13652 Federal Register / Vol. 89, No. 37 / Friday, February 23, 2024 / Proposed Rules 

specified by Executive Order 13175 (65 

FR 67249, November 9, 2000). 

Consistent with EPA policy, the EPA 

provided a consultation opportunity to 

Tribes located in Oregon, in letters 

dated May 4, 2022, included in the 

docket for this action. 

Executive Order 12898 (Federal 

Actions to Address Environmental 

Justice in Minority Populations and 

Low-Income Populations, 59 FR 7629, 

February 16, 1994) directs Federal 

agencies to identify and address 

‘‘disproportionately high and adverse 

human health or environmental effects’’ 

of their actions on minority populations 

and low-income populations to the 

greatest extent practicable and 

permitted by law. The EPA defines 

environmental justice (EJ) as ‘‘the fair 

treatment and meaningful involvement 

of all people regardless of race, color, 

national origin, or income with respect 

to the development, implementation, 

and enforcement of environmental laws, 

regulations, and policies.’’ The EPA 

further defines the term fair treatment to 

mean that ‘‘no group of people should 

bear a disproportionate burden of 

environmental harms and risks, 

including those resulting from the 

negative environmental consequences of 

industrial, governmental, and 

commercial operations or programs and 

policies.’’ The Oregon Department of 

Environmental Quality did evaluate 

environmental justice considerations as 

part of its SIP submittal; the CAA and 

applicable implementing regulations 

neither prohibit nor require such an 

evaluation. The EPA did not perform an 

EJ analysis and did not consider EJ in 

this action. Consideration of EJ is not 

required as part of this action, and there 

is no information in the record 

inconsistent with the stated goal of 

Executive Order 12898 of achieving 

environmental justice for people of 

color, low-income populations, and 

Indigenous peoples. 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Incorporation by 

reference, Intergovernmental relations, 

Ozone, Particulate matter, Reporting 

and recordkeeping requirements, Sulfur 

oxides, Volatile organic compounds. 

Authority: 42 U.S.C. 7401 et seq. 

Dated: February 14, 2024. 

Casey Sixkiller, 

Regional Administrator, Region 10. 

[FR Doc. 2024–03529 Filed 2–22–24; 8:45 am] 

BILLING CODE 6560–50–P 

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. 

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: 

• Federal eRulemaking Portal: 

https://www.regulations.gov. Follow the 

instructions for submitting comments. 

• Email: CBComments@acf.hhs.gov. 

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 plainlanguage 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 

cbcomments@acf.hhs.gov. 

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 nonFederal 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. 


ddrumheller on DSK120RN23PROD with PROPOSALS1
Federal Register / Vol. 89, No. 37 / Friday, February 23, 2024 / Proposed Rules 13653 

1 25 U.S.C. 1902. 

2 25 U.S.C. 1901(4) and (5). 

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/dataresearch/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: 

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.’’ §§ 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 


ddrumheller on DSK120RN23PROD with PROPOSALS1
13654 Federal Register / Vol. 89, No. 37 / Friday, February 23, 2024 / Proposed Rules 

3See also A Research and Practice Brief: 

Measuring Compliance with the Indian Child 

Welfare Act, Casey Family Programs (2015) https:// 

www.casey.org/media/measuring-complianceicwa.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/racialdisproportionality/). 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. 

6See page 21, retrieved from https://

www.supremecourt.gov/DocketPDF/21/21-376/ 

234042/20220819140750948_21- 

376.amics.brief.FINAL.pdf. 7Ryan 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. 8National 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-FamiliesReport-PART-3.pdf. 

9Ehlers 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/. 

10Around 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-adversechildhood-experiences. 

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

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 ICWArelated information currently reported 

to AFCARS is: 

• whether the child, mother, father, 

foster parents, adoptive parents, and 

legal guardians are tribal members, 

• whether the state made inquiries 

whether the child is an Indian child as 

defined in ICWA, 

• the date that the state was notified 

by the Indian tribe or state or tribal 

court that ICWA applies, and 

• 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 


ddrumheller on DSK120RN23PROD with PROPOSALS1
Federal Register / Vol. 89, No. 37 / Friday, February 23, 2024 / Proposed Rules 13655 

11EagleWoman (Wambdi A. WasteWin), SissetonWahpeton 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. 

13Child Welfare Information Gateway (2021) 

Child Welfare Practice to Address Racial 

Disproportionality and Disparity, https:// 

www.childwelfare.gov/pubs/issue-briefs/racialdisproportionality/. 

14See 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. 

15 84 FR 16,572 at 74. 

16 84 FR 16,572 at 74. 17 84 FR 16,572 at 74. 

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 ICWArelated 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. 

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.13 14 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.’’ 

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-ofhome care population were ICWAapplicable. 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. 

—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

We also note that in both 2018 and 

2019, there were significant comments 

submitted by researchers, nongovernmental 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: 

• 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 


ddrumheller on DSK120RN23PROD with PROPOSALS1
13656 Federal Register / Vol. 89, No. 37 / Friday, February 23, 2024 / Proposed Rules 

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. 

• 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; 

• Specific data elements on 

notification of proceedings and transfers 

to tribal court are important because the 

timelines in ICWA are rarely met; and 

• 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 


ddrumheller on DSK120RN23PROD with PROPOSALS1
Federal Register / Vol. 89, No. 37 / Friday, February 23, 2024 / Proposed Rules 13657 

18Child 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/racialdisproportionality/. 

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-ofhome 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 timeconsuming 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. 

Summary of Proposal 

Currently, state title IV–E agencies 

report the following related to ICWA in 

AFCARS: 

• Tribal membership of the child, 

mother, father, foster parents, adoptive 

parents, and legal guardians— 

§ 1355.44(b)(4), (c)(3) and (4), (e)(10) 

and (15), and (h)(4) and (9). 

• Whether the state made inquiries 

whether the child is an Indian child as 

defined in ICWA—§ 1355.44(b)(3). 

• 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— 

§ 1355.44(b)(5). 

• Whether the Indian child’s tribe(s) 

was sent legal notice—§ 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, preadoptive and adoptive placement 

preferences, in a new § 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: 

• 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)). 

• 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)). 

• Whether the child’s parent or 

Indian custodian was sent notice in 

accordance with ICWA (section 

1355.44(b)(5)). 

• Information on requests to transfer 

cases to Tribal court (section 

1355.44(i)(1)). 

• Information on meeting the 

placement preferences under ICWA 

(section 1355.44(i)(5)–(8) and (10)–(13)). 

• 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 


ddrumheller on DSK120RN23PROD with PROPOSALS1
13658 Federal Register / Vol. 89, No. 37 / Friday, February 23, 2024 / Proposed Rules 

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): 

• 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. 

• 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 § 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 

§ 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 § 1355.44(b)(4)(i) and (ii) and is used 

to help identify children in the out-ofhome 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 

§ 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 

§ 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 

§ 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 


ddrumheller on DSK120RN23PROD with PROPOSALS1
Federal Register / Vol. 89, No. 37 / Friday, February 23, 2024 / Proposed Rules 13659 

§ 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 § 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 

§ 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 § 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 

§ 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: 

• Executed in writing. 

• Recorded before a court of 

competent jurisdiction. 

• 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 § 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 preadoptive 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 § 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 § 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 


ddrumheller on DSK120RN23PROD with PROPOSALS1
13660 Federal Register / Vol. 89, No. 37 / Friday, February 23, 2024 / Proposed Rules 

order of preference for foster care or preadoptive 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): 

• Request of one or both of the Indian 

child’s parents. 

• Request of the Indian child. 

• 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. 

• 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. 

• 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 

§ 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 § 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): 

• Request of one or both of the child’s 

parents. 

• Request of the Indian child. 

• 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. 

• 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. 

• 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 outof-home care under the placement and 

care of the title IV–E agency or who are 


ddrumheller on DSK120RN23PROD with PROPOSALS1
Federal Register / Vol. 89, No. 37 / Friday, February 23, 2024 / Proposed Rules 13661 

19Child Welfare Information Gateway (2021) 

Child Welfare Practice to Address Racial 

Disproportionality and Disparity, https://

www.childwelfare.gov/pubs/issue-briefs/racialdisproportionality/. 

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

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. 

• 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 § 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 ICWArelated 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. 

• 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 foreignbased 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-forprofit 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 


ddrumheller on DSK120RN23PROD with PROPOSALS1
13662 Federal Register / Vol. 89, No. 37 / Friday, February 23, 2024 / Proposed Rules 

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: 

• The need for the information 

collection and its usefulness in carrying 

out the proper functions of our agency. 

• The accuracy of our estimate of the 

information collection burden. 

• The quality, utility, and clarity of 

the information to be collected. 

• 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 § 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 ICWArelated information for children who are 

in the Out-of-Home Care Reporting 

Population (§ 1355.42(a)) for the data 

elements proposed in § 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: 

• 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. 

• 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 Outof-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 

§ 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. 

• 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-OfHome Care Data File approximately 45 

data points related to state title IV–E 

agencies reporting the expanded ICWArelated information. This represents 

revisions to some of the current ICWArelated data elements to expand 

information to be reported in 

§ 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 § 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. 

• 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 


ddrumheller on DSK120RN23PROD with PROPOSALS1
Federal Register / Vol. 89, No. 37 / Friday, February 23, 2024 / Proposed Rules 13663 

rulemakings that the bulk of the 

information that informs ICWA-related 

data elements is located in state agency 

paper files or court documents. 

• 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. 

Æ 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. 

• 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: 

Æ 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 × 0.05 = 0.20 hours). These 

data points apply to all children who 

enter foster care (0.20 hours × 206,812 

children = 41,362 hours). 

Æ Section 1355.44(i) is a 19 percent 

increase in data points to report for 

children to whom ICWA applies (4.02 × 

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 × 4,622 children = 3,513 

hours). 

Æ 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). 

• 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: 

Æ 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 × 0.05 = 335 hours). 

Æ Section 1355.44(i) is a 19 percent 

increase in data points to report for 

children to whom ICWA applies (6,700 

× 0.19 = 1,273 annual hours). 

• 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: 

Æ 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 × 0.05 = 354 hours). 

Æ Section 1355.44(i) is a 19 percent 

increase in data points to report for 

children to whom ICWA applies (7,086 

× 0.19 = 1,346 hours). 

Æ 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: 

• 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 × 0.05 = 2 hours). 

• Section 1355.44(i) is a 19 percent 

increase in data points to report for 

children to whom ICWA applies (34 × 

0.19 = 6 hours). 

• The total estimate of reporting the 

expanded ICWA related information to 

comply with the NPRM is eight annual 

burden hours (2 + 6 = 8). 


ddrumheller on DSK120RN23PROD with PROPOSALS1
13664 Federal Register / Vol. 89, No. 37 / Friday, February 23, 2024 / Proposed Rules 

Collection—AFCARS for State Title IV–E Agencies Number of 

respondents 

Number of 

responses per 

respondent 

Average 

burden 

hours per 

response 

Total 

annual 

burden 

hours 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 nonFederal to be the same. 

Collection—AFCARS Total annual 

burden hours 

Average hourly 

labor rate Total cost Estimate federal 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 OIRA_

submission@omb.eop.gov. 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 ICWArelated 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 ICWArelated 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 

■ 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. 

■ 2. Amend § 1355.43 by revising 

paragraphs (b)(1) and (2) and removing 

paragraph (b)(3) to read as follows: 

§ 1355.43 Data reporting requirements. 

* * * * * 

(b) Out-of-home care data file. A title 

IV–E agency must report the 


ddrumheller on DSK120RN23PROD with PROPOSALS1
Federal Register / Vol. 89, No. 37 / Friday, February 23, 2024 / Proposed Rules 13665 

information required in § 1355.44 

pertaining to each child in the out-ofhome 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 § 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 § 1355.44(d) through 

(i). 

* * * * * 

■ 3. Amend § 1355.44 by revising 

paragraphs (b)(3) through (6), and 

adding paragraph (i) to read as follows: 

§ 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.’’ 


ddrumheller on DSK120RN23PROD with PROPOSALS1
13666 Federal Register / Vol. 89, No. 37 / Friday, February 23, 2024 / Proposed Rules 

(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 preadoptive 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 preadoptive 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 


ddrumheller on DSK120RN23PROD with PROPOSALS1
Federal Register / Vol. 89, No. 37 / Friday, February 23, 2024 / Proposed Rules 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 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 635 

[Docket No. 240213–0046] 

RIN 0648–BM66 

Atlantic Highly Migratory Species; 

Bluefin Tuna General Category Effort 

Controls and Related Regulations 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Proposed rule; request for 

comments. 

SUMMARY: NMFS is proposing to codify 

a schedule of restricted-fishing days 

(RFDs) for the 2024 fishing year and 

subsequent fishing years; reestablish a 

General category default retention limit 

for large medium or giant bluefin tuna 

(BFT) on open days; and make 

clarifications to the BFT dealer 

regulations and the definition of a 

bluefin statistical document (BSD) tag. 

This proposed action is necessary to 

increase the likelihood of pacing 

General category landings to extend 

fishing opportunities through a greater 

portion of the General category time 

period subquotas. Lastly, this proposed 

action would clarify existing regulations 

to ensure better understanding and 

compliance by General category quota 

participants. 

DATES: Written comments may be 

submitted via https://

www.regulations.gov and must be 

received by March 25, 2024. Comments 

may also be submitted at a public 

hearing or webinar. NMFS will hold a 

public hearing via conference call and 

webinar for this proposed rule on March 

19, 2024, from 2 p.m. to 4 p.m., Eastern 

Time. Information for registering and 

accessing the webinar can be found at 

https://www.fisheries.noaa.gov/action/ 

proposed-rule-set-general-categoryeffort-controls-and-clarify-relatedatlantic-bluefin-tuna. Requests for sign 

language interpretation or other 

auxiliary aids should be directed to 

Larry Redd, Jr., (see FOR FURTHER

INFORMATION CONTACT section) at least 7 

days prior to the meeting. The public is 

reminded that NMFS expects 

participants at conference calls and 

webinars to conduct themselves 

appropriately. At the beginning of each 

conference call and webinar, the 

moderator will explain how the 

conference call and webinar will be 

conducted and how and when 

participants can provide comments. 

NMFS will structure the conference call 

and webinar so that all members of the 

public will be able to comment. 

Participants are expected to respect the 

ground rules, and those that do not may 

be asked to leave the conference calls 

and webinars. 

ADDRESSES: You may submit comments 

on this document, identified by NOAA– 

NMFS–2024–0021, by electronic 

submission. Submit all electronic public 

comments via the Federal e-Rulemaking 

Portal. Go to https://

www.regulations.gov and type ‘‘NOAA– 

NMFS–2024–0021’’ in the Search box 

(note: copying and pasting the FDMS 

Docket Number directly from this 

document may not yield search results). 

Click on the ‘‘Comment’’ icon, complete 

the required fields, and enter or attach 

your comments. Written comments sent 

by any other method, to any other 

address or individual, or received after 

the close of the comment period, may 

not be considered by NMFS. All 

comments received are a part of the 

public record and will generally be 

posted for public viewing on https://

www.regulations.gov without change. 

All personal identifying information 

(e.g., name, address, etc.), confidential 

business information, or otherwise 

sensitive information submitted 

voluntarily by the sender will be 

publicly accessible. NMFS will accept 

anonymous comments (enter ‘‘N/A’’ in 

the required fields if you wish to remain 

anonymous). 

Copies of this proposed rule and 

supporting documents are available 

from the HMS Management Division 

website at https://

www.fisheries.noaa.gov/topic/atlantichighly-migratory-species or by 

contacting Larry Redd, Jr., or Erianna 

Hammond (see FOR FURTHER

INFORMATION CONTACT section). 

FOR FURTHER INFORMATION CONTACT: 

Larry Redd, Jr., larry.redd@noaa.gov, or 

Erianna Hammond, erianna.hammond@

noaa.gov, at 301–427–8503. 

SUPPLEMENTARY INFORMATION: 

Background 

BFT fisheries are managed under the 

2006 Consolidated HMS Fishery 

Management Plan (FMP) and its 

amendments pursuant to the MagnusonStevens Fishery Conservation and 

Management Act (Magnuson-Stevens 

Act; 16 U.S.C. 1801 et seq.) and 

consistent with the Atlantic Tunas 

Convention Act (ATCA; 16 U.S.C. 971 et 

seq.). HMS implementing regulations 

are at 50 CFR part 635. Section 635.23 

describes the daily retention limits for 

BFT including retention limits on RFDs. 

Section 635.27 divides the U.S. BFT 

quota, established by the United States 

and other members of the International 

Commission for the Conservation of 

Atlantic Tunas (ICCAT), among the 

various domestic fishing categories per 

the allocations established in the FMP 

and its amendments. NMFS is required 

under the Magnuson-Stevens Act at 16 

U.S.C. 1854(g)(1)(D) to provide U.S. 

fishing vessels with a reasonable 

opportunity to harvest quotas under 

relevant international fishery 

agreements such as the ICCAT 

Convention, which is implemented 

domestically pursuant to ATCA. 

The BFT fishery is a quota-managed 

fishery, and the annual U.S. BFT quota 

is established by binding 

recommendations of ICCAT. The U.S. 

BFT quota established through that 

process is implemented domestically 

through rulemaking and allocated 

among six quota categories (General, 

Angling, Harpoon, Longline, Trap, and 

Reserve). This proposed rule considers 

actions specific to the General category 


ddrumheller on DSK120RN23PROD with PROPOSALS1