Federal Register / Vol. 74, No. 15 / Monday, January 26, 2009 / Proposed Rules 4365 

technical rules of evidence. Instead, it is 

an informal administrative proceeding 

convened for the purpose of gathering 

and clarifying information. The 

regulations that govern the hearing, and 

the pre-hearing guidelines issued for the 

hearing, will ensure that participants are 

treated fairly and have due process. This 

approach will facilitate the development 

of a clear, accurate, and complete 

record. Accordingly, application of 

these rules and guidelines will be such 

that questions of relevance, procedures, 

and participation will be decided in 

favor of developing a complete record. 

Conduct of the hearing. Conduct of 

the hearing will conform to the 

provisions of 29 CFR 1911.5. Although 

the ALJ presiding over the hearing 

makes no decision or recommendation 

on the merits of the NPRM or the final 

rule, the ALJ has the responsibility and 

authority to ensure that the hearing 

progresses at a reasonable pace and in 

an orderly manner. To ensure that 

interested parties receive a full and fair 

informal hearing, the ALJ has the 

authority and power to: Regulate the 

course of the proceedings; dispose of 

procedural requests, objections, and 

similar matters; confine the 

presentations to matters pertinent to the 

issues raised; use appropriate means to 

regulate the conduct of the parties who 

are present at the hearing; question 

witnesses, and permit others to question 

witnesses; and limit the time for such 

questions. At the close of the hearing, 

the ALJ will establish a post-hearing 

comment period for parties who 

participated in the hearing. During the 

first part of this period, the participants 

may submit additional data and 

information to OSHA, and during the 

second part of this period, they may 

submit briefs, arguments, and 

summations. 

Notice of intention to appear to 

provide testimony at the informal public 

hearings. Hearing participants must file 

a notice of intention to appear that 

provides the following information: The 

name, address, and telephone number of 

each individual who will provide 

testimony; the capacity in which the 

individual will testify (e.g., name of the 

establishment/organization the 

individual is representing; the 

individual’s occupational title and 

position); approximate amount of time 

requested for the individual’s testimony; 

specific issues the individual will 

address, including a brief description of 

the position that the individual will take 

with respect to each of these issues; and 

any documentary evidence the 

individual will present, including a 

brief summary of the evidence. 

OSHA emphasizes that, while the 

hearing is open to the public and 

interested parties are welcome to attend, 

only a party who files a proper notice 

of intention to appear may ask questions 

and participate fully in the hearing. A 

party who did not file a notice of 

intention to appear may be allowed to 

testify at the hearing if time permits, but 

this determination is at the discretion of 

the presiding ALJ. 

Hearing testimony and documentary 

evidence. OSHA will review each 

submission and determine if the 

information it contains warrants the 

amount of time requested. OSHA then 

will allocate an appropriate amount of 

time to each presentation, and will 

notify the participants of the time 

allotted to their presentations. Prior to 

the hearing, the Agency will notify 

participants if the allotted time is less 

than the requested time, and will 

provide the reasons for this action. 

OSHA may limit to 10 minutes the 

presentation of any participant who fails 

to comply substantially with these 

procedural requirements. The Agency 

also may request a participant to return 

for questions at a later time. 

Certification of the record and final 

determination after the informal public 

hearing. Following the close of the 

hearing and post-hearing comment 

period, the ALJ will certify the record to 

the Assistant Secretary of Labor for 

Occupational Safety and Health. This 

record will consist of all of the written 

comments, oral testimony, documentary 

evidence, and other material received 

during the hearing. Following 

certification of the record, OSHA will 

review the proposed provisions in light 

of all the evidence received as part of 

the record, and then will issue the final 

determinations based on the entire 

record. 

Authority and Signature 

This document was prepared under 

the authority of Thomas M. Stohler, 

Acting Assistant Secretary of Labor for 

Occupational Safety and Health, U.S. 

Department of Labor, 200 Constitution 

Avenue, NW., Washington, DC 20210, 

pursuant to Sections 6(b) of the 

Occupational Safety and Health Act of 

1970 (29 U.S.C. 655), Secretary of 

Labor’s Order 5–2007 (72 FR 31160), 

and 29 CFR part 1911. 

Signed at Washington, DC, on January 14, 

2009. 

Thomas M. Stohler, 

Acting Assistant Secretary of Labor for 

Occupational Safety and Health. 

[FR Doc. E9–1128 Filed 1–23–09; 8:45 am] 

BILLING CODE 4510–26–P 

DEPARTMENT OF HEALTH AND 

HUMAN SERVICES 

Administration for Children and 

Families 

45 CFR Parts 1355 and 1356 

Request for Public Comment 

Concerning Regulations for 

Transferring Children From the 

Placement and Care Responsibility of 

a State Title IV–E Agency to a Tribal 

Title IV–E Agency and Tribal Share of 

Title IV–E Administration and Training 

Expenditures 

AGENCY: Administration on Children, 

Youth and Families, Administration for 

Children and Families, Department of 

Health and Human Services. 

ACTION: Proposed rule; request for 

public comment and Tribal consultation 

meetings. 

SUMMARY: Effective October 1, 2009, 

Public Law 110–351 provides Indian 

Tribes with the option to operate a 

foster care, adoption assistance and, at 

tribal option, a kinship guardianship 

assistance program under title IV–E of 

the Social Security Act (the Act). The 

Federal government would share in the 

costs of Tribes operating an ACFapproved title IV–E program. Public 

Law 110–351 requires that ACF develop 

interim final rules after consulting with 

Tribes and affected States on the 

implementation of the tribal plan 

requirements in section 479B of the Act 

and other amendments made by the 

Tribal provisions in section 301 of 

Public Law 110–351. The law requires 

that such regulations include: (1) 

Procedures to ensure that a transfer of 

State or Tribal responsibility for the 

placement and care of a child under a 

State title IV–E plan to a Tribal title IV– 

E plan occurs in a manner that does not 

affect the child’s eligibility for title IV– 

E or title XIX Medicaid and such 

services or payments; and, (2) the inkind expenditures from third-party 

sources permitted for the Tribal share of 

administration and training 

expenditures under title IV–E. This 

notice is designed to provide a written 

opportunity for comment to all 

interested persons and notify Tribal 

leaders of in-person opportunities to 

consult with the Children’s Bureau on 

the development of these regulations. 

DATES: Written comments must be 

submitted to the office listed in the 

ADDRESSES section below on or before 

April 27, 2009. Please see 

SUPPLEMENTARY INFORMATION for 

additional details on the Tribal 

consultation meetings. 

4366 Federal Register / Vol. 74, No. 15 / Monday, January 26, 2009 / Proposed Rules 

ADDRESSES: Interested persons may 

submit written comments by any of the 

following methods: 

• Federal eRulemaking Portal: http:// 

www.regulations.gov. Follow the 

instructions for submitting comments. 

• E-mail: CBComments@acf.hhs.gov. 

Please include ‘‘Comments on Tribal 

IV–E Regulations’’ in the subject line of 

the message. 

• Mail or Courier Delivery: Miranda 

Lynch, Division of Policy, Children’s 

Bureau, Administration on Children, 

Youth and Families, Administration for 

Children and Families, 1250 Maryland 

Avenue, SW., 8th Floor, Washington, 

DC 20024. 

Instructions: Please be aware that mail 

sent to us may take an additional 3–4 

days to process due to changes in mail 

handling resulting from the anthrax 

crisis of October 2001. If you choose to 

use an express, overnight, or other 

special delivery method, please ensure 

first that they are able to deliver to the 

above address. We urge you to submit 

comments electronically to ensure they 

are received in a timely manner. All 

comments received will be posted 

without change to www.regulations.gov 

including any personal information 

provided. Comments provided to us 

during a meeting or in-writing in 

response to this Federal Register notice 

will receive equal consideration by 

ACF. 

FOR FURTHER INFORMATION CONTACT: 

Miranda Lynch, Children’s Bureau, 

1250 Maryland Avenue, SW., 8th Floor, 

Washington, DC 20024; (202) 205–8138, 

miranda.lynch@acf.hhs.gov. 

SUPPLEMENTARY INFORMATION: 

Title IV–E Background 

The Fostering Connections to Success 

and Increasing Adoption Act of 2008, 

Public Law 110–351 was enacted on 

October 7, 2008. Prior to the law’s 

enactment, the title IV–E program 

provided States and territories with 

Federal funds to support eligible 

children in foster care, eligible children 

with special needs in adoptions, and to 

assist the State with the administrative 

expenses of operating the title IV–E 

program. The law, as amended, permits 

Federally-recognized Indian Tribes, 

tribal organizations or consortia 

(hereafter, ‘‘Tribes’’) to apply to ACF to 

operate a title IV–E program beginning 

October 1, 2009. By law, the 

requirements of the title IV–E statute 

apply to such Tribes ‘‘in the same 

manner as this part applies to a State’’ 

(section 479B(b) of the Act), with 

limited exceptions. Public Law 110–351 

also provides limited funding, 

beginning in Federal fiscal year (FY) 

2009, for Tribes that intend to submit an 

application to ACF for direct funding of 

the title IV–E program to also apply for 

a grant to assist in developing a title IV– 

E plan. Finally, the law codifies a 

Tribe’s ability to enter into agreements 

and contracts with State title IV–E 

agencies to share in the administration 

of the title IV–E programs on behalf of 

Indian children in their placement and 

care responsibility. 

In addition to creating this 

opportunity for Tribes, the law permits 

title IV–E agencies who choose to do so 

to administer a new kinship 

guardianship assistance program under 

title IV–E, revises the eligibility criteria 

for the title IV–E adoption assistance 

program, allows title IV–E agencies to 

choose to extend title IV–E foster care, 

adoption assistance, and kinship 

guardianship payments to youth who 

meet certain conditions up to age 21, 

among other changes to the title IV–B 

and IV–E requirements. The entire law 

and issuances related to the new 

provisions can be found on the 

Children’s Bureau’s Web site at http:// 

www.acf.hhs.gov/programs/cb. 

Implementation of the Tribal Title 

IV–E Plan 

The law limits exceptions or 

modifications to the title IV–E statutory 

requirements for Tribes that will 

directly operate a title IV–E program to 

those granted in the law (i.e., the ability 

for Tribes to define their own service 

areas, tribal licensing standards and 

flexibility to use nunc pro tunc and 

affidavits to meet judicial determination 

requirements in the first 12 months of 

operation of the tribal title IV–E plan). 

This means that Tribes wishing to 

operate their own title IV–E plan must 

adhere to the following requirements: 

• Secretary approval of a plan to 

operate a title IV–E foster care (per 

section 472 of the Act) and adoption 

assistance program (per section 473 of 

the Act) that complies with the 

applicable title IV–E plan requirements 

in sections 471(a) and definitions in 

section 475 of the Act. 

• Tribal title IV–E plan provisions in 

section 479B of the Act; 

• Regulations in 45 CFR parts 1355 

and 1356 or incorporated by crossreference, to the extent that such 

regulations have not been superseded by 

Public Law 110–351 or are not 

applicable to directly-funded Tribes at 

this time (e.g., title IV–E eligibility 

reviews and Child and Family Services 

Reviews); and, 

• Federal reporting requirements as 

required by the Secretary (section 

471(a)(6) of the Act). 

Transfer of Placement and Care of 

Title IV–E Indian Children 

The law requires the Secretary to 

issue interim final rules on the transfer 

of children in foster care under a State 

title IV–E plan, to the placement and 

care responsibility of a Tribe under a 

directly-funded Tribal title IV–E plan to 

ensure that a child maintains his 

eligibility for title IV–E and title XIX 

Medicaid. We note that the Indian Child 

Welfare Act (ICWA) of 1978 provides 

existing statutory direction for State 

courts to transfer certain child custody 

proceedings—including foster care— 

involving Indian children to the 

jurisdiction of Indian courts. The 

Bureau of Indian Affairs, Department of 

the Interior, has also issued guidelines 

regarding such transfers in ‘‘Guidelines 

for State Courts—Indian Child Custody 

Proceedings’’ (see 44 FR 67584, 

November 26, 1979). 

Tribal Share of Title IV–E 

Administration and Training 

Expenditures 

Tribes whose title IV–E plans are 

approved by the Secretary may receive 

Federal reimbursement of a share of title 

IV–E allowable administrative and 

training costs (section 479B(c)(1)(D) of 

the Act). As of October 1, 2009, the law 

permits such Tribes, but not States, to 

use in-kind funds from third-party 

sources in contributing their Tribal 

share of such costs. The law establishes 

initial provisions for permitted thirdparty sources and sets specific limits on 

the percentage of the Tribal share that 

may be used for title IV–E purposes. The 

law requires HHS to develop interim 

final regulations on the tribal share 

provisions to apply beginning in FY 

2012. 

Opportunity To Comment 

Interim final rules are final rules that 

have immediate effect without the 

Federal agency first issuing and inviting 

public comment on a notice of proposed 

rule. Because the law requires us to use 

the interim final rule process on the 

limited topics of the procedures to effect 

the transfer of children from State to 

directly-funded Tribal title IV–E plans 

and the in-kind third party match 

sources and percentages, we are seeking 

comments from Tribes, affected States 

and other stakeholders through this 

Federal Register notice and the Tribal 

consultation meetings. Specifically, we 

are seeking comments on the following: 

• Considering that the Secretary is to 

apply title IV–E of the Act to Tribes in 

the same manner as to States except 

where directed by law, what, if any, 

provisions and clarifications related to 

Federal Register / Vol. 74, No. 15 / Monday, January 26, 2009 / Proposed Rules 4367 

the title IV–E program for directlyfunded Tribes should be in regulations? 

• Are guidelines above and beyond 

those provided pursuant to the ICWA 

needed to execute the transfer of 

placement and care responsibility of a 

title IV–E Indian child to a Tribe 

operating a title IV–E plan? If, so please 

provide suggestions. 

• What specific information 

pertaining to title IV–E and title XIX 

Medicaid should a State make available 

to a Tribe that seeks to gain placement 

and care responsibility over an Indian 

child? 

• Should the third-party sources and 

in-kind limits on Tribal administrative 

and training costs remain consistent 

with section 479B(c)(1)(D) of the Act? 

Please provide a rationale for this 

response. 

Any other comments regarding the 

development of an interim final rule per 

section 301(e) of Public Law 110–351 

are welcome. Please note, however, that 

this request is limited in scope and is 

not intended to solicit comments on the 

remaining provisions of Public Law 

110–351. 

Tribal Consultation 

We invite Tribal leaders and/or their 

representatives of Federally recognized 

tribes to attend consultation meetings 

that will be held in certain ACF 

Regional Offices to provide their input 

on the issues subject to regulations as 

explained below. Tribal leaders and/or 

their representatives who choose to 

attend a consultation session must 

register at least one week in advance of 

the meeting date by contacting the 

applicable Children’s Bureau (CB) 

Regional Program Manager. Registered 

participants for the consultation session 

may submit written remarks in advance, 

or present them in oral or written form 

at the consultation session. Tribal 

leaders and/or their representatives, 

regardless of whether they participate in 

the consultation session, may provide 

written comments as noted in the 

ADDRESSES section. Finally, please note 

that Federal representatives attending 

the consultation sessions will not be 

able to respond directly during the 

session to the concerns or questions 

raised by participants. The consultation 

sessions and contact information are 

listed below: 

Thursday, February 12, 2009— 

Region VII 

Federal Office Building, 601 E 12th 

Street, Kansas City, MO 64106. Contact: 

Rosalyn Wilson, CB Regional Program 

Manager, phone (816) 426–3981 or 

e-mail rosalyn.wilson@acf.hhs.gov. 

Region includes: Iowa, Kansas, 

Missouri and Nebraska. 

Friday, February 20, 2009—Region VI 

1301 Young Street, Room 1119, 

Dallas, TX 75202. Contact: June Lloyd, 

CB Regional Program Manager, phone 

(214) 767–9648 or e-mail 

june.lloyd@acf.hhs.gov. 

Region includes: Arkansas, Louisiana, 

New Mexico, Oklahoma and Texas. 

Friday, February 20, 2009—Region IX 

90 7th Street—Conf. Rm. B040 and 

B020, San Francisco, CA, 94103. 

Contact: Sally Flanzer, CB Regional 

Program Manager, phone (415) 437– 

8400 or e-mail 

sally.flanzer@acf.hhs.gov. 

Region includes: Arizona, California, 

Hawaii, Nevada, Outer Pacific— 

American Samoa, Commonwealth of the 

Northern Marianas, Federated States of 

Micronesia (Chuuk, Pohnpei, Yap) 

Guam, Marshall Islands and Palau. 

Wednesday, February 25—Region I 

JFK Federal Building 21st Floor, Rm. 

2100, Boston, MA 02203. Contact: Bob 

Cavanaugh, CB Regional Program 

Manager, phone (617) 565–1020 or 

e-mail bob.cavanaugh@acf.hhs.gov. 

Region includes: Connecticut, Maine, 

Massachusetts, New Hampshire, Rhode 

Island, and Vermont. 

Wednesday, February 25, 2009— 

Region VIII 

Byron Rogers Federal Building, 1961 

Stout Street, Denver, CO 80294. Contact: 

Marilyn Kennerson, CB Regional 

Program Manager, phone (303) 844– 

3100 or e-mail 

marilyn.kennerson@acf.hhs.gov. 

Region includes: Colorado, Montana, 

North Dakota, South Dakota, Utah and 

Wyoming. 

Thursday, February 26, 2009—Region II 

Leo O’Brien Federal Building, Room 

826A, 1 Clinton Square, Albany, NY 

12207. Contact: Junius Scott, CB 

Regional Program Manager, phone (212) 

264–2890 or e-mail 

junius.scott@acf.hhs.gov. 

Region includes: New Jersey, New 

York, Puerto Rico and the Virgin 

Islands. 

Thursday, February 26, 2009— 

Region IV 

Sam Nunn Atlanta Federal Center, 

Conf. Rm. A & B, 61 Forsyth Street SW., 

Suite 4M60, Atlanta, GA 30303. Contact: 

Ruth Walker, CB Regional Program 

Manager, phone (404) 562–2900 or 

e-mail ruth.walker@acf.hhs.gov. 

Region includes: Alabama, 

Mississippi, Florida, North Carolina, 

Georgia, South Carolina, Kentucky and 

Tennessee. 

Friday, February 27, 2009—Region X 

2201 Sixth Avenue, Seattle, WA 

98121–1827. Contact: John Henderson, 

CB Regional Program Manager, phone 

(206) 615–2482 or e-mail 

john.henderson@acf.hhs.gov. 

Region includes: Alaska, Idaho, 

Oregon and Washington. 

Thursday, March 5, 2009—Region V 

ACF Tower Conference Room, 233 N 

Michigan Avenue, Suite 400, Chicago, 

IL 60601. Contact: Carolyn WilsonHurey, CB Regional Program Manager, 

phone (312) 353–4237 or e-mail 

carolyn.wilson-hurey@acf.hhs.gov. 

Region includes: Illinois, Indiana, 

Michigan, Minnesota, Ohio and 

Wisconsin. 

Dated: January 14, 2009. 

Joan E. Ohl, 

Commissioner, Administration on Children, 

Youth and Families. 

[FR Doc. E9–1338 Filed 1–23–09; 8:45 am] 

BILLING CODE 4184–01–P