Federal Register / Vol. 89, No. 234 / Thursday, December 5, 2024 / Rules and Regulations 96569 

Register. This action is not a ‘‘major 

rule’’ as defined by 5 U.S.C. 804(2). 

List of Subjects in 40 CFR Part 180 

Environmental protection, 

Administrative practice and procedure, 

Agricultural commodities, Pesticides, 

and pests, Reporting and recordkeeping 

requirements. 

Dated: November 22, 2024. 

Charles Smith, 

Director, Registration Division, Office of 

Pesticide Programs. 

Therefore, for the reasons stated in the 

preamble, EPA is amending 40 CFR 

chapter 1 as follows: 

PART 180—TOLERANCES AND 

EXEMPTIONS FOR PESTICIDE 

CHEMICAL RESIDUES IN FOOD 

■ 1. The authority citation for part 180 

continues to read as follows: 

Authority: 21 U.S.C. 321(q), 346a and 371. 

■ 2. In § 180.601, add a heading to the 

table in paragraph (a) and revise and 

republish the table to read as follows: 

§ 180.601 Cyazofamid; tolerances for 

residues. 

(a) * * * 

TABLE 1 TO PARAGRAPH (a) 

Commodity Parts per million 

Brassica, leafy greens, subgroup 4–16B .................................................................................................................................... 15 

Bulb vegetables, group 3–07 ....................................................................................................................................................... 2.0 

Carrot, roots ................................................................................................................................................................................. 0.09 

Chickpea, edible podded ............................................................................................................................................................. 0.5 

Chickpea, succulent shelled ........................................................................................................................................................ 0.08 

Ginseng ........................................................................................................................................................................................ 0.3 

Herb subgroup 19A ..................................................................................................................................................................... 90 

Hop dried cones .......................................................................................................................................................................... 10.0 

Kohlrabi ........................................................................................................................................................................................ 1.5 

Leafy greens subgroup 4–16A .................................................................................................................................................... 10 

Parsnip, roots ............................................................................................................................................................................... 0.09 

Vegetable, brassica, head and stem, group 5–16 ...................................................................................................................... 1.5 

Vegetable, cucurbit, group 9 ....................................................................................................................................................... 0.10 

Vegetable, fruiting, group 8–10 ................................................................................................................................................... 0.9 

Vegetable, legume, bean, edible podded, subgroup 6–22A ....................................................................................................... 0.5 

Vegetable, legume, bean, succulent shelled, subgroup 6–22C .................................................................................................. 0.08 

Vegetable, legume, pulse, bean, dried shelled, except soybean, subgroup 6–22E ................................................................... 0.03 

Vegetable, tuberous and corm, subgroup 1C ............................................................................................................................. 0.02 

* * * * * 

[FR Doc. 2024–28467 Filed 12–4–24; 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: Final rule. 

SUMMARY: This rule finalizes revisions to 

the Adoption and Foster Care Analysis 

and Reporting System (AFCARS) 

regulations proposed on February 23, 

2024. This final rule requires state title 

IV–E agencies to collect and report to 

ACF additional data related to the 

Indian Child Welfare Act of 1978 

(ICWA) for children in the AFCARS 

Out-of-Home Care Reporting 

Population. 

DATES: This rule is effective on February 

3, 2025 except for the amendments to 

§ 1355.44 (amendatory instruction 3), 

which are effective as of October 1, 

2028. 

FOR FURTHER INFORMATION CONTACT: Joe 

Bock, 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 Final Rule 

II. Overview of 2024 Notice of Proposed 

Rulemaking Comments and Background 

on the Final Rule 

III. Implementation Timeframe 

IV. Section-by-Section Discussion of 

Regulatory Provisions and Responses to 

Comments 

V. Regulatory Impact Analysis 

VI. Tribal Consultation Statement 

I. Statutory Authority To Issue Final 

Rule 

This final rule 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), which 

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 

and 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. Section 

474(f) of the Act (42 U.S.C. 674(f)) 

requires HHS to impose penalties for 

non-compliant adoption and foster care 

data. 

II. Overview of 2024 Notice of Proposed 

Rulemaking Comments and 

Background on the Final Rule 

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 


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96570 Federal Register / Vol. 89, No. 234 / Thursday, December 5, 2024 / Rules and Regulations 

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. The regulations 

governing operation of AFCARS are 

codified at 45 CFR 1355.41 through 

1355.47. 

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 ICWA, 

and implemented statutory fiscal 

penalties for non-compliant AFCARS 

data. This rule was never implemented. 

Before the 2016 final rule became 

effective, ACF published a new rule 

delaying its 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). 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). 

The 2020 final rule was implemented on 

October 1, 2022, and title IV–E agencies 

are now required to report AFCARS data 

as codified in the regulation at 45 CFR 

1355.41-.47. Title IV–E agencies were 

required to submit the first data files 

with this information to ACF in May 

2023. More information is available on 

the CB website at: https://

www.acf.hhs.gov/cb/data-research/ 

afcars-technical-assistance. 

2024 NPRM Comment Summary and 

Analysis 

The AFCARS NPRM was published 

on February 23, 2024 (89 FR 13652, 

hereafter referred to as the ‘‘2024 

NPRM’’) and it proposed to add or 

revise approximately 45 data elements 

related to the procedural protections of 

ICWA. These data elements are located 

in the Out-of-Home Care Data File, 45 

CFR 1355.44. The NPRM proposed to 

revise and expand the current ICWArelated data elements in § 1355.44(b) 

Child Information and add a new 

paragraph § 1355.44(i) Data Elements 

Related to ICWA, for information to be 

reported on children to whom ICWA 

applies. As explained in the NPRM (89 

FR 13653), ACF is now adding data 

elements and revising some of the 

current data elements to require 

reporting of more detailed information 

related to ICWA’s procedural 

protections via 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). For AI/AN 

children to whom ICWA applies, it is 

necessary to understand the extent to 

which they receive ICWA’s protections 

in order to fully understand their 

‘‘status’’ and ‘‘characteristics,’’ and ‘‘the 

extent and nature of assistance’’ 

provided to them. 

ICWA data collection helps set the 

stage for more informed, effective, and 

culturally responsive care for AI/AN 

children. We know AI/AN children are 

disproportionately represented in the 

state child welfare system. There is 

evidence that AI/AN children in state 

foster care have experienced a 

separation and disconnection from their 

community, culture, and language, 

giving them a sense of identity loss. 

Outcomes that AI/AN children face 

while being in foster care without 

culturally appropriate services include 

increased risk for runaway and 

homelessness, suicidal ideations, and 

juvenile justice interventions. 

The NPRM comment period closed on 

April 23, 2024. In response, we received 

81 comments from: 14 states and 1 

county; 25 Tribes; 21 organizations; and 

20 individuals/anonymous. Most 

commenters generally supported 

collecting ICWA-related information in 

AFCARS and supported the NPRM as 

proposed (75 total commenters 

supported, 3 commenters opposed, and 

3 did not express either sentiment). The 

supportive commenters generally 

expressed that having data on ICWA’s 

procedural protections ‘‘could inform 

real solutions to the persistent child 

welfare challenges American Indian/ 

Alaskan Native (AI/AN) children face.’’ 

They also expressed that the data ‘‘will 

provide a full picture of the status of AI/ 

AN children and families and the 

reasons behind the lagging outcomes 

they experience’’ that can lead to 

‘‘improved policy development, 

technical assistance, training, and 

resource allocation’’ from having 

‘‘regularly updated and reliable data 

available.’’ 

Twelve of the 14 states/county 

expressed support for collecting 

information on ICWA’s protections, 

saying that it will inform practice. They 

generally expressed praise for ACF’s 

commitment to ‘‘augmenting national 

understanding of the experiences’’ of 

AI/AN children in foster care and the 

extent to which they are receiving the 

procedural protections required under 

ICWA. One of these commenters said 

that ‘‘AFCARS policy limitations over 

the last 30 years have hindered Tribal 

and state efforts to address reoccurring 

and chronic concerns about AI/AN 

children’s well-being’’ and that that has 

contributed to states ‘‘not having a full 

understanding of their progress in 

implementing ICWA and difficulty in 

developing effective and collaborative 

responses with Tribes.’’ They generally 

expressed that the need for ongoing, 

reliable, and accessible data has never 

been greater. 

Two states and one individual 

expressed opposition to the NPRM, 

saying that most of the data elements 

proposed in the NPRM are better suited 

for a case review where ‘‘individual case 

circumstances as well as court order 

language could be reviewed and 

analyzed to paint a more complete 

picture of the ICWA implementation 

process.’’ They did not believe that all 

the proposed data elements ‘‘add value 

that informs quality practice or 

compliance,’’ considering the burden 

and costs required for reporting and the 

time that would be taken ‘‘away from 

direct casework, potentially caus[ing] 

delays in timely permanency for 

children.’’ One of the two states that 

opposed the data collection expressed 

concern that state child welfare agencies 

have ‘‘no control over whether the legal 

system notifies Tribes, the timeliness of 

the notification, or the accuracy of the 

data’’ and that this would lead to the 

potential for the state to be ‘‘penalized 


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Federal Register / Vol. 89, No. 234 / Thursday, December 5, 2024 / Rules and Regulations 96571 

for any legal system’s non-compliance 

regarding notification and other 

requirements of ICWA.’’ One of the two 

states opposed to the data collection 

also expressed the opinion that 

reporting on ICWA’s procedural 

protections is outside the scope of 

section 479 of the Act (42 U.S.C. 679). 

Nine of the 14 states/county 

commenters also expressed concern in 

two areas: 

• The burden and costs to update 

case management systems so close to 

the 2020 final rule being implemented 

(which occurred in October 2023), and 

being in the middle of upgrading their 

electronic case management systems 

from a ‘‘legacy system’’ to a 

Comprehensive Child Welfare 

Information System (CCWIS), and 

• Wanting more time to implement a 

new final rule or delaying penalties for 

this data. 

Seven states said they would need to 

add data elements to their child welfare 

information systems to report the NPRM 

elements because the information is 

located in case notes or court orders/ 

minutes and not in an extractable data 

field for AFCARS reporting and said 

that this information may be compiled 

differently in different judicial 

jurisdictions across the state, so 

increased technical assistance may be 

needed. Five states, three organizations, 

and one individual said that states will 

struggle with implementation and that 

the burden of updating systems to 

implement the proposal will vary 

greatly among states, depending on the 

population of children in foster care to 

whom ICWA applies and where they are 

in the process of upgrading their case 

management systems. Two states 

expressed that the value of the data 

outweighs the burden and costs of 

updating systems. 

In general, all of the Tribal 

commenters (25) and the vast majority 

of organizations (20) and individuals/ 

anonymous (17) commenters expressed 

support for collecting information on 

ICWA’s procedural protections. They 

expressed similar sentiments as the 

supportive states, such as that the lack 

of federal data on ICWA ‘‘has 

contributed to states not having a full 

understanding of their progress in 

implementing ICWA and difficulty in 

developing effective and collaborative 

responses with Tribes.’’ They felt that 

the NPRM proposal will fill in 

knowledge gaps, provide a better picture 

of the status of AI/AN children and 

families, their outcomes, and ‘‘create 

substantial new bodies of evidence for 

program evaluation and for evaluating 

the relative compliance with ICWA 

across jurisdictions.’’ They also 

expressed that the data from the 

proposal will help inform legislative 

and regulatory policies, indicate 

training needs for ICWA practices, and 

inform where further resources should 

be allocated. Tribes generally expressed 

that the ‘‘trust responsibility of the 

Federal Government justifies this 

important data collection, and the sad 

fact is Native American children are still 

overrepresented in the foster care and 

adoptive system in state court 

proceedings today.’’ Four Tribes and 

five organizations also expressed 

agreement with the interpretation of 

section 479 of the Act (42 U.S.C. 679) 

to include the collection and reporting 

of data related to the implementation of 

ICWA and expressed that they are 

pleased to see the current 

Administration adopt this clarification 

of authority. One Tribe and two 

organizations spoke to the information 

being located in court documents or 

paper case files by expressing that, in 

states that use good case management 

practices, states will have access to 

court information and while there may 

be situations where a court issues a 

judicial determination from the bench 

or does not provide all the specific 

information that a state may need in a 

court order, this does not change the 

fact that states should be aware of, seek 

clarification, and document this 

information in the case file. 

Approximately 21 of the Tribal 

commenters and 15 organizations 

recommended specific changes to the 

proposal, such as suggesting wording 

changes for certain data elements and 

collecting more information related to 

Tribes and AI/AN children who are in 

foster care. These comments are 

delineated in IV. Section-by-Section 

Discussion of Regulatory Provisions and 

Responses to Comments. 

Final Rule Development 

Based on the overwhelmingly 

supportive response to the NPRM in 

general, we made few substantive 

changes in this final rule. Commenters 

agreed with the statement in the NPRM 

preamble (89 FR 13653) that adding data 

elements and revising the current data 

elements to report more detailed 

information related to ICWA’s 

procedural protections in AFCARS will 

contribute to fulfilling 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). 

The supportive commenters agreed with 

the statements from the NPRM that 

inconsistent implementation of ICWA 

and a lack of data on ICWA’s procedural 

protections have led to variation in 

applying ICWA (89 FR 13653). Thus, 

ACF anticipates 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 may provide a 

foundation for improved policy 

development, targeted technical 

assistance, and focused resources. 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. ICWA data collection 

offers important benefits by supporting 

a proactive approach to child welfare. 

Robust ICWA-related data collection is 

essential for achieving more informed, 

effective, and culturally responsive care 

for AI/AN children. ACF knows AI/AN 

children are disproportionately 

represented in the state child welfare 

system today. There is evidence that AI/ 

AN children in state foster care have 

experienced a separation and 

disconnection from their community, 

culture, and language, giving them a 

sense of identity loss. Outcomes that AI/ 

AN children have while being in foster 

care without culturally appropriate 

services include increased risk for 

runaway and homelessness, suicidal 

ideations, and juvenile justice 

interventions. 

Data collection promotes cooperation 

between Tribes and federal agencies. It 

encourages transparency and 

communication, fostering trust and 

reinforcing the government-togovernment relationship between tribes 

and the federal government in matters of 

child welfare. ACF expects that the data 

collection will also reveal trends about 

Native children in foster care—such as 

the rates of removal or placement in 

non-Native homes—indicating where 

Tribes and federal agencies should 

prioritize resources. Data can provide 

evidence to secure funding for services 

that honor ICWA’s intent. Collecting 

ICWA data will facilitate identifying 

where federal and state agencies are 

struggling to appropriately serve AI/AN 


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96572 Federal Register / Vol. 89, No. 234 / Thursday, December 5, 2024 / Rules and Regulations 

1EagleWoman (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. 

children and will provide federal 

agencies, states, and Tribes with critical 

information about where there are 

knowledge gaps or implementation 

barriers preventing better outcomes for 

AI/AN children. This critical 

information will show where more 

research and/or technical assistance is 

needed to ensure that the federal and 

state child welfare systems 

appropriately serve AI/AN families. 

As stated above, most commenters 

generally supported collecting ICWArelated information in AFCARS and 

supported the NPRM as proposed, 

which will aid in these efforts. 

Commenters also offered that the data 

may be used to enhance the ability to 

develop a better understanding of the 

trends in out-of-home placement and 

barriers to permanency for AI/AN 

children and that it will underscore that 

improved policy development, technical 

assistance, training, and resource 

allocation will result from having 

regularly updated data available. A 

commenter also offered that the data 

elements present an opportunity to 

expand cross-agency collaboration that 

could inform policy change across 

federal agencies that have the authority 

and responsibility to act, in partnership 

with tribal nations, on behalf of AI/AN 

children and families. Another 

commenter offered that the data may be 

used for efforts to address the chronic 

harm caused by overrepresentation of 

AI/AN children in foster care, inform 

persistent barriers to effective 

implementation of ICWA and be used to 

craft effective, data-driven solutions to 

the unique harms caused to Native 

communities by overrepresentation in 

child welfare. Another commenter said 

that it is important to track key data 

elements to ensure the foster care 

population is being represented 

accurately and this data may give child 

welfare agencies evidence of the 

population they are serving and be used 

to implement innovative change to 

issues surrounding child welfare. 

Under the 2020 final 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. Commenters said that the data in 

AFCARS is critical for advocates, 

policymakers, and child welfare 

administrators to eliminate foster care 

disproportionality and service 

disparities impacting Native children. A 

commenter also said that such data may 

inform reducing the rate at which AI/ 

AN children and youth enter the child 

welfare system and improving outcomes 

for AI/AN children and youth that do 

enter the system and that these data 

elements may help improve outcomes 

for AI/AN children by facilitating 

targeted ICWA trainings, efficient 

resource allocation, and/or improved 

policymaking. 

In response to the concern from one 

state about the potential for the state to 

be penalized for any legal system’s noncompliance regarding notification and 

other requirements of ICWA, ACF wants 

to be clear that this final rule is not a 

mechanism for enforcing or policing 

ICWA. Regardless of what is reported by 

the state in the data elements, ACF has 

no jurisdiction to impose consequences 

under ICWA on the state. The states are 

responsible for reporting AFCARS data 

in accordance with 45 CFR 1355.46, 

which are compliance standards for 

reporting data that is complete, 

submitted on time, and is internally 

consistent. These compliance standards 

are not related to the ICWA statute or 

regulations from the Bureau of Indian 

Affairs (BIA) at the Department of 

Interior. 

In response to the concern from one 

state that reporting on ICWA’s 

procedural protections is outside the 

scope of section 479 of the Act, as 

explained in the NPRM (89 FR 13655), 

the purpose of this final rule is not to 

enforce state compliance with ICWA, 

but to gain a deeper and proper 

understanding of the challenges facing 

Tribal children who are in foster care. 

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,1 and Congress’s 

determination that the ICWA procedural 

protections are essential for AI/AN 

children and families ( 25 U.S.C. 1901 

and 1902), ACF has determined that 

collecting robust ICWA-related data 

concerning AI/AN children in the child 

welfare system can provide valuable 

insights for ACF, states, Tribes and 

policymakers. ACF is the most 

appropriate agency in the Federal 

government to collect data from state 

child welfare agencies. The collection of 

ICWA-related data may 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. 

In response to the two states that 

expressed that the value of the data 

outweighs the burden and costs of 

updating systems, ACF agrees. The 

overwhelmingly supportive comments 

received in response to the 2024 NPRM 

affirmed the importance of collecting 

these additional data elements related to 

ICWA’s protections. Collecting these 

additional data elements would provide 

critical information about ICWA’s 

procedural protections, protections that 

were affirmed in the Supreme Court’s 

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. ICWA has been 

law for 40 years but there has been little 

in-depth data collection 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 to provide 

insight into ICWA’s requirements. 

Having uniform national data regarding 

ICWA’s requirements can assist 

policymakers in understanding the 

scope of issues to inform policy 

changes. ACF also wants to reiterate 

what was said in the 2024 NPRM (89 FR 

13655), that in both 2018 and 2019, 

there were comments submitted by 

researchers and non-governmental 

organizations with relevant expertise 

that described the important uses for the 

potential data collection, including 

underscoring the importance of certain 

casework activities and showing 


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Federal Register / Vol. 89, No. 234 / Thursday, December 5, 2024 / Rules and Regulations 96573 

2The NPRM stated that the Department of Interior 

Bureau of Indian Affairs plays a role in enforcing 

state compliance with ICWA (89 FR 13656). 

Subsequently, BIA informed ACF that it does not 

have any role in enforcing state compliance with 

ICWA. 

3EagleWoman (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. 

4National 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. 

5 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 

Continued 

national trends. A commenter also said 

that this data may allow Tribes to 

ascertain how many of their children are 

in the child welfare system, facilitate 

the Tribe’s ability to locate and protect 

its children, and possibly assist in 

planning an expansion of their judicial 

and social services to ensure that Tribal 

courts have sufficient capacity to hear 

custody proceedings involving their 

own children. Having uniform national 

data regarding ICWA’s requirements can 

assist policymakers in understanding 

the scope of issues to inform policy 

changes. 

ACF continues to recognize that this 

rulemaking represents a change in 

approach from the 2020 final rule, 

which reduced the number of ICWA 

data elements to be collected in 

AFCARS. As ACF explained in the 2024 

NPRM, ACF views robust ICWA-related 

data collection as necessary to fulfill the 

AFCARS statutory purpose of collecting 

data ‘‘necessary to . . . assess (on a 

continuing basis) the incidence, 

characteristics, and status of adoption 

and foster care in the United States, and 

to develop appropriate national policies 

with respect to adoption and foster 

care.’’ 42 U.S.C. 679c(a)(2). Without 

more fulsome ICWA-related data, ACF 

will continue to be limited in its ability 

to, among other important functions, 

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 

child welfare programs; and inform and 

expand partnerships across Federal 

agencies that invest in Indian families 

and promote resilient, thriving Tribal 

communities (89 FR 13654). A renewed 

understanding of the necessity of better 

understanding and supporting AI/AN 

children in foster care motivated ACF to 

propose the 2024 NPRM and it 

continues to undergird ACF’s decision 

to collect this additional ICWA-related 

information in AFCARS. 

To address commenters’ suggestions 

to collect even more ICWA-related data, 

as stated in the 2024 NPRM (89 FR 

13656), ACF also based the decision not 

to add 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 data elements, and that this may 

be difficult at times. Furthermore, ACF’s 

current-understanding 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 and therefore 

ACF limited the number of data 

elements that may be more have more 

relaibility challenges and require more 

effort by the agency. ACF plans to work 

with BIA on implementation of an 

eventual final rule and will work with 

BIA on implementation of this rule 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. 

While ACF does not have any role in 

enforcing state compliance with ICWA, 

it is responsible for ensuring 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.2 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 and sovereignty 

issues that apply to Tribes,3 and 

Congress’s determination that the ICWA 

procedural protections are essential for 

AI/AN children and families (25 U.S.C. 

1901 and 1902), ACF continues to 

determine that collecting more ICWArelated data in AFCARS 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. This ICWArelated 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 (89 FR 

13655). 

ACF understands that this final rule 

will put an additional burden on state 

child welfare agencies as does any 

additional data collection requirement. 

ACF has given this serious 

consideration in developing this final 

rule and analyzing the 2024 NPRM 

comments, both because of concerns 

expressed by some states for resource 

issues, systems upgrades, and data entry 

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). ACF is mindful of 

the cost to state title IV–E agencies of 

collecting this data, but at the same 

time, is 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. As explained in the 2024 

NPRM (89 FR 13657), having more data 

on ICWA’s procedural requirements 

may lead to improvements in light of 

the disproportionately negative 

outcomes generally experienced by AI/ 

AN children, youth, and families 4 and 

the overrepresentation of AI/AN 

children in the child welfare system.5


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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. 

6Child 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/. 

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 does not see 

these as sufficient reasons to not require 

reporting of ICWA procedural 

requirements in AFCARS, given the 

importance of the data. 

AFCARS may be modified when 

needed, for example, to reflect 

legislative changes and other changing 

needs for particular kinds of data. In 

general, 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 and accordingly, ACF does 

not view this final rule as implicating 

states’ reliance interests. With the plan 

to give states three federal fiscal years to 

implement this final rule, ACF believes 

that allows time for states to make the 

needed modifications. 

Thus, in light of the supportive 

comments received and the importance 

of the data, on balance, ACF determined 

that the value of collecting the data 

outweighs the burden it imposes, and 

that any cost imposition is not 

‘‘unnecessary.’’ We address specific 

comments received on burden and costs 

in V. Regulatory Impact Analysis. 

Executive Orders 13985 and 14091 

This rule 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 groups in 

foster care relative to their 

representation in the general 

population. AI/AN children are at 

greater risk than other children of being 

confirmed for maltreatment and placed 

in out-of-home care.6 The additional 

data in this final rule may allow ACF 

and other stakeholders to better 

understand opportunities to advance 

equitable outcomes for AI/AN children. 

Summary of Final Rule 

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). 

This final rule revises the current data 

elements in § 1355.44(b) to report more 

detailed information on ICWA’s 

procedural protections and, in new 

§ 1355.44(i), adds 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. The section-by-section 

preamble explains in detail how the 

current CFR will be amended to include 

the new information for states to report. 

In summary, state title IV–E agencies 

must 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 (§ 1355.44(b)(3) and 

(4)). 

• Whether the child’s parent, Tribe, 

or Indian custodian was sent notice in 

accordance with ICWA (§ 1355.44(b)(5)). 

• Information on whether a court 

determined that ICWA applies for the 

child; if yes, the date the court 

determined ICWA applies, and the Tribe 

that the court determined is the Indian 

child’s Tribe (§ 1355.44(b)(6)). 

• Whether the child’s case record 

indicated a request to transfer to Tribal 

court and if transfer was denied, the 

reason for denial (§ 1355.44(i)(1)). 

• Information on involuntary and 

voluntary terminations or modifications 

of parental rights under ICWA 

(§ 1355.44(i)(2) and (3)). 

• Information on removals under 

ICWA (§ 1355.44(i)(4)). 

• Information on the placement 

preferences under ICWA for foster care, 

pre-adoptive, and adoptive placements 

(§ 1355.44(i)(5)–(8) and (10)–(13)). 

• Whether the court determined that 

the state title IV–E agency made active 

efforts to prevent the breakup of the 

Indian family (§ 1355.44(i)(9)). 

Confidentiality 

ACF stated in the 2024 NPRM (89 FR 

13656) that ACF will not 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 the child’s confidentiality. 

ACF had reached this decision in light 

of the need to ensure privacy and 

confidentiality as several states have 

very few Indian children in foster care. 

There is a significant privacy interest in 

that the information given could reveal 

a child’s identity. Safeguarding 

information in instances where there is 

a small number of children in a 

jurisdiction 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 final rule. Of the total 

commenters, two commented on the 

topic of confidentiality and both 

expressed support for collecting the data 

proposed in the 2024 NPRM and 

ensuring safeguards protect privacy and 

confidentiality of AI/AN children in 

foster care. 

III. Implementation Timeframe 

ACF is providing three (3) full Federal 

fiscal years for state title IV–E agencies 

to comply with the revisions to 

§ 1355.44(b) and (i), rather than the two 

fiscal years proposed, which we believe 

is sufficient for state title IV–E agencies 

to implement the changes necessary to 

comply with this final rule. This 

decision was informed by the 2024 

NPRM comments that we describe 

below. During the implementation 

period, state title IV–E agencies must 

continue to report to ACF the ICWArelated data that is currently required in 

§ 1355.44(b)(3)–(6). It is essential for 

states to continue to report this 

information to ACF without 

interruption because AFCARS data is 

used for various reports, national 


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statistics, planning, and monitoring. 

This means that the first report period 

when state title IV–E agencies must 

begin collecting the information 

required in this final rule begins 

October 1, 2028, and the first data files 

containing this information will be due 

to ACF by May 15, 2029. 

2024 NPRM Comments: Of the nine 

states that made comments relevant to 

the implementation timeframe, four 

states asked for a three-fiscal year 

timeframe and four states expressed 

wanting ‘‘sufficient time,’’ saying that 

this is due to their resource issues with 

implementing the 2020 final rule and 

making systems updates. Only two of 

the nine states supported a two-fiscal 

year implementation timeframe. ACF 

recognizes that while currently, most 

states have submitted compliant data 

files for the 2020 final rule 

requirements, it took a majority of the 

states over four fiscal years to fully 

implement the 2020 final rule. The first 

data files submitted by most states in 

May 2023 were noncompliant, meaning 

that the data files either did not report 

historical information for those data 

elements that required it or states 

instead submitted data as per the nowsuperseded 1993 regulations. Regarding 

specifically the ICWA-related data 

elements from the 2020 final rule, 

approximately 12–14 states did not 

accurately report the information, 

meaning, for example, that seven states 

reported ‘‘no’’ to making any inquiries 

as to whether the child may be an 

Indian child (§ 1355.44(b)(3)) and 14 

states reported that they had no children 

where ICWA applied (§ 1355.44(b)(5)), 

but we know that some of these states 

have federally recognized Tribes. ACF 

understands that the data in this final 

rule is important, however, ACF feels 

strongly that the data can only be useful 

and reliable if we have full, compliant 

data from all states. Thus, ACF 

considered the progress states made in 

implementing the 2020 final rule over 

the last four years, the length of time it 

took them to do so, and the increase in 

data points that we are regulating in this 

final rule (49) and decided to provide 

states with a three-fiscal year timeframe 

to implement this final rule. 

Additionally, ACF is specifying that 

states must report the new/revised 

ICWA-related data elements required in 

this final rule for children who enter the 

Out-of-Home Care Reporting Population 

on or after the implementation date of 

the final rule (October 1, 2028). For 

children who enter and exit the Out-ofHome Care Reporting Population before 

the implementation date, only the 2020 

final rule’s ICWA-related data elements 

will be reported. For children who enter 

the Out-of-Home Care Reporting 

Population before the implementation 

date and exit on or after implementation 

date, the state title IV–E agency must 

report the information only for 

paragraphs (b)(4)(i) and (ii) and (b)(6)(i) 

from this final rule. These data elements 

ask: whether the child is a member of 

or eligible for membership in a federally 

recognized Indian Tribe; all federally 

recognized Indian Tribe(s) that may 

potentially be the Indian child’s 

Tribe(s); and 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). 

Similar information on the child’s 

Tribal membership, the names of Tribes, 

and whether ICWA applies for the child 

are information that states are currently 

reporting under the 2020 final rule. This 

is described in the preamble and 

regulation text for § 1355.43 below. 

One commenter recommended that 

ACF not apply all of the ICWA-related 

data elements from this final rule for 

children who are in the Out-of-Home 

Care Reporting Population before the 

implementation date and exit on or after 

the implementation date because it 

would be ‘‘overly burdensome’’ to 

require states to retroactively seek out 

data in older case files or court records, 

particularly for children who were in 

foster care for many years. This would 

significantly reduce the reliability and 

usefulness of the data reported. ACF 

agrees with this recommendation based 

on implementing the 2020 final rule, 

where we had required title IV–E 

agencies to report each date of removal, 

exit, and exit reason for each child who 

had an out-of-home care episode prior 

to October 1, 2020. This meant that title 

IV–E agencies did not need to report 

complete historical and current 

information for every data element that 

required it in the 2020 final rule for 

these children. States had issues 

reporting historical information for 

those three data elements for children 

who were in foster care for many years, 

even though we understood at the time 

that this information would be in their 

case records. Now, ACF understands 

from the 2024 NPRM commenters that 

the information that will be used to 

report the ICWA-related data elements 

in this final rule are located in case 

notes or court documents/court orders 

and not currently in extractable data 

fields. This means that for children in 

foster care prior to the implementation 

date, ACF anticipates that states will 

struggle to locate and report the details 

on ICWA’s procedural protections 

especially for children who have been 

in foster care for many years because 

this information may be years old. In 

considering the comments received in 

response to the 2024 NPRM and the 

lessons learned from implementing the 

2020 final rule, ACF decided to require 

the new/revised ICWA-related data 

elements in this final rule to be reported 

only for children who enter the Out-ofHome Care Reporting Population on or 

after the implementation date of the 

final rule. 

IV. 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. ACF uses 

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’s authority to implement each of 

the provisions in this the regulation is 

well-supported 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 rule is declared 

invalid, ACF intends that the other 

provisions be severable because they 

could still function sensibly. For 

example, ACF expects that if a court 

were to invalidate any paragraph under 

new § 1355.44(i), the other paragraphs 

should remain in effect because the data 

elements are independent of each other 

(with the exception that an invalidation 

of § 1355.44(i)(7) would necessitate an 

invalidation of § 1355.44(i)(8), and an 

invalidation of § 1355.44(i)(12) would 

necessitate an invalidation of 

§ 1355.44(i)(13), because each of those 

pairs is linked). Additionally, if a court 

were to invalidate any of the specific 

data elements within any paragraph of 

§ 1355.44(b) or (i), ACF intends that the 

collection of the other data elements 

within that subparagraph remain in 

effect to the maximum extent 

practicable because the vast majority of 

the data elements are independent of 

each other, and thus could still be 

collected and would still be meaningful 

to collect even if particular data 

elements were invalidated. 

Section 1355.43 Data Reporting 

Requirements 

This section contains data reporting 

requirements for AFCARS, such as 

report periods and deadlines for 


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submitting data files, and descriptions 

of data quality errors. The 2024 NPRM 

proposed only 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. No comments 

were received on these amendments. 

However, ACF made changes to the 

proposal to reflect the implementation 

directions for reporting information on 

children who are in the Out-of-Home 

Care Reporting Population before the 

implementation date and exit on or after 

the implementation date. Thus, in this 

final rule, ACF made technical edits to 

paragraphs (b)(1) and (2) to correct cross 

references to data elements in § 1355.44 

and in amended paragraph (b)(3) to 

require state title IV–E agencies to report 

information only for the data elements 

in § 1355.44(b)(4)(i) and (ii), and (6)(i) 

for children who are in the Out-of-Home 

Care Reporting Population before the 

implementation date and exit on or after 

the implementation date. As explained 

in section III Implementation 

Timeframe, ACF understands from the 

2024 NPRM commenters and our 

experience implementing the 2020 final 

rule that reporting the details on ICWA’s 

procedural protections for all data 

elements in this final rule will be 

difficult in the case of children who 

have been in foster care for many years. 

ACF understand that this is because the 

case information may be years old (for 

example, whether there was testimony 

from a qualified expert witness) and 

would be difficult to report for these 

children. However, state title IV–E 

agencies must report all information in 

this final rule for children who enter the 

Out-of-Home Care Reporting Population 

on or after the implementation date. 

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 paragraphs (b)(3)(i) through (vii), the 

state title IV–E agency must report 

whether it researched whether there is 

reason to know that the child is an 

Indian child as defined in ICWA, 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; the 

child’s legal guardian; 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 data element 

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. 

Comment: One commenter 

recommended adding a data element on 

inquiring with a legal guardian because 

‘‘not all legal guardians would be 

considered Indian custodians.’’ 

Response: ACF agrees and added a 

data element in paragraph (b)(3)(vii) to 

require the state to report whether it 

inquired with the child’s legal guardian 

for the reason cited by the commenter. 

Comment: Three commenters 

recommended revising the response 

options in paragraph (b)(3)(v) to add a 

response option for ‘‘child not of 

sufficient age and capacity.’’ They 

suggested this revision because ‘‘it 

would be difficult to understand why a 

state agency might not inquire with the 

child.’’ 

Response: ACF did not revise this 

data element for several reasons. The 

data required to be reported in 

paragraph (b)(3) asks whether the state 

inquired with the child, among others, 

with yes/no response options. Whether 

a child was not of ‘‘sufficient age and 

capacity’’ would require us to seek 

public comment to define what that 

means. Additionally, there are no 

requirements in the ICWA statute, BIA 

regulations, or titles IV–B or IV–E that 

guide recording, measuring, or ACF 

collecting this information. 

Additionally, the child’s age is collected 

in paragraph (b)(1). 

Comment: One commenter 

recommended adding a data element for 

the state to report at what point in the 

case the child was identified as 

qualifying under ICWA. 

Response: We did not add a data 

element on this because researching 

whether a child is an ‘‘Indian Child’’ as 

defined in ICWA is already being 

reported for paragraphs (b)(3)(i)–(vii) 

and the date that the state first 

discovered the information indicating 

the child is or may be an Indian child 

is already being reported for paragraph 

(b)(4)(iv). 

Comment: One commenter 

recommended adding data elements for 

the state to report on the involvement of 

the child’s parents in the case, such as 

how often the parents attended hearings 

and the quality of their attendance. 

Response: We did not add data 

elements on parents’ involvement in the 

case because it is impossible to report to 

AFCARS narrative information and 

aggregate this information into national 

statistics. Additionally, ACF does not 

believe that this information is a 

particularly unique policy concern 

related to AI/AN Indian children that 

warrants reporting to AFCARS, it was 

not part of the proposed rule, and it 

would be difficult to interpret without 

substantially more contextual 

information. Lastly, there are no 

requirements in the ICWA statute, BIA 

regulations, or titles IV–B or IV–E that 

guide recording or measuring such 

information. 

Comment: One commenter asked for 

clarification on who are the ‘‘certain 

individuals’’ states must inquire with as 

to whether the child is an Indian child. 

Response: The regulation text in 

paragraphs (b)(3)(i) through (vii) 

specifies those individuals. They are the 

child, the child’s biological or adoptive 

mother/father, Indian custodian, 

extended family, and legal guardian. 

State title IV–E agencies must also 

report whether the domicile or 

residence of the child/parent/Indian 

custodian is on a reservation or in an 

Alaska Native village. 

Comment: One commenter suggested 

adding data elements for the state to 

inquire with ‘‘other adult relatives’’ and 

whether they are members of an Indian 

Tribe saying that it will assist in 

determining if the child is an Indian 

child as defined under ICWA. 

Response: We did not add data 

elements for the state to collect 

information on other adult relatives 

because inquiring with an ‘‘extended 

family member’’ is already being 

reported in paragraph (b)(3)(iv) and 

‘‘extended family members’’ is defined 

in ICWA at 25 U.S.C. 1903(2). 

Comment: Two commenters suggested 

adding elements related to Tribal 

ancestry for the child, parents, 

grandparents, and family for state 

recognized or non-federally recognized 

Tribes, specifics about the Tribe’s 

federal recognitions status, and Tribal 

enrollment documents. 

Response: We did not add data 

elements on family ancestry, the status 

of a Tribe’s federal recognition, or Tribal 

enrollment because ICWA only applies 

to children who are members of or 

eligible for membership in federally 

recognized Tribes (25 U.S.C. 1903(8). 

Additionally, it is not feasible to collect 

information on Tribal enrollment 

documents and ancestry in AFCARS 

because this information is very detailed 

and would not yield any set of 

aggregated national information. 


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Child’s Tribal membership and reason 

to know. In paragraphs (b)(4)(i) and (ii), 

the state title IV–E agency must 

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), the state 

title IV–E agency must 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 (b)(6) (discussed 

below) would replace the current data 

element in § 1355.44(b)(5), which 

required 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 these changes require 

more details related to ICWA’s 

procedural requirements on ‘‘reason to 

know’’. No comments were received on 

these amendments and ACF does not 

have a reason to make further revisions, 

so no changes were made to the 

proposal. 

Notification. In paragraphs (b)(5)(i) 

and (ii), the state title IV–E agency must 

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 we 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), 

the state title IV–E agency must 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. 

Comment: Nine commenters 

requested that the data element include 

language of whether the notice ‘‘was 

sent 10 days prior’’ to the first custody 

hearing. 

Response: We did not add the 

language of ‘‘10 days prior’’ to the data 

elements because it is already built into 

the requirement for reporting this data 

element in that the state must report 

that it notified in accordance with 

ICWA at 25 U.S.C. 1912(a). The statute 

at 25 U.S.C. 1912(a) contains the 

specification that the notice must be 

received by the parent/custodian more 

than 10 days prior to the first child 

custody proceeding. 

Comment: One commenter requested 

adding more data elements on: how 

notice was transmitted, and if it was 

properly addressed, notice sent to the 

BIA or the Tribe’s designated ICWA 

agents listed on the BIA website, and 

notice sent to the Federal Register. 

Response: We did not add these 

suggested data elements because we 

believe they are too detailed for national 

data collection, and we do not have a 

reason to collect this information. 

Lastly, adding more data elements for 

this type of information is outside the 

scope of the NPRM’s proposal for this 

data element, unnecessarily 

burdensome and would increase state 

and federal costs to collect. 

Comment: One commenter requested 

adding data elements on whether the 

Tribe was notified of voluntary foster 

care placements that are not covered 

under the ICWA notice requirements of 

25 U.S.C. 1912(a) because they felt it 

will enable policy makers to identify 

gaps in ICWA in terms of countering 

practices that contribute to the 

disproportionate removal of Indian 

children. 

Response: We did not add this data 

element because there are no 

requirements in the ICWA statute, BIA 

regulations, or titles IV–B or IV–E that 

guide recording or measuring such 

information. Thus, adding a data 

element on this would be requiring 

states to report on actions they are not 

otherwise required to undertake. Lastly, 

this information is outside the scope of 

the NPRM’s proposal for this data 

element, unnecessarily burdensome and 

would increase state and federal costs to 

collect. 

Comment: A few commenters 

requested adding data elements on the 

date of the notice, the date the notice 

was received by the parent, Indian 

custodian, and Tribe, and the date the 

petition was filed. Commenters 

indicated it is ‘‘easily located and are 

not qualitative or too detailed in nature 

and provides important additional 

information regarding whether notice 

was timely.’’ 

Response: We did not add any data 

elements requiring the state to report the 

dates of notices or petitions because 

there is no need to have aggregated 

national statistics on this information. 

First, the ICWA statute at 25 U.S.C. 

1912(a) contains the specification that 

the notice must be received at least 10 

days before the proceeding, thus a 

response from a state of ‘‘yes’’ in 

paragraphs (b)(5)(i) and (iii) indicates 

that the timeframes are met. We did not 

add any data elements on petition dates 

because information must to be reported 

to AFCARS only when a child enters the 

Out-of-Home Care Reporting 

Population. Per § 1355.42, a child must 

be in ‘‘foster care’’ as defined in 

§ 1355.20 and in § 1355.44(d)(1) the 

state reports the removal date when a 

child enters the placement and care 

responsibility of the title IV–E agency. 

Thus, children with only a removal 

petition filed and who are not in the 

placement and care responsibility of the 

state are not included in the Out-ofHome Care Reporting Population. 

Comment: One commenter requested 

adding data elements on notice to other 

adult relatives, non-Indian relatives, and 

kin because this should align with ‘‘the 

Fostering Connections to Success and 

Increasing Adoptions Act of 2006 

require[ment] that adult grandparents 

and other adult relatives of the child be 

identified and notified within 30 days of 

when a child is removed from his or her 

home.’’ 

Response: We did not add data 

elements on this because there are no 

requirements in the ICWA statute or BIA 

regulations for notice to other adult 

relatives, non-Indian relatives, or kin. 

The commenter is not referring to a 

requirement in ICWA. The commenter 

is referencing a required notice to 

relatives under section 471(a)(29) of the 

Act (42 U.S.C. 671(a)(29)) that is much 

more expansive and applies to all 

children in foster care, including 

children to whom ICWA applies. State 

compliance with the notice to relatives 

requirement is monitored through the 

Child and Family Services Review (see 

item 10C of the on-site review 

instrument). 

Comment: One commenter requested 

adding data elements on: when in the 

case the Tribe was notified; how the 

Tribe was notified; when in the case the 

Tribe intervened; what was the Tribe’s 

level of participation; was the Tribe a 

‘‘party’’ to the case; a definition of 

‘‘proper notice’’ to the Tribe; and Tribal 

affiliation information. 

Response: We did not add data 

elements as suggested because they are 

too detailed for aggregated national 

statistics, and ACF does not have a 

reason to know this information. 

Regarding the suggestion for adding 

‘‘when in the case the Tribe was 

notified,’’ ACF does not have a need for 

states to report the dates of when a Tribe 

was notified because a response of 

‘‘yes’’ in paragraphs (b)(5)(i) and (iii) 


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would indicate that the Indian child’s 

Tribe, parent or Indian custodian were 

given proper legal notice of the child 

custody proceeding more than 10 days 

prior to the first child custody 

proceeding in accordance with 25 

U.S.C. 1912(a). Regarding adding ‘‘how 

the Tribe was notified,’’ the ICWA 

statute and BIA regulations define what 

constitutes notice and specifies the 

methods of how notice must be sent, so 

we do not see a need to collect this 

information since the procedure is 

already contained within the statutory 

and regulatory requirements at 25 CFR 

23.111 and § 1912(a). Regarding adding 

‘‘when in the case that the Tribe 

intervened,’’ ‘‘the Tribe’s level of 

participation’’ in a case, and whether 

the Tribe was a ‘‘party’’ to a case, those 

proposed data elements are impossible 

to report to AFCARS because narrative 

information cannot be reported to 

AFCARS and aggregated into national 

statistics due to the wide variation in 

what could be written. Reporting ‘‘when 

in the case that the Tribe intervened,’’ 

‘‘the Tribe’s level of participation’’ in a 

case, and whether the Tribe was a 

‘‘party’’ to a case would not yield any 

insight when this final rule is requiring 

reporting of requests to transfer cases to 

Tribal court in paragraph (i)(1). 

Additionally, there are no requirements 

in the ICWA statute, BIA regulations or 

titles IV–B or IV–E that guide recording 

or measuring such information. Tribal 

affiliation is reported in paragraph (b)(4) 

on child’s Tribal membership. 

Application of ICWA. In paragraph 

(b)(6), ACF requires the state title IV–E 

agency to report information related to 

ICWA’s application. In paragraph 

(b)(6)(i), the state title IV–E agency must 

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), the state 

title IV–E agency must 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. Of the total 

commenters, seven commented on this 

element and all of them expressed 

support. ACF did not receive comments 

for changes to our proposal for this 

paragraph, thus we finalize this data 

element as proposed. 

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 relates to 

transfers to Tribal court, involuntary 

and voluntary terminations/ 

modifications of parental rights, active 

efforts, and placement preferences 

under ICWA. 

Request to transfer to Tribal court. In 

paragraph (i)(1), the state title IV–E 

agency must report information on 

requests to transfer to Tribal court. In 

paragraph (i)(1)(i), the state title IV–E 

agency must report whether there was 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 there was a denial of the 

request to transfer to Tribal court in 

paragraph (i)(1)(ii). If the state title IV– 

E agency indicated ‘‘yes’’ in paragraph 

(i)(1)(ii), then it must complete 

paragraph (i)(1)(iii) indicating whether 

each reason for denial in paragraphs 

(i)(1)(iii)(A) through (C) ‘‘applies’’ or 

‘‘does not apply.’’ The reasons are: 

Either of the parents objected to 

transferring the case to the Tribal court; 

the Tribal court declined the transfer to 

the Tribal court; The state court 

determined good cause exists for 

denying the transfer to the Tribal court. 

Comment: Twenty-four commenters 

requested adding a data element asking 

for the ‘‘reason for the denial of 

transfer,’’ if the state reports ‘‘yes’’ for 

paragraph (i)(1)(ii) and 20 commenters 

requested adding an element on the 

reason for the good cause that exists for 

denying the transfer to Tribal court. 

Commenters stated that this additional 

data might ‘‘uncover unfair state 

practices’’ and would provide 

information on ‘‘what state courts 

consider good cause to deny transfers,’’ 

which could indicate a need for state 

and Tribal courts to collaborate to 

provide alternative forums, such as 

video conferencing. 

Response: ACF agrees with 

commenters that the data element on 

‘‘reason for denial of transfer’’ should be 

added and is adding a data element 

asking for the reason for denial of the 

request to transfer to Tribal court. We 

included this reporting at new 

paragraph (i)(1)(iii) and the language 

used is modeled after the data element 

that was in the 2016 final rule (81 FR 

90571). ACF added this for the reasons 

expressed by the commenters, as well as 

that this information may improve 

understanding of case transfers for 

continued quality improvement and 

could deepen an understanding of 

ICWA, specifically where state courts 

and Tribal courts interact. However, 

ACF did not add another data element 

asking for the ‘‘reason for good cause’’ 

to deny transfers because ACF does not 

have any indication of what potential 

reasons could be without more input 

from public comment and the data 

element would be of limited use 

without additional detail on what those 

potential reasons could be. 

Comment: Two commenters requested 

that we remove the language of ‘‘case 

record indicated’’ from paragraphs 

(i)(1)(i) and (ii) because these are the 

only elements that ask whether the case 

record indicated a specific fact, but all 

elements in this NPRM could be 

indicated by the case record. 

Response: We removed the language 

‘‘the child’s case record indicated’’ as 

recommended by the commenters, 

which will allow for consistency in the 

final rule. 

Involuntary termination/modification 

of parental rights under ICWA. In 

paragraph (i)(2), ACF requires that the 

title IV–E agency report information on 

involuntary terminations or 

modifications of parental rights under 

ICWA. If the title IV–E agency indicated 

‘‘involuntary’’ in paragraph (c)(5) they 

must complete this paragraph, if 

applicable. In paragraph (i)(2)(i), the 

title IV–E agency must report 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), the state title IV–E 

agency must 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), the state 

title IV–E agency must 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). 


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ACF did not receive comments 

suggesting changes to our proposal for 

this paragraph, thus we finalize this 

data element as proposed. Three 

commenters expressed support for this 

data element and one commenter 

supported the element but said their 

state will need to make changes to their 

electronic case management system to 

capture information to report for 

paragraph (i)(2)(ii) because currently it 

is located only in court minute entries 

and not in an extractable data field. 

Another commenter opposed this data 

element, saying these elements ‘‘are 

process oriented elements that lend 

more to in-depth individual case review 

than to quantitative reporting,’’ that they 

are not captured in their existing data 

system and ‘‘would need to be 

identified through time consuming caseby-case review of individual court 

orders.’’ The commenter further said 

that ‘‘this type of data analysis would 

more effectively be accomplished 

through case review processes.’’ ACF 

continues to believe that this data 

element reflects a key protection of 

ICWA (89 FR 13653) and that including 

this data element contributes to 

fulfilling the statutory requirements of 

the AFCARS mandate by providing 

comprehensive national information on 

the demographics and status of adoptive 

and foster children and their biological 

and adoptive or foster parents in the 

foster care program. This data will 

enable policymakers and researchers to 

develop more effective polices and 

support mechanisms tailored to the 

needs of AI/AN children and their 

families. 

Voluntary termination/modification 

of parental rights under ICWA. In 

paragraph (i)(3), we 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), in accordance with 25 CFR 

23.125, the state title IV–E agency must 

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). 

ACF did not receive comments 

suggesting changes to the proposal for 

this paragraph, thus we finalize this 

data element as proposed. In general, 

five commenters expressed support for 

this element. Another commenter 

opposed this data element saying the 

data elements proposed to be collected 

were ‘‘process oriented,’’ lend 

themselves more to in-depth individual 

case review than to quantitative 

reporting,’’ are not captured in their 

existing data system, ‘‘would need to be 

identified through time consuming caseby-case review of individual court 

orders,’’ and that ‘‘this type of data 

analysis would more effectively be 

accomplished through case review 

processes.’’ ACF continues to believe 

that this data element is a key protection 

of ICWA (89 FR 13653) and aims to 

fulfill the statutory requirements of the 

AFCARS mandate by providing 

comprehensive national information on 

the status of adoptive and foster 

children and their biological and 

adoptive or foster parents in the foster 

care program. It also seeks to address 

the lack of data on AI/AN children. This 

data may enable policymakers and 

researchers to develop more effective 

polices and support mechanisms 

tailored to the needs of AI/AN children 

and their families.of data on AI/AN 

children. This data may enable 

policymakers and researchers to 

develop more effective polices and 

support mechanisms tailored to the 

needs of AI/AN children and their 

families. 

Removals under ICWA. In paragraph 

(i)(4), the state title IV–E agency must 

report information on removals under 

ICWA, for each removal date that is 

reported in paragraph (d)(1). In 

paragraph (i)(4)(i), the state title IV–E 

agency must 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), the state title IV–E 

agency must 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), the 

state title IV–E agency must 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). 

Comment: Twenty commenters 

requested adding data elements on 

‘‘voluntary removals under ICWA,’’ 

stating that collecting this information 

would ‘‘help remedy a statutory hole 

within ICWA.’’ Further, they stated that 

25 U.S.C. 1913 ‘‘does not offer the same 

procedural due process protections 

found under the involuntary 

proceedings as 25 U.S.C. 1912 does.’’ 

They said that in practice, ‘‘very few 

voluntary foster care placements, such 

as those done via a safety plan with the 

state agency or under the Families First 

Prevention Services Act in Title IV–E,’’ 

meet the requirements of 25 U.S.C. 

1913, thus collecting this data would 

‘‘help with education on this issue and 

to ensure federal coordination between 

enforcement of Title IV–E funding goals 

and ICWA’s protections.’’ However, 

commenters did not provide further 

details to inform such an additional data 

collection. 

Response: ACF did not add a data 

element on ‘‘voluntary foster care 

removals under ICWA.’’ The NPRM did 

not indicate that we were considering 

collecting data on such removals, and 

therefore, we will not finalize a new 

data element without public input and 

Tribal consultation on issues such as 

what constitutes a voluntary foster 

placement under ICWA and which 

requirements in 25 U.S.C. 1913 are most 

important to collect in AFCARS. 

Comment: One commenter 

recommended adding a data element on 

when states enter into voluntary service 

agreements with parents prior to a child 

custody proceeding. 

Response: We did not add a data 

element on this for several reasons. 

ICWA statute and BIA regulations do 

not require the state to provide a notice 

to Tribes when they engage in preremoval voluntary agreements with a 

child’s parents. AFCARS does not 

capture information about services 

provided to the family prior to the child 

entering foster care, thus it would not be 

feasible to have states report this 

information. The state is not required to 

report information in AFCARS until a 

child enters the Out-of-Home Care 

Reporting Population. Lastly, the NPRM 

did not indicate that we were 

considering collecting data on preremoval voluntary services agreements 

and we would want further public input 

and Tribal consultation before adding 

this as a new data element. 

Comment: One commenter asked for a 

measurable or clear definition of ‘‘active 


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efforts’’ and recommended adding data 

elements on whether an active efforts 

finding was made to preserve and 

reunify the family and the timing in the 

case of such finding. 

Response: We did not add a data 

element on this because reporting 

whether active efforts were made to 

preserve and reunify the family are 

reported in paragraph (i)(4)(iii). We did 

not add data elements to report the 

timing of active efforts decisions 

because there is no need for this 

information to be reported to ACF to be 

aggregated at the national level. A 

definition of ‘‘active efforts’’ is not 

needed or appropriate in AFCARS 

because BIA regulations already define 

‘‘active efforts’’ (25 CFR 23.2). 

Available ICWA foster care and preadoptive placement preferences. In 

paragraph (i)(5), the state title IV–E 

agency must 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. 

ACF did not receive comments for 

changes to our proposal for this 

paragraph, thus we finalize this data 

element as proposed. In general, five 

commenters expressed support for this 

data element and one commenter 

supported the element and said they 

will need to make changes to their 

electronic case management system to 

capture information to report this data 

element. Two commenters opposed this 

data element, stating that information 

on placement histories is already 

reported to AFCARS and this data 

element does not add ‘‘sufficient value’’ 

compared to the effort to report it. ACF 

believes that this data element is a key 

protection of ICWA (89 FR 13653) and 

aims to fulfill the statutory requirements 

of the AFCARS mandate by providing 

comprehensive national information on 

the status of adoptive and foster 

children and their biological and 

adoptive or foster parents in the foster 

care program. It also seeks to address 

the lack of data on AI/AN children. We 

believe that this data may enable 

policymakers and researchers to 

develop more effective polices and 

support the needs of AI/AN children 

and their families. Additionally, a 

commenter stated that the collection of 

this data may show where resources, 

training and recruitment efforts might 

be needed to increase the number of 

available preferred placement options. 

Another commenter said that the 

placement preferences are crucial to 

keeping families together, and this data 

may aid in understanding the needs of 

AI/AN children and tribal communities, 

and respecting the intent of ICWA. 

Establishing this requirement will not 

be duplicative because while placement 

information is reported in AFCARS at 

§ 1355.44(e), that information is not 

specifically asking about available 

placements. 

Foster care and pre-adoptive 

placement preferences under ICWA. In 

paragraph (i)(6), the state title IV–E 

agency must report whether each of the 

Indian child’s foster care or preadoptive 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 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. 

ACF did not receive comments 

suggesting changes to our proposal for 

this paragraph, thus we finalize this 

data element as proposed. Five 

commenters expressed support for this 

data element and one commenter 

supported the element and said they 

will need to make changes to their 

electronic case management system to 

capture information to report this data 

element. Two commenters opposed this 

data element, stating that reporting data 

related to ICWA placement preference 

without additional context is not useful 

when developing policy or program 

changes and there are multiple factors 

that determine whether a child is placed 

within ICWA placement preference or 

not. ACF believes that this data element 

is a key protection of ICWA (89 FR 

13653) and aims to fulfill the statutory 

requirements of the AFCARS mandate 

by providing comprehensive national 

information on the status of adoptive 

and foster children and their biological 

and adoptive foster parents in the foster 

care program. It also seeks to address 

the lack of data on AI/AN children. We 

believe that this data may enable 

policymakers and researchers to 

develop more effective polices and 

support the needs of AI/AN children 

and their families. A commenter said 

that collecting information on 

placement preferences may help ensure 

that children grow up in culturally 

appropriate environments that maintain 

their connections with their families, 

Tribes, and heritage, provide an 

understanding around placement 

preferences, and identify areas for 

improvement in serving AI/AN children 

and families, including cross-system 

collaborations between local and state 

child welfare agencies and Tribes. 

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)), the state title IV–E agency must 

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. 


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• 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. 

Comment: In general, five 

commenters expressed support for this 

data element and one commenter 

supported the element and said they 

will need to make changes to their 

electronic case management system to 

capture information to report this data 

element. Two commenters opposed this 

data element, stating that reporting data 

related to ICWA placement preference 

without additional context is not useful 

when developing policy or program 

changes and there are multiple factors 

that determine whether a child is placed 

within ICWA placement preference or 

not. 

Response: We believe that this data 

element is a key protection of ICWA (89 

FR 13653) and aims to fulfill the 

statutory requirements of the AFCARS 

mandate by providing comprehensive 

national information on the status of 

adoptive and foster children and their 

biological and adoptive foster parents in 

the foster care program. It also seeks to 

address the lack of data on AI/AN 

children. We believe that this data may 

enable policymakers and researchers to 

develop more effective polices and 

support mechanisms tailored to the 

needs of AI/AN children and their 

families. A commenter said that 

gathering data on which of the possible 

good cause exceptions was relied upon 

may help states, Tribes, and advocates 

get a better sense of where they need to 

focus their efforts to increase the 

number of preferred placement options. 

Comment: One commenter suggested 

adding data elements on whether a good 

cause finding was made to deviate from 

ICWA’s placement preferences, the basis 

of the good cause finding, and how good 

cause was reached. 

Response: We did not add any of the 

suggested data elements because 

whether a good cause finding was made 

and the basis for good cause will already 

be collected in paragraph (i)(7)–(8) and 

(12)–(13) of this final rule. In reference 

to collecting good cause information 

using a qualitative method of collection, 

we did not add data elements on that 

because it is impossible to collect 

narrative information in AFCARS and 

for ACF to aggregate such information 

into national statistics. 

Active Efforts. In paragraph (i)(9), the 

state title IV–E agency must report 

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. 

Comment: One commenter suggested 

adding data elements on the details on 

active efforts, such as whether they were 

culturally appropriate services and the 

standard to measure culturally 

appropriate services. 

Response: We did not add these data 

elements for several reasons as it 

represents a data collection outside the 

scope of the NPRM. We understand that 

it is important to provide culturally 

appropriate services, however, adding 

more details for active efforts without 

much more context would be difficult to 

interpret and burdensome. Additionally, 

there is no need or use for this 

information to be reported to ACF to be 

aggregated at the national level. This 

data element only collects information 

on whether the state provided active 

efforts (yes or no) and not the types of 

efforts provided. Therefore, it is not 

possible to ascertain whether services 

were culturally responsive or how they 

were measured because we do not have 

any measurements for this type of 

information. Lastly, there is no 

definition of ‘‘culturally appropriate’’ 

services outlined in statute or 

regulations and therefore, no guidelines 

on how to report such information. 

Comment: One commenter suggested 

adding a definition of active efforts to 

AFCARS. 

Response: We did not make any 

changes to the final rule. A definition is 

not needed or necessary because the 

element cross-references to the citation 

in the BIA regulations for the definition 

of ‘‘active efforts’’ (25 CFR 23.2). 

Comment: One commenter suggested 

adding data elements to collect data on 

the steps that the state title IV–E agency 

took to make active efforts ‘‘using a 

qualitative method instead of a 

quantitative method.’’ 

Response: We did not add data 

elements on this because adding more 

details for active efforts without much 

more context would be difficult to 

interpret and burdensome. Also, it is 

impossible for AFCARS to collect in 

AFCARS narrative information and for 

ACF to aggregate this information into 

national statistics due to the wide 

variation in what could be written. 

Available ICWA adoptive placements. 

If the state title IV–E agency indicated 

the child exited to adoption in 

§ 1355.44(g)(3) Exit reason, the state title 

IV–E agency must report in paragraph 

(i)(10) 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. 

ACF did not receive comments 

suggesting changes to our proposal for 

this paragraph, thus we finalize this 

data element as proposed. In general, 

five commenters expressed support for 

this data element and one commenter 

supported the element and said they 

will need to make changes to their 

electronic case management system to 

capture information to report this data 

element. Two commenters opposed this 

data element, stating that reporting data 

related to ICWA placement preference 

without additional context is not useful 

when developing policy or program 

changes and there are multiple factors 

that determine whether a child is placed 

within ICWA placement preference or 

not. 

ACF believes that this data element is 

a key protection of ICWA (89 FR 13653) 

and aims to fulfill the statutory 

requirements of the AFCARS mandate 

by providing comprehensive national 

information on the status of adoptive 

and foster children and their biological 

and adoptive foster parents in the foster 

care program. It also seeks to address 

the lack of data on AI/AN children. We 

believe that this data may enable 

policymakers and researchers to 

develop more effective polices and 

support mechanisms tailored to the 

needs of AI/AN children and their 

families. A commenter said that 

collecting information on placement 

preferences may help ensure that 

children grow up in culturally 

appropriate environments that maintain 

their connections with their families, 

Tribes, and heritage, provide an 

understanding around placement 

preferences, and identify areas for 

improvement in serving AI/AN children 

and families, including cross-system 

collaborations between local and state 

child welfare agencies and Tribes. 

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, 

the state title IV–E agency must report 

in paragraph (i)(11) 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 


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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. 

Comment: In general, five 

commenters expressed support for this 

data element and one commenter 

supported the element and said they 

will need to make changes to their 

electronic case management system to 

capture information to report this data 

element. Two commenters opposed this 

data element, stating that information 

on placement histories is already 

reported to AFCARS and this data 

element does not add ‘‘sufficient value’’ 

compared to the effort to report it. 

Response: We believe that this data 

element is a key protection of ICWA (89 

FR 13653) and aims to fulfill the 

statutory requirements of the AFCARS 

mandate by providing comprehensive 

national information on the status of 

adoptive and foster children and their 

biological and adoptive foster parents in 

the foster care program. It also seeks to 

address the underrepresentation of data 

on AI/AN children. We believe that this 

data may enable policymakers and 

researchers to develop more effective 

polices and support mechanisms 

tailored to the needs of AI/AN children 

and their families. A commenter said 

that collecting information on 

placement preferences may help ensure 

that children grow up in culturally 

appropriate environments that maintain 

their connections with their families, 

Tribes, and heritage, provide an 

understanding around placement 

preferences, and identify areas for 

improvement in serving AI/AN children 

and families, including cross-system 

collaborations between local and state 

child welfare agencies and Tribes. 

Comment: One commenter suggested 

adding data elements on: whether a 

guardianship or adoption of a child was 

with a Tribal member, the child’s Tribe, 

other; whether the placement 

preferences were provided; and whether 

placement preferences were 

accommodated. 

Response: We did not add any data 

elements because AFCARS already 

collects whether the adoptive parent or 

guardian is a member of an Indian Tribe 

in § 1355.44(h)(4) and (9). We do not 

collect the name of a Tribe when a child 

exits to adoption or guardianship 

because we do not have a need for this 

information aggregated at the national 

level. The data elements on placement 

preferences in this final rule will 

provide information on whether the 

preferences were followed and whether 

the child was placed for adoption with 

‘‘a member of the Indian child’s 

extended family,’’ ‘‘other members of 

the Indian child’s Tribe,’’ or ‘‘other 

Indian families. 

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)), ACF proposes 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. 

Comment: In general, five 

commenters expressed support for this 

data element and one commenter 

supported the element and said they 

will need to make changes to their 

electronic case management system to 

capture information to report this data 

element. Two commenters opposed this 

data element, stating that reporting data 

related to ICWA placement preference 

without additional context is not useful 

when developing policy or program 

changes and there are multiple factors 

that determine whether a child is placed 

within ICWA placement preference or 

not. 

Response: We believe that this data 

element is a key protection of ICWA (89 

FR 13653) and aims to fulfill the 

statutory requirements of the AFCARS 

mandate by providing comprehensive 

national information on the status of 

adoptive and foster children and their 

biological and adoptive foster parents in 

the foster care program. It also seeks to 

address the underrepresentation of data 

on AI/AN children. We believe that this 

data may enable policymakers and 

researchers to develop more effective 

polices and support mechanisms 

tailored to the needs of AI/AN children 

and their families. A commenter said 

that collecting information on 

placement preferences may help ensure 

that children grow up in culturally 

appropriate environments that maintain 

their connections with their families, 

Tribes, and heritage, provide an 

understanding around placement 

preferences, and identify areas for 

improvement in serving AI/AN children 

and families, including cross-system 

collaborations between local and state 

child welfare agencies and Tribes. 

Comment: One commenter suggested 

adding data elements on: whether a 

good cause finding was made to deviate 

from ICWA’s placement preferences; the 

basis of the good cause finding; and how 

good cause was reached using a 

qualitative data collection method to 

obtain data that is informative and 

serves as a foundation for training and 

support needs, regarding ICWA. 

Response: We did not add any data 

elements because whether a good cause 

finding was made and the basis for good 

cause will already be collected in 

paragraph (i)(7)–(8) and (12)–(13) of this 

final rule. In reference to collecting good 

cause information using a qualitative 

method of collection, ACF did not add 

data elements as suggested because it is 

impossible for AFCARS to collect 

narrative information and for ACF to 

aggregate this information into national 

statistics. 

V. Regulatory Impact Analysis 

Congressional Review Act 

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 foreignVerDate Sep<11>2014 15:50 Dec 04, 2024 Jkt 265001 PO 00000 Frm 00066 Fmt 4700 Sfmt 4700 E:\FR\FM\05DER1.SGM 05DER1

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based enterprises in domestic and 

export markets (see 5 U.S.C. chapter 8). 

OMB’s Office of Information and 

Regulatory Affairs has determined that 

this rule does not meet the criteria set 

forth in 5 U.S.C. 804(2). 

Regulatory Flexibility Analysis 

The Regulatory Flexibility Act (RFA; 

5 U.S.C. 601 et seq.), as amended by the 

Small Business Regulatory Enforcement 

Fairness Act of 1996, requires) 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, notfor-profit organizations that are 

independently owned and operated and 

are not dominant in their fields, and 

governmental jurisdictions with 

populations of less than 50,000. HHS 

considers a rule to have a significant 

impact on a substantial number of small 

entities if it has at least a three percent 

impact on revenue on at least 5 percent 

of small entities. However, the Secretary 

certifies, 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 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 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 2024, that threshold is approximately 

$183 million. This 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, 1999 (Pub. L. 105–277) 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 concluded it 

is not necessary to prepare a family 

policymaking assessment (see Pub. L. 

105–277) because this rule 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, 

ACF solicited comments from state and 

local government officials on the 2024 

NPRM and considered them in 

finalizing this rule. See sections II 

through IV of the preamble, where we 

address the elements of the federalism 

summary impact statement: the extent 

of the agency’s prior consultation with 

State and local officials, a summary of 

the nature of their concerns and the 

agency’s position supporting the need to 

issue the regulation, and a statement of 

the extent to which the concerns of 

State and local officials have been met. 

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 

amended by Executive Order 14094 to 

mean ‘‘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 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 

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. 

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 

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. ACF estimates 

the Federal portion of the overall 

information collection costs to be 

approximately $2,486,304 annually. 

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 seeking to 

expand the ICWA related data elements 

in AFCARS. An alternative course of 

action would be to do nothing and leave 

the requirements at 45 CFR 1355.44 in 

place because they were streamlined in 

the 2020 final rule in response to 

comments solicited at that time. ACF 

rejected this option because of the 


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reasons described earlier in the final 

rule. Under this alternative, state title 

IV–E agencies would continue to report 

the ICWA-related data required through 

the 2020 final rule. However, this 

information would not be robust enough 

to provide the data on AI/AN children 

needed to understand their experiences 

in the foster care system. 

• ACF also considered the alternative 

of implementing a process to monitor 

ICWA’s procedural protections through 

a case review outside of AFCARS. ACF 

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 (§ 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 under this final rule may 

incentivize agencies to provide timely 

and complete data submissions (§ 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). 

Paperwork Reduction Act 

This 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. The PRA 

sought to minimize governmentimposed burdens from information 

collections on the public. In keeping 

with the notion that 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 rule contains 

information collection requirements in 

§ 1355.44 the Out-Of-Home Care Data 

File that the Department has submitted 

to OMB for its review. This final rule 

requires state title IV–E agencies to 

report ICWA-related information for 

children who are in the Out-of-Home 

Care Reporting Population (§ 1355.42(a)) 

for the data elements in § 1355.44(b) and 

(i). 

2024 NPRM Comments 

There were few comments made on 

the burden and costs of the 2024 NPRM 

and fewer provided estimated burden 

hours and cost amounts. ACF did not 

make changes to the burden estimates in 

this final rule based on this information 

because there was not enough detailed 

information to draw any different 

conclusions than we did in calculating 

the burden estimates for the 2024 

NPRM. OMB did not receive comments 

in response to the 2024 NPRM. Thus, 

what follows is a burden estimate for 

this final rule, using the 2024 NPRM 

burden estimate since we did not make 

substantive changes in this final rule. 

Changes in the final rule estimate are 

attributed to updated input numbers, 

such as labor rate, number of children 

in foster care, and adding several 

additional data points to be reported. 

Eleven commenters (including states, 

organizations, and one individual) 

expressed a concern that states will 

struggle with implementing this final 

rule, even if they have a CCWIS, and 

that burden will vary greatly among 

states depending on the number of 

ICWA-eligible children in their 

reporting population, e.g., it is possible 

that states with large populations may 

have data collection methods already in 

place and can more easily adapt to the 

requirements. Five states said the 2024 

NPRM will impose ‘‘significant’’ fiscal, 

staffing, system changes, and time 

burden on states. An individual said 

that the proposal is ‘‘an unnecessary 

recordkeeping . . . cost’’ to the state. 

One organization and two states said 

that child welfare workers are already 

‘‘overburdened,’’ and that ‘‘data entry 

. . . would take time away from direct 

casework.’’ One state added that while 

reimbursement may be available under 

title IV–E to support the activities 

required for implementation, ‘‘ICWA is 

not a funding source and no additional 

funding appears to be made available’’ 

for implementation and so the proposal 

is a ‘‘burden on state funds to cover 

state match and for costs associated 

with foster children that do not meet 

IV–E eligibility requirements.’’ 

Two states, one Tribe, and one 

organization expressed support for the 

2024 NPRM, saying that the value of the 

data proposed outweighs the burden 

and cost of updating systems. Two 

states said that the additional data is 

necessary and fulfills unmet data needs. 

One Tribe and one organization 

countered arguments for state burdens 

by saying that if states are practicing 

‘‘good case management,’’ then they will 

have access to court documents. One 

Tribe added that ‘‘although there will be 

additional efforts and resources required 

to collect this new data, for over 30 

years since the establishment of the 

AFCARS in 1993, there has been little 

effort to close this gap in data collection 

for AI/AN children and families until 

recently.’’ One organization also said 

that due to the ‘‘data deficit . . . Native 

children and families have carried the 

burden of overrepresentation in child 

welfare systems, negatively impacting 

their wellbeing, without data-driven 

approaches to address the families’ 

needs or to prevent system 

involvement.’’ 

Three of the nine commenters who 

expressed concern about burden 

provided estimates for burden hours 

and cost amounts and we summarize 

their input below: 

• One commenter said they have 

eight children receiving foster care 

services to whom ICWA applies, which 

is less than 0.13% of their Out-of-Home 

Care Reporting Population. They 

estimated total costs for developing and 

implementing the proposed 

modifications from the 2024 NPRM to 

their existing legacy system would be 

approximately $491,556.30. They 

explained that this would comprise onetime costs of $419,400.52 and 

$15,504.08 to verify and adjust existing 

procedures to comply with the 

requirements each year after the changes 

are implemented. They also estimated a 

cost of $56,651.70 for the tasks 

associated with staff training and 

administrative tasks to deploy system 

updates state-wide. They estimated that 

it will take approximately 10,396 hours 

to complete the initial work and 344 

hours for ongoing work after the 

changes are implemented. 

• One commenter estimated total 

initial project costs, including 

implementation and training, to be 

$201,751. This comprised 1,200 hours 

of technical staff time and a cost of 

$188,400 for development and 

implementation of CCWIS and AFCARS 

changes. They estimated total hours for 

staff for development, testing, 

implementation, and training is 450 


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hours for a total cost of $13,351. They 

estimated ongoing costs for data quality 

oversight to be $2,967 based on previous 

projects. Regarding staff time to enter 

the additional data elements, they 

estimated burden hours to be 12,952 per 

year, for a total annual cost of $367,577. 

They included some estimates for staff 

labor rates being $26.84 per hour for a 

Family Services Specialist and $33.00 

per hour for a Family Services Specialist 

Supervisor. 

• Another commenter only provided 

an estimated burden hour amount of 

cumulatively 687 hours annually 

collecting and entering the proposed 

data. 

While ACF considered the 

information provided by these three 

commenters, information from these few 

entities cannot be used to change 

average burden hours/cost across all 

states, as the burden calculations in this 

rule follow. However, we used this 

limited information to see whether the 

generalized estimates that follow (which 

are spread across all states and do not 

account for states of very different sizes 

and of which, some may have larger 

populations of children served than 

others) may be in line with what some 

states may experience in implementing 

this final rule. Since these are rough 

estimates based on the information 

available to ACF, we believe they are 

consistent. 

Burden Estimate 

Discussion: The following are 

estimates. ACF estimates the burden 

and costs associated with this final rule 

using the estimates from the 2024 

NPRM, which used the 2020 final rule 

as a base by which to estimate the 

burden of adding the ICWA-related data 

elements. The 2020 final rule estimates 

can be seen beginning at 85 FR 28421. 

This final rule has a narrow focus in 

that ACF is adding 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 in this 

final rule, thus they are not included in 

this burden estimate. 

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. ACF 

understands 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. ACF wants to note 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 case 

management systems and electronic 

case files 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 

ACF made several assumptions when 

calculating the burden and costs. First, 

we will describe the 2024 NPRM 

estimates and then describe how the 

estimates changed for this final rule. 

• 2024 NPRM Estimated Burden 

Hours: The 2024 NPRM burden 

estimates were used by calculating the 

increase in data elements proposed over 

the 2020 final rule. 

Æ 2024 NPRM Recordkeeping Burden 

Hours: The 2024 NPRM estimated the 

total recordkeeping burden to be 48,183 

hours annually. 

D The 2024 NPRM estimated an 

average 44,875 hours annually for 

searching data sources, gathering 

information, and entering the 

information into the case management 

system for children who enter foster 

care. This comprised of 0.20 hours 

annually for each child who entered 

foster care for the data elements in 

§ 1355.44(b)(3) through (6) (a 5 percent 

increase in data points to report for all 

children who enter foster care) and 0.76 

hours annually for the data elements in 

§ 1355.44(i) (a 19 percent increase in 

data points to report for children to 

whom ICWA applies). ACF is again 

using a child’s reported race as AI/AN 

as a proxy for a child to whom ICWA 

applies. These percentage increases 

were derived from the increase in 

reporting over the 2020 final rule, which 

was 4.02 hours annually for each child 

who entered foster care for all 2020 final 

rule data points and 206,812 children 

who had entered foster care in FY 2022. 

D The 2024 NPRM estimated 1,608 

hours annually for 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. This 

comprises 335 hours annually for the 

data elements in § 1355.44(b)(3) through 

(6) (a 5 percent increase in data points 

to report for all children who enter 

foster care) and 1,273 hours annually for 

the data elements in § 1355.44(i) (a 19 

percent increase in data points to report 

for children to whom ICWA applies). 

The 2020 final rule estimated 6,700 

hours for these tasks for all 2020 final 

rule data points. 

D The 2024 NPRM estimated 1,621 

annual burden hours for modifying IT 

systems and adjust existing ways to 

comply with the proposal. This 

comprises 354 hours annually for the 

data elements in § 1355.44(b)(3) through 

(6) (a 5 percent increase in data points 

to report for all children who enter 

foster care) and 1,346 hours annually for 

the data elements in § 1355.44(i) (a 19 

percent increase in data points to report 

for children to whom ICWA applies). 

Administrative tasks associated with 

training personnel on the requirements 

include reviewing instructions and 

developing training and manuals. ACF 

understands that training hours will 

vary depending on the size of the 

agency’s workforce needing training and 

the current training conducted regarding 

ICWA, therefore ACF assumes that 

implementing the data elements here 

will be incorporated in ongoing training 

efforts. The 2020 final rule estimated 

7,086 hours for all 2020 final rule data 

points. 

Æ 2024 NPRM Reporting Burden 

Hours: The 2024 NPRM estimated the 

total reporting burden to be 8 hours 

annually. This comprises 2 hours 

annually for each child who entered 

foster care for the data elements in 

§ 1355.44(b)(3) through (6) (a 5 percent 

increase in data points to report for all 

children who enter foster care) and 6 

hours annually for the data elements in 

§ 1355.44(i) (a 19 percent increase in 

data points to report for children to 

whom ICWA applies). Reporting burden 

is compiling the data file and 

transmitting to ACF. The 2020 final rule 

estimated reporting would take 34 hours 

annually extracting and reporting 

information for all 2020 final rule data 

points. 

• 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 2022 AFCARS 

data available (report #30): 186,602 

children entered in foster care during 

FY 2022. Of those, 4,276 children were 


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reported to have a race of AI/AN. ACF 

used the number of children who 

entered foster care rather than the entire 

population of children in foster care 

because states will not have to collect 

and report all data elements on all 

children in foster care. 

• 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 49 

data points related to state title IV–E 

agencies reporting the new/revised 

ICWA-related information. The reason 

why the number of data points 

increased is because ACF added a data 

element in § 1355.44(b)(3)(vii) and 

added 3 data elements in 

§ 1355.44(i)(1)(iii)(A)–(C). Thus, the 

percentage increase in reporting over 

the 2020 final rule represents revisions 

to the current ICWA-related data 

elements to expand the information to 

be reported in § 1355.44(b)(3)–(6), 

which represents a six percent increase 

in data points for state title IV–E 

agencies to report for all children who 

enter foster care over the 2020 final rule 

(11 new data points/186 current data 

points = 0.06). New data points to be 

added in § 1355.44(i) represents a 20 

percent increase in data points for state 

title IV–E agencies to report for children 

to whom ICWA applies (38 new data 

points/186 current data points = 0.20). 

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 final 

rule. ACF understands from states 

during the implementation period of the 

2020 final rule and comments to the 

2024 NPRM that to report the revised/ 

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. ACF also 

understands that the burden 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 final rule, regardless of CCWIS 

status. As more states build CCWIS, 

ACF anticipates it will lead to more 

efficiency in reporting. However, ACF 

understands from the 2024 NPRM that 

the bulk of the information that would 

be used to respond to the expanded 

ICWA-related data collection is located 

in 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 rule. ACF 

understands 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, ACF also reviewed 2023 

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. ACF 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. 

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 $23.05, Social and 

Community Service Managers (11–9151) 

at $40.10, Community and Social 

Service Operations (21–0000) (e.g., 

Social Workers, Child and Family Social 

Workers, Counselors, Social Service 

Specialists) at $28.36, Social Workers 

(21–1020) at $30.23, Child, Family, and 

School Social Workers (21–2021) at 

$29.68, and Paralegals and Legal 

Assistants (23–2011) at $31.95, 

Computer Information and Systems 

Managers (11–3021) at $86.88, 

Computer and Mathematical 

Occupations (15–0000) (e.g., computer 

and information analysts, computer 

programmers, and database and systems 

administrators) at $54.39, Information 

Security Analysts (15–1212) at $59.97, 

Computer Hardware Engineers (17– 

2061) at $71.04, Database 

Administrators (15–1242) at $50.39, 

Database Architects (15–1243) at $65.88, 

and Computer Programmers (15–1251) 

at $51.80. The rounded average labor 

rate for these wages is $48 and to 

account for associated overhead costs, 

ACF doubled this rate, which is $96. 

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 51,789 

recordkeeping hours annually, as 

summarized below. As stated earlier in 

the ‘‘Assumptions for Estimates’’ 

discussion, the bullet on ‘‘Additional 

and Revised Data Elements for State 

Title IV–E Agencies’’ above, ACF 

estimates that this final rule has an 

increase in reporting of 6 percent in data 

points for state title IV–E agencies to 

report for all children who enter foster 

care in § 1355.44(b)(3) through (6) (11 

new data points/186 current data points 

= 0.06); and 19 percent in new data 

points in § 1355.44(i) for state title IV– 

E agencies to report for children to 

whom ICWA applies (38 new data 

points/186 current data points = 0.20). 

• ACF estimates that searching data 

sources, gathering information, and 

entering the information into the case 

management system for children who 

enter foster care would take on average 

48,205 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 final rule, the 

expanded ICWA-related information to 

be added in: 

Æ Section 1355.44(b)(3) through (6) is 

a 6 percent increase in data points to 

report for all children who enter foster 

care (4.02 × 0.06 = 0.24 hours). These 

data points apply to all children who 

enter foster care (0.24 hours × 186,602 

children = 44,784 hours). 

Æ Section 1355.44(i) is a 20 percent 

increase in data points to report for 

children to whom ICWA applies (4.02 × 

0.20 = 0.80 hours). ACF again used a 

child’s reported race as AI/AN as a 

proxy for a child to whom ICWA applies 

(0.80 hours × 4,276 children = 3,421 

hours). 

Æ The total estimate of searching/ 

gathering/entering information into the 

case management system is 48,205 

annual burden hours (44,784 + 3,421 = 

48,205). 

• 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 ACF estimates would take 

1,742 hours annually. The 2020 final 

rule estimated 6,700 hours for these 

tasks for all 2020 final rule data points. 

For this final rule, the expanded ICWArelated information to be added in: 

Æ Section 1355.44(b)(3) through (6) is 

a 6 percent increase in data points to 


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report for all children who enter foster 

care (6,700 × 0.06 = 402 hours). 

Æ Section 1355.44(i) is a 20 percent 

increase in data points to report for 

children to whom ICWA applies (6,700 

× 0.20 = 1,340 annual hours). 

Æ The total estimate of developing or 

modifying standard operating 

procedures and IT systems is 48,205 

annual burden hours (402 + 1,340 = 

1,742). 

• Administrative tasks associated 

with training personnel on the 

requirements include reviewing 

instructions, developing training and 

manuals and training personnel on the 

requirements and ACF estimates it will 

take on average 1,842 annual burden 

hours. ACF understands that training 

hours will vary depending on the size 

of the agency’s workforce needing 

training and the current training 

conducted regarding ICWA, therefore 

ACF assumes that implementing the 

data elements 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 final 

rule, the information to be added in: 

Æ Section 1355.44(b)(3) through (6) is 

a 6 percent increase in data points to 

report for all children who enter foster 

care (7,086 × 0.06 = 425 hours). 

Æ Section 1355.44(i) is a 20 percent 

increase in data points to report for 

children to whom ICWA applies (7,086 

× 0.20 = 1,417 hours). 

Æ The total estimate of administrative 

tasks associated with training personnel 

to comply with the final rule is 1,842 

annual burden hours (425 + 1,417 = 

1,842). 

Thus, the total recordkeeping burden 

estimate is 48,205 hours searching and 

gathering information + 1,742 hours 

developing or modifying IT systems + 

1,842 hours administrative tasks = 

51,789 hours. 

Reporting Burden Estimate for State 

Title IV–E Agencies: ACF estimates that 

extracting the additional ICWA-related 

information for AFCARS reporting and 

transmitting the information to ACF 

would take on average 9 hours annually 

for all states. The 2020 final rule 

estimated reporting would take 34 hours 

annually extracting and reporting 

information for all 2020 final rule data 

points. For this final rule, the expanded 

ICWA-related information to be added 

in: 

• Section 1355.44(b)(3) through (6) is 

a 6 percent increase in data points to 

report for all children who enter foster 

care (34 × 0.06 = 2 hours). 

• Section 1355.44(i) is a 20 percent 

increase in data points to report for 

children to whom ICWA applies (34 × 

0.20 = 7 hours). 

The total estimate of reporting the 

expanded ICWA related information to 

comply with the final rule is 9 annual 

burden hours (2 + 7 = 9). 

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 2 497.97 51,789 

Reporting ......................................................................................................... 52 2 0.09 9 

Total .......................................................................................................... ........................ ........................ ........................ 51,798 

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 in this 

final rule and actual costs will vary, 

depending on each agency’s cost 

allocation, information system, and 

other factors. ACF estimates that it 

would cost the Federal government 

approximately $2,486,304 for 

reimbursement. For this estimate, ACF 

used the 50 percent Federal financial 

participation (FFP) rate thus, we 

estimate the costs for Federal and nonFederal to be the same. 

Collection-AFCARS for State Title IV–E agencies Total annual 

burden hours 

Average 

hourly labor 

rate 

Total cost 

Estimate 

federal costs 

(50% FFP) 

Recordkeeping ................................................................................................. 51,789 $96 $4,971,744 $2,485,872 

Reporting ......................................................................................................... 9 96 864 432 

Total .......................................................................................................... ........................ ........................ 4,972,608 2,486,304 

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 of burden and costs based on 

the information available to ACF. 

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. Written 

comments to OMB or the 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. 

VI. 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 notes that consultation is 

triggered for a new rule adoption that 

significantly affects Tribes, meaning the 

new rule adoption has substantial direct 

effects on one or 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 final rule does not meet either 


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96588 Federal Register / Vol. 89, No. 234 / Thursday, December 5, 2024 / Rules and Regulations 

standard for consultation. Executive 

Order 13175 does not apply to this final 

rule 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, and therefore, 

they do not have to report the data 

elements in this final rule. However, 

while E.O. 13175 and ACF’s Tribal 

Consultation Policy do not formally 

apply to this final rule, ACF still sought 

Tribal input on the 2024 NPRM during 

the comment period via Tribal 

consultation. 

ACF announced the Tribal 

consultation in writing via a ‘‘Dear 

Tribal Leader Letter’’ (DTLL) on March 

6, 2024 noting the date, purpose, virtual 

location, and registration process for 

consultation. The DTLL was also shared 

in the publication ‘‘News from CB,’’ via 

the Children’s Bureau (CB), the 

Resource Center for Tribes, and through 

CB’s program offices and community 

partners. Tribal Consultation was held 

via a Zoom webinar on April 3, 2024, 

at 3:30 p.m. Eastern and there were 55 

attendees. During the webinar, CB 

provided a background and history of 

regulation development and an 

overview of the NPRM. ACF invited 

general comments on the NPRM and 

comments on the potential benefits and 

disadvantages of including this data in 

AFCARS. In general, participants 

expressed support for the proposal and 

said that Tribes have advocated for 

including these data elements for a long 

time. One participant expressed their 

view that states do not have a sufficient 

understanding of the importance of 

ICWA and as a result, do not work well 

with Tribes on these issues. The 

participant felt that the proposed 

elements will give Tribes data that they 

can use to communicate with states 

regarding ICWA and Tribal children 

who are in the placement and care 

responsibility of states. A few 

participants did not provide a specific 

comment but instead asked questions 

related to interpreting ICWA’s 

requirements, which are outside the 

scope of this final rule. 

Additionally, prior to publication of 

the NPRM, the Department addressed 

collecting ICWA-related information in 

AFCARS at the Secretary’s Tribal 

Advisory Council (STAC), which is a 

group of tribal leaders that advises the 

Secretary on Tribal affairs, meetings in 

2022. In September 2022, ACF updated 

the STAC of ACF’s intention to seek 

revision of AFCARS to propose ICWArelated 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. 

Meg Sullivan, Principal Deputy 

Assistant Secretary for the 

Administration for Children and 

Families, performing the delegable 

duties of the Assistant Secretary for 

Children and Families 

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: November 25, 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 

paragraph (b) to read as follows: 

§ 1355.43 Data reporting requirements. 

* * * * * 

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

IV–E agency must report the 

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) For state title IV–E agencies only, 

regarding only the ICWA-related data 

elements in § 1355.44(b)(3) through (6) 

and (i): For a child who entered the outof-home care reporting population as 

defined in § 1355.42(a) prior to October 

1, 2028 and exits the out-of-home care 

reporting population on or after October 

1, 2028, the state title IV–E agency must 

report information for the data 

described in § 1355.44(b)(4)(i) and (ii) 

and (6)(i) only. 

* * * * * 

■ 3. Effective Oct. 1, 2028, 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 (vii) 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.’’ 

(vii) Indicate whether the state title 

IV–E agency inquired with the child’s 

legal guardian if the child has one. 

Indicate ‘‘yes,’’ ‘‘no,’’ or ‘‘child does not 

have a legal guardian.’’ 

(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 


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paragraph (b)(4)(iv) of this section. If the 

state title IV–E agency indicates ‘‘no,’’ 

then it must leave paragraph (b)(4)(iv) of 

this section 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) of 

this section. If the state title IV–E agency 

indicates ‘‘no,’’ then it must leave 

paragraph (b)(5)(ii) of this section 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 this 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 there was 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 

(i)(1)(ii) of this section. If the state title 

IV–E agency indicates ‘‘no,’’ the state 

title IV–E agency must leave paragraph 

(i)(1)(ii) of this section blank. 

(ii) Indicate whether there was a 

denial of the request to transfer to Tribal 

court. Indicate ‘‘yes’’ or ‘‘no.’’ If the state 

title IV–E agency indicated ‘‘yes,’’ then 

the state title IV–E agency must 

complete paragraph (i)(1)(iii) of this 

section. If the state title IV–E agency 

indicated ‘‘no,’’ the state title IV–E 

agency must leave paragraph (i)(1)(iii) of 

this section blank. 

(iii) Indicate whether each reason for 

denial in paragraph (i)(1)(iii)(A) through 

(C) of this section ‘‘applies’’ or ‘‘does 

not apply.’’ 

(A) Either of the parents objected to 

transferring the case to the Tribal court. 

(B) The Tribal court declined the 

transfer to the Tribal court. 

(C) The state court determined good 

cause exists for denying the transfer to 

the Tribal court. 

(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.’’ 

(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) of this 

section 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) of this section 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. 


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96590 Federal Register / Vol. 89, No. 234 / Thursday, December 5, 2024 / Rules and Regulations 

(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) of this section. Otherwise, the state 

title IV–E agency must leave paragraph 

(i)(7) of this section 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) of this section 

blank. 

(8) Basis for good cause, foster care. 

If the state title IV–E agency indicated 

‘‘yes’’ to paragraph (i)(7) of this section, 

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) of this section and leave 

paragraph (i)(10)(i) through (iii) of this 

section 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) of this section; otherwise, leave 

paragraph (i)(12) of this section 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) of this section, 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 

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) of 

this section 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. 2024–28072 Filed 12–3–24; 8:45 am] 

BILLING CODE P 

FEDERAL COMMUNICATIONS 

COMMISSION 

47 CFR Parts 2 and 25 

[IB Docket No. 22–273; FCC 24–97; FR ID 

260367] 

NGSO Fixed-Satellite Service (Spaceto-Earth) Operations in the 17.3–17.8 

GHz Band 

AGENCY: Federal Communications 

Commission. 

ACTION: Final rule. 

SUMMARY: In this document, the Federal 

Communications Commission (FCC or 

Commission) adopts rules to permit use 


khammond on DSK9W7S144PROD with RULES