICWA applies (34 x 0.19 = 6 hours).
    <bullet> The total estimate of reporting the expanded ICWA related 
information to comply with the NPRM is eight annual burden hours (2 + 6 
= 8).

[[Page 13664]]



----------------------------------------------------------------------------------------------------------------
                                                                     Number of        Average      Total  annual
Collection--AFCARS for State Title IV-E Agencies     Number of     responses per   burden  hours   burden  hours
                                                    respondents     respondent     per  response     for  NPRM
----------------------------------------------------------------------------------------------------------------
Recordkeeping...................................              52               2          463.30          48,183
Reporting.......................................              52               2            0.08               8
                                                 ---------------------------------------------------------------
    Total.......................................  ..............  ..............  ..............          48,191
----------------------------------------------------------------------------------------------------------------

Annualized Cost to the Federal Government

    Federal reimbursement under title IV-E will be available for a 
portion of the costs that state title IV-E agencies will incur because 
of the revisions proposed in this NPRM and actual costs will vary, 
depending on each agency's cost allocation, information system, and 
other factors. If this proposed regulatory action becomes final, ACF 
estimates that it would cost the Federal government approximately 
$2,216,786. For this estimate, we used the 50 percent FFP rate and 
because the FFP rate used in these estimates is 50 percent, we estimate 
the costs for Federal and non-Federal to be the same.

----------------------------------------------------------------------------------------------------------------
                                                 Total annual    Average hourly                 Estimate federal
              Collection--AFCARS                 burden hours      labor rate      Total cost   costs (50% FFP)
----------------------------------------------------------------------------------------------------------------
State Title IV-E Agencies
    Recordkeeping.............................          48,183               $92   $4,432,836         $2,216,418
    Reporting.................................               8                92          736                368
                                               -----------------------------------------------------------------
        Total.................................  ..............  ................    4,433,572          2,216,786
----------------------------------------------------------------------------------------------------------------

    In the above estimates, ACF acknowledges the following: (1) ACF has 
used average figures for state title IV-E agencies of very different 
sizes and of which, some may have larger populations of children served 
than other agencies, and (2) these are rough estimates based on the 
information available to ACF. We welcome comments on the burden and 
costs of this NPRM in accordance with section IV of this NPRM.
    OMB is required to make a decision concerning the collection of 
information contained in this regulation between 30 and 60 days after 
publication of this document in the Federal Register. Therefore, a 
comment is best assured of having its full effect if OMB receives it 
within 30 days of publication. This does not affect the deadline for 
the public to comment to the Department on the proposed regulations. 
Written comments to OMB or the proposed information collection should 
be sent directly to the following: Office of Management and Budget, 
either by fax to 202-395-6974 or by email to 
<a href="/cdn-cgi/l/email-protection#67282e3526381412050a0e14140e080927080a054902081749000811"><span class="__cf_email__" data-cfemail="3c73756e7d634f495e51554f4f5553527c53515e1259534c125b534a">[email protected]</span></a>. Please mark faxes and emails to the 
attention of the desk officer for ACF.

VII. Tribal Consultation Statement

    Executive Order 13175, Consultation and Coordination with Indian 
Tribal Governments, requires agencies to consult with Indian tribes 
when regulations have substantial direct effects on one or more Indian 
tribes, on the relationship between the Federal Government and Indian 
tribes, or on the distribution of power and responsibilities between 
the Federal Government and Indian tribes. Similarly, ACF's Tribal 
Consultation Policy says that consultation is triggered for a new rule 
adoption that significantly affects tribes, meaning the new rule 
adoption has substantial direct effects on one on more Indian Tribes, 
on the amount or duration of ACF program funding, on the delivery of 
ACF programs or services to one or more Indian tribes, or on the 
distribution of power and responsibilities between the Federal 
Government and Indian tribes. This proposed rule does not meet either 
standard for consultation. Executive Order 13175 does not apply to this 
NPRM because it does not impose any burden or cost on tribal title IV-E 
agencies, nor does it impact the relationship or distribution of power 
between the Federal Government and Indian Tribes. ICWA does not apply 
to tribal title IV-E agencies, therefore, they do not have to report 
the data elements proposed in this NPRM. However, we have received 
tribal input on proposing ICWA-related data elements. Prior to 
publication of this NPRM, the Department addressed collecting ICWA-
related information in AFCARS at the Secretary's Tribal Advisory 
Council (STAC) meetings in 2022. In September 2022, ACF updated the 
STAC of ACF's intention to revise AFCARS to propose ICWA-related data 
elements similar to what was in the 2016 final rule. The members of the 
STAC have consistently expressed support for restoring ICWA-related 
data elements to AFCARS. We look forward to engaging in consultation 
with tribes during the comment period of this NPRM and to receiving 
their comments on this proposal.
    Jeff Hild, Acting Assistant Secretary of the Administration for 
Children & Families, approved this document on February 9, 2024.

List of Subjects in 45 CFR Part 1355

    Administrative costs, Adoption Assistance, Child welfare, Fiscal 
requirements (title IV-E), Grant programs--social programs, Statewide 
information systems.

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

    Dated: February 14, 2024.
Xavier Becerra,
Secretary, Department of Health and Human Services.

    For the reasons set forth in the preamble, ACF proposes to 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.  1355.43 by revising paragraphs (b)(1) and (2) and 
removing paragraph (b)(3) to read as follows:


Sec.  1355.43  Data reporting requirements.

* * * * *
    (b) Out-of-home care data file. A title IV-E agency must report the

[[Page 13665]]

information required in Sec.  1355.44 pertaining to each child in the 
out-of-home care reporting population, in accordance with the 
following:
    (1) The title IV-E agency must report the most recent information 
for the applicable data elements in Sec.  1355.44(a), (b), and (c).
    (2) The title IV-E agency must report the most recent information 
and all historical information for the applicable data elements in 
Sec.  1355.44(d) through (i).
* * * * *
0
3. Amend Sec.  1355.44 by revising paragraphs (b)(3) through (6), and 
adding paragraph (i) to read as follows:


Sec.  1355.44  Out-of-home care data file elements.

* * * * *
    (b) * * *
    (3) Researching reason to know a child is an ``Indian Child'' as 
defined in the Indian Child Welfare Act (ICWA). For state title IV-E 
agencies only: Indicate whether the state title IV-E agency researched 
whether there is reason to know that the child is an Indian child as 
defined in ICWA. Complete each paragraph (b)(3)(i) through (vi) of this 
section.
    (i) Indicate whether the state title IV-E agency inquired with the 
child's biological or adoptive mother. Indicate ``yes,'' ``no'' or 
``the biological or adoptive mother is deceased.''
    (ii) Indicate whether the state title IV-E agency inquired with the 
child's biological or adoptive father. Indicate ``yes,'' ``no,'' or 
``the biological or adoptive father is deceased.''
    (iii) Indicate whether the state title IV-E agency inquired with 
the child's Indian custodian if the child has one. Indicate ``yes,'' 
``no,'' or ``child does not have an Indian custodian.''
    (iv) Indicate whether the state title IV-E agency inquired with the 
child's extended family. Indicate ``yes'' or ``no.''
    (v) Indicate whether the state title IV-E agency inquired with the 
child. Indicate ``yes'' or ``no.''
    (vi) Indicate whether the domicile or residence of the child, the 
child's parent, or the child's Indian custodian is on a reservation or 
in an Alaska Native village. Indicate ``yes'' or ``no.''
    (4) Child's tribal membership and reason to know. For state title 
IV-E agencies only:
    (i) Indicate whether the child is a member of or eligible for 
membership in a federally recognized Indian tribe. Indicate ``yes,'' 
``no,'' or ``unknown''.
    (ii) If the state title IV-E agency indicated ``yes'' in paragraph 
(b)(4)(i) of this section, indicate all federally recognized Indian 
tribe(s) that may potentially be the Indian child's tribe(s).
    (iii) Indicate whether the state title IV-E agency knows or has 
reason to know, that the child is an Indian child as defined in ICWA. 
Indicate ``yes'' or ``no.'' If the state title IV-E agency indicates 
``yes,'' then it must complete paragraph (b)(4)(iv). If the state title 
IV-E agency indicates ``no,'' then it must leave paragraph (b)(4)(iv) 
blank.
    (iv) Indicate the date that the state title IV-E agency first 
discovered the information indicating the child is or may be an Indian 
child as defined in ICWA.
    (5) Notification. For state title IV-E agencies only:
    (i) Indicate whether the Indian child's tribe(s) was sent legal 
notice prior to the first child custody proceeding in accordance with 
25 U.S.C. 1912(a). Indicate ``yes'' or ``no.'' If the state title IV-E 
agency indicates ``yes,'' then it must complete paragraph (b)(5)(ii). 
If the state title IV-E agency indicates ``no,'' then it must leave 
paragraph (b)(5)(ii) blank.
    (ii) Indicate the Indian tribe(s) that were sent notice as required 
in ICWA at 25 U.S.C. 1912(a).
    (iii) Indicate whether the Indian child's parent or Indian 
custodian was sent legal notice prior to the first child custody 
proceeding in accordance with 25 U.S.C. 1912(a). Indicate ``yes'' or 
``no.''
    (6) Application of ICWA.
    (i) Indicate whether a court determined that ICWA applies or that 
the court is applying ICWA because it knows or has reason to know a 
child is an Indian child as defined in ICWA in accordance with 25 CFR 
23.107(b)(2). Indicate ``yes, ICWA applies,'' ``no, ICWA does not 
apply,'' or ``no court determination.'' If the state title IV-E agency 
indicates ``yes, ICWA applies,'' then it must complete paragraphs 
(b)(6)(ii) and (iii) and paragraph (i) of this section; otherwise leave 
blank.
    (ii) Indicate the date that the court determined that ICWA applies 
or determined to apply ICWA in accordance with 25 CFR 23.107(b)(2).
    (iii) Indicate the Indian tribe that the court determined is the 
Indian child's tribe for ICWA purposes.
* * * * *
    (i) Data elements related to ICWA. Reporting information in 
paragraph (i) is for state title IV-E agencies only. Report information 
in paragraph (i) only if the state title IV-E agency indicated ``yes, 
ICWA applies'' in paragraph (b)(6)(i) of this section. Otherwise, the 
state title IV-E agency must leave paragraph (i) of this section blank.
    (1) Request to transfer to tribal court.
    (i) Indicate whether the child's case record indicated a request to 
transfer to tribal court for each removal date reported in paragraph 
(d)(1) of this section. Indicate ``yes'' or ``no.'' If the state title 
IV-E agency indicates ``yes,'' the state title IV-E agency must 
complete paragraph (ii) of this section. If the state title IV-E agency 
indicates ``no,'' the state title IV-E agency must leave paragraph (ii) 
of this section blank.
    (ii) Indicate whether the child's case record indicated that there 
was a denial of the request to transfer to tribal court. Indicate 
``yes'' or ``no.''
    (2) Involuntary termination/modification of parental rights under 
ICWA. If the state title IV-E agency indicated ``involuntary'' in 
paragraph (c)(5) of this section, the state title IV-E agency must 
complete paragraphs (i)(2)(i) through (iii) of this section. Otherwise, 
the state title IV-E agency must leave paragraphs (i)(2)(i) through 
(iii) of this section blank.
    (i) Indicate whether the state court found beyond a reasonable 
doubt that continued custody of the Indian child by the parent or 
Indian custodian is likely to result in serious emotional or physical 
damage to the Indian child in accordance with 25 U.S.C. 1912(f). 
Indicate ``yes'' or ``no.''
    (ii) Indicate whether the court decision to involuntarily terminate 
parental rights included the testimony of one or more qualified expert 
witnesses in accordance with 25 U.S.C. 1912(f). Indicate ``yes'' or 
``no.''
    (iii) Indicate whether, prior to terminating parental rights, the 
court concluded that active efforts have been made to prevent the 
breakup of the Indian family and that those efforts were unsuccessful 
in accordance with 25 U.S.C. 1912(d). Indicate ``yes'' or ``no.''
    (3) Voluntary termination/modification of parental rights under 
ICWA. If the state title IV-E agency indicated ``voluntary'' in 
paragraph (c)(5) of this section, indicate whether the consent to 
termination of parental or Indian custodian rights was:
    (i) Executed in writing. Indicate ``yes'' or ``no.''
    (ii) Recorded before a court of competent jurisdiction. Indicate 
``yes'' or ``no.''
    (iii) Accompanied with a certification by the court that the terms 
and consequences of consent were explained on the record in detail and 
were fully understood by the parent or Indian custodian in accordance 
with 25 CFR 23.125(a) and (c). Indicate ``yes'' or ``no.''

[[Page 13666]]

    (4) Removals under ICWA. For each removal date reported in 
paragraph (d)(1) of this section:
    (i) Indicate whether the court order for foster care placement was 
made as a result of clear and convincing evidence that continued 
custody of the Indian child by the parent or Indian custodian was 
likely to result in serious emotional or physical damage to the Indian 
child in accordance with 25 U.S.C. 1912(e) and 25 CFR 23.121(a). 
Indicate ``yes'' or ``no.''
    (ii) Indicate whether the evidence presented for foster care 
placement as indicated in paragraph (i)(4)(i) of this section included 
the testimony of a qualified expert witness in accordance with 25 
U.S.C. 1912(e) and 25 CFR 23.121(a). Indicate ``yes'' or ``no.''
    (iii) Indicate whether the evidence presented for foster care 
placement as indicated in paragraph (i)(4)(i) indicates that prior to 
each removal reported in paragraph (d)(1) of this section that active 
efforts have been made to prevent the breakup of the Indian family and 
that those efforts were unsuccessful in accordance with 25 U.S.C. 
1912(d). Indicate ``yes'' or ``no.''
    (5) Available ICWA foster care and pre-adoptive placement 
preferences. Indicate which foster care or pre-adoptive placements, 
(which are reported in paragraph (e)(1) of this section and meet the 
placement preferences of ICWA in 25 U.S.C. 1915(b) and (c)) were 
willing to accept placement for the child. Indicate in each paragraph 
(i)(5)(i) through (v) of this section ``yes,'' ``no,'' or ``not 
applicable.'' If the Indian child's tribe established a different order 
of preference by resolution in accordance with 25 U.S.C. 1915(c), the 
state title IV-E agency must complete paragraph (i)(5)(v) and leave 
paragraph (i)(5)(i) through (iv) blank.
    (i) A member of the Indian child's extended family.
    (ii) A foster home licensed, approved, or specified by the Indian 
child's tribe.
    (iii) An Indian foster home licensed or approved by an authorized 
non-Indian licensing authority.
    (iv) An institution for children approved by an Indian tribe or 
operated by an Indian organization which has a program suitable to meet 
the Indian child's needs.
    (v) A placement that complies with the order of preference for 
foster care or pre-adoptive placements established by an Indian child's 
tribe.
    (6) Foster care and pre-adoptive placement preferences under ICWA. 
Indicate which foster care or pre-adoptive placements, reported in 
paragraph (e)(1) of this section, meet the placement preferences of 
ICWA in 25 U.S.C. 1915(b) and (c) by indicating with whom the Indian 
child is placed. Indicate ``a member of the Indian child's extended 
family,'' ``a foster home licensed, approved, or specified by the 
Indian child's tribe,'' ``an Indian foster home licensed or approved by 
an authorized non-Indian licensing authority,'' ``an institution for 
children approved by an Indian tribe or operated by an Indian 
organization which has a program suitable to meet the Indian child's 
needs,'' ``a placement that complies with the order of preference for 
foster care or pre-adoptive placements established by an Indian child's 
tribe'' or ``placement does not meet ICWA placement preferences.'' If 
the state IV-E agency indicated ``placement does not meet ICWA 
placement preferences,'' then the state IV-E agency must complete 
paragraph (i)(7). Otherwise, the state title IV-E agency must leave 
paragraph (i)(7) blank.
    (7) Good cause under ICWA, foster care. Indicate whether the court 
determined by clear and convincing evidence, on the record or in 
writing, a good cause to depart from the ICWA placement preferences in 
accordance with 25 U.S.C. 1915(b) or to depart from the placement 
preferences of the Indian child's tribe in accordance with 25 U.S.C. 
1915(c). Indicate ``yes'' or ``no.'' If the state title IV-E agency 
indicated ``yes,'' then the state title IV-E agency must indicate the 
basis for good cause in paragraph (i)(8) of this section. If the state 
title IV-E agency indicated ``no,'' then the state title IV-E agency 
must leave paragraph (i)(8) blank.
    (8) Basis for good cause, foster care. If the state title IV-E 
agency indicated ``yes'' to paragraph (i)(7), indicate the state 
court's basis for determining good cause to depart from ICWA placement 
preferences by indicating ``yes'' or ``no'' in each paragraph (i)(8)(i) 
through (v) of this section:
    (i) Request of one or both of the Indian child's parents.
    (ii) Request of the Indian child.
    (iii) The unavailability of a suitable placement after a 
determination by the court that a diligent search was conducted to find 
suitable placements meeting the placement preferences in ICWA at 25 
U.S.C. 1915 but none has been located.
    (iv) The extraordinary physical, mental, or emotional needs of the 
Indian child, such as specialized treatment services that may be 
unavailable in the community where families who meet the placement 
preferences live.
    (v) The presence of a sibling attachment that can be maintained 
only through a particular placement.
    (9) Active efforts. Indicate whether the state title IV-E agency 
made active efforts to prevent the breakup of the Indian family in 
accordance with 25 U.S.C 1912(d) and 25 CFR 23.2. Indicate ``yes'' or 
``no.''
    (10) Available ICWA adoptive placements. If the state title IV-E 
agency indicated the child exited to adoption in paragraph (g)(3) of 
this section, indicate which adoptive placements that meet the 
placement preferences in ICWA at 25 U.S.C. 1915(a) and (c) were willing 
to accept placement. Indicate in each paragraph (i)(10)(i) through (iv) 
of this section ``yes,'' ``no,'' or ``not applicable.'' If the Indian 
child's tribe established a different order of preference by resolution 
in accordance with 25 U.S.C. 1915(c), the state title IV-E agency must 
complete paragraph (i)(10)(iv) and leave paragraph (i)(10)(i) through 
(iii) blank.
    (i) A member of the Indian child's extended family.
    (ii) Other members of the Indian child's tribe.
    (iii) Other Indian families.
    (iv) A placement that complies with the order of preference 
placements established by an Indian child's tribe.
    (11) Adoption placement preferences under ICWA. If the state title 
IV-E agency indicated the child exited to adoption in paragraph (g)(3) 
of this section, indicate whether the adoptive placement meets the 
adoptive placement preferences of ICWA in 25 U.S.C. 1915(a) and (c) by 
indicating with whom the Indian child is placed. Indicate ``a member of 
the Indian child's extended family,'' ``other members of the Indian 
child's tribe,'' ``other Indian families,'' ``a placement that complies 
with the order of preference for adoptive placements established by an 
Indian child's tribe,'' or ``placement does not meet ICWA placement 
preferences.'' If the state IV-E agency indicated ``placement does not 
meet ICWA placement preferences,'' then the state IV-E agency must 
complete paragraph (i)(12); otherwise, leave paragraph (i)(12) blank.
    (12) Good cause under ICWA, adoption. If the state title IV-E 
agency indicated ``placement does not meet ICWA placement preferences'' 
in paragraph (i)(11), indicate whether the court determined by clear 
and convincing evidence, on the record or in writing, a good cause to 
depart from the ICWA adoptive placement preferences under 25 U.S.C. 
1915(a) or to depart from the adoptive placement preferences of the 
Indian child's tribe

[[Page 13667]]

under 25 U.S.C. 1915(c). Indicate ``yes'' or ``no.'' If the state title 
IV-E agency indicated ``yes,'' then the state title IV-E agency must 
indicate the basis for good cause in paragraph (i)(13) of this section. 
If the state title IV-E agency indicated ``no,'' then the state title 
IV-E agency must leave paragraph (i)(13) blank.
    (13) Basis for good cause, adoption. If the state title IV-E agency 
indicated ``yes'' in paragraph (i)(16), indicate the state court's 
basis for determining good cause to depart from ICWA adoptive placement 
preferences by indicating ``yes'' or ``no'' in each paragraph 
(i)(13)(i) through (v) of this section.
    (i) Request of one or both of the child's parents.
    (ii) Request of the Indian child.
    (iii) The unavailability of a suitable placement after a 
determination by the court that a diligent search was conducted to find 
suitable placements meeting the adoptive placement preferences in ICWA 
at 25 U.S.C. 1915 but none has been located.
    (iv) The extraordinary physical, mental, or emotional needs of the 
Indian child, such as specialized treatment services that may be 
unavailable in the community where families who meet the adoptive 
placement preferences live.
    (v) The presence of a sibling attachment that can be maintained 
only through a particular adoptive placement.

[FR Doc. 2024-03373 Filed 2-22-24; 8:45 am]
BILLING CODE 4184-73-P


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