81_FR_20350 81 FR 20283 - Adoption and Foster Care Analysis and Reporting System

81 FR 20283 - Adoption and Foster Care Analysis and Reporting System

DEPARTMENT OF HEALTH AND HUMAN SERVICES
Administration for Children and Families

Federal Register Volume 81, Issue 67 (April 7, 2016)

Page Range20283-20301
FR Document2016-07920

On February 9, 2015, the Administration for Children and Families (ACF) published a Notice of Proposed Rulemaking (NPRM) to amend the Adoption and Foster Care Analysis and Reporting System (AFCARS) regulations to modify the requirements for title IV-E agencies to collect and report data to ACF on children in out-of-home care and who were adopted or in a legal guardianship with a title IV-E subsidized adoption or guardianship agreement. In this supplemental notice of proposed rulemaking (SNPRM), ACF proposes to require that state title IV-E agencies collect and report additional data elements related to the Indian Child Welfare Act of 1978 (ICWA) in the AFCARS. ACF will consider the public comments on this SNPRM as well as comments already received on the February 9, 2015 NPRM and issue one final AFCARS rule.

Federal Register, Volume 81 Issue 67 (Thursday, April 7, 2016)
[Federal Register Volume 81, Number 67 (Thursday, April 7, 2016)]
[Proposed Rules]
[Pages 20283-20301]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2016-07920]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF HEALTH AND HUMAN SERVICES

Administration for Children and Families

45 CFR Part 1355

RIN 0970-AC47


Adoption and Foster Care Analysis and Reporting System

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

ACTION: Supplemental notice of proposed rulemaking.

-----------------------------------------------------------------------

SUMMARY: On February 9, 2015, the Administration for Children and 
Families (ACF) published a Notice of Proposed Rulemaking (NPRM) to 
amend the Adoption and Foster Care Analysis and Reporting System 
(AFCARS) regulations to modify the requirements for title IV-E agencies 
to collect and report data to ACF on children in out-of-home care and 
who were adopted or in a legal guardianship with a title IV-E 
subsidized adoption or guardianship agreement. In this supplemental 
notice of proposed rulemaking (SNPRM), ACF proposes to require that 
state title IV-E agencies collect and report additional data elements 
related to the Indian Child Welfare Act of 1978 (ICWA) in the AFCARS. 
ACF will consider the public comments on this SNPRM as well as comments 
already received on the February 9, 2015 NPRM and issue one final 
AFCARS rule.

DATES: Submit written or electronic comments on this Supplemental 
Notice of Proposed Rulemaking on or before May 9, 2016.

ADDRESSES: We encourage the public to submit comments electronically to 
ensure they are received in a timely manner. Please be sure to include 
identifying information on any correspondence. To download an 
electronic version of the proposed rule, please go to http://www.regulations.gov/ gov/. You may submit comments, identified by docket 
number, by any of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
    Mail: Written comments may be submitted to Kathleen McHugh, United 
States Department of Health and Human Services, Administration for 
Children and Families, Director, Policy Division, 330 C Street SW., 
Washington, DC 20024.
     Please be aware that mail sent in response to this SNPRM 
may take an additional 3 to 4 days to process due to security screening 
of mail.
     Hand Delivery/Courier: If you choose to use an express, 
overnight, or other special delivery method, please ensure that the 
carrier will deliver to the above address Monday through Friday during 
the hours of 9 a.m. to 5 p.m., excluding holidays.
    Instructions: All submissions received must include the agency name 
and docket number or Regulatory Information Number (RIN) for this 
rulemaking. All comments received will be posted without change to 
www.regulations.gov, including any personal information provided. For 
detailed instructions on submitting comments, see the ``Public 
Participation'' heading of the SUPPLEMENTARY INFORMATION section of 
this document.
    Comments that concern information collection requirements must be 
sent to the Office of Management and Budget (OMB) at the address listed 
in the Paperwork Reduction Act (PRA) section of this preamble. A copy 
of these comments also may be sent to the Department representative 
listed above.

FOR FURTHER INFORMATION CONTACT: Kathleen McHugh, United States 
Department of Health and Human Services, Administration for Children 
and Families, Director, Policy Division. To contact Kathleen McHugh, 
please use the following email address: [email protected]. Deaf 
and hearing impaired individuals may call the Federal Dual Party Relay 
Service at 1-800-877-8339 between 8 a.m. and 7 p.m. Eastern Time.

SUPPLEMENTARY INFORMATION: 

Contents

I. Background
II. Statutory Authority
III. Public Participation
IV. Consultation and Regulation Development
V. Section-by-Section Discussion of the SNPRM
VI. Regulatory Impact Analysis
VII. Tribal Consultation Statement

I. Background

Adoption and Foster Care Automated Reporting System (AFCARS)

    Section 479 of the Social Security Act (the Act) requires that ACF 
regulate a national data collection system that provides comprehensive 
demographic and case-specific information on all children who are in 
foster care or adopted with title IV-E agency involvement (42 U.S.C. 
679). Historically, the broad underlying legislative directive has 
always been the establishment and administration of a system for ``the 
collection of data with respect to adoption and foster care in the 
United States.'' Such data collection system is the Adoption and Foster 
Care Automated Reporting System (AFCARS).
    The AFCARS statute with regard to data collection systems requires 
the following: (1) The data collection system developed and implemented 
shall avoid unnecessary diversion of resources from adoption and foster 
care agencies; (2) the data collection system shall assure that any 
data that is collected is reliable and consistent over time and among 
jurisdictions through the use of uniform definitions and methodologies; 
(3) the data collection system shall provide: Comprehensive national 
information with respect to the demographic characteristics of adoptive 
and foster children and their biological and adoptive foster parents; 
the status of the foster care population, the number and 
characteristics of children place in and removed from foster care; 
children adopted or for whom adoptions have been terminated; children 
placed in foster care outside the state which has placement and care 
responsibility; the extent and nature of assistance provided by 
federal, state, and local adoption and foster care programs; the 
characteristics of the children with respect to whom such assistance is 
provided; and the annual number of children in foster care who are 
identified as sex trafficking victims including those who were victims 
before entering foster care; and those who were victims while in foster 
care; and (4) the data collection system will utilize appropriate 
requirements and incentives to ensure that the system

[[Page 20284]]

functions reliably throughout the United States.
    ACF issued the AFCARS NPRM (80 FR 7132, hereafter referred to as 
the February 2015 AFCARS NPRM) to amend the AFCARS regulations at 45 
CFR 1355.40 and the appendices to part 1355. In it, ACF proposed to 
modify the requirements for title IV-E agencies to collect and report 
data to ACF on children in out-of-home care and who were adopted or in 
a legal guardianship with a title IV-E subsidized adoption or 
guardianship agreement. At the time the February 2015 AFCARS NPRM was 
issued, ACF concluded that it did not have enforcement authority 
regarding ICWA and, therefore, was not able to make the requested 
changes or additions to the AFCARS data elements regarding ICWA.
    However, in the time since publication of the February 2015 AFCARS 
NPRM, ACF legal counsel re-examined the issue and determined it is 
within ACF's existing authority to collect state-level ICWA-related 
data on American Indian and Alaska Native (AI/AN) children in child 
welfare systems pursuant to section 479 of the Social Security Act. 
Such determination was informed by comments received on the February 
2015 AFCARS NPRM as well as an extensive re-evaluation of the scope of 
ACF's statutory and regulatory authority.

Indian Child Welfare Act

    In 1970, President Nixon declared that termination, the then-
current federal policy to terminate Indian tribal governments, sell 
tribal land, and move AI/AN peoples from ancestral lands to assimilate 
them into `American' society, was wrong and should be replaced by 
Indian self-determination which recognized the inherent retained right 
of Indian nations to govern themselves. From that time, the federal 
government began implementing new policies of Indian self-determination 
under which tribal sovereignty and self-governance were fostered, 
allowing tribes to operate programs once solely administered by the 
federal government. It also increased federal support and benefits 
available to tribes to strengthen capacity and self-sufficiency.
    Against this backdrop, the Indian Child Welfare Act (ICWA) was 
enacted in 1978 to address concerns over the consequences to Indian 
children, Indian families, and Indian tribes of child welfare practices 
that resulted in the separation of large numbers of Indian children 
from their families and tribes. See 25 U.S.C. 1901 et seq. ICWA has 
been characterized as embodying the ``gold standard'' for child welfare 
policy and practice in the United States and establishes minimum 
federal jurisdictional, procedural, and substantive standards intended 
to achieve the purposes of protecting the rights of Indian children to 
live with their families, to stabilize and foster continued tribal 
existence, and to facilitate permanency for children, families, and 
tribes.
    However, ACF has never collected ICWA-related data. Using the data 
elements proposed in the SNPRM, ACF proposes to collect ICWA-related 
data on AI/AN children in child welfare systems for several uses in the 
public interest including: To assess the current state of foster care 
and adoption of Indian children under the Act, to develop future 
national policies concerning ACF programs that affect Indian children 
under the Act, and to meet federal trust obligations under established 
federal policies.
    ICWA was enacted by Congress in response to alarming numbers of AI/
AN children being removed from their families by public and private 
child welfare agencies, most often being placed in non-Indian homes far 
from their tribal communities. Congress found that, ``there is no 
resource that is more vital to the continued existence and integrity of 
Indian tribes than their children.'' (25 U.S.C. 1901 (3)) Accordingly, 
through ICWA, Congress declared the policy of the United States is to 
protect the best interests of Indian children, to promote the stability 
and security of Indian tribes and families by establishing minimum 
Federal standards for the removal of Indian children from their 
families, and to place such children in foster or adoptive homes that 
reflect the unique values of Indian cultures. Finally, Congress calls 
for providing assistance to Indian tribes in the operation of child and 
family service programs. (25 U.S.C. 1902) ICWA was enacted to protect 
American Indian families and to give tribes a role in making child 
welfare decisions for AI/AN children. AI/AN children are subject to 
ICWA when they are unmarried persons under the age of 18 and are either 
(a) a member of an Indian tribe or (b) are eligible for membership in 
an Indian tribe and are the biological child of a member of an Indian 
tribe. ICWA expressly requires, among other things, that: (1) A tribe 
is notified when the state places an ``Indian child'' in foster care or 
seeks to terminate parental rights on behalf of such a child, (2) a 
tribe is given an opportunity to intervene in any state proceeding for 
foster care placement and termination of parental rights to a child 
subject to ICWA, and (3) that a preference be given to placing the 
Indian child with extended family or tribal families.

Use of AFCARS Data

    AFCARS is designed to collect uniform, reliable information from 
title IV-B and title IV-E agencies on children who are under the 
agencies' responsibility for placement, care, or supervision. AFCARS 
was established to provide data that would assist in policy development 
and program management. Although ICWA was passed more than 30 years 
ago, it is unclear how well state agencies and courts have implemented 
ICWA's requirements into practice. Even in states with large AI/AN 
populations, there may be confusion regarding how and when to apply the 
law, including providing notice to tribes and making active efforts to 
prevent removal and reunite children with their Indian families as 
required under ICWA. This is further complicated by the fact that there 
is no comprehensive national data on the status of AI/AN children for 
whom ICWA applies at any stage in the adoption or foster care system. 
AFCARS data can bridge this gap.
    Additional AFCARS data elements are proposed to enhance the type 
and quality of information title IV-E agencies report to ACF. ACF's 
proposals, embodied in this SNPRM, are motivated by the 
Administration's vision of healthy, resilient, and thriving Indian 
children and families as well as the continued vitality and integrity 
of Indian tribes. More specifically, the proposals reflected in this 
SNPRM manifest Department-wide priorities to affirmatively protect the 
best interests of Indian children and to promote the stability and 
security of Indian tribes, families, and children.
    ACF proposes to collect data elements in AFCARS related to ICWA's 
statutory standards for removal, foster care placement, and adoption 
proceedings. More specifically, through this SNPRM, ACF will improve 
the AFCARS data collection system to provide more comprehensive 
demographic and case-specific information on all children, including 
children subject to ICWA, who are in foster care or adopted with title 
IV-E agency involvement. Additionally, ACF intends to use the data to:
    1. Address the unique needs of AI/AN children in foster care or 
adoption, and their families.
    In 2005, the Government Accountability Office (GAO) issued a report 
titled ``Indian Child Welfare Act: Existing Information on 
Implementation Issues Could Be Used to Target Guidance and Assistance 
to States''

[[Page 20285]]

(GAO-05-290). In addition to noting that no national data on children 
subject to ICWA was available, GAO asserts that the extent to which 
states and tribes work together to implement ICWA and title IV-E/IV-B 
requirements affects outcomes for Indian children in state foster care 
systems. The report also discusses how the Adoption and Safe Families 
Act (Pub. L. 105-89) influences placement decisions and outcomes for 
Indian children, noting the following: ``Decisions regarding the 
placement of children subject to ICWA as they enter and leave foster 
care can be influenced by how long it takes to determine whether a 
child is subject to the law, the availability of American Indian foster 
and adoptive homes, and the level of cooperation between states and 
tribes. According to several child welfare officials, these factors, 
which are unique to American Indian children, can play an important 
role in placement decisions, including the characteristics of the 
foster home in which the child will be placed, the number of placements 
a child will have, and the duration of the stay.'' (GAO-05-290, p.3). 
The proposed ICWA data will help address the unique needs of Indian 
children in foster care or adoption and their families by clarifying 
how the ICWA requirements and how title IV-E/IV-B requirements affect 
placement of Indian children.
    2. Assess the current state of adoption and foster care programs 
and relevant trends that affect AI/AN families.
    American Indian and Alaska Native children are over-represented in 
child welfare systems at higher rates than any other racial or ethnic 
group. In 2013, American Indian children were over-represented among 
children in foster care by a factor of 2.4, compared to their 
proportion of the population. From 2000 to 2013, the degree of over-
representation of AI/AN children substantially increased from 1.5 to 
2.4, and the degree of disproportionality varies widely by state 
(National Council of Juvenile and Family Court Judges, 2015). At this 
time, there is very limited data available to help understand the 
reasons for the varying degrees of disproportionality. Proposed ICWA-
related AFCARS data elements will shed light on the relationship 
between implementing ICWA requirements and outcomes for AI/AN children. 
In addition, the proposed data elements will provide additional 
information to help identify the real or perceived barriers encountered 
by states in identifying AI/AN children in their child welfare systems. 
Finally, proposed ICWA-related AFCARS data elements will provide 
currently unavailable information that will help to assess the extent 
to which the fidelity of ICWA implementation influences permanent 
placements for Indian children and the length of stay in out-of-home 
care. The proposed ICWA data will also help to inform efforts to 
compare program practices, processes, or outcomes between states and 
over the course of time, which would allow the Children's Bureau to 
identify trends and highlight and build upon strengths and best 
practices.
    3. Improve training and technical assistance to help states comply 
with title IV-E, and title IV-B of the Social Security Act.
    Through the Children's Bureau, ACF provides state title IV-E 
agencies with technical assistance to help agencies implement federal 
requirements and improve their child welfare programs (as authorized by 
section 435 and 476 of the Social Security Act). Between federal fiscal 
year (FFY) 2010 and FFY 2014, ACF received 31 requests for tailored 
consultation from state agencies and title IV-B tribes (separately or 
in collaboration) for assistance with examining or supporting ICWA 
implementation. In response to these requests, ACF-supported technical 
assistance providers delivered more than 3,700 hours of direct, 
tailored consultation to state agencies and tribes related to ICWA.
    In FFY 2015, 24 state title IV-E agencies participated in 
discussions with ACF and its technical assistance providers about their 
potential areas of need for capacity building and improvement. One 
third of these agencies identified themselves as having ICWA 
implementation related needs for technical assistance. Data related to 
ICWA will assist ACF to improve training content, target subject areas, 
and identify geographies in which training will be helpful.
    4. Develop future national policies concerning its programs.
    Additional proposed ICWA-related data will allow ACF and the 
Children's Bureau to more effectively plan, coordinate, and lead AI/AN 
programming across ACF operations, with other Departments such as the 
Bureau of Indian Affairs (BIA) in the Department of the Interior, the 
Department of Justice (DOJ), and throughout the federal government. By 
collecting additional data, the federal government will also have a 
more complete understanding of how state agencies interact with Indian 
children and families as well as how many children subject to ICWA come 
to the attention of state child welfare agencies nationwide. This 
additional data will help align performance measures, build an evidence 
base that informs policy and practice, and better ensure that federal 
funds are being directed in a way that delivers significantly better 
results for AI/AN families. This critical role aligns with the 
research, evaluation, and technical assistance responsibilities of the 
Children's Bureau.
    5. Inform and expand partnerships across federal agencies that 
invest in Indian families and that promote resilient, thriving tribal 
communities through several initiatives.
    AFCARS data on the wellbeing of AI/AN children will help multiple 
federal agencies identify needs and gaps, expand best practices, and 
shape new policy and technical assistance. Several of the current 
interagency initiatives that will benefit include:
     Generation Indigenous. On December 3, 2014, President 
Obama launched Generation Indigenous (Gen-I), ``an initiative that 
takes a comprehensive, culturally appropriate approach to help improve 
the lives of, and opportunities for, Native youth.'' On July 9, 2015, 
the Executive Office of the President, Office of Management and Budget, 
issued Executive Memo M-15-17 identifying Native youth budget 
priorities including ``services that keep families together. These 
could be family assistance services, home improvement programs, 
alternatives to incarceration, and employment support services. 
Agencies should focus on programs that support the capacity building 
and programmatic support necessary to implement ICWA.''
     The Department of Justice Defending Childhood Initiative 
and the Task Force on American Indian and Alaska Native Children 
Exposed to Violence. The Task Force report recommended that ACF, BIA, 
DOJ, and tribes develop a modernized unified data-collection system 
designed to collect ICWA-related AFCARS data on all AI/AN children who 
are placed into foster care by their agency.
     HHS Secretary's Tribal Advisory Committee (STAC). In 2014, 
the STAC specifically identified improved federal data collection on 
ICWA as a priority need. In early 2015, the STAC identified AFCARS as a 
vehicle for ICWA data elements. The STAC expressed their view that ACF 
has a critical role in collecting important data, promoting effective 
tribal/state collaborations, increasing state capacity to comply with 
ICWA, and reversing the inequities and disproportionate representation 
and poor outcomes for children that can occur when ICWA is not 
followed. In order to assist the Administration in implementing ICWA 
and protecting AI/

[[Page 20286]]

AN children and families, the STAC requested enhanced ``collection of 
data elements related to key ICWA requirements in individual ICWA cases 
and greater oversight of the title IV-B requirement for states to 
consult with tribes on measures to comply with ICWA (STAC follow-up 
letter to the Secretary, June, 30, 2015, pp 9-10).'' http://www.hhs.gov/about/agencies/iea/tribal-affairs/about-stac/index.html#.
     Interagency ICWA Working Group Projects, including the 
Bureau of Indian Affairs initiative to update state guidance on ICWA 
and promulgate ICWA regulations. The BIA Bureau of Indian Affairs 
updated the Guidelines for State Courts and Agencies in Indian Child 
Custody Proceedings (80 FR 10146, issued February 25, 2015, hereafter 
referred to as the Guidelines) and has issued proposed regulations for 
State Courts and Agencies in Indian Child Custody Proceedings (proposed 
at 80 FR 14880, issued March 20, 2015) to help ensure Indian children 
are not removed from their communities, cultures, and extended families 
in conflict with ICWA's express mandates.
    Consistent with the Administration's focus on Indian children, the 
Department of the Interior, DOJ, and HHS engaged in extensive 
interagency collaboration to promote compliance with ICWA and agreed to 
continue to collaborate. This work involved collaborating on ICWA-
related regulations, including the BIA regulations and this SNPRM.
    6. Implement Tribal sovereignty principles and Federal trust 
responsibilities.
    Improving AFCARS to inform ACF and other federal agencies is 
consistent with ACF's implementation of government-to-government 
principles of engagement with AI/AN tribes and respect for our trust 
responsibilities. ACF's understanding of fundamental principles of 
tribal sovereignty is reflected in both the Department's and ACF's 
Tribal Consultation Policies which state:

    ``The special government-to-government relationship between the 
Federal Government and Indian Tribes, established in 1787, is based 
on the Constitution, and has been given form and substance by 
numerous treaties, laws, Supreme Court decisions, and Executive 
Orders, and reaffirms the right of Indian Tribes to self-government 
and self-determination. Indian Tribes exercise inherent sovereign 
powers over their citizens and territory. The U.S. shall continue to 
work with Indian Tribes on a government-to-government basis to 
address issues concerning Tribal self-government, Tribal trust 
resources, Tribal treaties and other rights.''
    ``Tribal self-government has been demonstrated to improve and 
perpetuate the government-to-government relationship and strengthen 
Tribal control over Federal funding that it receives, and its 
internal program management. Indian Tribes participation in the 
development of public health and human services policy ensures 
locally relevant and culturally appropriate approaches to public 
issues.'' (Section 3, Department of Health and Human Services Tribal 
Consultation Policy).
    ``Our Nation, under the law of the U.S. and in accordance with 
treaties, statutes, Executive Orders, and judicial decisions, has 
recognized the right of Indian tribes to self-government and self-
determination. Indian tribes exercise inherent sovereign powers over 
their members and territory. The U.S. continues to work with Indian 
tribes on a government-to-government basis to address issues 
concerning tribal self-government, tribal trust resources, tribal 
treaties, and other rights.'' (Section 4, ACF Tribal Consultation 
Policy).

    These principles are also reflected in ICWA through Congressional 
recognition of ``the special relationship between the United States and 
the Indian tribes and their members and the Federal responsibility to 
Indian people.'' (25 U.S.C. 1901)
    ACF announced its intent to publish a SNPRM in a Federal Register 
document issued on April 2, 2015 (80 FR 17713). Section 479 of the 
Social Security Act contains some express limits on the authority of 
ACF to collect data including: Data collected under AFCARS must avoid 
an unnecessary diversion of resources from agencies responsible for 
adoption and foster care (section 479(c)(1) of the Act) and must assure 
that any data that is collected is reliable and consistent over time 
and among jurisdictions through the use of uniform definitions and 
methodologies (section 479(c)(2) of the Act). With respect to the 
requirement in section 479(c)(1) of the Act, ACF tailored the proposed 
data elements to collect only the most essential information regarding 
Indian children in foster care and children who have been adopted with 
state title IV-E agency involvement. Most data elements will only be 
required for children who are determined to be Indian children as 
defined in ICWA. Furthermore, the statutory authority under section 479 
of the Act is limited to data with respect to adoption and foster care. 
ACF is not proposing to require tribal title IV-E agencies to collect 
and report ICWA-related data elements in proposed paragraph (i) because 
ICWA does not apply to placements by Indian tribes. The data elements 
in Sec.  1355.43(i) are subject to the same compliance and penalty 
requirements in Sec. Sec.  1355.45 and 1355.46, respectively, proposed 
in the February 2015 AFCARS NPRM (80 FR 7187-7192 and 7220-7221).

II. Statutory Authority

    Sections 479 and 474(f) of the Act provide HHS the authority to 
require that title IV-E agencies maintain a data collection system 
which provides comprehensive national information related to adopted 
and foster children and requires that the Secretary of Health and Human 
Services regulate a national data collection system to provide 
comprehensive case level information and impose penalties for failure 
to submit AFCARS data under certain circumstances. Section 1102 of the 
Act instructs the Secretary to promulgate regulations necessary for the 
effective administration of the functions for which she is responsible 
under the Act.

III. Public Participation

    ACF invites the public to comment on all aspects of the ICWA-
related data elements proposed in this SNPRM. In addition, ACF 
specifically invites comment on which, if any, of the proposed data 
elements the state title IV-E agencies currently collect. ACF will 
review and consider all comments that are germane and received during 
the comment period on this SNPRM as well as those previously submitted 
in response to the February 2015 AFCARS NPRM, and issue one final rule 
on AFCARS.

IV. Consultation and Regulation Development

    To inform the development of the ICWA-related data elements 
proposed in this SNPRM, ACF reviewed public comments received in 
response to the February 2015 AFCARS NPRM, held tribal and state 
consultation and listening sessions, and consulted with federal agency 
experts, as outlined below.
    1. Consideration of comments on the February 2015 AFCARS NPRM that 
addresses ICWA-related data elements.
    ACF received approximately 45 comments that proposed/recommended 
including new data elements in AFCARS related to ICWA. Twenty-five of 
the commenters were tribes or tribal organizations, four were state 
child welfare departments, and the remaining were public interest 
organizations, academics/universities, and individuals. Of the 45 
comments, 18 commenters submitted the same or similar form letter that 
recommended additional data elements providing information about the 
applicability of ICWA for children in out-of-home care and proposed 
revisions to the data elements proposed in the February 2015 AFCARS 
NPRM to

[[Page 20287]]

capture ICWA-related data. The commenters recommended approximately 62 
new or revised data elements that addressed the following: 
Identification of Indian children and their family structure; tribal 
notification and intervention in state court proceedings; the 
relationship of the foster parents and other providers to the Indian 
child; decisions to place an Indian child in out-of-home care 
(including data on active efforts and continued custody); whether a 
placement was licensed by an Indian tribe; whether the placement 
preferences in ICWA were followed and both the voluntary and 
involuntary termination of parental rights. ACF did not receive 
specific suggestions from the four state child welfare agencies on 
which ICWA-related data elements to include in AFCARS.
    2. Tribal consultation session.
    The Children's Bureau held a tribal consultation via conference 
call on May 1, 2015, that was co-facilitated by the Children's Bureau's 
(CB) Associate Commissioner and the Chairperson of the ACF Tribal 
Advisory Committee, who also serves as the Vice Chair of the Jamestown 
S'Klallam Tribal Council. The CB conducted the session to obtain input 
from tribal leaders on proposed AFCARS data elements related to ICWA. 
Comments were solicited during the call to determine essential data 
elements that title IV-E agencies should report to AFCARS including, 
but not limited to: Whether the requirements of ICWA were applied to a 
child; notice for child welfare proceedings; active efforts to prevent 
removal or to reunify the Indian child with the child's biological or 
adoptive parents or Indian custodian; placement preferences under ICWA; 
and terminations of parental rights for an Indian child. Tribal 
representatives did not provide specific suggestions on the call but 
noted during the call that they would provide formal comments on the 
SNPRM when it was issued.
    3. Solicited input from members of the National Association of 
Public Child Welfare Administrators (NAPCWA).
    The NAPCWA, an affiliate of the American Public Human Services 
Association (APHSA) hosted a conference call with state members of 
NAPCWA (i.e., representatives of state child welfare agencies) and the 
Children's Bureau on April 27, 2015. The purpose of the call was to 
obtain input from state members on what data state title IV-E agencies 
currently collect regarding ICWA and what they believed were the most 
important information title IV-E agencies should report in AFCARS 
related to ICWA. Representatives from 13 states participated in the 
conference call and stated that some of their states currently collect 
information in their information system related to Indian children, 
such as tribal membership, tribal notification, and tribal enrollment 
status. They noted that some of the information with regard to ICWA, 
such as placement preferences and active efforts, are contained in case 
files, case notes, or other narratives, and not currently captured 
within their information systems, and noted issues with extraction of 
such data for AFCARS reporting. They also indicated that their 
information systems would need to be changed and upgraded to report 
ICWA-related data in AFCARS and that new processes would need to be 
developed to collect and extract the requested information. They noted 
that they would need to train workers to accurately collect the data. 
They indicated that additional funding is necessary for costs 
associated with data collection. Participating state representatives 
also expressed concern about adding data elements that would require 
information from state courts, unlike other AFCARS data elements which 
are available within the title IV-E agency's information system. Given 
that state title IV-E agencies and courts do not typically exchange 
data, workers may need to gather and enter state court information 
manually.
    4. Input from federal agency experts regarding ICWA.
    In December 2014, at the White House Tribal Nations conference, 
Attorney General Holder announced an initiative to promote compliance 
with ICWA. This initiative included partnering with the Departments of 
Health and Human Services and the Interior to ensure all tools 
available to the federal government are used to promote compliance with 
ICWA. Federal Departments have a strong interest in collecting data 
elements related to ICWA. To further interagency collaboration in this 
area, DOI, DOJ, and HHS have engaged in extensive discussions focused 
on ICWA, including the sharing of agencies' expertise for the 
development of ICWA-related regulations, including AFCARS.
    As part of on-going intra- and inter-agency collaboration, ACF 
consulted with federal experts on what data exists, or not, and its 
utility in understanding the well-being of Indian children, youth, and 
families. ACF also consulted with federal partners on the ICWA 
statutory requirements in 25 U.S.C. 1901 et seq., DOI's Guidelines, and 
Notice of Proposed Rulemaking to implement ICWA Regulations for State 
Courts and Agencies in Indian Child Custody Proceedings (80 FR 14880, 
issued March 20, 2015).
    After considering all of the aforementioned input, ACF proposes the 
addition of paragraph (i) to Sec.  1355.43 (as proposed in the February 
2015 AFCARS NPRM). Section 479 of the Act permits broader data 
collection in order to establish a true national data collection system 
that provides comprehensive demographic and case-specific information 
on all children who are in foster care and adopted with title IV-E 
agency involvement, to assess the current state of adoption and foster 
care programs in general, as well as to develop future national 
policies concerning these programs. Collecting data on Indian children, 
including ICWA-related data, is within the authority of section 479 
because it is in line with the statutory goal of assessing the status 
of children in foster care. ACF is exercising its authority to propose 
a limited new set of ICWA-related data because section 479(a) 
authorizes ``the collection of data with respect to adoption and foster 
care in the United States'' and Indian children are children living 
within the United States and are those intended to benefit from both 
ICWA and titles IV-B and IV-E. The supplemental proposed rule includes 
data relevant to AI/AN children that supports ACF in assessing the 
current state of the well-being of Indian children as well as state 
implementation of title IV-E and IV-B. ACF proposes to use the 
collected data to make data-informed assessments; and to develop future 
policies concerning tribal-state consultation, ICWA implementation, and 
training and technical assistance to support states in the 
implementation of title IV-B and title IV-E programs.
    ACF will analyze all pertinent comments to this SNPRM along with 
prior comments received on the February 2015 AFCARS NPRM and issue one 
final rule on AFCARS in which the ICWA-related data elements will be 
included. ACF understands from consultation and the regulatory 
development process that some of the information sought in this SNPRM 
for inclusion in AFCARS might be contained in agency case files. 
However, a number of the proposed data elements seek information 
related to court findings and this represents a shift toward increased 
reporting on the activity of the court in AFCARS. In this SNPRM, ACF 
proposes that state title IV-E agencies report information believed to 
be contained in court orders that the state title IV-E agency would 
have ready access to or would typically be contained within the state 
title IV-E agency case files. ACF is seeking input from state title IV-
E agencies on

[[Page 20288]]

whether they would be readily able to report the information in AFCARS 
for the data elements that relate to court activities and if there 
would be difficulties in doing so. We encourage agencies to describe 
the nature of the issues they would face, and possible approaches to 
addressing these concerns in light of the importance of having this 
information.

V. Section-by-Section Discussion of SNPRM

Section 1355.43(i) Data Elements Related to the Indian Child Welfare 
Act (ICWA)

    In paragraph (i), ACF proposes to require that state title IV-E 
agencies collect and report certain ICWA-related information on 
children in the AFCARS out-of-home care reporting population. ACF does 
not require state title IV-E agencies to report the data elements 
proposed in paragraph (i) for an Indian child who remains under the 
tribe's responsibility, placement, and care but for which the state 
provides IV-E foster care maintenance payments pursuant to a state-
tribal agreement as described in section 472(a)(2)(B)(ii) of the Act. 
This is because the state's agreement with the tribe is to provide 
title IV-E foster care maintenance payments to a child under the 
tribe's placement and care responsibility. Additionally, tribal title 
IV-E agencies are not required to collect and report the data elements 
proposed in paragraph (i). The data elements in Sec.  1355.43(i) are 
subject to the same compliance and penalty requirements in Sec. Sec.  
1355.45 and 1355.46, respectively, proposed in the February 2015 AFCARS 
NPRM (80 FR 7187-7192 and 7220-7221).
Definitions
    In paragraph (i)(1), ACF proposes to require that unless otherwise 
specified, the following terms have the same meaning as in ICWA, at 25 
U.S.C. 1903: Child custody proceeding, extended family member, Indian, 
Indian child, Indian child's tribe, Indian custodian, Indian 
organization, Indian tribe, parent, reservation, and tribal court. It 
is important to note that the term ``Indian child'' in this section 
does not refer to a racial classification, but rather is defined by 
ICWA as a child who is either a member of an Indian tribe, or is 
eligible for membership in an Indian tribe and is the biological child 
of a member of an Indian tribe. Each term is listed in the regulatory 
language below with the corresponding ICWA statutory citation.
    In paragraph (i)(2), ACF proposes to require that for all children 
in the out-of-home care reporting population per Sec.  1355.41(a), the 
state title IV-E agency must complete the data elements in paragraphs 
(i)(3) through (5).
Identifying an ``Indian Child'' Under the Indian Child Welfare Act
    In paragraph (i)(3), ACF proposes to require that the state title 
IV-E agency report whether the state title IV-E agency inquired about 
pertinent information on a child's status as an ``Indian child'' under 
ICWA. This includes: Reporting whether the child is a member of or 
eligible for membership in an Indian tribe; the child's biological or 
adoptive parents are members of an Indian tribe; inquiring about the 
child's status as an ``Indian child'' with the child, his/her 
biological or adoptive parents (if not deceased), and the child's 
Indian custodian (if the child has one); ascertaining whether the 
domicile or residence of the child, parent, or the Indian custodian is 
known by the agency, or is shown to be, on an Indian reservation.
    This data will provide information on whether state title IV-E 
agencies and state courts are evaluating whether the child meets the 
definition of ``Indian child'' under ICWA. These are threshold 
questions indicating whether the state title IV-E agency knows or has 
``reason to know'' that a child is an Indian child and thus is subject 
to the protections under ICWA. Without inquiry, many Indian children 
are not identified, thereby denying children, parents, and Indian 
tribes procedural and substantive protections under ICWA. These data 
elements represent the minimum that a state title IV-E agency should be 
collecting to determine whether the child is an Indian child under 
ICWA. Such elements will help establish demographics necessary in 
identifying ICWA cases that involve parents who are tribal members or 
that involve an Indian custodian. Proactively identifying Indian 
children will improve the AFCARS data on AI/AN child foster care cases, 
adoption through the title IV-E agencies, as well as provide a base for 
understanding the percentage of AI/AN cases to which ICWA applies. More 
accurate data will help ACF better understand the scope of ICWA's 
impact in AI/AN child foster care cases and state systems, help 
identify where the application of ICWA may need reinforcement, and help 
inform ACF technical assistance to state title IV-E agencies.
Application of ICWA
    In paragraph (i)(4), ACF proposes to require that the state title 
IV-E agency indicate whether it knows or has reason to know that the 
child is an Indian child under ICWA. If so, the state title IV-E agency 
must indicate the date that the state title IV-E agency discovered 
information that indicates that the child is or may be an Indian child 
and identify all federally recognized Indian tribes identified that may 
potentially be the Indian child's tribe(s).
    In paragraph (i)(5), ACF proposes that the state title IV-E agency 
must indicate whether a court order indicates that a court found that 
ICWA applies, the date of the finding, and the name of the Indian tribe 
if listed on the court order.
    If the state title IV-E agency responds with ``yes'' to the data 
elements in paragraphs (i)(4) or (5), then the agency must complete the 
remaining applicable paragraphs (i)(6) through (29) of this section, 
which includes information on: Transfers to tribal court; notification 
of child custody proceedings; active efforts to prevent removal and to 
reunify with the Indian family; foster care and adoptive placement 
preferences; and termination of parental rights.
    Because not all AI/AN children meet the definition of ``Indian 
child'' under ICWA, these data elements are critical to identify the 
national number of AI/AN child foster care cases to which ICWA applies. 
Data elements related to whether ICWA applies are essential because 
application of ICWA triggers procedural and substantive protections. 
The date the agency received information as to whether the child is an 
Indian child under ICWA is essential to understanding the time-lapse 
between knowing that a child is an Indian child and tribal 
notification. A long time-lapse can indicate a delay in the application 
of the ICWA protections. Additionally, identifying Indian tribes that 
may potentially be the Indian child's tribe will help tribes, states, 
and the federal government direct resources into developing 
relationships that will streamline the process of identifying Indian 
children.
Transfer to Tribal Court
    In paragraphs (i)(6) and (7), ACF proposes to require that the 
state title IV-E agency report certain information on whether a case 
was transferred from state court to tribal court, in accordance with 25 
U.S.C. 1911(b). In paragraphs (i)(6), ACF proposes to require that the 
state title IV-E agency report whether a court order indicates that the 
Indian child's parent, Indian custodian, or Indian child's tribe 
requested, orally on the record or in writing, that the state court 
transfer the case to the tribal court of the Indian child's tribe, in 
accordance with 25 U.S.C. 1911(b), at any point during the report 
period. In paragraph

[[Page 20289]]

(i)(7), if the state court denied the request to transfer the case to 
tribal court, ACF proposes to require that the state title IV-E agency 
report whether there is a court order that indicates the reason(s) why 
the case was not transferred to the tribal court. If a court order 
exists, justification for denying a transfer must be indicated from 
among a list of three options, as outlined in ICWA statute: (1) Either 
of the parents objected to transferring the case to the tribal court; 
or (2) the tribal court declined the transfer to the tribal court; or 
(3) the state court found good cause not to transfer the case to the 
tribal court.
    The data in this section will provide an understanding of how many 
children in foster care with ICWA protections are or are not 
transferred to the Indian child's tribe and an understanding of the 
reasons why a state court did not transfer the case. Additionally, 
ACYF-CB-PI-14-03 (issued March 5, 2014) requires, among other things, 
that states develop, in consultation with tribes, measures to determine 
whether tribes are able to effectively intervene and, where 
appropriate, transfer proceedings to tribal jurisdiction. One focus of 
the Child and Family Services Reviews conducted by the Children's 
Bureau is the importance of preserving a child's cultural connections. 
This data will aid in understanding how a state may preserve a child's 
connection to his/her tribe. In addition, transfer data will aid in 
identifying capacity needs and issues in tribal child welfare systems 
that may prevent tribes from taking jurisdiction. Transfer data will 
help identify opportunities to build relationships between states and 
tribes. The data will also indicate whether additional tribal court 
resources are needed to improve transfer rates, or additional training 
for state courts is required regarding appropriate ``good cause'' 
exceptions to transfer.
Notification
    In paragraphs (i)(8) through (10), ACF proposes to require that the 
state title IV-E agency report certain information about legal notice 
to the Indian child's parent, Indian custodian, and Indian child's 
tribe regarding the child custody proceeding as defined in ICWA. ACF 
proposes to require that the state title IV-E agency report: Whether 
the Indian child's biological or adoptive 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); whether the Indian child's tribe (if known) was 
given proper legal notice of the child custody proceedings more than 10 
days prior to the first child custody proceeding; which Indian tribe(s) 
were sent notice of the child custody proceeding; and whether the state 
title IV-E agency replied with additional information that the Indian 
child's tribe(s) requested, if such a request was made.
    State child welfare agencies may have this information in their 
case files, regardless whether the notice was sent by the agency or the 
court. Notice to the Indian child's parents, Indian custodian, and 
tribe about child custody proceedings, as defined in ICWA, and the 
timing of the notice is an essential procedural protection provided by 
ICWA. ICWA requires that the party seeking foster care placement of, or 
termination of parental rights to, an Indian child shall notify the 
parent or Indian custodian and the Indian child's tribe of the pending 
proceedings, including notice of their right of intervention and that 
no foster care placement or termination of parental rights proceeding 
shall be held until at least ten days after notice is received (25 
U.S.C. 1912(a)). Notifying individuals and tribes of their rights and 
requirements in every child custody proceeding is critical to 
meaningful access to and participation in adjudications. Further, 
improper notice is a common basis for an appeal under ICWA, resulting 
in failure of process and unnecessary costs and delay. The data 
reported in this section will provide an understanding of how legal 
notice and adherence to the timeframes in ICWA may impact an Indian 
child's case. The data will also help identify technology, capacity, 
and training needs for meeting legal notice requirements, as well as 
opportunities for technical assistance and relationship-building 
between states and tribes.
Active Efforts To Prevent Removal and Reunify the Indian Family
    In paragraphs (i)(11) through (13), ACF proposes to require that 
the state title IV-E agency report whether and when the state title IV-
E agency began to make active efforts to prevent the breakup of the 
Indian family prior to the child's most recent out-of-home care 
episode, whether the court found in a court order that the state title 
IV-E agency made active efforts to prevent the breakup of the Indian 
family, and that these efforts were unsuccessful, and what active 
efforts the state title IV-E agency made to prevent the breakup of the 
Indian family (see 25 U.S.C. 1912(d)).
    Providing active efforts to prevent the breakup of Indian families 
is a key component of the ICWA protections (25 U.S.C. 1912(d)). Under 
ICWA, any party seeking to effect a foster care placement of, or 
termination of parental rights to, an Indian child must demonstrate to 
the court that active efforts have been made to provide remedial 
services and rehabilitative programs designed to avoid the need to 
remove the Indian child, or terminate parental rights. Thus, state 
title IV-E agencies are required to identify and offer programs and 
services to prevent the breakup of Indian families which includes 
services to maintain and reunite an Indian child with his or her family 
and to promote the stability and security of the Indian family. Where 
such efforts are meaningful and effective, exits from child welfare 
systems increase and a reduction in disproportionality in state child 
welfare systems logically follows.
    Proposed ICWA-related AFCARS data regarding active efforts will 
provide a better understanding of the status of Indian children in 
foster care, how these efforts may impact an Indian child's case, and 
the role of the courts in making findings. The data will also help 
identify service needs and efficacy; capacity needs; the need for 
training and technical assistance; and opportunities to build 
relationships between states and tribes.
Removals
    In paragraph (i)(14), ACF proposes to require that the state title 
IV-E agency report whether the state court found by clear and 
convincing evidence, in a court order, 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 whether the court finding indicates that 
the state court's finding was supported by the testimony of a qualified 
expert witness in accordance with 25 U.S.C. 1912(e).
    This is an important protection under ICWA for Indian children 
given that the standard for removal of an Indian child is established 
by ICWA and may be different than in non-ICWA foster care cases. In 
ICWA, Congress created minimum federal standards for removal to prevent 
the continued breakup of Indian families. ICWA's legislative history 
reflects clear Congressional intent: ``It is clear then that the Indian 
child welfare crisis is of massive proportions and that Indian families 
face vastly greater risks of involuntary separation than are typical of 
our society as a whole.'' (H. Rep. 95-1386 (July 24, 1978)). The 
proposed ICWA-related AFCARS data element will provide data on the 
extent to which

[[Page 20290]]

Indian children are removed in a manner that conforms to ICWA's 
statutory standard, informs ACF about the frequency of and evidentiary 
standards applied to removals of Indian children, helps identify needs 
for training and technical assistance related to ICWA statutory 
standards, and highlights substantive opportunities for building and 
improving relationships between states and tribes.
Foster Care and Pre-Adoptive Placement Preferences
    In paragraphs (i)(15) through (18), ACF proposes to require that 
state title IV-E agencies report certain information on the foster care 
and pre-adoptive placement of Indian children, specifically, the 
placement of such children in the least restrictive setting that most 
approximates a family within reasonable proximity to his or her home in 
accordance with preferences established in ICWA at 25 U.S.C. 1915(b), 
or preferences established by tribal resolution 25. U.S.C. 1915(c).
    In paragraph (i)(15), the state title IV-E agency must indicate 
which foster care and pre-adoptive placements from a list of five are 
available to accept placement of the Indian child. The five placements 
options are: 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; and a placement that 
complies with the order of preference for foster care or pre-adoptive 
placements established by an Indian child's tribe, in accordance with 
25 U.S.C. 1915(c).
    In paragraph (i)(16), the state title IV-E agency must indicate 
whether the Indian child's current placement as of the end of the 
report period meets the placement preferences of ICWA at 25 U.S.C. 
1915(b) by indicating with whom the Indian child is placed from a list 
of six response options. The placements are: 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, in accordance with 25 U.S.C. 1915(c); or none.
    In paragraph (i)(17), the state title IV-E agency must indicate 
whether the state court made a finding of good cause, on a court order, 
to place the Indian child with someone who is not listed in the 
placement preferences of ICWA in 25 U.S.C. 1915(b) or the placement 
preferences of the Indian child's tribe, if the placement preferences 
for foster care and pre-adoptive placements were not followed. In 
paragraph (i)(18), the state title IV-E agency must indicate the state 
court's basis for the finding of good cause, as indicated on the court 
order, from a list of five response options: Request of the biological 
parents; request of the Indian child; the unavailability of a suitable 
placement that meets the placement preferences in ICWA at 25 U.S.C. 
1915; the extraordinary physical or emotional needs of the Indian 
child; or other.
    The requirements around placement preferences in ICWA are a key 
piece of the protections mandated by ICWA. Placement preferences serve 
to protect the best interests of Indian children and promote the 
stability and security of families and Indian tribes by keeping Indian 
children with their extended families or in Indian foster homes and 
communities. The placement preferences in ICWA are congruent with the 
title IV-E plan requirement in section 471(a)(19) of the Act regarding 
preference to an adult relative over a non-related caregiver when 
determining the placement for a child. Data from the National Survey of 
Child and Adolescent Well-Being indicates that opportunities for 
kinship placements vary widely by age for AI/AN children when compared 
to other children of the same age. New AFCARS data will help to 
adequately assess the current status of kinship placements as well as 
to help identify a national plan for meeting permanency goals through 
kinship placements.
    Factors unique to Indian children, including the availability of 
American Indian foster homes, influence decisions about the placement 
of Indian children. These factors include the characteristics of the 
foster home, the number of placements a child will have, and the 
duration of the stay (GAO-05-290, p.3). The information from these data 
elements will allow ACF to distinguish between ICWA cases in which 
there was no available ICWA-preferred placement and those cases where 
an available ICWA-preferred placement was not used despite its 
availability. The data will help to identify trends or problems that 
may require enhanced recruitment of potential Indian foster homes or 
relative placements. This information will help to identify the 
training and technical assistance needs of states to support 
recruitment and support foster families to meet the unique cultural, 
social, extracurricular, and linguistic needs of Indian children. 
Reporting information on good cause will help agencies better 
understand why the ICWA placement preferences are not followed. In 
addition, such information will aid in targeting training and resources 
needed to assist states in improving Indian child outcomes.
Termination of Parental Rights
    In paragraphs (i)(19) through (24), ACF proposes to require that 
the state title IV-E agency report information regarding voluntary and 
involuntary terminations of parental rights (TPR), which include tribal 
customary adoptions. The information includes: Whether the rights of 
the Indian child's parents or Indian custodian were involuntarily or 
voluntarily terminated; whether, prior to ordering an involuntary 
termination of parental rights, the state court found beyond a 
reasonable doubt, in a court order, 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); whether the state court indicates that its 
finding was supported by the testimony of a qualified expert witness in 
accordance with 25 U.S.C. 1912(f); and if the TPR was voluntary, 
whether there is a court order that indicates that the voluntary 
consent to termination for the biological or adoptive mother and 
biological or adoptive father or Indian custodian was made in writing 
and recorded in the presence of a judge of a court of competent 
jurisdiction and accompanied by the presiding judge's certificate that 
the terms and consequences of the consent were fully explained in 
detail and were fully understood by the parent or Indian custodian in 
accordance with 25 U.S.C. 1913.
    Distinguishing between involuntary and voluntary terminations of 
parental rights is important in ICWA given specific protections that 
must be provided in each context (25 U.S.C. 1912(e), (f) and 25 U.S.C. 
1913). In addition, termination standards are important protections for 
Indian children under ICWA given that Congress specifically created 
minimum federal standards for removal of an Indian child to prevent the 
breakup of Indian families and to promote the stability and security of 
families and Indian tribes by preserving the child's

[[Page 20291]]

links to their parents and to the tribe through the child's parent(s). 
Further, a TPR may affect a child's ability to be a full member of his/
her tribe, preventing the child from accessing services and benefits 
available to tribal members. Whether the Indian child's parents' rights 
were terminated in a manner that conforms to the statutory standard 
informs ACF as to when an Indian child's parental rights are 
terminated, helps identify the need for training and technical 
assistance to meet statutory standards, and highlights substantive 
opportunities for building relationships between states and tribes.
Adoption Proceedings
    In paragraphs (i)(25) through (29), ACF proposes to require that 
the state title IV-E agency report certain information on adoptive 
placement preferences, which are requirements in ICWA at 25 U.S.C. 
1915(a), if the Indian child exited foster care to adoption per Sec.  
1355.43(g).
    In paragraph (i)(25), the state title IV-E agency must indicate 
whether the child exited foster care to adoption per Sec.  1355.43(g). 
This is a driver question for this section; if the state title IV-E 
agency indicates ``yes,'' then the agency must complete the elements in 
this section; if the state title IV-E agency indicates ``no,'' then the 
agency must skip the elements in this section.
    In paragraph (i)(26), the state title IV-E agency must indicate 
which adoptive placements from a list of four were willing to accept 
placement of the Indian child. Adoption placements preferences are 
found in ICWA at 25 U.S.C. 1915(a) as follows: A member of the Indian 
child's extended family; other members of the Indian child's tribe; 
other Indian families; or a placement that complies with the order of 
preference for adoptive placements established by an Indian child's 
tribe, in accordance with 25 U.S.C. 1915(c).
    In paragraph (i)(27), the state title IV-E agency must indicate 
whether the placement reported in Sec.  1355.43(h) meets the placement 
preferences of ICWA in 25 U.S.C. 1915(a) by indicating with whom the 
Indian child is placed from a list of five response options. The 
placements preferences are: A member of the Indian child's extended 
family; other members of the Indian child's tribe; other Indian 
families; or a placement that complies with the order of preference for 
adoptive placements established by an Indian child's tribe, in 
accordance with 25 U.S.C. 1915(c); or none.
    In paragraph (i)(28), the state title IV-E agency must indicate 
whether the state court made a finding of good cause, in a court order, 
to place the Indian child with someone who is not listed in the 
placement preferences of ICWA in 25 U.S.C. 1915(a) or the placement 
preferences of the Indian child's tribe, if the placement preferences 
for adoptive placements were not followed. In paragraph (i)(29), the 
state title IV-E agency must indicate the state court's basis for the 
finding of good cause, as indicated in the court order, from a list of 
five response options: Request of the biological parents; request of 
the Indian child; the unavailability of a suitable placement that meets 
the placement preferences in ICWA at 25 U.S.C. 1915; the extraordinary 
physical or emotional needs of the Indian child; or other.
    The requirements for adoption placement preferences in ICWA are a 
key piece of the protections provided under ICWA. Placement preferences 
serve the policies of protecting the best interests of Indian children 
and promoting the stability and security of families and Indian tribes 
by keeping adopted Indian children with their extended families, tribes 
or communities. These data elements will help provide greater 
understanding on how best to support Indian children in cases where 
adoption is the outcome. The data are important to assist in 
identifying trends or problems that may require enhanced recruitment of 
potential Indian adoptive homes or relative placements. The information 
from these data elements will allow ACF to distinguish between ICWA 
cases in which there was no available ICWA-placement and those cases 
where an available ICWA-placement was not used. The data will help 
assess the current status of kinship guardianship placements as well as 
to help identify a national plan for meeting permanency goals through 
kinship guardianship. This information will help to identify the scope 
of resources for training and technical assistance needed for states to 
recruit and support adoptive families to meet the unique cultural, 
social, and enrichment activity needs of Indian children. Reporting 
information on good cause to not follow ICWA adoption placement 
preferences will help to understand why the ICWA placement preferences 
are not followed, and will aid in identifying targeted training and 
resource needs to assist states in improving Indian child outcomes.

                   Attachment A--Proposed Out-of-Home Care Data File Elements Related to ICWA
----------------------------------------------------------------------------------------------------------------
    Category & applicability                 Element              Response options         Section citation
----------------------------------------------------------------------------------------------------------------
Identifying an ``Indian Child''   Indicate whether the state     ..................  1355.43(i)(3).
 under the Indian Child Welfare    title IV-E agency researched
 Act.                              whether there is a reason to
                                   know that the child is an
                                   ``Indian child'' under ICWA:
These data elements will be           Indicate whether   Yes.
 reported for all children.           the state agency inquired  No................
                                      with the child's           The biological or
                                      biological or adoptive      adoptive mother
                                      mother.                     is deceased..
                                      Indicate whether   Yes.
                                      the biological or          No................
                                      adoptive mother is a       Unknown...........
                                      member of an Indian tribe.
                                      Indicate whether   Yes.
                                      the state agency inquired  No................
                                      with the child's           The biological or
                                      biological or adoptive      adoptive father
                                      father.                     is deceased..
                                      Indicate whether   Yes.
                                      the biological or          No................
                                      adoptive father is a       Unknown...........
                                      member of an Indian tribe.
                                      Indicate whether   Yes.
                                      the state agency inquired  No................
                                      with the child's Indian    Child does not
                                      custodian, if the child     have an Indian
                                      has one.                    custodian..

[[Page 20292]]

 
                                      Indicate whether   Yes.
                                      the state agency inquired  No................
                                      with the child who is the
                                      subject of the proceeding.
                                      Indicate whether   Yes.
                                      the child is a member of   No................
                                      or eligible for            Unknown...........
                                      membership in an Indian
                                      tribe.
                                      Indicate whether   Yes.
                                      the domicile or residence  No................
                                      of the child, parent, or
                                      the Indian custodian is
                                      known by the agency to
                                      be, or is shown to be, on
                                      an Indian reservation.
Application of ICWA.............      Indicate whether   Yes...............  1355.43(i)(4).
                                      the state title IV-E       No................
                                      agency knows or has
                                      reason to know that the
                                      child is an Indian child
                                      as defined by ICWA.
These data elements will be           Indicate the date  Date..............
 reported for all children.           that the state title IV-E
                                      agency discovered the
                                      information that
                                      indicates that the child
                                      is or may be an Indian
                                      child.
                                      Indicate the       Name(s)...........
                                      name(s) of all federally
                                      recognized Indian
                                      tribe(s) identified that
                                      may potentially be the
                                      Indian child's tribe(s).
These data elements will be       Indicate whether a court       Yes, ICWA applies.  1355.43(i)(5).
 reported for all children.        order indicates that the      No, ICWA does not
                                   court found that ICWA          apply..
                                   applies.                      No court finding..
                                      Indicate the date  Date.
                                      of the court finding.
                                      Indicate the name  Name(s).
                                      of the Indian tribe(s)     No name listed....
                                      that the court found is
                                      the Indian child's tribe,
                                      if listed on the court
                                      order.
Transfer to tribal court........  Indicate whether there is a    Yes...............  1355.43(i)(6).
These data elements and all of     court order that indicates    No................
 those below only apply to         that the Indian child's
 Indian children..                 parent, Indian custodian, or
                                   Indian child's tribe
                                   requested, orally on the
                                   record or in writing, that
                                   the state court transfer the
                                   case to the tribal court of
                                   the Indian child's tribe, in
                                   accordance with 25 U.S.C.
                                   1911(b), at any point during
                                   the report period.
                                  If the state court denied the  Yes...............  1355.43(i)(7).
                                   request to transfer the case  No................
                                   to tribal court, indicate
                                   whether there is a court
                                   order that indicates the
                                   reason(s) why the case was
                                   not transferred to the
                                   tribal court.
                                      Either of the      Yes.
                                      parents objected to        No................
                                      transferring the case to
                                      the tribal court.
                                      The tribal court   Yes.
                                      declined the transfer to   No................
                                      the tribal court.
                                      The state court    Yes.
                                      found good cause not to    No................
                                      transfer the case to the
                                      tribal court.
Notification....................  Indicate whether the Indian    Yes...............  1355.43(i)(8).
                                   child's parent or Indian      No................
                                   custodian was given proper
                                   legal notice more than 10
                                   days prior to the first
                                   child custody proceeding in
                                   accordance with 25 U.S.C.
                                   1912(a).
                                  Indicate whether the Indian    Yes
                                   child's tribe(s) was given    No................
                                   proper legal notice more      The child's Indian
                                   than 10 days prior to the      tribe is unknown..
                                   first child custody
                                   proceeding in accordance
                                   with 25 U.S.C. 1912(a).
                                  Indicate the name(s) of the    Name(s)...........  1355.43(i)(9).
                                   Indian tribe(s) that were
                                   sent notice for a child
                                   custody proceeding as
                                   required in ICWA at 25
                                   U.S.C. 1912(a).
                                  If the tribe(s) requested      Yes...............  1355.43(i)(10).
                                   additional information,       No................
                                   indicate whether the state    Does not apply....
                                   title IV-E agency replied
                                   with the additional
                                   information that the Indian
                                   tribe(s) requested.
Active efforts to prevent         Indicate the date that the     Date..............  1355.43(i)(11).
 removal and reunify with Indian   state title IV-E agency
 family.                           began making active efforts
                                   to prevent the breakup of
                                   the Indian family for the
                                   most recent removal reported
                                   in Sec.   1355.43(d) of the
                                   Indian child in accordance
                                   with 25 U.S.C. 1912(d).
                                  Indicate whether the court     Yes...............  1355.43(i)(12).
                                   found, in a court order,      No................
                                   that the state title IV-E
                                   agency made active efforts
                                   to prevent the breakup of
                                   the Indian family for the
                                   most recent removal reported
                                   in Sec.   1355.43(d) and
                                   that these efforts were
                                   unsuccessful in accordance
                                   with 25 U.S.C. 1912(d).

[[Page 20293]]

 
                                  Indicate the active efforts    ..................  1355.43(i)(13).
                                   that the state title IV-E
                                   agency made to prevent the
                                   breakup of the Indian family
                                   in accordance with 25 U.S.C.
                                   1912(d).
                                      Identify           Yes.
                                      appropriate services to    No................
                                      help the parent.
                                      Actively assist    Yes.
                                      the parent in obtaining    No................
                                      services.
                                      Invite             Yes.
                                      representatives of the     No................
                                      Indian child's tribe to
                                      participate in the
                                      proceedings.
                                      Complete a         Yes.
                                      comprehensive assessment   No................
                                      of the family.
                                      Focus on safe      Yes.
                                      reunification as the goal  No................
                                      for the Indian child.
                                      Consult with       Yes.
                                      extended family members    No................
                                      to provide support for
                                      the Indian child.
                                      Arrange for        Yes.
                                      family interaction in      No................
                                      most natural setting
                                      safely possible.
                                      Monitor progress   Yes.
                                      and participation in       No................
                                      services to reunite the
                                      Indian family.
                                      Consider           Yes.
                                      alternative ways of        No................
                                      addressing the needs of
                                      the Indian child's parent
                                      and extended family if
                                      services do not exist or
                                      are not available.
                                      Support regular    Yes.
                                      visits and trial home      No................
                                      visits consistent with
                                      ensuring the Indian
                                      child's safety.
                                      Conduct or cause   Yes.
                                      to be conducted a          No................
                                      diligent search for the
                                      Indian child's extended
                                      family members for
                                      assistance and possible
                                      placement.
                                      Keep siblings      Yes.
                                      together.                  No................
                                                                 N/A...............
                                      Other............  Yes.
                                                                 No................
Removals........................  Indicate whether the court     Yes...............  1355.43(i)(14).
                                   found by clear and            No................
                                   convincing evidence, in a
                                   court order, 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).
                                  Indicate whether the court     Yes.
                                   finding indicates that the    No................
                                   state court's finding was
                                   supported by the testimony
                                   of a qualified expert
                                   witness in accordance with
                                   25 U.S.C. 1912(e).
Foster care and pre-adoptive      Indicate which foster care or  ..................  1355.43(i)(15).
 placement preferences.            pre-adoptive placements that
                                   meet the placement
                                   preferences of ICWA in 25
                                   U.S.C. 1915(b) were
                                   available to accept
                                   placement.
                                      A member of the    Yes.
                                      Indian child's extended    No................
                                      family.
                                      A foster home      Yes.
                                      licensed, approved, or     No................
                                      specified by the Indian
                                      child's tribe.
                                      An Indian foster   Yes.
                                      home licensed or approved  No................
                                      by an authorized non-
                                      Indian licensing
                                      authority.
                                      An institution     Yes.
                                      for children approved by   No................
                                      an Indian tribe or
                                      operated by an Indian
                                      organization which has a
                                      program suitable to meet
                                      the Indian child's needs.
                                      A placement that   Yes.
                                      complies with the order    No................
                                      of preference for foster
                                      care or pre-adoptive
                                      placements established by
                                      an Indian child's tribe,
                                      in accordance with 25
                                      U.S.C. 1915(c).
                                  For the Indian child's         A member of the     1355.43(i)(16).
                                   current foster care or pre-    Indian child's
                                   adoptive placement as of the   extended family.
                                   end of the report period per  A foster home
                                   Sec.   1355.43(e), indicate    licensed,
                                   whether the placement meets    approved, or
                                   the placement preferences of   specified by the
                                   ICWA in 25 U.S.C. 1915(b) by   Indian child's
                                   indicating with whom the       tribe..
                                   Indian child is placed.

[[Page 20294]]

 
                                                                 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, in
                                                                  accordance with
                                                                  25 U.S.C.
                                                                  1915(c).
                                                                 None..............
                                  If the placement preferences   Yes...............  1355.43(i)(17).
                                   for foster care or pre-       No................
                                   adoptive placements were not
                                   followed, indicate whether
                                   the court made a finding of
                                   good cause, on a court
                                   order, to place the Indian
                                   child with someone who is
                                   not listed in the placement
                                   preferences of ICWA in 25
                                   U.S.C. 1915(b) or the
                                   placement preferences of the
                                   Indian child's tribe.
                                  Indicate the state court's     ..................  1355.43(i)(18).
                                   basis for the finding of
                                   good cause, as indicated on
                                   the court order.
                                      Request of         Yes.
                                      biological parents.        No................
                                      Request of Indian  Yes.
                                      child.                     No................
                                      The                Yes.
                                      unavailability of a        No................
                                      suitable placement that
                                      meets the placement
                                      preferences in ICWA at 25
                                      U.S.C. 1915.
                                      The extraordinary  Yes.
                                      physical or emotional      No................
                                      needs of the Indian child.
                                      Other............  Yes.
                                                                 No................
Termination of parental rights..  Indicate whether the           Voluntary.........  1355.43(i)(19).
                                   termination of parental (or   Involuntary.......
                                   Indian custodian rights was
                                   voluntary or involuntary.
                                  Indicate whether, prior to     Yes...............  1355.43(i)(20).
                                   ordering a termination of     No................
                                   parental rights, the state
                                   court found beyond a
                                   reasonable doubt, in a court
                                   order, 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 whether the court     Yes...............  1344.43(i)(21).
                                   finding, reported for         No................
                                   paragraph (i)(20), indicates
                                   that the state court's
                                   finding was supported by the
                                   testimony of a qualified
                                   expert witness in accordance
                                   with 25 U.S.C. 1912(f).
                                  If voluntary, indicate         Yes...............  1355.43(i)(22).
                                   whether there is a court      No................
                                   order that indicates that     Does not apply....
                                   the voluntary consent to
                                   termination for the
                                   biological or adoptive
                                   mother was made in writing
                                   and recorded in the presence
                                   of a judge in accordance
                                   with 25 U.S.C. 1913.
                                  If voluntary, indicate         Yes...............  1355.43(i)(23).
                                   whether there is a court      No................
                                   order that indicates that     Does not apply....
                                   the voluntary consent to
                                   termination for the
                                   biological or adoptive
                                   father was made in writing
                                   and recorded in the presence
                                   of a judge in accordance
                                   with 25 U.S.C. 1913.
                                  If voluntary, indicate         Yes...............  1355.43(i)(24).
                                   whether there is a court      No................
                                   order that indicates that     Does not apply....
                                   the voluntary consent to
                                   termination for the Indian
                                   custodian was made in
                                   writing and recorded in the
                                   presence of a judge in
                                   accordance with 25 U.S.C.
                                   1913.
Adoption proceedings............  Indicate whether the Indian    Yes...............  1355.43(i)(25).
                                   child exited foster care to   No................
                                   adoption per Sec.
                                   1355.43(g).
                                  Indicate which adoptive        ..................  1355.43(i)(26).
                                   placements that meet the
                                   placement preferences in
                                   ICWA at 25 U.S.C. 1915(a)
                                   were willing to accept
                                   placement.

[[Page 20295]]

 
                                      A member of the    Yes.
                                      Indian child's extended    No................
                                      family.
                                      Other members of   Yes.
                                      the Indian child's tribe.  No................
                                      Other Indian       Yes.
                                      families.                  No................
                                      A placement that   Yes.
                                      complies with the order    No................
                                      of preference for foster
                                      care or pre-adoptive
                                      placements established by
                                      an Indian child's tribe,
                                      in accordance with 25
                                      U.S.C. 1915(c).
                                  Indicate whether the           A member of the     1355.43(i)(27).
                                   placement reported in Sec.     Indian child's
                                   1355.43(h) meets the           extended family.
                                   placement preferences of      Other members of
                                   ICWA in 25 U.S.C. 1915(a) by   the Indian
                                   indicating with whom the       child's tribe..
                                   Indian child is placed.
 
                                  Other Indian families........
                                  A placement that complies
                                   with the order of preference
                                   for foster care or pre-
                                   adoptive placements
                                   established by an Indian
                                   child's tribe, in accordance
                                   with 25 U.S.C. 1915(c).
                                  None.........................
                                  If the placement preferences   Yes...............  1355.43(i)(28).
                                   for adoption were not         No................
                                   followed, indicate whether
                                   the court made a finding of
                                   good cause, on a court
                                   order, to place the Indian
                                   child with someone who is
                                   not listed in the placement
                                   preferences of ICWA in 25
                                   U.S.C. 1915(a) or the
                                   placement preferences of the
                                   Indian child's tribe.
                                  Indicate whether there is a    ..................  1355.43(i)(29).
                                   court order that indicates
                                   the court's basis for the
                                   finding of good cause.
                                      Request of the     Yes.
                                      biological parents.        No................
                                      Request of the     Yes.
                                      Indian child.              No................
                                      The                Yes.
                                      unavailability of a        No................
                                      suitable placement that
                                      meets the placement
                                      preferences in ICWA at 25
                                      U.S.C. 1915.
                                      The extraordinary  Yes.
                                      physical or emotional      No................
                                      needs of the Indian child.
                                      Other............  Yes.
                                                                 No................
----------------------------------------------------------------------------------------------------------------

VI. Regulatory Impact Analysis

Executive Order 12866

    Executive Order (E.O.) 12866 requires that regulations be drafted 
to ensure that they are consistent with the priorities and principles 
set forth in the E.O. The Department has determined that this proposed 
rule is consistent with these priorities and principles. In particular, 
ACF has determined that a regulation is the best and most cost 
effective way to implement the statutory mandate for a data collection 
system regarding children in foster care and those that are adopted and 
support other statutory obligations to provide oversight of child 
welfare programs. ACF consulted with the Office of Management and 
Budget (OMB) and determined that this proposed rule does meet the 
criteria for a significant regulatory action under E.O. 12866. Thus, it 
was subject to OMB review.
    ACF determined that the costs to title IV-E agencies as a result of 
this rule will not be significant. Federal reimbursement under title 
IV-E will be available for a portion of the costs that title IV-E 
agencies will incur as a result of the revisions proposed in this rule, 
depending on each agency's cost allocation plan, information system, 
and other factors.
    Alternatives Considered:
    1. ACF considered not collecting certain ICWA-related data in 
AFCARS. Not including ICWA-related data elements in AFCARS, or 
including too few data elements, may exclude Indian children and 
families from the additional benefit of improving AFCARS data.
    2. ACF considered whether other existing data sets could yield 
similar information. ACF determined that AFCARS is the only 
comprehensive case-level data set on the incidence and experiences of 
children who are in foster care and/or adoption or guardianship with 
the involvement of the state or tribal title IV-E agency.
    3. Previously, ACF considered whether to permit title IV-E agencies 
to sample and report information on a representative population of 
children. Such an alternative is unacceptable given the significant 
limitations associated with using a sampling approach for collecting 
data, including data on AI/AN children who are in foster care, 
adoption, and guardianship programs. Under a sampling approach, ACF 
would be unable to report reliable data responsive to the Annual 
Outcomes Report to Congress, the Report to Congress on the Social and 
Economic Conditions of Native Americans, and Adoption Incentives. 
Second, when using a sample, small population subgroups (e.g., children 
who spend very long periods in foster care or children who are adopted 
or run away) might occur so rarely in the data such

[[Page 20296]]

that analysis on these subgroups would not be meaningful. Sampling 
error with respect to AI/AN populations is already a well-established 
issue affecting the validity and meaningfulness of large national 
surveys like the American Community Survey. It is a well-established 
that, historically, quantitative and qualitative data on AI/AN 
populations, including children, has been incomplete and unreliable 
resulting in such populations being among the most under-counted 
populations groups in the United States.
    4. In each of 18 states, there were fewer than 10 Indian children 
in foster care according to FY 2013 AFCARS data. For states that have 
few Indian children in foster care, ACF considered alternatives to 
collecting ICWA-related data through AFCARS, such as providing an 
exemption from reporting, or an alternative submission process or that 
would be less burdensome. While ACF recognizes collecting the proposed 
ICWA-related data may be burdensome for states with few Indian children 
in foster care, the alternative approaches are not feasible due to:
     The statutory requirement that AFCARS data be 
comprehensive. Section 479(c)(3) requires that AFCARS provide 
``comprehensive national information.'' Exempting some states from 
reporting the proposed ICWA-related data elements is not consistent 
with this statutory mandate, and would render it difficult to use this 
data for development of national policies for Indian children.
     The statutory requirement for assessing penalties on 
AFCARS data. Section 474(f) of the Act penalizes the title IV-E agency 
for non-compliance based on the total amount expended by the state for 
administration of foster care activities. The statute provides for 
mandatory penalties, therefore, we are not authorized to permit some 
states to be subject to a penalty and not others. In addition, allowing 
states an alternate submission process would complicate and/or prevent 
the assessment of penalties as proposed in the February 9, 2015 NPRM in 
proposed Sec.  1355.46, including penalties for failure to submit data 
files free of cross-file errors, missing, invalid, or internally 
inconsistent data, or tardy transactions for each data element of 
applicable records.
     State agencies that elect to have a SACWIS provide some of 
the proposed ICWA-related data elements as part of the system 
requirements will already have systems designed to capture some ICWA-
related data.

Regulatory Flexibility Analysis

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

Unfunded Mandates Reform Act

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

Congressional Review

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

Assessment of Federal Regulations and Policies on Families

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

Executive Order 13132

    Executive Order (E.O.) 13132 requires that federal agencies consult 
with state and local government officials in the development of 
regulatory policies with Federalism implications. Consistent with E.O. 
13132, the Department specifically solicits comments from state and 
local government officials on this proposed rule.

Paperwork Reduction Act

    Under the Paperwork Reduction Act (44 U.S.C. 35, as amended) (PRA), 
all Departments are required to submit to OMB for review and approval 
any reporting or recordkeeping requirements inherent in a proposed or 
final rule. Information collection for AFCARS is currently authorized 
under OMB number 0970-0422. This supplemental notice of proposed 
rulemaking contains new information collection requirements in proposed 
Sec.  1355.43, the out-of-home care data file that the Department has 
submitted to OMB for its review. This SNPRM proposes to require state 
title IV-E agencies to collect and report ICWA-related data elements in 
the AFCARS out-of-home care data file. PRA rules require that ACF 
estimate the total burden created by this SNPRM regardless of what 
information is already available.
    Comments to the February 2015 AFCARS NPRM: ACF understands from 
comments on the February 2015 AFCARS NPRM that National Association of 
Public Child Welfare Administrators (NAPCWA) and the states felt that 
our burden estimates were low for determining the costs to implement 
the proposed data elements in AFCARS NPRM. However, very few states 
provided estimates on the burden hours or actual costs to implement the 
AFCARS NPRM. The comments were primarily about technical or programmer 
costs to modify the information system to extract the proposed data 
elements. This did not include the work associated with child welfare 
agency workers gathering information or being trained in data entry. 
The estimates received to modify a state information system to extract 
the proposed AFCARS NPRM data elements (approximately 100) ranged from 
2,000 hours to 20,000 hours. Although ACF appreciates that these states 
provided this information on hourly and cost burden estimates, ACF 
received too few estimates to assist in calculating the state costs for 
information systems and other burden associated with this SNPRM. 
Therefore, ACF provides estimates using the best available information.
Burden Estimate
    ACF estimates the annual reporting and record keeping burden hours 
of this SNPRM to be 192,285 hours. ACF estimates a one-time burden 
associated with this SNPRM to be 85,072 hours. The 52 respondents 
comprise 52 state title IV-E agencies. The following are estimates.

[[Page 20297]]



----------------------------------------------------------------------------------------------------------------
                                                                                      Average
                                                     Number of       Number of      burden per     Total burden
                   Collection                       respondents   responses  per     year per          hours
                                                                     respondent     respondent
----------------------------------------------------------------------------------------------------------------
Annual Record Keeping and Reporting Burden......              52               2        3,697.79         192,285
One-Time Burden.................................              52               1        1,636             85,072
----------------------------------------------------------------------------------------------------------------

    In estimating the burden, ACF included both one-time burden 
estimates and annual burden estimates:
    Annual burden: The annual burden to the state title IV-E agency 
includes activities such as: Searching data sources and gathering 
information, entering the information, extracting the information for 
AFCARS reporting, and transmitting the information to ACF.
    One time burden: The one-time burden for this SNPRM, includes 
activities to: Develop or modify procedures and systems to collect, 
validate, and verify the information, adjust existing ways to comply 
with AFCARS requirements, and train personnel on the new AFCARS 
requirements of this SNPRM.
    In developing the burden estimate, ACF made several assumptions 
about the data in state child welfare information systems. First, ACF 
assumed that state title IV-E agencies may have access to most of the 
information for proposed data elements. ACF anticipated the information 
for these data elements are contained in the state title IV-E agency's 
paper or electronic case files. ACF estimated that some of the data 
elements would only be in paper case files or narrative fields, thus 
not readily able to be extracted for AFCARS reporting, and would 
require revisions to the electronic case file so that the information 
can be extracted for AFCARS reporting. Some of these data elements 
concern collecting information on court findings and other activities 
taking place during court processes.
    ACF proposes for state title IV-E agencies to report information in 
court orders that the state title IV-E agency would have ready access 
to or would typically be in the state title IV-E agency's case files. 
ACF is seeking state feedback as to whether the state agency has these 
readily available in their agency paper files or electronic files. 
These are:
     A court order indicating that the child's parent or Indian 
custodian or the Indian child's tribe requested orally on the record or 
in writing that the state court transfer the case to the tribal court 
of the Indian child's tribe, in accordance with 25 U.S.C. 1911(b), and, 
where applicable, the reason(s) why the case was not transferred.
     A court order indicating the court found by clear and 
convincing evidence, in a court order, 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).
     A court order indicating that the court made a finding of 
good cause, and the basis, if the placement preferences for foster care 
were not followed, to place the Indian child with someone who is not 
listed in the placement preferences of ICWA in 25 U.S.C. 1915(b) or the 
placement preferences of the Indian child's tribe in accordance with 25 
U.S.C. 1915(c); and
     If the placement preferences for adoption were not 
followed, a court finding of good cause, and the basis, on a court 
order, to place the Indian child with someone who is not listed in the 
placement preferences of ICWA in 25 U.S.C. 1915(a) or the placement 
preferences of the Indian child's tribe.
    Second, in order to determine the number of cases for which state 
title IV-E agencies will have to report the ICWA-related data elements, 
ACF estimated the out-of-home care reporting population using the most 
recent FY 2014 AFCARS data available submitted by state title IV-E 
agencies: 415,129 children were in foster care on September 30, 2014 
and 264,746 children entered foster care during FY 2014. The state 
title IV-E agency will be required to report approximately 3 data 
elements for all children who are in the out-of-home care reporting 
population and approximately 24 data elements on children to whom the 
ICWA-related data elements apply.
    To estimate the number of children to whom the ICWA-related data 
elements apply, ACF used as a proxy those children whose race was 
reported as ``American Indian or Alaska Native'' in the most recent FY 
2014 AFCARS data available. While not every child of this reported race 
category will be covered under ICWA, it is likely that the state title 
IV-E agency will have to explore whether these children may be Indian 
children as defined in ICWA. Thus, 5,960 children who entered foster 
care during FY 2014 were reported as American Indian or Alaska Native.
    Third, ACF assumed that there will be one-time costs to implement 
the requirements of this SNPRM and annual costs to collect, input, and 
report the information. The annual costs involve searching data, 
gathering the information that meet the requirements of this SNPRM, 
entering the information, and extracting and submitting the information 
for AFCARS reporting. The one-time costs mostly involve modifying 
procedures and systems to collect, validate and verify information, 
adjusting existing ways to comply with AFCARS; and training personnel 
on the new AFCARS requirements of this SNPRM.
    Fourth, ACF assumed that the one-time burden is similar to how long 
it would take to make revisions to a SACWIS to be able to meet the 
requirements of the SNPRM. Currently, 36 states have an operational 
SACWIS. ACF understands that 24 states opted to collect at least a 
minimal amount of ICWA-related information per the SACWIS Assessment 
Review Guide, but also recognize that most state title IV-E agencies 
will require some revisions to meet the requirements of this SNPRM. As 
more states build SACWIS, ACF anticipates it will lead to more 
efficiency in reporting and less cost and burden to the state agencies.
    Finally, after reviewing the 2014 Bureau of Labor Statistics data 
to help determine the costs of the SNPRM, ACF assumed that there will 
be a mix of staff working to meet both the one-time and annual 
requirements of this SNPRM with the job role of Management Analyst (13-
1111) with a mean hourly wage estimate of $43.68 and those with the job 
role of Social and Community Service Managers (11-9151) with a mean 
hourly wage estimate of $32.56. Thus, ACF averaged the two wages to 
come to an average labor rate of $38.12. In order to ensure we took 
into account overhead costs associated with these labor costs, ACF 
doubled this rate.
    Annual Recordkeeping and Reporting Burden Estimate: ACF estimated 
the annual recordkeeping and reporting burden by multiplying the time 
spent on the recordkeeping and reporting activities described below by 
the number of children in foster care to arrive at the total 
recordkeeping hours. These estimates represent the work

[[Page 20298]]

associated with the state title IV-E agency searching data sources and 
gathering information, entering the information, extracting the 
information for AFCARS reporting, and transmitting the information to 
ACF. These estimates are based on our assumptions, described above, on 
how much of the information proposed in this SNPRM state title IV-E 
agencies currently have in their electronic or paper case files or 
information system or have ready access to, while taking into account 
that some of the elements may require more effort to gather the 
information if it is not readily accessible.
     Gathering the information for and entering the ICWA-
related data elements that apply to all children who enter foster care 
on average will take approximately 132,373 annual burden hours. (0.5 
hours x 264,746 children who entered foster care = 132,373 annual 
burden hours for all children in the out-of-home care reporting 
population)
     Gathering the information for and entering the ICWA-
related data elements that apply to children in foster care who are 
covered by ICWA, on average will take 59,600 annual burden hours. (10 
hours x 5,960 children who enter foster care with a race reported as 
American Indian or Alaska Native = 59,600 annual burden hours for 
children in the out-of-home care reporting population who are covered 
by ICWA). ACF estimated that it would take a state title IV-E agency on 
average 10 hours annually to gather and input the ICWA-related data 
elements that apply to children in foster care who are covered by ICWA. 
ACF estimated this by assuming that a state title IV-E agency would be 
gathering and inputting information for approximately 14 of the 
proposed data elements for an average foster care episode, if the child 
is not transferred and there is no TPR or adoption. In cases where the 
child is transferred, ACF estimated that the burden would decrease 
because the agency would have fewer data elements to complete and the 
burden would increase in cases where there is a TPR and the child is 
adopted because there would be more data elements that the agency would 
have to complete.
     Extracting and submitting the information to ACF for 
AFCARS reporting on average will take 6 annual burden hours per state 
title IV-E agency. Nationally, the hour burden for all 52 state title 
IV-E agencies would be 312 (6 hours x 52 states = 312). ACF took into 
account the number of data elements proposed in this SNPRM when 
estimating the reporting burden.
    ACF added the bullets above and estimate the number of annual 
recordkeeping and reporting burden hours that workers will spend on 
ICWA-related AFCARS requirements in the out-of-home care reporting 
population annually will be 192,285 hours (132,373 + 59,600 + 312 = 
192,285). Dividing this annual figure by the 52 state title IV-E 
agencies, ACF arrived at approximately 3,698 average burden hours per 
respondent per year for the ICWA-related information in the AFCARS out-
of-home care data file. (192,285 / 52 title IV-E agencies = 3,697.79 
average burden hours per respondent per year.)
    One-Time Burden Estimate: ACF estimated the one-time burden by 
adding up the time spent on the activities described below and 
multiplying it by the 52 state title IV-E agencies to arrive at the 
one-time burden hours. The one-time burden estimates represent the work 
associated with the activities described below. As stated above, ACF 
came to these estimates by using average estimates for revising a 
SACWIS, which is the best information available. It is also important 
to note that states will have the option of updating their systems in a 
streamlined manner since ACF plans to issue the final rules for new 
AFCARS regulations and for child welfare information systems.
     Modifying procedures and systems (including developing or 
acquiring technology) to collect, validate, verify, process, and report 
the information to ACF on average will take approximately 130 burden 
hours.
     Adjustments to the existing ways to comply with AFCARS, 
developing technology and systems to collect and process data on 
average will take approximately 200 burden hours.
     The administrative tasks associated with training 
personnel on the new AFCARS requirements of this SNPRM which include 
reviewing instructions, including training development and manuals on 
average will take approximately 30 burden hours.
     Training personnel on the new AFCARS requirements of this 
SNPRM on average will take approximately 1,276 burden hours. ACF 
arrived at this estimate by dividing the number of children in foster 
care on September 30, 2014 (415,129) by an estimated average caseload 
of 25 cases per worker to arrive at an estimate of 16,605 workers to be 
trained. ACF divided this number (16,605) by 52 to account for average 
workers per state title IV-E agency, and arrived at 319 workers. ACF 
multiplied the workers (319) by the number of estimated hours to 
complete training (4 hours) to arrive at 1,276 burden hours to train 
personnel per state title IV-E agency on the new AFCARS requirements. 
ACF added the burden hours above (1,636 hours) and multiplied by 52 
state title IV-E agencies, which results in a one-time burden of 85,072 
hours (1,636 x 52 = 85,072 one-time burden hours).

Total Burden Cost

    ACF used a total cost and burden hour estimates to provide 
additional detail on projected average cost for each state title IV-E 
agency implementing the changes described in this SNPRM. Once the 
burden hours were determined, ACF developed an estimate of the 
associated cost for state title IV-E agencies to conduct these 
activities, as applicable. Based on our assumptions above, ACF used an 
average labor rate of $38.12 and doubled this rate to account for 
overhead costs ($76.24). Based on these rates, ACF estimated the cost 
for one-time burden to be $6,485,889.28 (85,072 one-time hours x $76.24 
hourly cost/overhead = $6,485,889.28) and ACF estimated the cost for 
annual burden to be $14,659,808.40 (192,285 annual hours x $76.24 
hourly cost = $14,659,808.40). Dividing these costs by 52 state title 
IV-E agencies, ACF estimated the average cost per state title IV-E 
agency to be $124,728.64 one-time and $281,919.39 annually. Federal 
reimbursement under title IV-E will be available for a portion of the 
costs that title IV-E agencies will incur as a result of the revisions 
proposed in this rule, depending on each agency's cost allocation plan, 
information system, and other factors.

--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                  Average
                                                               hourly labor     Total cost       Number of
                                                   Hours          rate +        nationwide      respondents         Net average cost per respondent
                                                                 overhead
--------------------------------------------------------------------------------------------------------------------------------------------------------
Total One-Time Burden.......................          85,072          $76.24   $6,485,889.28              52  $124,728.64 One-Time.
Total Annual recordkeeping and reporting             192,285           76.24   14,659,808.40              52  281,919.39 Annually.
 burden.
--------------------------------------------------------------------------------------------------------------------------------------------------------


[[Page 20299]]

    In the above estimates, ACF acknowledges: (1) ACF has used average 
figures for state title IV-E agencies of very different sizes and of 
which, some states may have larger populations of tribal children 
served than other states, (2) these are rough estimates of the burden 
because state title IV-E agencies have not been required previously to 
report ICWA-related information in AFCARS, and (3) as described, ACF 
has limited information to use in making these estimates. ACF welcomes 
comments on these factors and all others in this section.
    ACF will consider comments by the public on this proposed 
collection of information in the following areas:
    1. Evaluating whether the proposed collection is necessary for the 
proper performance of the functions of ACF, including whether the 
information will have practical utility;
    2. Evaluating whether the proposed collection is sufficient to 
assess and serve the unique needs of AI/AN children under the placement 
and care of title IV-E agencies;
    3. Evaluating the accuracy of ACF's estimate of the burden of the 
proposed collection of information, including the validity of the 
methodology and assumptions used;
    4. Enhancing the quality, usefulness, and clarity of the 
information to be collected; and
    5. Minimizing the burden of the collection of information on those 
who are to respond, including through the use of appropriate automated, 
electronic, mechanical, or other technology, e.g., permitting 
electronic submission of responses.
    OMB is required to make a decision concerning the collection of 
information contained in these proposed regulations between 30 and 60 
days after publication of this document in the Federal Register. 
Therefore, a comment is best assured of having its full effect if OMB 
receives it within 30 days of publication. This does not affect the 
deadline for the public to comment to the Department on the proposed 
regulations. Written comments to OMB for the proposed information 
collection should be sent directly to the following: Office of 
Management and Budget, either by fax to 202-395-6974 or by email to 
[email protected]. Please mark faxes and emails to the 
attention of the desk officer for ACF.

VII. Tribal Consultation Statement

    As we stated in section IV of this SNPRM, we held one Tribal 
consultation session via a teleconference call on May 1, 2015 and we 
did not receive suggestions from tribal representatives during the 
call. A few tribal representatives indicated that they would comment on 
the data elements through the SNPRM when it is issued.
    We also stated in section IV of this SNPRM that we analyzed 
comments to the Feb. 2015 AFCARS NPRM that spoke to ICWA-related data 
elements to help inform this SNPRM. We received 45 comments that spoke 
to including new data elements in AFCARS related to ICWA; a majority of 
which were from tribes/tribal organizations. The commenters recommended 
data elements that provide basic information about the applicability of 
ICWA for children in out-of-home care, including: Identification of 
American Indian and Alaskan Native children and their family structure, 
tribal notification and intervention in state court proceedings, the 
relationship of the foster parents and other providers to the child, 
decisions to place a child in out-of-home care (including data on 
active efforts and continued custody), whether a placement was licensed 
by an Indian tribe, whether the placement preferences in ICWA were 
followed, and termination of parental rights (both voluntary and 
involuntary).

List of Subjects in 45 CFR Part 1355

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

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

Mark H. Greenberg,
Acting Assistant Secretary for Children and Families.
    Approved: February 17, 2016.
Sylvia M. Burwell,
Secretary.

    For the reasons set forth in the preamble, 45 CFR part 1355 as 
proposed to be amended on February 9, 2015 (80 FR 7132), is proposed to 
be further amended as follows:

PART 1355--GENERAL

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

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

0
2. Amend Sec.  1355.43 by adding paragraph (i) to read as follows:


Sec.  1355.43  Out-of-home care data file elements.

* * * * *
    (i) Data elements related to the Indian Child Welfare Act (ICWA)--
(1) Definitions. Unless otherwise specified, the following terms as 
they appear in this paragraph (i) are defined as follows:
    Child custody proceeding has the same meaning as in 25 U.S.C. 
1903(1).
    Extended family member has the same meaning as in 25 U.S.C. 
1903(2).
    Indian has the same meaning as in 25 U.S.C. 1903(3).
    Indian child has the same meaning as in 25 U.S.C. 1903(4).
    Indian child's tribe has the same meaning as in 25 U.S.C. 1903(5).
    Indian custodian has the same meaning as in 25 U.S.C. 1903(6).
    Indian organization has the same meaning as in 25 U.S.C. 1903(7).
    Indian tribe has the same meaning as in 25 U.S.C. 1903(8).
    Parent has the same meaning as in 25 U.S.C. 1903(9).
    Reservation has the same meaning as in 25 U.S.C. 1903(10).
    Tribal court has the same meaning as in 25 U.S.C. 1903(12).
    (2) For all children in the out-of-home care reporting population 
per Sec.  1355.41(a), the state title IV-E agency must complete the 
data elements in paragraphs (i)(3) through (5) of this section. If the 
state title IV-E agency responds with ``yes'' to the data elements in 
paragraph (i)(4) or (5) of this section, then the agency must complete 
the remaining applicable paragraphs (i)(6) through (29) of this 
section.
    (3) Identifying an ``Indian Child'' under the Indian Child Welfare 
Act. Indicate whether the state title IV-E agency researched whether 
there is a reason to know that the child is an Indian child under ICWA 
in each paragraph (i)(3)(i) through (viii) of this section.
    (i) Indicate whether the state 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 biological or adoptive mother is a member 
of an Indian tribe. Indicate ``yes,'' ``no'' or ``unknown.''
    (iii) Indicate whether the state agency inquired with the child's 
biological or adoptive father. Indicate ``yes,'' ``no,'' or ``the 
biological or adoptive father is deceased.''
    (iv) Indicate whether the biological or adoptive father is a member 
of an Indian tribe. Indicate ``yes,'' ``no,'' or ``unknown.''
    (v) Indicate whether the state agency inquired with the child's 
Indian custodian, if the child has one. Indicate ``yes,'' or ``no'' or 
``child does not have an Indian custodian.''

[[Page 20300]]

    (vi) Indicate whether the state agency inquired with the child who 
is the subject of the proceeding. Indicate ``yes'' or ``no.''
    (vii) Indicate whether the child is a member of or eligible for 
membership in an Indian tribe. Indicate ``yes,'' ``no,'' or 
``unknown.''
    (viii) Indicate whether the domicile or residence of the child, 
parent, or the Indian custodian is known by the agency to be, or is 
shown to be, on an Indian reservation. Indicate ``yes'' or ``no.''
    (4) Application of ICWA. Indicate whether the state title IV-E 
agency knows or has reason to know that the child is an Indian child as 
defined by ICWA. Indicate ``yes'' or ``no.'' If the state title IV-E 
agency indicated ``yes,'' the state title IV-E agency must complete the 
data elements in paragraphs (i)(4)(i) and (ii) of this section. If the 
state title IV-E agency indicated ``no,'' the state title IV-E agency 
must leave the data elements in paragraphs (i)(4)(i) and (ii) of this 
section blank.
    (i) Indicate the date that the state title IV-E agency discovered 
the information that indicates that the child is or may be an Indian 
child.
    (ii) Indicate the name(s) of all federally recognized Indian 
tribe(s) that may potentially be the Indian child's tribe(s).
    (5) Indicate whether a court order indicates that the court found 
that ICWA applies. Indicate ``yes, ICWA applies,'' ``no, ICWA does not 
apply,'' or ``no court finding.'' If the state title IV-E agency 
indicated ``yes, ICWA applies,'' the state title IV-E agency must 
complete paragraphs (i)(5)(i) and (ii) of this section. If the state 
title IV-E agency indicated ``no, ICWA does not apply,'' the state 
title IV-E agency must complete the data element in paragraph (i)(5)(i) 
of this section and leave the data element in paragraph (i)(5)(ii) of 
this section blank. If the state title IV-E agency indicated ``no court 
finding,'' the state title IV-E agency must leave the data elements in 
paragraphs (i)(5)(i) and (ii) of this section blank.
    (i) Indicate the date of the court finding.
    (ii) Indicate the name of the Indian tribe(s) that the court found 
is the Indian child's tribe, if listed on the court order. If a name is 
not listed on the court order, the state title IV-E agency must 
indicate ``no name listed.''
    (6) Transfer to tribal court. Indicate whether there is a court 
order that indicates that the Indian child's parent, Indian custodian, 
or Indian child's tribe requested, orally on the record or in writing, 
that the state court transfer the case to the tribal court of the 
Indian child's tribe, in accordance with 25 U.S.C. 1911(b), at any 
point during the report period. Indicate ``yes'' or ``no.'' If the 
state title IV-E agency indicated ``yes,'' then the state title IV-E 
agency must complete the data element in paragraph (i)(7) of this 
section. If the state title IV-E agency indicated ``no,'' the state 
title IV-E agency must leave the data element in paragraph (i)(7) of 
this section blank.
    (7) If the state court denied the request to transfer the case to 
tribal court, indicate whether there is a court order that indicates 
the reason(s) why the case was not transferred to the tribal court. 
Indicate ``yes'' or ``no.'' If the title IV-E agency indicated ``yes,'' 
then the title IV-E agency must indicate whether each reason in each 
paragraphs (i)(7)(i) through (iii) of this section is in the court 
order by indicating ``yes'' or ``no.'' If the state title IV-E agency 
indicates ``no,'' the title IV-E agency must leave the data elements in 
paragraphs (i)(7)(i) through (iii) of this section blank.
    (i) Either of the parents objected to transferring the case to the 
tribal court.
    (ii) The tribal court declined the transfer to the tribal court.
    (iii) The state court found good cause not to transfer the case to 
the tribal court.
    (8) Notification. (i) Indicate whether the Indian child's parent or 
Indian custodian was given legal notice more than 10 days prior to of 
the first child custody proceeding in accordance with 25 U.S.C. 
1912(a). Indicate ``yes'' or ``no.''
    (ii) Indicate whether the Indian child's tribe(s) was given legal 
notice more than 10 days prior to the first child custody proceeding in 
accordance with 25 U.S.C. 1912(a). Indicate ``yes'', ``no'' or ``the 
child's Indian tribe is unknown.''
    (9) Indicate the name(s) of the Indian tribe(s) that were sent 
notice for a child custody proceeding as required in ICWA at 25 U.S.C. 
1912(a).
    (10) If the tribe(s) requested additional information, indicate 
whether the state title IV-E agency replied with the additional 
information that the Indian tribe(s) requested. If the tribe did not 
request additional information, indicate ``does not apply.'' Otherwise, 
indicate ``yes'' or ``no.''
    (11) Active efforts to prevent removal and reunify with Indian 
family. Indicate the date that the state title IV-E agency began making 
active efforts to prevent the breakup of the Indian family for the most 
recent removal reported in paragraph (d) of this section of the Indian 
child in accordance with 25 U.S.C. 1912(d).
    (12) Indicate whether the court found, in a court order, that the 
state title IV-E agency made active efforts to prevent the breakup of 
the Indian family for the most recent removal reported in paragraph (d) 
of this section and that these efforts were unsuccessful in accordance 
with 25 U.S.C. 1912(d). Indicate ``yes'' or ``no.''
    (13) Indicate the active efforts that the state title IV-E agency 
made to prevent the breakup of the Indian family in accordance with 25 
U.S.C. 1912(d). Indicate ``yes'' or ``no'' for each paragraph 
(i)(13)(i) through (xi) and (xiii) of this section. Indicate ``yes,'' 
``no'' or ``N/A'' for paragraph (i)(13)(xii) of this section.
    (i) Identify appropriate services to help the parent.
    (ii) Actively assist the parent to obtain services.
    (iii) Invite representatives of the Indian child's tribe to 
participate in the proceedings.
    (iv) Complete a comprehensive assessment of the family.
    (v) Focus on safe reunification as the goal for the Indian child.
    (vi) Consult with extended family members to provide support for 
the Indian child.
    (vii) Arrange for family interaction in most natural setting safely 
possible.
    (viii) Monitor progress and participation in services to reunite 
the Indian family.
    (ix) Consider alternative ways of addressing the needs of the 
Indian child's parent and extended family if services do not exist or 
are not available.
    (x) Support regular visits and trial home visits consistent with 
ensuring the Indian child's safety.
    (xi) Conduct or cause to be conducted a diligent search for the 
Indian child's extended family members for assistance and possible 
placement.
    (xii) Keep siblings together.
    (xiii) Other.
    (14) Removals. Indicate ``yes'' or ``no'' for paragraphs (i)(14)(i) 
and (ii) of this section: (i) Indicate whether the court found by clear 
and convincing evidence, in a court order, 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). (ii) Indicate whether the court 
finding reported for this paragraph (i)(14), indicates that the state 
court's finding was supported by the testimony of a qualified expert 
witness in accordance with 25 U.S.C. 1912(e).
    (15) Foster care and pre-adoptive placement preferences. Indicate 
which foster care or pre-adoptive placements that meet the placement 
preferences of

[[Page 20301]]

ICWA in 25 U.S.C. 1915(b) were available to accept placement. Indicate 
in each paragraph (i)(15)(i) through (v) of this section ``yes'' or 
``no.''
    (i) A member of the Indian child's extended family.
    (ii) A foster home licensed, approved, or specified by the Indian 
child's tribe.
    (iii) An Indian foster home licensed or approved by an authorized 
non-Indian licensing authority.
    (iv) An institution for children approved by an Indian tribe or 
operated by an Indian organization which has a program suitable to meet 
the Indian child's needs.
    (v) A placement that complies with the order of preference for 
foster care or pre-adoptive placements established by an Indian child's 
tribe, in accordance with 25 U.S.C. 1915(c).
    (16) For the Indian child's current foster care or pre-adoptive 
placement as of the end of the report period per paragraph (e) of this 
section, indicate whether the placement meets the placement preferences 
of ICWA in 25 U.S.C. 1915(b) 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, in 
accordance with 25 U.S.C. 1915(c)'' or ``none.''
    (17) If the placement preferences for foster care or pre-adoptive 
placements were not followed, indicate whether the court made a finding 
of good cause, on a court order, to place the Indian child with someone 
who is not listed in the placement preferences of ICWA in 25 U.S.C. 
1915(b) or the placement preferences of the Indian child's tribe. 
Indicate ``yes'' or ``no.'' If the state title IV-E agency indicated 
``yes,'' then the state title IV-E agency must complete the data 
element in paragraph (i)(18) of this section. If the state title IV-E 
agency indicated ``no,'' then the state title IV-E agency must leave 
the data element in paragraph (i)(18) of this section blank.
    (18) Indicate the state court's basis for the finding of good 
cause, as indicated on the court order, by indicating ``yes'' or ``no'' 
in each paragraph (i)(18)(i) through (v) of this section.
    (i) Request of the biological parents.
    (ii) Request of the Indian child.
    (iii) The unavailability of a suitable placement that meets the 
placement preferences in ICWA at 25 U.S.C. 1915.
    (iv) The extraordinary physical or emotional needs of the Indian 
child.
    (v) Other.
    (19) Termination of parental rights. Indicate whether the 
termination of parental or Indian custodian rights was voluntary or 
involuntary. Indicate ``voluntary'' or ``involuntary.'' If the state 
title IV-E agency indicated ``voluntary'', the state title IV-E agency 
must leave the data elements in paragraphs (i)(20) and (21) of this 
section blank. If the state title IV-E agency indicated 
``involuntary'', the state title IV-E agency must leave the data 
elements in paragraphs (i)(22) through (24) of this section blank.
    (20) Indicate whether, prior to ordering an involuntary termination 
of parental rights, the state court found beyond a reasonable doubt, in 
a court order, 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.''
    (21) Indicate whether the court finding reported for paragraph 
(i)(20) of this section, indicates that the state court's finding was 
supported by the testimony of a qualified expert witness in accordance 
with 25 U.S.C. 1912(f). Indicate ``yes'' or ``no.''
    (22) If voluntary, indicate whether there is a court order that 
indicates that the voluntary consent to termination for the biological 
or adoptive mother was made in writing and recorded in the presence of 
a judge in accordance with 25 U.S.C. 1913. Indicate ``yes,'' ``no,'' or 
``does not apply'' if the mother is deceased.
    (23) If voluntary, indicate whether there is a court order that 
indicates that the voluntary consent to termination for the biological 
or adoptive father was made in writing and recorded in the presence of 
a judge in accordance with 25 U.S.C. 1913. Indicate ``yes,'' ``no'' or 
``does not apply'' if the father is deceased.
    (24) If voluntary, indicate whether there is a court order that 
indicates that the voluntary consent to termination for the Indian 
custodian was made in writing and recorded in the presence of a judge 
in accordance with 25 U.S.C. 1913. Indicate ``yes,'' ``no'' or ``does 
not apply'' if there is no Indian custodian.
    (25) Adoption proceedings. Indicate whether the Indian child exited 
foster care to adoption per paragraph (g) of this section. Indicate 
``yes'' or ``no.'' If the state title IV-E agency indicated ``yes,'' 
the state title IV-E agency must complete the data element in 
paragraphs (i)(26) through (29) of this section. If the state title IV-
E agency indicated ``no,'' the state title IV-E agency must leave the 
data element in paragraphs (i)(26) through (29) of this section blank.
    (26) Indicate which adoptive placements that meet the placement 
preferences in ICWA at 25 U.S.C. 1915(a) were willing to accept 
placement. Indicate in each paragraphs (i)(26)(i) through (iv) of this 
section ``yes'' or ``no.''
    (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 for 
foster care or pre-adoptive placements established by an Indian child's 
tribe, in accordance with 25 U.S.C. 1915(c).
    (27) Indicate whether the placement reported in paragraph (h) of 
this section meets the placement preferences of ICWA in 25 U.S.C. 
1915(a) 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 foster care or pre-
adoptive placements established by an Indian child's tribe, in 
accordance with 25 U.S.C. 1915(c),'' or ``none.''
    (28) If the placement preferences for adoption were not followed, 
indicate whether the court made a finding of good cause, on a court 
order, to place the Indian child with someone who is not listed in the 
placement preferences of ICWA in 25 U.S.C. 1915(a) or the placement 
preferences of the Indian child's tribe. Indicate ``yes'' or ``no.'' If 
the state title IV-E agency indicated ``yes,'' then the state title IV-
E agency must complete the data element in paragraph (i)(29) of this 
section. If the state title IV-E agency indicated ``no,'' then the 
state title IV-E agency must leave the data element in paragraph 
(i)(29) of this section blank.
    (29) Indicate whether there is a court order that indicates the 
court's basis for the finding of good cause, by indicating ``yes'' or 
``no'' in each paragraph (i)(29)(i) through (v) of this section.
    (i) Request of the biological parents.
    (ii) Request of the Indian child.
    (iii) The unavailability of a suitable placement that meets the 
placement preferences in ICWA at 25 U.S.C. 1915.
    (iv) The extraordinary physical or emotional needs of the Indian 
child.
    (v) Other.

[FR Doc. 2016-07920 Filed 4-5-16; 8:45 am]
 BILLING CODE P



                                                                        Federal Register / Vol. 81, No. 67 / Thursday, April 7, 2016 / Proposed Rules                                              20283

                                               List of Subjects in 40 CFR Part 300                     of Proposed Rulemaking on or before                    Contents
                                                 Environmental protection, Air                         May 9, 2016.                                           I. Background
                                               pollution control, Chemicals, Hazardous                 ADDRESSES: We encourage the public to                  II. Statutory Authority
                                               substances, Hazardous waste,                            submit comments electronically to                      III. Public Participation
                                               Intergovernmental relations, Natural                    ensure they are received in a timely                   IV. Consultation and Regulation
                                                                                                       manner. Please be sure to include                            Development
                                               resources, Oil pollution, Penalties,
                                                                                                       identifying information on any                         V. Section-by-Section Discussion of the
                                               Reporting and recordkeeping                                                                                          SNPRM
                                               requirements, Superfund, Water                          correspondence. To download an
                                                                                                                                                              VI. Regulatory Impact Analysis
                                               pollution control, Water supply.                        electronic version of the proposed rule,
                                                                                                                                                              VII. Tribal Consultation Statement
                                                                                                       please go to http://www.regulations.
                                                 Authority: 33 U.S.C. 1321(d); 42 U.S.C.
                                                                                                       gov/. You may submit comments,                         I. Background
                                               9601–9657; E.O. 13626, 77 FR 56749, 3CFR,
                                               2013 Comp., p. 306; E.O. 12777, 56 FR 54757,            identified by docket number, by any of
                                                                                                                                                              Adoption and Foster Care Automated
                                               3 CFR, 1991 Comp., p.351; E.O. 12580, 52 FR             the following methods:
                                                                                                                                                              Reporting System (AFCARS)
                                               2923, 3 CFR, 1987 Comp., p.193.                           • Federal eRulemaking Portal: http://
                                                                                                       www.regulations.gov. Follow the                           Section 479 of the Social Security Act
                                                 Dated: March 28, 2016.
                                                                                                       instructions for submitting comments.                  (the Act) requires that ACF regulate a
                                               Mathy Stanislaus,                                         Mail: Written comments may be                        national data collection system that
                                               Assistant Administrator, Office of Land and             submitted to Kathleen McHugh, United                   provides comprehensive demographic
                                               Emergency Management.                                   States Department of Health and Human                  and case-specific information on all
                                               [FR Doc. 2016–07671 Filed 4–6–16; 8:45 am]              Services, Administration for Children                  children who are in foster care or
                                               BILLING CODE 6560–50–P                                  and Families, Director, Policy Division,               adopted with title IV–E agency
                                                                                                       330 C Street SW., Washington, DC                       involvement (42 U.S.C. 679).
                                                                                                       20024.                                                 Historically, the broad underlying
                                               DEPARTMENT OF HEALTH AND                                  • Please be aware that mail sent in                  legislative directive has always been the
                                               HUMAN SERVICES                                          response to this SNPRM may take an                     establishment and administration of a
                                                                                                       additional 3 to 4 days to process due to               system for ‘‘the collection of data with
                                               Administration for Children and                         security screening of mail.                            respect to adoption and foster care in
                                               Families                                                  • Hand Delivery/Courier: If you                      the United States.’’ Such data collection
                                                                                                       choose to use an express, overnight, or                system is the Adoption and Foster Care
                                               45 CFR Part 1355                                        other special delivery method, please                  Automated Reporting System
                                                                                                       ensure that the carrier will deliver to the            (AFCARS).
                                               RIN 0970–AC47                                           above address Monday through Friday                       The AFCARS statute with regard to
                                                                                                       during the hours of 9 a.m. to 5 p.m.,                  data collection systems requires the
                                               Adoption and Foster Care Analysis
                                                                                                       excluding holidays.                                    following: (1) The data collection
                                               and Reporting System                                      Instructions: All submissions received               system developed and implemented
                                               AGENCY:  Administration on Children,                    must include the agency name and                       shall avoid unnecessary diversion of
                                               Youth and Families (ACYF),                              docket number or Regulatory                            resources from adoption and foster care
                                               Administration for Children and                         Information Number (RIN) for this                      agencies; (2) the data collection system
                                               Families (ACF), Department of Health                    rulemaking. All comments received will                 shall assure that any data that is
                                               and Human Services (HHS).                               be posted without change to                            collected is reliable and consistent over
                                               ACTION: Supplemental notice of                          www.regulations.gov, including any                     time and among jurisdictions through
                                               proposed rulemaking.                                    personal information provided. For                     the use of uniform definitions and
                                                                                                       detailed instructions on submitting                    methodologies; (3) the data collection
                                               SUMMARY:    On February 9, 2015, the                    comments, see the ‘‘Public                             system shall provide: Comprehensive
                                               Administration for Children and                         Participation’’ heading of the                         national information with respect to the
                                               Families (ACF) published a Notice of                    SUPPLEMENTARY INFORMATION section of                   demographic characteristics of adoptive
                                               Proposed Rulemaking (NPRM) to amend                     this document.                                         and foster children and their biological
                                               the Adoption and Foster Care Analysis                     Comments that concern information                    and adoptive foster parents; the status of
                                               and Reporting System (AFCARS)                           collection requirements must be sent to                the foster care population, the number
                                               regulations to modify the requirements                  the Office of Management and Budget                    and characteristics of children place in
                                               for title IV–E agencies to collect and                  (OMB) at the address listed in the                     and removed from foster care; children
                                               report data to ACF on children in out-                  Paperwork Reduction Act (PRA) section                  adopted or for whom adoptions have
                                               of-home care and who were adopted or                    of this preamble. A copy of these                      been terminated; children placed in
                                               in a legal guardianship with a title IV–                comments also may be sent to the                       foster care outside the state which has
                                               E subsidized adoption or guardianship                   Department representative listed above.                placement and care responsibility; the
                                               agreement. In this supplemental notice                  FOR FURTHER INFORMATION CONTACT:                       extent and nature of assistance provided
                                               of proposed rulemaking (SNPRM), ACF                     Kathleen McHugh, United States                         by federal, state, and local adoption and
                                               proposes to require that state title IV–E               Department of Health and Human                         foster care programs; the characteristics
                                               agencies collect and report additional                  Services, Administration for Children                  of the children with respect to whom
                                               data elements related to the Indian                     and Families, Director, Policy Division.               such assistance is provided; and the
                                               Child Welfare Act of 1978 (ICWA) in the                 To contact Kathleen McHugh, please
Lhorne on DSK5TPTVN1PROD with PROPOSALS




                                                                                                                                                              annual number of children in foster care
                                               AFCARS. ACF will consider the public                    use the following email address:                       who are identified as sex trafficking
                                               comments on this SNPRM as well as                       cbcomments@acf.hhs.gov. Deaf and                       victims including those who were
                                               comments already received on the                        hearing impaired individuals may call                  victims before entering foster care; and
                                               February 9, 2015 NPRM and issue one                     the Federal Dual Party Relay Service at                those who were victims while in foster
                                               final AFCARS rule.                                      1–800–877–8339 between 8 a.m. and 7                    care; and (4) the data collection system
                                               DATES: Submit written or electronic                     p.m. Eastern Time.                                     will utilize appropriate requirements
                                               comments on this Supplemental Notice                    SUPPLEMENTARY INFORMATION:                             and incentives to ensure that the system


                                          VerDate Sep<11>2014   15:16 Apr 06, 2016   Jkt 238001   PO 00000   Frm 00023   Fmt 4702   Sfmt 4702   E:\FR\FM\07APP1.SGM   07APP1


                                               20284                    Federal Register / Vol. 81, No. 67 / Thursday, April 7, 2016 / Proposed Rules

                                               functions reliably throughout the United                and practice in the United States and                  to placing the Indian child with
                                               States.                                                 establishes minimum federal                            extended family or tribal families.
                                                  ACF issued the AFCARS NPRM (80                       jurisdictional, procedural, and
                                               FR 7132, hereafter referred to as the                                                                          Use of AFCARS Data
                                                                                                       substantive standards intended to
                                               February 2015 AFCARS NPRM) to                           achieve the purposes of protecting the                    AFCARS is designed to collect
                                               amend the AFCARS regulations at 45                      rights of Indian children to live with                 uniform, reliable information from title
                                               CFR 1355.40 and the appendices to part                  their families, to stabilize and foster                IV–B and title IV–E agencies on children
                                               1355. In it, ACF proposed to modify the                 continued tribal existence, and to                     who are under the agencies’
                                               requirements for title IV–E agencies to                 facilitate permanency for children,                    responsibility for placement, care, or
                                               collect and report data to ACF on                       families, and tribes.                                  supervision. AFCARS was established
                                               children in out-of-home care and who                       However, ACF has never collected                    to provide data that would assist in
                                               were adopted or in a legal guardianship                 ICWA-related data. Using the data                      policy development and program
                                               with a title IV–E subsidized adoption or                elements proposed in the SNPRM, ACF                    management. Although ICWA was
                                               guardianship agreement. At the time the                 proposes to collect ICWA-related data                  passed more than 30 years ago, it is
                                               February 2015 AFCARS NPRM was                           on AI/AN children in child welfare                     unclear how well state agencies and
                                               issued, ACF concluded that it did not                   systems for several uses in the public                 courts have implemented ICWA’s
                                               have enforcement authority regarding                    interest including: To assess the current              requirements into practice. Even in
                                               ICWA and, therefore, was not able to                    state of foster care and adoption of                   states with large AI/AN populations,
                                               make the requested changes or additions                 Indian children under the Act, to                      there may be confusion regarding how
                                               to the AFCARS data elements regarding                   develop future national policies                       and when to apply the law, including
                                               ICWA.                                                   concerning ACF programs that affect                    providing notice to tribes and making
                                                  However, in the time since                           Indian children under the Act, and to                  active efforts to prevent removal and
                                               publication of the February 2015                        meet federal trust obligations under                   reunite children with their Indian
                                               AFCARS NPRM, ACF legal counsel re-                      established federal policies.                          families as required under ICWA. This
                                               examined the issue and determined it is                    ICWA was enacted by Congress in                     is further complicated by the fact that
                                               within ACF’s existing authority to                      response to alarming numbers of AI/AN                  there is no comprehensive national data
                                               collect state-level ICWA-related data on                children being removed from their                      on the status of AI/AN children for
                                               American Indian and Alaska Native (AI/                  families by public and private child                   whom ICWA applies at any stage in the
                                               AN) children in child welfare systems                   welfare agencies, most often being                     adoption or foster care system. AFCARS
                                               pursuant to section 479 of the Social                   placed in non-Indian homes far from                    data can bridge this gap.
                                               Security Act. Such determination was                    their tribal communities. Congress                        Additional AFCARS data elements are
                                               informed by comments received on the                    found that, ‘‘there is no resource that is             proposed to enhance the type and
                                               February 2015 AFCARS NPRM as well                       more vital to the continued existence                  quality of information title IV–E
                                               as an extensive re-evaluation of the                    and integrity of Indian tribes than their              agencies report to ACF. ACF’s
                                               scope of ACF’s statutory and regulatory                 children.’’ (25 U.S.C. 1901 (3))                       proposals, embodied in this SNPRM, are
                                               authority.                                              Accordingly, through ICWA, Congress                    motivated by the Administration’s
                                                                                                       declared the policy of the United States               vision of healthy, resilient, and thriving
                                               Indian Child Welfare Act                                                                                       Indian children and families as well as
                                                                                                       is to protect the best interests of Indian
                                                  In 1970, President Nixon declared                    children, to promote the stability and                 the continued vitality and integrity of
                                               that termination, the then-current                      security of Indian tribes and families by              Indian tribes. More specifically, the
                                               federal policy to terminate Indian tribal               establishing minimum Federal                           proposals reflected in this SNPRM
                                               governments, sell tribal land, and move                 standards for the removal of Indian                    manifest Department-wide priorities to
                                               AI/AN peoples from ancestral lands to                   children from their families, and to                   affirmatively protect the best interests of
                                               assimilate them into ‘American’ society,                place such children in foster or adoptive              Indian children and to promote the
                                               was wrong and should be replaced by                     homes that reflect the unique values of                stability and security of Indian tribes,
                                               Indian self-determination which                         Indian cultures. Finally, Congress calls               families, and children.
                                               recognized the inherent retained right of               for providing assistance to Indian tribes                 ACF proposes to collect data elements
                                               Indian nations to govern themselves.                    in the operation of child and family                   in AFCARS related to ICWA’s statutory
                                               From that time, the federal government                  service programs. (25 U.S.C. 1902)                     standards for removal, foster care
                                               began implementing new policies of                      ICWA was enacted to protect American                   placement, and adoption proceedings.
                                               Indian self-determination under which                   Indian families and to give tribes a role              More specifically, through this SNPRM,
                                               tribal sovereignty and self-governance                  in making child welfare decisions for                  ACF will improve the AFCARS data
                                               were fostered, allowing tribes to operate               AI/AN children. AI/AN children are                     collection system to provide more
                                               programs once solely administered by                    subject to ICWA when they are                          comprehensive demographic and case-
                                               the federal government. It also increased               unmarried persons under the age of 18                  specific information on all children,
                                               federal support and benefits available to               and are either (a) a member of an Indian               including children subject to ICWA,
                                               tribes to strengthen capacity and self-                 tribe or (b) are eligible for membership               who are in foster care or adopted with
                                               sufficiency.                                            in an Indian tribe and are the biological              title IV–E agency involvement.
                                                  Against this backdrop, the Indian                    child of a member of an Indian tribe.                  Additionally, ACF intends to use the
                                               Child Welfare Act (ICWA) was enacted                    ICWA expressly requires, among other                   data to:
                                               in 1978 to address concerns over the                    things, that: (1) A tribe is notified when                1. Address the unique needs of AI/AN
Lhorne on DSK5TPTVN1PROD with PROPOSALS




                                               consequences to Indian children, Indian                 the state places an ‘‘Indian child’’ in                children in foster care or adoption, and
                                               families, and Indian tribes of child                    foster care or seeks to terminate parental             their families.
                                               welfare practices that resulted in the                  rights on behalf of such a child, (2) a                   In 2005, the Government
                                               separation of large numbers of Indian                   tribe is given an opportunity to                       Accountability Office (GAO) issued a
                                               children from their families and tribes.                intervene in any state proceeding for                  report titled ‘‘Indian Child Welfare Act:
                                               See 25 U.S.C. 1901 et seq. ICWA has                     foster care placement and termination of               Existing Information on Implementation
                                               been characterized as embodying the                     parental rights to a child subject to                  Issues Could Be Used to Target
                                               ‘‘gold standard’’ for child welfare policy              ICWA, and (3) that a preference be given               Guidance and Assistance to States’’


                                          VerDate Sep<11>2014   15:16 Apr 06, 2016   Jkt 238001   PO 00000   Frm 00024   Fmt 4702   Sfmt 4702   E:\FR\FM\07APP1.SGM   07APP1


                                                                        Federal Register / Vol. 81, No. 67 / Thursday, April 7, 2016 / Proposed Rules                                           20285

                                               (GAO–05–290). In addition to noting                     information that will help to assess the               help align performance measures, build
                                               that no national data on children subject               extent to which the fidelity of ICWA                   an evidence base that informs policy
                                               to ICWA was available, GAO asserts that                 implementation influences permanent                    and practice, and better ensure that
                                               the extent to which states and tribes                   placements for Indian children and the                 federal funds are being directed in a
                                               work together to implement ICWA and                     length of stay in out-of-home care. The                way that delivers significantly better
                                               title IV–E/IV–B requirements affects                    proposed ICWA data will also help to                   results for AI/AN families. This critical
                                               outcomes for Indian children in state                   inform efforts to compare program                      role aligns with the research, evaluation,
                                               foster care systems. The report also                    practices, processes, or outcomes                      and technical assistance responsibilities
                                               discusses how the Adoption and Safe                     between states and over the course of                  of the Children’s Bureau.
                                               Families Act (Pub. L. 105–89) influences                time, which would allow the Children’s                    5. Inform and expand partnerships
                                               placement decisions and outcomes for                    Bureau to identify trends and highlight                across federal agencies that invest in
                                               Indian children, noting the following:                  and build upon strengths and best                      Indian families and that promote
                                               ‘‘Decisions regarding the placement of                  practices.                                             resilient, thriving tribal communities
                                               children subject to ICWA as they enter                     3. Improve training and technical                   through several initiatives.
                                               and leave foster care can be influenced                 assistance to help states comply with                     AFCARS data on the wellbeing of AI/
                                               by how long it takes to determine                       title IV–E, and title IV–B of the Social               AN children will help multiple federal
                                               whether a child is subject to the law, the              Security Act.                                          agencies identify needs and gaps,
                                               availability of American Indian foster                     Through the Children’s Bureau, ACF                  expand best practices, and shape new
                                               and adoptive homes, and the level of                    provides state title IV–E agencies with                policy and technical assistance. Several
                                               cooperation between states and tribes.                  technical assistance to help agencies                  of the current interagency initiatives
                                               According to several child welfare                      implement federal requirements and                     that will benefit include:
                                               officials, these factors, which are unique              improve their child welfare programs                      • Generation Indigenous. On
                                               to American Indian children, can play                   (as authorized by section 435 and 476 of               December 3, 2014, President Obama
                                               an important role in placement                          the Social Security Act). Between                      launched Generation Indigenous (Gen-
                                               decisions, including the characteristics                federal fiscal year (FFY) 2010 and FFY                 I), ‘‘an initiative that takes a
                                               of the foster home in which the child                   2014, ACF received 31 requests for                     comprehensive, culturally appropriate
                                               will be placed, the number of                           tailored consultation from state agencies              approach to help improve the lives of,
                                               placements a child will have, and the                   and title IV–B tribes (separately or in                and opportunities for, Native youth.’’
                                               duration of the stay.’’ (GAO–05–290,                    collaboration) for assistance with                     On July 9, 2015, the Executive Office of
                                               p.3). The proposed ICWA data will help                  examining or supporting ICWA                           the President, Office of Management
                                               address the unique needs of Indian                      implementation. In response to these                   and Budget, issued Executive Memo M–
                                               children in foster care or adoption and                 requests, ACF-supported technical                      15–17 identifying Native youth budget
                                               their families by clarifying how the                    assistance providers delivered more                    priorities including ‘‘services that keep
                                               ICWA requirements and how title IV–E/                   than 3,700 hours of direct, tailored                   families together. These could be family
                                               IV–B requirements affect placement of                   consultation to state agencies and tribes              assistance services, home improvement
                                               Indian children.                                        related to ICWA.                                       programs, alternatives to incarceration,
                                                  2. Assess the current state of adoption                 In FFY 2015, 24 state title IV–E                    and employment support services.
                                               and foster care programs and relevant                   agencies participated in discussions                   Agencies should focus on programs that
                                               trends that affect AI/AN families.                      with ACF and its technical assistance                  support the capacity building and
                                                  American Indian and Alaska Native                    providers about their potential areas of               programmatic support necessary to
                                               children are over-represented in child                  need for capacity building and                         implement ICWA.’’
                                               welfare systems at higher rates than any                improvement. One third of these                           • The Department of Justice
                                               other racial or ethnic group. In 2013,                  agencies identified themselves as having               Defending Childhood Initiative and the
                                               American Indian children were over-                     ICWA implementation related needs for                  Task Force on American Indian and
                                               represented among children in foster                    technical assistance. Data related to                  Alaska Native Children Exposed to
                                               care by a factor of 2.4, compared to their              ICWA will assist ACF to improve                        Violence. The Task Force report
                                               proportion of the population. From 2000                 training content, target subject areas,                recommended that ACF, BIA, DOJ, and
                                               to 2013, the degree of over-                            and identify geographies in which                      tribes develop a modernized unified
                                               representation of AI/AN children                        training will be helpful.                              data-collection system designed to
                                               substantially increased from 1.5 to 2.4,                   4. Develop future national policies                 collect ICWA-related AFCARS data on
                                               and the degree of disproportionality                    concerning its programs.                               all AI/AN children who are placed into
                                               varies widely by state (National Council                   Additional proposed ICWA-related                    foster care by their agency.
                                               of Juvenile and Family Court Judges,                    data will allow ACF and the Children’s                    • HHS Secretary’s Tribal Advisory
                                               2015). At this time, there is very limited              Bureau to more effectively plan,                       Committee (STAC). In 2014, the STAC
                                               data available to help understand the                   coordinate, and lead AI/AN                             specifically identified improved federal
                                               reasons for the varying degrees of                      programming across ACF operations,                     data collection on ICWA as a priority
                                               disproportionality. Proposed ICWA-                      with other Departments such as the                     need. In early 2015, the STAC identified
                                               related AFCARS data elements will                       Bureau of Indian Affairs (BIA) in the                  AFCARS as a vehicle for ICWA data
                                               shed light on the relationship between                  Department of the Interior, the                        elements. The STAC expressed their
                                               implementing ICWA requirements and                      Department of Justice (DOJ), and                       view that ACF has a critical role in
                                               outcomes for AI/AN children. In                         throughout the federal government. By                  collecting important data, promoting
Lhorne on DSK5TPTVN1PROD with PROPOSALS




                                               addition, the proposed data elements                    collecting additional data, the federal                effective tribal/state collaborations,
                                               will provide additional information to                  government will also have a more                       increasing state capacity to comply with
                                               help identify the real or perceived                     complete understanding of how state                    ICWA, and reversing the inequities and
                                               barriers encountered by states in                       agencies interact with Indian children                 disproportionate representation and
                                               identifying AI/AN children in their                     and families as well as how many                       poor outcomes for children that can
                                               child welfare systems. Finally, proposed                children subject to ICWA come to the                   occur when ICWA is not followed. In
                                               ICWA-related AFCARS data elements                       attention of state child welfare agencies              order to assist the Administration in
                                               will provide currently unavailable                      nationwide. This additional data will                  implementing ICWA and protecting AI/


                                          VerDate Sep<11>2014   15:16 Apr 06, 2016   Jkt 238001   PO 00000   Frm 00025   Fmt 4702   Sfmt 4702   E:\FR\FM\07APP1.SGM   07APP1


                                               20286                    Federal Register / Vol. 81, No. 67 / Thursday, April 7, 2016 / Proposed Rules

                                               AN children and families, the STAC                         ‘‘Tribal self-government has been                   February 2015 AFCARS NPRM (80 FR
                                               requested enhanced ‘‘collection of data                 demonstrated to improve and perpetuate the             7187–7192 and 7220–7221).
                                               elements related to key ICWA                            government-to-government relationship and
                                                                                                       strengthen Tribal control over Federal                 II. Statutory Authority
                                               requirements in individual ICWA cases                   funding that it receives, and its internal
                                               and greater oversight of the title IV–B                                                                           Sections 479 and 474(f) of the Act
                                                                                                       program management. Indian Tribes
                                               requirement for states to consult with                  participation in the development of public
                                                                                                                                                              provide HHS the authority to require
                                               tribes on measures to comply with                       health and human services policy ensures               that title IV–E agencies maintain a data
                                               ICWA (STAC follow-up letter to the                      locally relevant and culturally appropriate            collection system which provides
                                               Secretary, June, 30, 2015, pp 9–10).’’                  approaches to public issues.’’ (Section 3,             comprehensive national information
                                               http://www.hhs.gov/about/agencies/iea/                  Department of Health and Human Services                related to adopted and foster children
                                                                                                       Tribal Consultation Policy).                           and requires that the Secretary of Health
                                               tribal-affairs/about-stac/index.html#.
                                                                                                          ‘‘Our Nation, under the law of the U.S. and         and Human Services regulate a national
                                                  • Interagency ICWA Working Group                     in accordance with treaties, statutes,
                                               Projects, including the Bureau of Indian                                                                       data collection system to provide
                                                                                                       Executive Orders, and judicial decisions, has
                                               Affairs initiative to update state                      recognized the right of Indian tribes to self-         comprehensive case level information
                                               guidance on ICWA and promulgate                         government and self-determination. Indian              and impose penalties for failure to
                                               ICWA regulations. The BIA Bureau of                     tribes exercise inherent sovereign powers              submit AFCARS data under certain
                                               Indian Affairs updated the Guidelines                   over their members and territory. The U.S.             circumstances. Section 1102 of the Act
                                                                                                       continues to work with Indian tribes on a              instructs the Secretary to promulgate
                                               for State Courts and Agencies in Indian                 government-to-government basis to address
                                               Child Custody Proceedings (80 FR                                                                               regulations necessary for the effective
                                                                                                       issues concerning tribal self-government,              administration of the functions for
                                               10146, issued February 25, 2015,                        tribal trust resources, tribal treaties, and other
                                               hereafter referred to as the Guidelines)                rights.’’ (Section 4, ACF Tribal Consultation          which she is responsible under the Act.
                                               and has issued proposed regulations for                 Policy).                                               III. Public Participation
                                               State Courts and Agencies in Indian                       These principles are also reflected in                  ACF invites the public to comment on
                                               Child Custody Proceedings (proposed at                  ICWA through Congressional                             all aspects of the ICWA-related data
                                               80 FR 14880, issued March 20, 2015) to                  recognition of ‘‘the special relationship              elements proposed in this SNPRM. In
                                               help ensure Indian children are not                     between the United States and the                      addition, ACF specifically invites
                                               removed from their communities,                         Indian tribes and their members and the                comment on which, if any, of the
                                               cultures, and extended families in                      Federal responsibility to Indian                       proposed data elements the state title
                                               conflict with ICWA’s express mandates.                  people.’’ (25 U.S.C. 1901)                             IV–E agencies currently collect. ACF
                                                  Consistent with the Administration’s                   ACF announced its intent to publish                  will review and consider all comments
                                               focus on Indian children, the                           a SNPRM in a Federal Register                          that are germane and received during
                                               Department of the Interior, DOJ, and                    document issued on April 2, 2015 (80                   the comment period on this SNPRM as
                                               HHS engaged in extensive interagency                    FR 17713). Section 479 of the Social                   well as those previously submitted in
                                               collaboration to promote compliance                     Security Act contains some express                     response to the February 2015 AFCARS
                                               with ICWA and agreed to continue to                     limits on the authority of ACF to collect              NPRM, and issue one final rule on
                                               collaborate. This work involved                         data including: Data collected under                   AFCARS.
                                               collaborating on ICWA-related                           AFCARS must avoid an unnecessary
                                               regulations, including the BIA                          diversion of resources from agencies                   IV. Consultation and Regulation
                                               regulations and this SNPRM.                             responsible for adoption and foster care               Development
                                                  6. Implement Tribal sovereignty                      (section 479(c)(1) of the Act) and must                   To inform the development of the
                                               principles and Federal trust                            assure that any data that is collected is              ICWA-related data elements proposed in
                                               responsibilities.                                       reliable and consistent over time and                  this SNPRM, ACF reviewed public
                                                  Improving AFCARS to inform ACF                       among jurisdictions through the use of                 comments received in response to the
                                               and other federal agencies is consistent                uniform definitions and methodologies                  February 2015 AFCARS NPRM, held
                                               with ACF’s implementation of                            (section 479(c)(2) of the Act). With                   tribal and state consultation and
                                               government-to-government principles of                  respect to the requirement in section                  listening sessions, and consulted with
                                               engagement with AI/AN tribes and                        479(c)(1) of the Act, ACF tailored the                 federal agency experts, as outlined
                                               respect for our trust responsibilities.                 proposed data elements to collect only                 below.
                                               ACF’s understanding of fundamental                      the most essential information regarding                  1. Consideration of comments on the
                                               principles of tribal sovereignty is                     Indian children in foster care and                     February 2015 AFCARS NPRM that
                                               reflected in both the Department’s and                  children who have been adopted with                    addresses ICWA-related data elements.
                                               ACF’s Tribal Consultation Policies                      state title IV–E agency involvement.                      ACF received approximately 45
                                               which state:                                            Most data elements will only be                        comments that proposed/recommended
                                                                                                       required for children who are                          including new data elements in
                                                  ‘‘The special government-to-government
                                               relationship between the Federal
                                                                                                       determined to be Indian children as                    AFCARS related to ICWA. Twenty-five
                                               Government and Indian Tribes, established               defined in ICWA. Furthermore, the                      of the commenters were tribes or tribal
                                               in 1787, is based on the Constitution, and has          statutory authority under section 479 of               organizations, four were state child
                                               been given form and substance by numerous               the Act is limited to data with respect                welfare departments, and the remaining
                                               treaties, laws, Supreme Court decisions, and            to adoption and foster care. ACF is not                were public interest organizations,
                                               Executive Orders, and reaffirms the right of            proposing to require tribal title IV–E                 academics/universities, and individuals.
Lhorne on DSK5TPTVN1PROD with PROPOSALS




                                               Indian Tribes to self-government and self-              agencies to collect and report ICWA-                   Of the 45 comments, 18 commenters
                                               determination. Indian Tribes exercise                   related data elements in proposed                      submitted the same or similar form
                                               inherent sovereign powers over their citizens           paragraph (i) because ICWA does not                    letter that recommended additional data
                                               and territory. The U.S. shall continue to work
                                               with Indian Tribes on a government-to-
                                                                                                       apply to placements by Indian tribes.                  elements providing information about
                                               government basis to address issues                      The data elements in § 1355.43(i) are                  the applicability of ICWA for children
                                               concerning Tribal self-government, Tribal               subject to the same compliance and                     in out-of-home care and proposed
                                               trust resources, Tribal treaties and other              penalty requirements in §§ 1355.45 and                 revisions to the data elements proposed
                                               rights.’’                                               1355.46, respectively, proposed in the                 in the February 2015 AFCARS NPRM to


                                          VerDate Sep<11>2014   15:16 Apr 06, 2016   Jkt 238001   PO 00000   Frm 00026   Fmt 4702   Sfmt 4702   E:\FR\FM\07APP1.SGM   07APP1


                                                                        Federal Register / Vol. 81, No. 67 / Thursday, April 7, 2016 / Proposed Rules                                           20287

                                               capture ICWA-related data. The                          participated in the conference call and                   After considering all of the
                                               commenters recommended                                  stated that some of their states currently             aforementioned input, ACF proposes
                                               approximately 62 new or revised data                    collect information in their information               the addition of paragraph (i) to
                                               elements that addressed the following:                  system related to Indian children, such                § 1355.43 (as proposed in the February
                                               Identification of Indian children and                   as tribal membership, tribal notification,             2015 AFCARS NPRM). Section 479 of
                                               their family structure; tribal notification             and tribal enrollment status. They noted               the Act permits broader data collection
                                               and intervention in state court                         that some of the information with regard               in order to establish a true national data
                                               proceedings; the relationship of the                    to ICWA, such as placement preferences                 collection system that provides
                                               foster parents and other providers to the               and active efforts, are contained in case              comprehensive demographic and case-
                                               Indian child; decisions to place an                     files, case notes, or other narratives, and            specific information on all children who
                                               Indian child in out-of-home care                        not currently captured within their                    are in foster care and adopted with title
                                               (including data on active efforts and                   information systems, and noted issues                  IV–E agency involvement, to assess the
                                               continued custody); whether a                           with extraction of such data for                       current state of adoption and foster care
                                               placement was licensed by an Indian                     AFCARS reporting. They also indicated                  programs in general, as well as to
                                               tribe; whether the placement                            that their information systems would                   develop future national policies
                                               preferences in ICWA were followed and                   need to be changed and upgraded to                     concerning these programs. Collecting
                                               both the voluntary and involuntary                      report ICWA-related data in AFCARS                     data on Indian children, including
                                               termination of parental rights. ACF did                 and that new processes would need to                   ICWA-related data, is within the
                                               not receive specific suggestions from the               be developed to collect and extract the                authority of section 479 because it is in
                                               four state child welfare agencies on                    requested information. They noted that                 line with the statutory goal of assessing
                                               which ICWA-related data elements to                     they would need to train workers to                    the status of children in foster care. ACF
                                               include in AFCARS.                                      accurately collect the data. They                      is exercising its authority to propose a
                                                  2. Tribal consultation session.                      indicated that additional funding is                   limited new set of ICWA-related data
                                                  The Children’s Bureau held a tribal                  necessary for costs associated with data               because section 479(a) authorizes ‘‘the
                                               consultation via conference call on May                 collection. Participating state                        collection of data with respect to
                                               1, 2015, that was co-facilitated by the                 representatives also expressed concern                 adoption and foster care in the United
                                               Children’s Bureau’s (CB) Associate                      about adding data elements that would                  States’’ and Indian children are children
                                               Commissioner and the Chairperson of                     require information from state courts,                 living within the United States and are
                                               the ACF Tribal Advisory Committee,                      unlike other AFCARS data elements                      those intended to benefit from both
                                               who also serves as the Vice Chair of the                which are available within the title IV–               ICWA and titles IV–B and IV–E. The
                                               Jamestown S’Klallam Tribal Council.                     E agency’s information system. Given                   supplemental proposed rule includes
                                               The CB conducted the session to obtain                  that state title IV–E agencies and courts              data relevant to AI/AN children that
                                               input from tribal leaders on proposed                   do not typically exchange data, workers                supports ACF in assessing the current
                                               AFCARS data elements related to ICWA.                   may need to gather and enter state court               state of the well-being of Indian
                                               Comments were solicited during the call                 information manually.                                  children as well as state implementation
                                               to determine essential data elements                       4. Input from federal agency experts                of title IV–E and IV–B. ACF proposes to
                                               that title IV–E agencies should report to               regarding ICWA.                                        use the collected data to make data-
                                               AFCARS including, but not limited to:                      In December 2014, at the White House
                                                                                                                                                              informed assessments; and to develop
                                               Whether the requirements of ICWA                        Tribal Nations conference, Attorney
                                                                                                                                                              future policies concerning tribal-state
                                               were applied to a child; notice for child               General Holder announced an initiative
                                                                                                                                                              consultation, ICWA implementation,
                                               welfare proceedings; active efforts to                  to promote compliance with ICWA. This
                                                                                                                                                              and training and technical assistance to
                                               prevent removal or to reunify the Indian                initiative included partnering with the
                                               child with the child’s biological or                    Departments of Health and Human                        support states in the implementation of
                                               adoptive parents or Indian custodian;                   Services and the Interior to ensure all                title IV–B and title IV–E programs.
                                               placement preferences under ICWA; and                   tools available to the federal government                 ACF will analyze all pertinent
                                               terminations of parental rights for an                  are used to promote compliance with                    comments to this SNPRM along with
                                               Indian child. Tribal representatives did                ICWA. Federal Departments have a                       prior comments received on the
                                               not provide specific suggestions on the                 strong interest in collecting data                     February 2015 AFCARS NPRM and
                                               call but noted during the call that they                elements related to ICWA. To further                   issue one final rule on AFCARS in
                                               would provide formal comments on the                    interagency collaboration in this area,                which the ICWA-related data elements
                                               SNPRM when it was issued.                               DOI, DOJ, and HHS have engaged in                      will be included. ACF understands from
                                                  3. Solicited input from members of                   extensive discussions focused on ICWA,                 consultation and the regulatory
                                               the National Association of Public Child                including the sharing of agencies’                     development process that some of the
                                               Welfare Administrators (NAPCWA).                        expertise for the development of ICWA-                 information sought in this SNPRM for
                                                  The NAPCWA, an affiliate of the                      related regulations, including AFCARS.                 inclusion in AFCARS might be
                                               American Public Human Services                             As part of on-going intra- and inter-               contained in agency case files. However,
                                               Association (APHSA) hosted a                            agency collaboration, ACF consulted                    a number of the proposed data elements
                                               conference call with state members of                   with federal experts on what data exists,              seek information related to court
                                               NAPCWA (i.e., representatives of state                  or not, and its utility in understanding               findings and this represents a shift
                                               child welfare agencies) and the                         the well-being of Indian children, youth,              toward increased reporting on the
                                               Children’s Bureau on April 27, 2015.                    and families. ACF also consulted with                  activity of the court in AFCARS. In this
Lhorne on DSK5TPTVN1PROD with PROPOSALS




                                               The purpose of the call was to obtain                   federal partners on the ICWA statutory                 SNPRM, ACF proposes that state title
                                               input from state members on what data                   requirements in 25 U.S.C. 1901 et seq.,                IV–E agencies report information
                                               state title IV–E agencies currently                     DOI’s Guidelines, and Notice of                        believed to be contained in court orders
                                               collect regarding ICWA and what they                    Proposed Rulemaking to implement                       that the state title IV–E agency would
                                               believed were the most important                        ICWA Regulations for State Courts and                  have ready access to or would typically
                                               information title IV–E agencies should                  Agencies in Indian Child Custody                       be contained within the state title IV–E
                                               report in AFCARS related to ICWA.                       Proceedings (80 FR 14880, issued March                 agency case files. ACF is seeking input
                                               Representatives from 13 states                          20, 2015).                                             from state title IV–E agencies on


                                          VerDate Sep<11>2014   15:16 Apr 06, 2016   Jkt 238001   PO 00000   Frm 00027   Fmt 4702   Sfmt 4702   E:\FR\FM\07APP1.SGM   07APP1


                                               20288                    Federal Register / Vol. 81, No. 67 / Thursday, April 7, 2016 / Proposed Rules

                                               whether they would be readily able to                   of-home care reporting population per                  to know that the child is an Indian child
                                               report the information in AFCARS for                    § 1355.41(a), the state title IV–E agency              under ICWA. If so, the state title IV–E
                                               the data elements that relate to court                  must complete the data elements in                     agency must indicate the date that the
                                               activities and if there would be                        paragraphs (i)(3) through (5).                         state title IV–E agency discovered
                                               difficulties in doing so. We encourage                                                                         information that indicates that the child
                                                                                                       Identifying an ‘‘Indian Child’’ Under the
                                               agencies to describe the nature of the                                                                         is or may be an Indian child and
                                                                                                       Indian Child Welfare Act
                                               issues they would face, and possible                                                                           identify all federally recognized Indian
                                               approaches to addressing these concerns                    In paragraph (i)(3), ACF proposes to                tribes identified that may potentially be
                                               in light of the importance of having this               require that the state title IV–E agency               the Indian child’s tribe(s).
                                               information.                                            report whether the state title IV–E                       In paragraph (i)(5), ACF proposes that
                                                                                                       agency inquired about pertinent                        the state title IV–E agency must indicate
                                               V. Section-by-Section Discussion of                     information on a child’s status as an                  whether a court order indicates that a
                                               SNPRM                                                   ‘‘Indian child’’ under ICWA. This                      court found that ICWA applies, the date
                                               Section 1355.43(i) Data Elements                        includes: Reporting whether the child is               of the finding, and the name of the
                                               Related to the Indian Child Welfare Act                 a member of or eligible for membership                 Indian tribe if listed on the court order.
                                               (ICWA)                                                  in an Indian tribe; the child’s biological                If the state title IV–E agency responds
                                                                                                       or adoptive parents are members of an                  with ‘‘yes’’ to the data elements in
                                                  In paragraph (i), ACF proposes to                    Indian tribe; inquiring about the child’s              paragraphs (i)(4) or (5), then the agency
                                               require that state title IV–E agencies                  status as an ‘‘Indian child’’ with the                 must complete the remaining applicable
                                               collect and report certain ICWA-related                 child, his/her biological or adoptive                  paragraphs (i)(6) through (29) of this
                                               information on children in the AFCARS                   parents (if not deceased), and the child’s             section, which includes information on:
                                               out-of-home care reporting population.                  Indian custodian (if the child has one);               Transfers to tribal court; notification of
                                               ACF does not require state title IV–E                   ascertaining whether the domicile or                   child custody proceedings; active efforts
                                               agencies to report the data elements                    residence of the child, parent, or the                 to prevent removal and to reunify with
                                               proposed in paragraph (i) for an Indian                 Indian custodian is known by the                       the Indian family; foster care and
                                               child who remains under the tribe’s                     agency, or is shown to be, on an Indian                adoptive placement preferences; and
                                               responsibility, placement, and care but                 reservation.                                           termination of parental rights.
                                               for which the state provides IV–E foster                   This data will provide information on                  Because not all AI/AN children meet
                                               care maintenance payments pursuant to                   whether state title IV–E agencies and                  the definition of ‘‘Indian child’’ under
                                               a state–tribal agreement as described in                state courts are evaluating whether the                ICWA, these data elements are critical to
                                               section 472(a)(2)(B)(ii) of the Act. This               child meets the definition of ‘‘Indian                 identify the national number of AI/AN
                                               is because the state’s agreement with the               child’’ under ICWA. These are threshold                child foster care cases to which ICWA
                                               tribe is to provide title IV–E foster care              questions indicating whether the state                 applies. Data elements related to
                                               maintenance payments to a child under                   title IV–E agency knows or has ‘‘reason                whether ICWA applies are essential
                                               the tribe’s placement and care                          to know’’ that a child is an Indian child              because application of ICWA triggers
                                               responsibility. Additionally, tribal title              and thus is subject to the protections                 procedural and substantive protections.
                                               IV–E agencies are not required to collect               under ICWA. Without inquiry, many                      The date the agency received
                                               and report the data elements proposed                   Indian children are not identified,                    information as to whether the child is
                                               in paragraph (i). The data elements in                  thereby denying children, parents, and                 an Indian child under ICWA is essential
                                               § 1355.43(i) are subject to the same                    Indian tribes procedural and substantive               to understanding the time-lapse
                                               compliance and penalty requirements in                  protections under ICWA. These data                     between knowing that a child is an
                                               §§ 1355.45 and 1355.46, respectively,                   elements represent the minimum that a                  Indian child and tribal notification. A
                                               proposed in the February 2015 AFCARS                    state title IV–E agency should be                      long time-lapse can indicate a delay in
                                               NPRM (80 FR 7187–7192 and 7220–                         collecting to determine whether the                    the application of the ICWA protections.
                                               7221).                                                  child is an Indian child under ICWA.                   Additionally, identifying Indian tribes
                                                                                                       Such elements will help establish                      that may potentially be the Indian
                                               Definitions
                                                                                                       demographics necessary in identifying                  child’s tribe will help tribes, states, and
                                                  In paragraph (i)(1), ACF proposes to                 ICWA cases that involve parents who                    the federal government direct resources
                                               require that unless otherwise specified,                are tribal members or that involve an                  into developing relationships that will
                                               the following terms have the same                       Indian custodian. Proactively                          streamline the process of identifying
                                               meaning as in ICWA, at 25 U.S.C. 1903:                  identifying Indian children will                       Indian children.
                                               Child custody proceeding, extended                      improve the AFCARS data on AI/AN
                                               family member, Indian, Indian child,                                                                           Transfer to Tribal Court
                                                                                                       child foster care cases, adoption through
                                               Indian child’s tribe, Indian custodian,                 the title IV–E agencies, as well as                       In paragraphs (i)(6) and (7), ACF
                                               Indian organization, Indian tribe,                      provide a base for understanding the                   proposes to require that the state title
                                               parent, reservation, and tribal court. It is            percentage of AI/AN cases to which                     IV–E agency report certain information
                                               important to note that the term ‘‘Indian                ICWA applies. More accurate data will                  on whether a case was transferred from
                                               child’’ in this section does not refer to               help ACF better understand the scope of                state court to tribal court, in accordance
                                               a racial classification, but rather is                  ICWA’s impact in AI/AN child foster                    with 25 U.S.C. 1911(b). In paragraphs
                                               defined by ICWA as a child who is                       care cases and state systems, help                     (i)(6), ACF proposes to require that the
                                               either a member of an Indian tribe, or                  identify where the application of ICWA                 state title IV–E agency report whether a
Lhorne on DSK5TPTVN1PROD with PROPOSALS




                                               is eligible for membership in an Indian                 may need reinforcement, and help                       court order indicates that the Indian
                                               tribe and is the biological child of a                  inform ACF technical assistance to state               child’s parent, Indian custodian, or
                                               member of an Indian tribe. Each term is                 title IV–E agencies.                                   Indian child’s tribe requested, orally on
                                               listed in the regulatory language below                                                                        the record or in writing, that the state
                                               with the corresponding ICWA statutory                   Application of ICWA                                    court transfer the case to the tribal court
                                               citation.                                                 In paragraph (i)(4), ACF proposes to                 of the Indian child’s tribe, in accordance
                                                  In paragraph (i)(2), ACF proposes to                 require that the state title IV–E agency               with 25 U.S.C. 1911(b), at any point
                                               require that for all children in the out-               indicate whether it knows or has reason                during the report period. In paragraph


                                          VerDate Sep<11>2014   15:16 Apr 06, 2016   Jkt 238001   PO 00000   Frm 00028   Fmt 4702   Sfmt 4702   E:\FR\FM\07APP1.SGM   07APP1


                                                                        Federal Register / Vol. 81, No. 67 / Thursday, April 7, 2016 / Proposed Rules                                            20289

                                               (i)(7), if the state court denied the                   the child custody proceedings more                     component of the ICWA protections (25
                                               request to transfer the case to tribal                  than 10 days prior to the first child                  U.S.C. 1912(d)). Under ICWA, any party
                                               court, ACF proposes to require that the                 custody proceeding; which Indian                       seeking to effect a foster care placement
                                               state title IV–E agency report whether                  tribe(s) were sent notice of the child                 of, or termination of parental rights to,
                                               there is a court order that indicates the               custody proceeding; and whether the                    an Indian child must demonstrate to the
                                               reason(s) why the case was not                          state title IV–E agency replied with                   court that active efforts have been made
                                               transferred to the tribal court. If a court             additional information that the Indian                 to provide remedial services and
                                               order exists, justification for denying a               child’s tribe(s) requested, if such a                  rehabilitative programs designed to
                                               transfer must be indicated from among                   request was made.                                      avoid the need to remove the Indian
                                               a list of three options, as outlined in                    State child welfare agencies may have               child, or terminate parental rights. Thus,
                                               ICWA statute: (1) Either of the parents                 this information in their case files,                  state title IV–E agencies are required to
                                               objected to transferring the case to the                regardless whether the notice was sent                 identify and offer programs and services
                                               tribal court; or (2) the tribal court                   by the agency or the court. Notice to the              to prevent the breakup of Indian
                                               declined the transfer to the tribal court;              Indian child’s parents, Indian custodian,              families which includes services to
                                               or (3) the state court found good cause                 and tribe about child custody                          maintain and reunite an Indian child
                                               not to transfer the case to the tribal                  proceedings, as defined in ICWA, and                   with his or her family and to promote
                                               court.                                                  the timing of the notice is an essential               the stability and security of the Indian
                                                  The data in this section will provide                procedural protection provided by                      family. Where such efforts are
                                               an understanding of how many children                   ICWA. ICWA requires that the party                     meaningful and effective, exits from
                                               in foster care with ICWA protections are                seeking foster care placement of, or                   child welfare systems increase and a
                                               or are not transferred to the Indian                    termination of parental rights to, an                  reduction in disproportionality in state
                                               child’s tribe and an understanding of                   Indian child shall notify the parent or                child welfare systems logically follows.
                                               the reasons why a state court did not                   Indian custodian and the Indian child’s                   Proposed ICWA-related AFCARS data
                                               transfer the case. Additionally, ACYF–                  tribe of the pending proceedings,                      regarding active efforts will provide a
                                               CB–PI–14–03 (issued March 5, 2014)                      including notice of their right of                     better understanding of the status of
                                               requires, among other things, that states               intervention and that no foster care                   Indian children in foster care, how these
                                               develop, in consultation with tribes,                   placement or termination of parental                   efforts may impact an Indian child’s
                                               measures to determine whether tribes                    rights proceeding shall be held until at               case, and the role of the courts in
                                               are able to effectively intervene and,                  least ten days after notice is received (25            making findings. The data will also help
                                               where appropriate, transfer proceedings                 U.S.C. 1912(a)). Notifying individuals                 identify service needs and efficacy;
                                               to tribal jurisdiction. One focus of the                and tribes of their rights and                         capacity needs; the need for training
                                               Child and Family Services Reviews                       requirements in every child custody                    and technical assistance; and
                                               conducted by the Children’s Bureau is                   proceeding is critical to meaningful                   opportunities to build relationships
                                               the importance of preserving a child’s                  access to and participation in                         between states and tribes.
                                               cultural connections. This data will aid                adjudications. Further, improper notice
                                                                                                                                                              Removals
                                               in understanding how a state may                        is a common basis for an appeal under
                                               preserve a child’s connection to his/her                ICWA, resulting in failure of process                     In paragraph (i)(14), ACF proposes to
                                               tribe. In addition, transfer data will aid              and unnecessary costs and delay. The                   require that the state title IV–E agency
                                               in identifying capacity needs and issues                data reported in this section will                     report whether the state court found by
                                               in tribal child welfare systems that may                provide an understanding of how legal                  clear and convincing evidence, in a
                                               prevent tribes from taking jurisdiction.                notice and adherence to the timeframes                 court order, that continued custody of
                                               Transfer data will help identify                        in ICWA may impact an Indian child’s                   the Indian child by the parent or Indian
                                               opportunities to build relationships                    case. The data will also help identify                 custodian was likely to result in serious
                                               between states and tribes. The data will                technology, capacity, and training needs               emotional or physical damage to the
                                               also indicate whether additional tribal                 for meeting legal notice requirements, as              Indian child in accordance with 25
                                               court resources are needed to improve                   well as opportunities for technical                    U.S.C. 1912(e); and whether the court
                                               transfer rates, or additional training for              assistance and relationship-building                   finding indicates that the state court’s
                                               state courts is required regarding                      between states and tribes.                             finding was supported by the testimony
                                               appropriate ‘‘good cause’’ exceptions to                                                                       of a qualified expert witness in
                                                                                                       Active Efforts To Prevent Removal and                  accordance with 25 U.S.C. 1912(e).
                                               transfer.
                                                                                                       Reunify the Indian Family                                 This is an important protection under
                                               Notification                                               In paragraphs (i)(11) through (13),                 ICWA for Indian children given that the
                                                 In paragraphs (i)(8) through (10), ACF                ACF proposes to require that the state                 standard for removal of an Indian child
                                               proposes to require that the state title                title IV–E agency report whether and                   is established by ICWA and may be
                                               IV–E agency report certain information                  when the state title IV–E agency began                 different than in non-ICWA foster care
                                               about legal notice to the Indian child’s                to make active efforts to prevent the                  cases. In ICWA, Congress created
                                               parent, Indian custodian, and Indian                    breakup of the Indian family prior to the              minimum federal standards for removal
                                               child’s tribe regarding the child custody               child’s most recent out-of-home care                   to prevent the continued breakup of
                                               proceeding as defined in ICWA. ACF                      episode, whether the court found in a                  Indian families. ICWA’s legislative
                                               proposes to require that the state title                court order that the state title IV–E                  history reflects clear Congressional
                                               IV–E agency report: Whether the Indian                  agency made active efforts to prevent                  intent: ‘‘It is clear then that the Indian
Lhorne on DSK5TPTVN1PROD with PROPOSALS




                                               child’s biological or adoptive parent or                the breakup of the Indian family, and                  child welfare crisis is of massive
                                               Indian custodian were given proper                      that these efforts were unsuccessful, and              proportions and that Indian families
                                               legal notice of the child custody                       what active efforts the state title IV–E               face vastly greater risks of involuntary
                                               proceeding more than 10 days prior to                   agency made to prevent the breakup of                  separation than are typical of our
                                               the first child custody proceeding in                   the Indian family (see 25 U.S.C.                       society as a whole.’’ (H. Rep. 95–1386
                                               accordance with 25 U.S.C. 1912(a);                      1912(d)).                                              (July 24, 1978)). The proposed ICWA-
                                               whether the Indian child’s tribe (if                       Providing active efforts to prevent the             related AFCARS data element will
                                               known) was given proper legal notice of                 breakup of Indian families is a key                    provide data on the extent to which


                                          VerDate Sep<11>2014   15:16 Apr 06, 2016   Jkt 238001   PO 00000   Frm 00029   Fmt 4702   Sfmt 4702   E:\FR\FM\07APP1.SGM   07APP1


                                               20290                    Federal Register / Vol. 81, No. 67 / Thursday, April 7, 2016 / Proposed Rules

                                               Indian children are removed in a                        an Indian child’s tribe, in accordance                 placements. This information will help
                                               manner that conforms to ICWA’s                          with 25 U.S.C. 1915(c); or none.                       to identify the training and technical
                                               statutory standard, informs ACF about                      In paragraph (i)(17), the state title IV–           assistance needs of states to support
                                               the frequency of and evidentiary                        E agency must indicate whether the                     recruitment and support foster families
                                               standards applied to removals of Indian                 state court made a finding of good                     to meet the unique cultural, social,
                                               children, helps identify needs for                      cause, on a court order, to place the                  extracurricular, and linguistic needs of
                                               training and technical assistance related               Indian child with someone who is not                   Indian children. Reporting information
                                               to ICWA statutory standards, and                        listed in the placement preferences of                 on good cause will help agencies better
                                               highlights substantive opportunities for                ICWA in 25 U.S.C. 1915(b) or the                       understand why the ICWA placement
                                               building and improving relationships                    placement preferences of the Indian                    preferences are not followed. In
                                               between states and tribes.                              child’s tribe, if the placement                        addition, such information will aid in
                                                                                                       preferences for foster care and pre-                   targeting training and resources needed
                                               Foster Care and Pre-Adoptive Placement                  adoptive placements were not followed.                 to assist states in improving Indian
                                               Preferences                                             In paragraph (i)(18), the state title IV–E             child outcomes.
                                                  In paragraphs (i)(15) through (18),                  agency must indicate the state court’s
                                               ACF proposes to require that state title                basis for the finding of good cause, as                Termination of Parental Rights
                                               IV–E agencies report certain information                indicated on the court order, from a list                 In paragraphs (i)(19) through (24),
                                               on the foster care and pre-adoptive                     of five response options: Request of the               ACF proposes to require that the state
                                               placement of Indian children,                           biological parents; request of the Indian              title IV–E agency report information
                                               specifically, the placement of such                     child; the unavailability of a suitable                regarding voluntary and involuntary
                                               children in the least restrictive setting               placement that meets the placement                     terminations of parental rights (TPR),
                                               that most approximates a family within                  preferences in ICWA at 25 U.S.C. 1915;                 which include tribal customary
                                               reasonable proximity to his or her home                 the extraordinary physical or emotional                adoptions. The information includes:
                                               in accordance with preferences                          needs of the Indian child; or other.                   Whether the rights of the Indian child’s
                                               established in ICWA at 25 U.S.C.                           The requirements around placement                   parents or Indian custodian were
                                               1915(b), or preferences established by                  preferences in ICWA are a key piece of                 involuntarily or voluntarily terminated;
                                               tribal resolution 25. U.S.C. 1915(c).                   the protections mandated by ICWA.                      whether, prior to ordering an
                                                  In paragraph (i)(15), the state title IV–            Placement preferences serve to protect                 involuntary termination of parental
                                               E agency must indicate which foster                     the best interests of Indian children and              rights, the state court found beyond a
                                               care and pre-adoptive placements from                   promote the stability and security of                  reasonable doubt, in a court order, that
                                               a list of five are available to accept                  families and Indian tribes by keeping                  continued custody of the Indian child
                                               placement of the Indian child. The five                 Indian children with their extended                    by the parent or Indian custodian is
                                               placements options are: A member of                     families or in Indian foster homes and                 likely to result in serious emotional or
                                               the Indian child’s extended family; a                   communities. The placement                             physical damage to the Indian child in
                                               foster home licensed, approved, or                      preferences in ICWA are congruent with                 accordance with 25 U.S.C. 1912(f);
                                               specified by the Indian child’s tribe; an               the title IV–E plan requirement in                     whether the state court indicates that its
                                               Indian foster home licensed or approved                 section 471(a)(19) of the Act regarding                finding was supported by the testimony
                                               by an authorized non-Indian licensing                   preference to an adult relative over a                 of a qualified expert witness in
                                               authority; an institution for children                  non-related caregiver when determining                 accordance with 25 U.S.C. 1912(f); and
                                               approved by an Indian tribe or operated                 the placement for a child. Data from the               if the TPR was voluntary, whether there
                                               by an Indian organization which has a                   National Survey of Child and                           is a court order that indicates that the
                                               program suitable to meet the Indian                     Adolescent Well-Being indicates that                   voluntary consent to termination for the
                                               child’s needs; and a placement that                     opportunities for kinship placements                   biological or adoptive mother and
                                               complies with the order of preference                   vary widely by age for AI/AN children                  biological or adoptive father or Indian
                                               for foster care or pre-adoptive                         when compared to other children of the                 custodian was made in writing and
                                               placements established by an Indian                     same age. New AFCARS data will help                    recorded in the presence of a judge of
                                               child’s tribe, in accordance with 25                    to adequately assess the current status of             a court of competent jurisdiction and
                                               U.S.C. 1915(c).                                         kinship placements as well as to help                  accompanied by the presiding judge’s
                                                  In paragraph (i)(16), the state title IV–            identify a national plan for meeting                   certificate that the terms and
                                               E agency must indicate whether the                      permanency goals through kinship                       consequences of the consent were fully
                                               Indian child’s current placement as of                  placements.                                            explained in detail and were fully
                                               the end of the report period meets the                     Factors unique to Indian children,                  understood by the parent or Indian
                                               placement preferences of ICWA at 25                     including the availability of American                 custodian in accordance with 25 U.S.C.
                                               U.S.C. 1915(b) by indicating with whom                  Indian foster homes, influence decisions               1913.
                                               the Indian child is placed from a list of               about the placement of Indian children.                   Distinguishing between involuntary
                                               six response options. The placements                    These factors include the characteristics              and voluntary terminations of parental
                                               are: A member of the Indian child’s                     of the foster home, the number of                      rights is important in ICWA given
                                               extended family; a foster home licensed,                placements a child will have, and the                  specific protections that must be
                                               approved, or specified by the Indian                    duration of the stay (GAO–05–290, p.3).                provided in each context (25 U.S.C.
                                               child’s tribe; an Indian foster home                    The information from these data                        1912(e), (f) and 25 U.S.C. 1913). In
                                               licensed or approved by an authorized                   elements will allow ACF to distinguish                 addition, termination standards are
Lhorne on DSK5TPTVN1PROD with PROPOSALS




                                               non-Indian licensing authority; an                      between ICWA cases in which there was                  important protections for Indian
                                               institution for children approved by an                 no available ICWA-preferred placement                  children under ICWA given that
                                               Indian tribe or operated by an Indian                   and those cases where an available                     Congress specifically created minimum
                                               organization which has a program                        ICWA-preferred placement was not used                  federal standards for removal of an
                                               suitable to meet the Indian child’s                     despite its availability. The data will                Indian child to prevent the breakup of
                                               needs; a placement that complies with                   help to identify trends or problems that               Indian families and to promote the
                                               the order of preference for foster care or              may require enhanced recruitment of                    stability and security of families and
                                               pre-adoptive placements established by                  potential Indian foster homes or relative              Indian tribes by preserving the child’s


                                          VerDate Sep<11>2014   15:16 Apr 06, 2016   Jkt 238001   PO 00000   Frm 00030   Fmt 4702   Sfmt 4702   E:\FR\FM\07APP1.SGM   07APP1


                                                                        Federal Register / Vol. 81, No. 67 / Thursday, April 7, 2016 / Proposed Rules                                                                   20291

                                               links to their parents and to the tribe                 other members of the Indian child’s                          The requirements for adoption
                                               through the child’s parent(s). Further, a               tribe; other Indian families; or a                        placement preferences in ICWA are a
                                               TPR may affect a child’s ability to be a                placement that complies with the order                    key piece of the protections provided
                                               full member of his/her tribe, preventing                of preference for adoptive placements                     under ICWA. Placement preferences
                                               the child from accessing services and                   established by an Indian child’s tribe, in                serve the policies of protecting the best
                                               benefits available to tribal members.                   accordance with 25 U.S.C. 1915(c).                        interests of Indian children and
                                               Whether the Indian child’s parents’                        In paragraph (i)(27), the state title IV–              promoting the stability and security of
                                               rights were terminated in a manner that                 E agency must indicate whether the                        families and Indian tribes by keeping
                                               conforms to the statutory standard                      placement reported in § 1355.43(h)                        adopted Indian children with their
                                               informs ACF as to when an Indian                        meets the placement preferences of                        extended families, tribes or
                                               child’s parental rights are terminated,                 ICWA in 25 U.S.C. 1915(a) by indicating                   communities. These data elements will
                                               helps identify the need for training and                with whom the Indian child is placed                      help provide greater understanding on
                                               technical assistance to meet statutory                  from a list of five response options. The                 how best to support Indian children in
                                               standards, and highlights substantive                   placements preferences are: A member
                                                                                                                                                                 cases where adoption is the outcome.
                                               opportunities for building relationships                of the Indian child’s extended family;
                                                                                                                                                                 The data are important to assist in
                                               between states and tribes.                              other members of the Indian child’s
                                                                                                                                                                 identifying trends or problems that may
                                                                                                       tribe; other Indian families; or a
                                               Adoption Proceedings                                    placement that complies with the order                    require enhanced recruitment of
                                                                                                       of preference for adoptive placements                     potential Indian adoptive homes or
                                                  In paragraphs (i)(25) through (29),
                                                                                                       established by an Indian child’s tribe, in                relative placements. The information
                                               ACF proposes to require that the state
                                                                                                       accordance with 25 U.S.C. 1915(c); or                     from these data elements will allow
                                               title IV–E agency report certain
                                               information on adoptive placement                       none.                                                     ACF to distinguish between ICWA cases
                                               preferences, which are requirements in                     In paragraph (i)(28), the state title IV–              in which there was no available ICWA-
                                               ICWA at 25 U.S.C. 1915(a), if the Indian                E agency must indicate whether the                        placement and those cases where an
                                               child exited foster care to adoption per                state court made a finding of good                        available ICWA-placement was not
                                               § 1355.43(g).                                           cause, in a court order, to place the                     used. The data will help assess the
                                                  In paragraph (i)(25), the state title IV–            Indian child with someone who is not                      current status of kinship guardianship
                                               E agency must indicate whether the                      listed in the placement preferences of                    placements as well as to help identify a
                                               child exited foster care to adoption per                ICWA in 25 U.S.C. 1915(a) or the                          national plan for meeting permanency
                                               § 1355.43(g). This is a driver question                 placement preferences of the Indian                       goals through kinship guardianship.
                                               for this section; if the state title IV–E               child’s tribe, if the placement                           This information will help to identify
                                               agency indicates ‘‘yes,’’ then the agency               preferences for adoptive placements                       the scope of resources for training and
                                               must complete the elements in this                      were not followed. In paragraph (i)(29),                  technical assistance needed for states to
                                               section; if the state title IV–E agency                 the state title IV–E agency must indicate                 recruit and support adoptive families to
                                               indicates ‘‘no,’’ then the agency must                  the state court’s basis for the finding of                meet the unique cultural, social, and
                                               skip the elements in this section.                      good cause, as indicated in the court                     enrichment activity needs of Indian
                                                  In paragraph (i)(26), the state title IV–            order, from a list of five response                       children. Reporting information on good
                                               E agency must indicate which adoptive                   options: Request of the biological                        cause to not follow ICWA adoption
                                               placements from a list of four were                     parents; request of the Indian child; the                 placement preferences will help to
                                               willing to accept placement of the                      unavailability of a suitable placement                    understand why the ICWA placement
                                               Indian child. Adoption placements                       that meets the placement preferences in                   preferences are not followed, and will
                                               preferences are found in ICWA at 25                     ICWA at 25 U.S.C. 1915; the                               aid in identifying targeted training and
                                               U.S.C. 1915(a) as follows: A member of                  extraordinary physical or emotional                       resource needs to assist states in
                                               the Indian child’s extended family;                     needs of the Indian child; or other.                      improving Indian child outcomes.

                                                                  ATTACHMENT A—PROPOSED OUT-OF-HOME CARE DATA FILE ELEMENTS RELATED TO ICWA
                                                    Category & applicability                                     Element                                        Response options                              Section citation

                                               Identifying an ‘‘Indian Child’’          Indicate whether the state title IV–E agency re-              ...................................................   1355.43(i)(3).
                                                 under the Indian Child Welfare           searched whether there is a reason to know that
                                                 Act.                                     the child is an ‘‘Indian child’’ under ICWA:
                                               These data elements will be re-               • Indicate whether the state agency inquired             Yes.
                                                 ported for all children.                      with the child’s biological or adoptive mother.        No.
                                                                                                                                                      The biological or adoptive
                                                                                                                                                        mother is deceased.
                                                                                             • Indicate whether the biological or adoptive            Yes.
                                                                                               mother is a member of an Indian tribe.                 No.
                                                                                                                                                      Unknown.
                                                                                             • Indicate whether the state agency inquired             Yes.
                                                                                               with the child’s biological or adoptive father.        No.
                                                                                                                                                      The biological or adoptive fa-
Lhorne on DSK5TPTVN1PROD with PROPOSALS




                                                                                                                                                        ther is deceased.
                                                                                             • Indicate whether the biological or adoptive fa-        Yes.
                                                                                               ther is a member of an Indian tribe.                   No.
                                                                                                                                                      Unknown.
                                                                                             • Indicate whether the state agency inquired             Yes.
                                                                                               with the child’s Indian custodian, if the child        No.
                                                                                               has one.                                               Child does not have an Indian
                                                                                                                                                        custodian.



                                          VerDate Sep<11>2014   15:16 Apr 06, 2016   Jkt 238001   PO 00000   Frm 00031   Fmt 4702   Sfmt 4702   E:\FR\FM\07APP1.SGM          07APP1


                                               20292                           Federal Register / Vol. 81, No. 67 / Thursday, April 7, 2016 / Proposed Rules

                                                            ATTACHMENT A—PROPOSED OUT-OF-HOME CARE DATA FILE ELEMENTS RELATED TO ICWA—Continued
                                                     Category & applicability                                              Element                                          Response options                           Section citation

                                                                                                      • Indicate whether the state agency inquired                Yes.
                                                                                                        with the child who is the subject of the pro-             No.
                                                                                                        ceeding.
                                                                                                      • Indicate whether the child is a member of or              Yes.
                                                                                                        eligible for membership in an Indian tribe.               No.
                                                                                                                                                                  Unknown.
                                                                                                      • Indicate whether the domicile or residence of             Yes.
                                                                                                        the child, parent, or the Indian custodian is             No.
                                                                                                        known by the agency to be, or is shown to
                                                                                                        be, on an Indian reservation.
                                               Application of ICWA ....................               • Indicate whether the state title IV–E agency              Yes ............................................   1355.43(i)(4).
                                                                                                        knows or has reason to know that the child is             No.
                                                                                                        an Indian child as defined by ICWA.
                                               These data elements will be re-                        • Indicate the date that the state title IV–E               Date..
                                                 ported for all children.                               agency discovered the information that indi-
                                                                                                        cates that the child is or may be an Indian
                                                                                                        child.
                                                                                                      • Indicate the name(s) of all federally recog-              Name(s)..
                                                                                                        nized Indian tribe(s) identified that may poten-
                                                                                                        tially be the Indian child’s tribe(s).
                                               These data elements will be re-                   Indicate whether a court order indicates that the                Yes, ICWA applies ...................              1355.43(i)(5).
                                                 ported for all children.                          court found that ICWA applies.                                 No, ICWA does not apply.
                                                                                                                                                                  No court finding.
                                                                                                       • Indicate the date of the court finding ...............   Date.
                                                                                                       • Indicate the name of the Indian tribe(s) that            Name(s).
                                                                                                          the court found is the Indian child’s tribe, if         No name listed.
                                                                                                          listed on the court order.
                                               Transfer to tribal court ................         Indicate whether there is a court order that indicates           Yes ............................................   1355.43(i)(6).
                                               These data elements and all of                       that the Indian child’s parent, Indian custodian, or          No.
                                                 those below only apply to In-                      Indian child’s tribe requested, orally on the record
                                                 dian children.                                     or in writing, that the state court transfer the case
                                                                                                    to the tribal court of the Indian child’s tribe, in ac-
                                                                                                    cordance with 25 U.S.C. 1911(b), at any point dur-
                                                                                                    ing the report period.
                                                                                                 If the state court denied the request to transfer the            Yes ............................................   1355.43(i)(7).
                                                                                                    case to tribal court, indicate whether there is a             No.
                                                                                                    court order that indicates the reason(s) why the
                                                                                                    case was not transferred to the tribal court.
                                                                                                       • Either of the parents objected to transferring           Yes.
                                                                                                          the case to the tribal court.                           No.
                                                                                                       • The tribal court declined the transfer to the            Yes.
                                                                                                          tribal court.                                           No.
                                                                                                       • The state court found good cause not to                  Yes.
                                                                                                          transfer the case to the tribal court.                  No.
                                               Notification ..................................   Indicate whether the Indian child’s parent or Indian             Yes ............................................   1355.43(i)(8).
                                                                                                    custodian was given proper legal notice more than             No.
                                                                                                    10 days prior to the first child custody proceeding
                                                                                                    in accordance with 25 U.S.C. 1912(a).
                                                                                                 Indicate whether the Indian child’s tribe(s) was given           Yes
                                                                                                    proper legal notice more than 10 days prior to the            No.
                                                                                                    first child custody proceeding in accordance with             The child’s Indian tribe is un-
                                                                                                    25 U.S.C. 1912(a).                                              known.
                                                                                                 Indicate the name(s) of the Indian tribe(s) that were            Name(s) ....................................       1355.43(i)(9).
                                                                                                    sent notice for a child custody proceeding as re-
                                                                                                    quired in ICWA at 25 U.S.C. 1912(a).
                                                                                                 If the tribe(s) requested additional information, indi-          Yes ............................................   1355.43(i)(10).
                                                                                                    cate whether the state title IV–E agency replied              No.
                                                                                                    with the additional information that the Indian               Does not apply.
                                                                                                    tribe(s) requested.
                                               Active efforts to prevent removal                 Indicate the date that the state title IV–E agency               Date ..........................................    1355.43(i)(11).
                                                 and reunify with Indian family.                    began making active efforts to prevent the break-
                                                                                                    up of the Indian family for the most recent removal
Lhorne on DSK5TPTVN1PROD with PROPOSALS




                                                                                                    reported in § 1355.43(d) of the Indian child in ac-
                                                                                                    cordance with 25 U.S.C. 1912(d).
                                                                                                 Indicate whether the court found, in a court order,              Yes ............................................   1355.43(i)(12).
                                                                                                    that the state title IV–E agency made active efforts          No.
                                                                                                    to prevent the breakup of the Indian family for the
                                                                                                    most recent removal reported in § 1355.43(d) and
                                                                                                    that these efforts were unsuccessful in accordance
                                                                                                    with 25 U.S.C. 1912(d).



                                          VerDate Sep<11>2014       15:16 Apr 06, 2016       Jkt 238001   PO 00000    Frm 00032   Fmt 4702   Sfmt 4702   E:\FR\FM\07APP1.SGM            07APP1


                                                                             Federal Register / Vol. 81, No. 67 / Thursday, April 7, 2016 / Proposed Rules                                                                                     20293

                                                            ATTACHMENT A—PROPOSED OUT-OF-HOME CARE DATA FILE ELEMENTS RELATED TO ICWA—Continued
                                                     Category & applicability                                                Element                                                    Response options                              Section citation

                                                                                               Indicate the active efforts that the state title IV–E                          ...................................................   1355.43(i)(13).
                                                                                                 agency made to prevent the breakup of the Indian
                                                                                                 family in accordance with 25 U.S.C. 1912(d).
                                                                                                    • Identify appropriate services to help the par-                          Yes.
                                                                                                      ent.                                                                    No.
                                                                                                    • Actively assist the parent in obtaining services                        Yes.
                                                                                                                                                                              No.
                                                                                                   • Invite representatives of the Indian child’s                             Yes.
                                                                                                     tribe to participate in the proceedings.                                 No.
                                                                                                   • Complete a comprehensive assessment of                                   Yes.
                                                                                                     the family.                                                              No.
                                                                                                   • Focus on safe reunification as the goal for the                          Yes.
                                                                                                     Indian child.                                                            No.
                                                                                                   • Consult with extended family members to pro-                             Yes.
                                                                                                     vide support for the Indian child.                                       No.
                                                                                                   • Arrange for family interaction in most natural                           Yes.
                                                                                                     setting safely possible.                                                 No.
                                                                                                   • Monitor progress and participation in services                           Yes.
                                                                                                     to reunite the Indian family.                                            No.
                                                                                                   • Consider alternative ways of addressing the                              Yes.
                                                                                                     needs of the Indian child’s parent and ex-                               No.
                                                                                                     tended family if services do not exist or are
                                                                                                     not available.
                                                                                                   • Support regular visits and trial home visits                             Yes.
                                                                                                     consistent with ensuring the Indian child’s                              No.
                                                                                                     safety.
                                                                                                   • Conduct or cause to be conducted a diligent                              Yes.
                                                                                                     search for the Indian child’s extended family                            No.
                                                                                                     members for assistance and possible place-
                                                                                                     ment.
                                                                                                   • Keep siblings together .....................................             Yes.
                                                                                                                                                                              No.
                                                                                                                                                                              N/A.
                                                                                                   • Other ................................................................   Yes.
                                                                                                                                                                              No.
                                               Removals ....................................   Indicate whether the court found by clear and con-                             Yes ............................................      1355.43(i)(14).
                                                                                                 vincing evidence, in a court order, that continued                           No.
                                                                                                 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 accord-
                                                                                                 ance with 25 U.S.C. 1912(e).
                                                                                               Indicate whether the court finding indicates that the                          Yes.
                                                                                                 state court’s finding was supported by the testi-                            No.
                                                                                                 mony of a qualified expert witness in accordance
                                                                                                 with 25 U.S.C. 1912(e).
                                               Foster care and pre-adoptive                    Indicate which foster care or pre-adoptive place-                              ...................................................   1355.43(i)(15).
                                                 placement preferences.                          ments that meet the placement preferences of
                                                                                                 ICWA in 25 U.S.C. 1915(b) were available to ac-
                                                                                                 cept placement.
                                                                                                    • A member of the Indian child’s extended fam-                            Yes.
                                                                                                      ily.                                                                    No.
                                                                                                    • A foster home licensed, approved, or speci-                             Yes.
                                                                                                      fied by the Indian child’s tribe.                                       No.
                                                                                                    • An Indian foster home licensed or approved                              Yes.
                                                                                                      by an authorized non-Indian licensing author-                           No.
                                                                                                      ity.
                                                                                                    • An institution for children approved by an In-                          Yes.
                                                                                                      dian tribe or operated by an Indian organiza-                           No.
                                                                                                      tion which has a program suitable to meet the
                                                                                                      Indian child’s needs.
                                                                                                    • A placement that complies with the order of                             Yes.
                                                                                                      preference for foster care or pre-adoptive                              No.
Lhorne on DSK5TPTVN1PROD with PROPOSALS




                                                                                                      placements established by an Indian child’s
                                                                                                      tribe, in accordance with 25 U.S.C. 1915(c).
                                                                                               For the Indian child’s current foster care or pre-                             A member of the Indian child’s                        1355.43(i)(16).
                                                                                                 adoptive placement as of the end of the report pe-                             extended family.
                                                                                                 riod per § 1355.43(e), indicate whether the place-                           A foster home licensed, ap-
                                                                                                 ment meets the placement preferences of ICWA in                                proved, or specified by the
                                                                                                 25 U.S.C. 1915(b) by indicating with whom the In-                              Indian child’s tribe.
                                                                                                 dian child is placed.



                                          VerDate Sep<11>2014      15:16 Apr 06, 2016      Jkt 238001   PO 00000       Frm 00033      Fmt 4702       Sfmt 4702      E:\FR\FM\07APP1.SGM              07APP1


                                               20294                    Federal Register / Vol. 81, No. 67 / Thursday, April 7, 2016 / Proposed Rules

                                                          ATTACHMENT A—PROPOSED OUT-OF-HOME CARE DATA FILE ELEMENTS RELATED TO ICWA—Continued
                                                    Category & applicability                                           Element                                                     Response options                             Section citation

                                                                                                                                                                        An Indian foster home licensed
                                                                                                                                                                          or approved by an authorized
                                                                                                                                                                          non-Indian licensing author-
                                                                                                                                                                          ity.
                                                                                                                                                                        An institution for children ap-
                                                                                                                                                                          proved by an Indian tribe or
                                                                                                                                                                          operated by an Indian organi-
                                                                                                                                                                          zation 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, in accordance
                                                                                                                                                                          with 25 U.S.C. 1915(c).
                                                                                                                                                                        None.
                                                                                        If the placement preferences for foster care or pre-                            Yes ............................................      1355.43(i)(17).
                                                                                           adoptive placements were not followed, indicate                              No.
                                                                                           whether the court made a finding of good cause,
                                                                                           on a court order, to place the Indian child with
                                                                                           someone who is not listed in the placement pref-
                                                                                           erences of ICWA in 25 U.S.C. 1915(b) or the
                                                                                           placement preferences of the Indian child’s tribe.
                                                                                        Indicate the state court’s basis for the finding of                             ...................................................   1355.43(i)(18).
                                                                                           good cause, as indicated on the court order.
                                                                                             • Request of biological parents ..........................                 Yes.
                                                                                                                                                                        No.
                                                                                             • Request of Indian child ....................................             Yes.
                                                                                                                                                                        No.
                                                                                             • The unavailability of a suitable placement that                          Yes.
                                                                                               meets the placement preferences in ICWA at                               No.
                                                                                               25 U.S.C. 1915.
                                                                                             • The extraordinary physical or emotional needs                            Yes.
                                                                                               of the Indian child.                                                     No.
                                                                                             • Other ................................................................   Yes.
                                                                                                                                                                        No.
                                               Termination of parental rights .....     Indicate whether the termination of parental (or In-                            Voluntary ...................................         1355.43(i)(19).
                                                                                           dian custodian rights was voluntary or involuntary.                          Involuntary.
                                                                                        Indicate whether, prior to ordering a termination of                            Yes ............................................      1355.43(i)(20).
                                                                                           parental rights, the state court found beyond a                              No.
                                                                                           reasonable doubt, in a court order, 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 whether the court finding, reported for para-                          Yes ............................................      1344.43(i)(21).
                                                                                           graph (i)(20), indicates that the state court’s find-                        No.
                                                                                           ing was supported by the testimony of a qualified
                                                                                           expert witness in accordance with 25 U.S.C.
                                                                                           1912(f).
                                                                                        If voluntary, indicate whether there is a court order                           Yes ............................................      1355.43(i)(22).
                                                                                           that indicates that the voluntary consent to termi-                          No.
                                                                                           nation for the biological or adoptive mother was                             Does not apply.
                                                                                           made in writing and recorded in the presence of a
                                                                                           judge in accordance with 25 U.S.C. 1913.
                                                                                        If voluntary, indicate whether there is a court order                           Yes ............................................      1355.43(i)(23).
                                                                                           that indicates that the voluntary consent to termi-                          No.
                                                                                           nation for the biological or adoptive father was                             Does not apply.
                                                                                           made in writing and recorded in the presence of a
                                                                                           judge in accordance with 25 U.S.C. 1913.
                                                                                        If voluntary, indicate whether there is a court order                           Yes ............................................      1355.43(i)(24).
                                                                                           that indicates that the voluntary consent to termi-                          No.
Lhorne on DSK5TPTVN1PROD with PROPOSALS




                                                                                           nation for the Indian custodian was made in writ-                            Does not apply.
                                                                                           ing and recorded in the presence of a judge in ac-
                                                                                           cordance with 25 U.S.C. 1913.
                                               Adoption proceedings .................   Indicate whether the Indian child exited foster care                            Yes ............................................      1355.43(i)(25).
                                                                                           to adoption per § 1355.43(g).                                                No.
                                                                                        Indicate which adoptive placements that meet the                                ...................................................   1355.43(i)(26).
                                                                                           placement preferences in ICWA at 25 U.S.C.
                                                                                           1915(a) were willing to accept placement.



                                          VerDate Sep<11>2014   15:16 Apr 06, 2016   Jkt 238001   PO 00000       Frm 00034      Fmt 4702       Sfmt 4702      E:\FR\FM\07APP1.SGM              07APP1


                                                                        Federal Register / Vol. 81, No. 67 / Thursday, April 7, 2016 / Proposed Rules                                                                                    20295

                                                         ATTACHMENT A—PROPOSED OUT-OF-HOME CARE DATA FILE ELEMENTS RELATED TO ICWA—Continued
                                                    Category & applicability                                           Element                                                    Response options                              Section citation

                                                                                             • A member of the Indian child’s extended fam-                             Yes.
                                                                                               ily.                                                                     No.
                                                                                             • Other members of the Indian child’s tribe .......                        Yes.
                                                                                                                                                                        No.
                                                                                             • Other Indian families ........................................           Yes.
                                                                                                                                                                        No.
                                                                                             • A placement that complies with the order of                              Yes.
                                                                                               preference for foster care or pre-adoptive                               No.
                                                                                               placements established by an Indian child’s
                                                                                               tribe, in accordance with 25 U.S.C. 1915(c).
                                                                                        Indicate whether the placement reported in                                      A member of the Indian child’s                        1355.43(i)(27).
                                                                                          § 1355.43(h) meets the placement preferences of                                 extended family.
                                                                                          ICWA in 25 U.S.C. 1915(a) by indicating with                                  Other members of the Indian
                                                                                          whom the Indian child is placed.                                                child’s tribe.

                                                                                        Other Indian families.
                                                                                        A placement that complies with the order of pref-
                                                                                           erence for foster care or pre-adoptive placements
                                                                                           established by an Indian child’s tribe, in accord-
                                                                                           ance with 25 U.S.C. 1915(c).
                                                                                        None.
                                                                                        If the placement preferences for adoption were not                              Yes ............................................      1355.43(i)(28).
                                                                                           followed, indicate whether the court made a find-                            No.
                                                                                           ing of good cause, on a court order, to place the
                                                                                           Indian child with someone who is not listed in the
                                                                                           placement preferences of ICWA in 25 U.S.C.
                                                                                           1915(a) or the placement preferences of the In-
                                                                                           dian child’s tribe.
                                                                                        Indicate whether there is a court order that indicates                          ...................................................   1355.43(i)(29).
                                                                                           the court’s basis for the finding of good cause.
                                                                                              • Request of the biological parents ....................                  Yes.
                                                                                                                                                                        No.
                                                                                             • Request of the Indian child ..............................               Yes.
                                                                                                                                                                        No.
                                                                                             • The unavailability of a suitable placement that                          Yes.
                                                                                               meets the placement preferences in ICWA at                               No.
                                                                                               25 U.S.C. 1915.
                                                                                             • The extraordinary physical or emotional needs                            Yes.
                                                                                               of the Indian child.                                                     No.
                                                                                             • Other ................................................................   Yes.
                                                                                                                                                                        No.



                                               VI. Regulatory Impact Analysis                                ACF determined that the costs to title                                foster care and/or adoption or
                                                                                                          IV–E agencies as a result of this rule will                              guardianship with the involvement of
                                               Executive Order 12866                                      not be significant. Federal                                              the state or tribal title IV–E agency.
                                                  Executive Order (E.O.) 12866 requires                   reimbursement under title IV–E will be                                     3. Previously, ACF considered
                                               that regulations be drafted to ensure that                 available for a portion of the costs that                                whether to permit title IV–E agencies to
                                               they are consistent with the priorities                    title IV–E agencies will incur as a result                               sample and report information on a
                                               and principles set forth in the E.O. The                   of the revisions proposed in this rule,                                  representative population of children.
                                                                                                          depending on each agency’s cost                                          Such an alternative is unacceptable
                                               Department has determined that this
                                                                                                          allocation plan, information system, and                                 given the significant limitations
                                               proposed rule is consistent with these
                                                                                                          other factors.                                                           associated with using a sampling
                                               priorities and principles. In particular,
                                                                                                             Alternatives Considered:                                              approach for collecting data, including
                                               ACF has determined that a regulation is
                                                                                                             1. ACF considered not collecting                                      data on AI/AN children who are in
                                               the best and most cost effective way to
                                                                                                          certain ICWA-related data in AFCARS.                                     foster care, adoption, and guardianship
                                               implement the statutory mandate for a
                                                                                                          Not including ICWA-related data                                          programs. Under a sampling approach,
                                               data collection system regarding                           elements in AFCARS, or including too                                     ACF would be unable to report reliable
                                               children in foster care and those that are                 few data elements, may exclude Indian                                    data responsive to the Annual Outcomes
                                               adopted and support other statutory                        children and families from the                                           Report to Congress, the Report to
                                               obligations to provide oversight of child
Lhorne on DSK5TPTVN1PROD with PROPOSALS




                                                                                                          additional benefit of improving                                          Congress on the Social and Economic
                                               welfare programs. ACF consulted with                       AFCARS data.                                                             Conditions of Native Americans, and
                                               the Office of Management and Budget                           2. ACF considered whether other                                       Adoption Incentives. Second, when
                                               (OMB) and determined that this                             existing data sets could yield similar                                   using a sample, small population
                                               proposed rule does meet the criteria for                   information. ACF determined that                                         subgroups (e.g., children who spend
                                               a significant regulatory action under                      AFCARS is the only comprehensive                                         very long periods in foster care or
                                               E.O. 12866. Thus, it was subject to OMB                    case-level data set on the incidence and                                 children who are adopted or run away)
                                               review.                                                    experiences of children who are in                                       might occur so rarely in the data such


                                          VerDate Sep<11>2014   15:16 Apr 06, 2016   Jkt 238001   PO 00000       Frm 00035      Fmt 4702       Sfmt 4702      E:\FR\FM\07APP1.SGM              07APP1


                                               20296                    Federal Register / Vol. 81, No. 67 / Thursday, April 7, 2016 / Proposed Rules

                                               that analysis on these subgroups would                  have systems designed to capture some                  Departments are required to submit to
                                               not be meaningful. Sampling error with                  ICWA-related data.                                     OMB for review and approval any
                                               respect to AI/AN populations is already                                                                        reporting or recordkeeping requirements
                                                                                                       Regulatory Flexibility Analysis
                                               a well-established issue affecting the                                                                         inherent in a proposed or final rule.
                                               validity and meaningfulness of large                       The Secretary certifies, under 5 U.S.C.             Information collection for AFCARS is
                                               national surveys like the American                      605(b), as enacted by the Regulatory                   currently authorized under OMB
                                               Community Survey. It is a well-                         Flexibility Act (Pub. L. 96–354), that                 number 0970–0422. This supplemental
                                               established that, historically,                         this rule will not result in a significant             notice of proposed rulemaking contains
                                               quantitative and qualitative data on AI/                impact on a substantial number of small                new information collection
                                               AN populations, including children, has                 entities. This proposed rule does not                  requirements in proposed § 1355.43, the
                                               been incomplete and unreliable                          affect small entities because it is                    out-of-home care data file that the
                                               resulting in such populations being                     applicable only to state title IV–E                    Department has submitted to OMB for
                                               among the most under-counted                            agencies.                                              its review. This SNPRM proposes to
                                               populations groups in the United States.                                                                       require state title IV–E agencies to
                                                  4. In each of 18 states, there were                  Unfunded Mandates Reform Act
                                                                                                                                                              collect and report ICWA-related data
                                               fewer than 10 Indian children in foster                   The Unfunded Mandates Reform Act                     elements in the AFCARS out-of-home
                                               care according to FY 2013 AFCARS                        (Pub. L. 104–4) requires agencies to                   care data file. PRA rules require that
                                               data. For states that have few Indian                   prepare an assessment of anticipated                   ACF estimate the total burden created
                                               children in foster care, ACF considered                 costs and benefits before proposing any                by this SNPRM regardless of what
                                               alternatives to collecting ICWA-related                 rule that may result in an annual                      information is already available.
                                               data through AFCARS, such as                            expenditure by state, local, and tribal                   Comments to the February 2015
                                               providing an exemption from reporting,                  governments, in the aggregate, or by the               AFCARS NPRM: ACF understands from
                                               or an alternative submission process or                 private sector, of $100 million or more                comments on the February 2015
                                               that would be less burdensome. While                    (adjusted annually for inflation). That                AFCARS NPRM that National
                                               ACF recognizes collecting the proposed                  threshold level is currently                           Association of Public Child Welfare
                                               ICWA-related data may be burdensome                     approximately $146 million. This                       Administrators (NAPCWA) and the
                                               for states with few Indian children in                  proposed rule does not impose any                      states felt that our burden estimates
                                               foster care, the alternative approaches                 mandates on state, local, or tribal                    were low for determining the costs to
                                               are not feasible due to:                                governments, or the private sector that
                                                  • The statutory requirement that                                                                            implement the proposed data elements
                                                                                                       will result in an annual expenditure of                in AFCARS NPRM. However, very few
                                               AFCARS data be comprehensive.                           $100 million or more.
                                               Section 479(c)(3) requires that AFCARS                                                                         states provided estimates on the burden
                                               provide ‘‘comprehensive national                        Congressional Review                                   hours or actual costs to implement the
                                               information.’’ Exempting some states                      This regulation is not a major rule as               AFCARS NPRM. The comments were
                                               from reporting the proposed ICWA-                       defined in 5 U.S.C. 8.                                 primarily about technical or
                                               related data elements is not consistent                                                                        programmer costs to modify the
                                               with this statutory mandate, and would                  Assessment of Federal Regulations and                  information system to extract the
                                               render it difficult to use this data for                Policies on Families                                   proposed data elements. This did not
                                               development of national policies for                      Section 654 of the Treasury and                      include the work associated with child
                                               Indian children.                                        General Government Appropriations                      welfare agency workers gathering
                                                  • The statutory requirement for                      Act of 2000 (Pub. L. 106–58) requires                  information or being trained in data
                                               assessing penalties on AFCARS data.                     federal agencies to determine whether a                entry. The estimates received to modify
                                               Section 474(f) of the Act penalizes the                 proposed policy or regulation may affect               a state information system to extract the
                                               title IV–E agency for non-compliance                    family well-being. If the agency’s                     proposed AFCARS NPRM data elements
                                               based on the total amount expended by                   determination is affirmative, then the                 (approximately 100) ranged from 2,000
                                               the state for administration of foster care             agency must prepare an impact                          hours to 20,000 hours. Although ACF
                                               activities. The statute provides for                    assessment addressing seven criteria                   appreciates that these states provided
                                               mandatory penalties, therefore, we are                  specified in the law. These proposed                   this information on hourly and cost
                                               not authorized to permit some states to                 regulations will not have an impact on                 burden estimates, ACF received too few
                                               be subject to a penalty and not others.                 family well-being as defined in the law.               estimates to assist in calculating the
                                               In addition, allowing states an alternate                                                                      state costs for information systems and
                                               submission process would complicate                     Executive Order 13132                                  other burden associated with this
                                               and/or prevent the assessment of                          Executive Order (E.O.) 13132 requires                SNPRM. Therefore, ACF provides
                                               penalties as proposed in the February 9,                that federal agencies consult with state               estimates using the best available
                                               2015 NPRM in proposed § 1355.46,                        and local government officials in the                  information.
                                               including penalties for failure to submit               development of regulatory policies with                Burden Estimate
                                               data files free of cross-file errors,                   Federalism implications. Consistent
                                               missing, invalid, or internally                         with E.O. 13132, the Department                           ACF estimates the annual reporting
                                               inconsistent data, or tardy transactions                specifically solicits comments from state              and record keeping burden hours of this
                                               for each data element of applicable                     and local government officials on this                 SNPRM to be 192,285 hours. ACF
                                               records.                                                proposed rule.                                         estimates a one-time burden associated
                                                  • State agencies that elect to have a
Lhorne on DSK5TPTVN1PROD with PROPOSALS




                                                                                                                                                              with this SNPRM to be 85,072 hours.
                                               SACWIS provide some of the proposed                     Paperwork Reduction Act                                The 52 respondents comprise 52 state
                                               ICWA-related data elements as part of                     Under the Paperwork Reduction Act                    title IV–E agencies. The following are
                                               the system requirements will already                    (44 U.S.C. 35, as amended) (PRA), all                  estimates.




                                          VerDate Sep<11>2014   15:16 Apr 06, 2016   Jkt 238001   PO 00000   Frm 00036   Fmt 4702   Sfmt 4702   E:\FR\FM\07APP1.SGM   07APP1


                                                                               Federal Register / Vol. 81, No. 67 / Thursday, April 7, 2016 / Proposed Rules                                                          20297

                                                                                                                                                                              Number of            Average
                                                                                                                                                             Number of         responses       burden per year   Total burden
                                                                                             Collection                                                     respondents           per                per            hours
                                                                                                                                                                              respondent         respondent

                                               Annual Record Keeping and Reporting Burden ............................................                                  52                 2         3,697.79         192,285
                                               One-Time Burden ..........................................................................................               52                 1         1,636             85,072



                                                  In estimating the burden, ACF                                        • A court order indicating the court                         Third, ACF assumed that there will be
                                               included both one-time burden                                        found by clear and convincing evidence,                      one-time costs to implement the
                                               estimates and annual burden estimates:                               in a court order, that continued custody                     requirements of this SNPRM and annual
                                                  Annual burden: The annual burden to                               of the Indian child by the parent or                         costs to collect, input, and report the
                                               the state title IV–E agency includes                                 Indian custodian was likely to result in                     information. The annual costs involve
                                               activities such as: Searching data                                   serious emotional or physical damage to                      searching data, gathering the
                                               sources and gathering information,                                   the Indian child in accordance with 25                       information that meet the requirements
                                               entering the information, extracting the                             U.S.C. 1912(e).                                              of this SNPRM, entering the
                                               information for AFCARS reporting, and                                   • A court order indicating that the                       information, and extracting and
                                               transmitting the information to ACF.                                 court made a finding of good cause, and                      submitting the information for AFCARS
                                                  One time burden: The one-time                                     the basis, if the placement preferences                      reporting. The one-time costs mostly
                                               burden for this SNPRM, includes                                      for foster care were not followed, to                        involve modifying procedures and
                                               activities to: Develop or modify                                     place the Indian child with someone                          systems to collect, validate and verify
                                               procedures and systems to collect,                                   who is not listed in the placement                           information, adjusting existing ways to
                                               validate, and verify the information,                                preferences of ICWA in 25 U.S.C.                             comply with AFCARS; and training
                                               adjust existing ways to comply with                                  1915(b) or the placement preferences of                      personnel on the new AFCARS
                                               AFCARS requirements, and train                                       the Indian child’s tribe in accordance                       requirements of this SNPRM.
                                               personnel on the new AFCARS                                          with 25 U.S.C. 1915(c); and                                     Fourth, ACF assumed that the one-
                                                                                                                                                                                 time burden is similar to how long it
                                               requirements of this SNPRM.                                             • If the placement preferences for
                                                                                                                                                                                 would take to make revisions to a
                                                  In developing the burden estimate,                                adoption were not followed, a court
                                                                                                                                                                                 SACWIS to be able to meet the
                                               ACF made several assumptions about                                   finding of good cause, and the basis, on
                                                                                                                                                                                 requirements of the SNPRM. Currently,
                                               the data in state child welfare                                      a court order, to place the Indian child
                                                                                                                                                                                 36 states have an operational SACWIS.
                                               information systems. First, ACF                                      with someone who is not listed in the
                                                                                                                                                                                 ACF understands that 24 states opted to
                                               assumed that state title IV–E agencies                               placement preferences of ICWA in 25
                                                                                                                                                                                 collect at least a minimal amount of
                                               may have access to most of the                                       U.S.C. 1915(a) or the placement
                                                                                                                                                                                 ICWA-related information per the
                                               information for proposed data elements.                              preferences of the Indian child’s tribe.
                                                                                                                                                                                 SACWIS Assessment Review Guide, but
                                               ACF anticipated the information for                                     Second, in order to determine the                         also recognize that most state title IV–
                                               these data elements are contained in the                             number of cases for which state title IV–                    E agencies will require some revisions
                                               state title IV–E agency’s paper or                                   E agencies will have to report the ICWA-                     to meet the requirements of this
                                               electronic case files. ACF estimated that                            related data elements, ACF estimated                         SNPRM. As more states build SACWIS,
                                               some of the data elements would only                                 the out-of-home care reporting                               ACF anticipates it will lead to more
                                               be in paper case files or narrative fields,                          population using the most recent FY                          efficiency in reporting and less cost and
                                               thus not readily able to be extracted for                            2014 AFCARS data available submitted                         burden to the state agencies.
                                               AFCARS reporting, and would require                                  by state title IV–E agencies: 415,129                           Finally, after reviewing the 2014
                                               revisions to the electronic case file so                             children were in foster care on                              Bureau of Labor Statistics data to help
                                               that the information can be extracted for                            September 30, 2014 and 264,746                               determine the costs of the SNPRM, ACF
                                               AFCARS reporting. Some of these data                                 children entered foster care during FY                       assumed that there will be a mix of staff
                                               elements concern collecting information                              2014. The state title IV–E agency will be                    working to meet both the one-time and
                                               on court findings and other activities                               required to report approximately 3 data                      annual requirements of this SNPRM
                                               taking place during court processes.                                 elements for all children who are in the                     with the job role of Management
                                                  ACF proposes for state title IV–E                                 out-of-home care reporting population                        Analyst (13–1111) with a mean hourly
                                               agencies to report information in court                              and approximately 24 data elements on                        wage estimate of $43.68 and those with
                                               orders that the state title IV–E agency                              children to whom the ICWA-related                            the job role of Social and Community
                                               would have ready access to or would                                  data elements apply.                                         Service Managers (11–9151) with a
                                               typically be in the state title IV–E                                    To estimate the number of children to                     mean hourly wage estimate of $32.56.
                                               agency’s case files. ACF is seeking state                            whom the ICWA-related data elements                          Thus, ACF averaged the two wages to
                                               feedback as to whether the state agency                              apply, ACF used as a proxy those                             come to an average labor rate of $38.12.
                                               has these readily available in their                                 children whose race was reported as                          In order to ensure we took into account
                                               agency paper files or electronic files.                              ‘‘American Indian or Alaska Native’’ in                      overhead costs associated with these
                                               These are:                                                           the most recent FY 2014 AFCARS data                          labor costs, ACF doubled this rate.
                                                  • A court order indicating that the                               available. While not every child of this                        Annual Recordkeeping and Reporting
Lhorne on DSK5TPTVN1PROD with PROPOSALS




                                               child’s parent or Indian custodian or the                            reported race category will be covered                       Burden Estimate: ACF estimated the
                                               Indian child’s tribe requested orally on                             under ICWA, it is likely that the state                      annual recordkeeping and reporting
                                               the record or in writing that the state                              title IV–E agency will have to explore                       burden by multiplying the time spent on
                                               court transfer the case to the tribal court                          whether these children may be Indian                         the recordkeeping and reporting
                                               of the Indian child’s tribe, in accordance                           children as defined in ICWA. Thus,                           activities described below by the
                                               with 25 U.S.C. 1911(b), and, where                                   5,960 children who entered foster care                       number of children in foster care to
                                               applicable, the reason(s) why the case                               during FY 2014 were reported as                              arrive at the total recordkeeping hours.
                                               was not transferred.                                                 American Indian or Alaska Native.                            These estimates represent the work


                                          VerDate Sep<11>2014       15:16 Apr 06, 2016       Jkt 238001     PO 00000      Frm 00037       Fmt 4702     Sfmt 4702   E:\FR\FM\07APP1.SGM   07APP1


                                               20298                              Federal Register / Vol. 81, No. 67 / Thursday, April 7, 2016 / Proposed Rules

                                               associated with the state title IV–E                                        reporting on average will take 6 annual                  manuals on average will take
                                               agency searching data sources and                                           burden hours per state title IV–E agency.                approximately 30 burden hours.
                                               gathering information, entering the                                         Nationally, the hour burden for all 52                      • Training personnel on the new
                                               information, extracting the information                                     state title IV–E agencies would be 312                   AFCARS requirements of this SNPRM
                                               for AFCARS reporting, and transmitting                                      (6 hours × 52 states = 312). ACF took                    on average will take approximately
                                               the information to ACF. These estimates                                     into account the number of data                          1,276 burden hours. ACF arrived at this
                                               are based on our assumptions, described                                     elements proposed in this SNPRM when                     estimate by dividing the number of
                                               above, on how much of the information                                       estimating the reporting burden.                         children in foster care on September 30,
                                               proposed in this SNPRM state title IV–                                         ACF added the bullets above and                       2014 (415,129) by an estimated average
                                               E agencies currently have in their                                          estimate the number of annual                            caseload of 25 cases per worker to arrive
                                               electronic or paper case files or                                           recordkeeping and reporting burden                       at an estimate of 16,605 workers to be
                                               information system or have ready access                                     hours that workers will spend on ICWA-                   trained. ACF divided this number
                                               to, while taking into account that some                                     related AFCARS requirements in the                       (16,605) by 52 to account for average
                                               of the elements may require more effort                                     out-of-home care reporting population                    workers per state title IV–E agency, and
                                               to gather the information if it is not                                      annually will be 192,285 hours (132,373                  arrived at 319 workers. ACF multiplied
                                               readily accessible.                                                         + 59,600 + 312 = 192,285). Dividing this                 the workers (319) by the number of
                                                  • Gathering the information for and                                      annual figure by the 52 state title IV–E                 estimated hours to complete training (4
                                               entering the ICWA-related data elements                                     agencies, ACF arrived at approximately                   hours) to arrive at 1,276 burden hours
                                               that apply to all children who enter                                        3,698 average burden hours per                           to train personnel per state title IV–E
                                               foster care on average will take                                            respondent per year for the ICWA-                        agency on the new AFCARS
                                               approximately 132,373 annual burden                                         related information in the AFCARS out-                   requirements. ACF added the burden
                                               hours. (0.5 hours × 264,746 children                                        of-home care data file. (192,285 ÷ 52                    hours above (1,636 hours) and
                                               who entered foster care = 132,373                                           title IV–E agencies = 3,697.79 average                   multiplied by 52 state title IV–E
                                               annual burden hours for all children in                                     burden hours per respondent per year.)                   agencies, which results in a one-time
                                               the out-of-home care reporting                                                 One-Time Burden Estimate: ACF                         burden of 85,072 hours (1,636 × 52 =
                                               population)                                                                 estimated the one-time burden by                         85,072 one-time burden hours).
                                                  • Gathering the information for and                                      adding up the time spent on the
                                               entering the ICWA-related data elements                                                                                              Total Burden Cost
                                                                                                                           activities described below and
                                               that apply to children in foster care who                                                                                               ACF used a total cost and burden
                                                                                                                           multiplying it by the 52 state title IV–
                                               are covered by ICWA, on average will                                                                                                 hour estimates to provide additional
                                                                                                                           E agencies to arrive at the one-time
                                               take 59,600 annual burden hours. (10                                                                                                 detail on projected average cost for each
                                                                                                                           burden hours. The one-time burden
                                               hours × 5,960 children who enter foster                                     estimates represent the work associated
                                                                                                                                                                                    state title IV–E agency implementing the
                                               care with a race reported as American                                                                                                changes described in this SNPRM. Once
                                                                                                                           with the activities described below. As
                                               Indian or Alaska Native = 59,600 annual                                                                                              the burden hours were determined, ACF
                                                                                                                           stated above, ACF came to these
                                               burden hours for children in the out-of-                                                                                             developed an estimate of the associated
                                                                                                                           estimates by using average estimates for
                                               home care reporting population who are                                                                                               cost for state title IV–E agencies to
                                                                                                                           revising a SACWIS, which is the best
                                               covered by ICWA). ACF estimated that                                                                                                 conduct these activities, as applicable.
                                                                                                                           information available. It is also
                                               it would take a state title IV–E agency                                                                                              Based on our assumptions above, ACF
                                                                                                                           important to note that states will have
                                               on average 10 hours annually to gather                                                                                               used an average labor rate of $38.12 and
                                                                                                                           the option of updating their systems in
                                               and input the ICWA-related data                                                                                                      doubled this rate to account for
                                                                                                                           a streamlined manner since ACF plans
                                               elements that apply to children in foster                                                                                            overhead costs ($76.24). Based on these
                                                                                                                           to issue the final rules for new AFCARS
                                               care who are covered by ICWA. ACF                                                                                                    rates, ACF estimated the cost for one-
                                                                                                                           regulations and for child welfare
                                               estimated this by assuming that a state                                                                                              time burden to be $6,485,889.28 (85,072
                                                                                                                           information systems.
                                               title IV–E agency would be gathering                                                                                                 one-time hours × $76.24 hourly cost/
                                               and inputting information for                                                  • Modifying procedures and systems                    overhead = $6,485,889.28) and ACF
                                               approximately 14 of the proposed data                                       (including developing or acquiring                       estimated the cost for annual burden to
                                               elements for an average foster care                                         technology) to collect, validate, verify,                be $14,659,808.40 (192,285 annual
                                               episode, if the child is not transferred                                    process, and report the information to                   hours × $76.24 hourly cost =
                                               and there is no TPR or adoption. In                                         ACF on average will take approximately                   $14,659,808.40). Dividing these costs by
                                               cases where the child is transferred,                                       130 burden hours.                                        52 state title IV–E agencies, ACF
                                               ACF estimated that the burden would                                            • Adjustments to the existing ways to                 estimated the average cost per state title
                                               decrease because the agency would have                                      comply with AFCARS, developing                           IV–E agency to be $124,728.64 one-time
                                               fewer data elements to complete and the                                     technology and systems to collect and                    and $281,919.39 annually. Federal
                                               burden would increase in cases where                                        process data on average will take                        reimbursement under title IV–E will be
                                               there is a TPR and the child is adopted                                     approximately 200 burden hours.                          available for a portion of the costs that
                                               because there would be more data                                               • The administrative tasks associated                 title IV–E agencies will incur as a result
                                               elements that the agency would have to                                      with training personnel on the new                       of the revisions proposed in this rule,
                                               complete.                                                                   AFCARS requirements of this SNPRM                        depending on each agency’s cost
                                                  • Extracting and submitting the                                          which include reviewing instructions,                    allocation plan, information system, and
                                               information to ACF for AFCARS                                               including training development and                       other factors.
Lhorne on DSK5TPTVN1PROD with PROPOSALS




                                                                                                                                                                 Average                                            Net average
                                                                                                                                                               hourly labor     Total cost       Number of
                                                                                                                                                Hours                                                                 cost per
                                                                                                                                                               rate + over-     nationwide      respondents         respondent
                                                                                                                                                                   head

                                               Total One-Time Burden .......................................................................        85,072            $76.24   $6,485,889.28              52   $124,728.64 One-Time.
                                               Total Annual recordkeeping and reporting burden ..............................                      192,285             76.24   14,659,808.40              52   281,919.39 Annually.




                                          VerDate Sep<11>2014         15:16 Apr 06, 2016         Jkt 238001       PO 00000       Frm 00038     Fmt 4702   Sfmt 4702   E:\FR\FM\07APP1.SGM    07APP1


                                                                        Federal Register / Vol. 81, No. 67 / Thursday, April 7, 2016 / Proposed Rules                                             20299

                                                  In the above estimates, ACF                          we did not receive suggestions from                       (i) Data elements related to the Indian
                                               acknowledges: (1) ACF has used average                  tribal representatives during the call. A              Child Welfare Act (ICWA)—(1)
                                               figures for state title IV–E agencies of                few tribal representatives indicated that              Definitions. Unless otherwise specified,
                                               very different sizes and of which, some                 they would comment on the data                         the following terms as they appear in
                                               states may have larger populations of                   elements through the SNPRM when it is                  this paragraph (i) are defined as follows:
                                               tribal children served than other states,               issued.                                                   Child custody proceeding has the
                                               (2) these are rough estimates of the                       We also stated in section IV of this                same meaning as in 25 U.S.C. 1903(1).
                                               burden because state title IV–E agencies                SNPRM that we analyzed comments to                        Extended family member has the
                                               have not been required previously to                    the Feb. 2015 AFCARS NPRM that                         same meaning as in 25 U.S.C. 1903(2).
                                               report ICWA-related information in                      spoke to ICWA-related data elements to                    Indian has the same meaning as in 25
                                               AFCARS, and (3) as described, ACF has                   help inform this SNPRM. We received                    U.S.C. 1903(3).
                                               limited information to use in making                    45 comments that spoke to including                       Indian child has the same meaning as
                                               these estimates. ACF welcomes                           new data elements in AFCARS related                    in 25 U.S.C. 1903(4).
                                               comments on these factors and all                       to ICWA; a majority of which were from                    Indian child’s tribe has the same
                                               others in this section.                                 tribes/tribal organizations. The                       meaning as in 25 U.S.C. 1903(5).
                                                  ACF will consider comments by the                    commenters recommended data                               Indian custodian has the same
                                               public on this proposed collection of                   elements that provide basic information                meaning as in 25 U.S.C. 1903(6).
                                               information in the following areas:                     about the applicability of ICWA for                       Indian organization has the same
                                                  1. Evaluating whether the proposed                   children in out-of-home care, including:               meaning as in 25 U.S.C. 1903(7).
                                               collection is necessary for the proper                                                                            Indian tribe has the same meaning as
                                                                                                       Identification of American Indian and
                                               performance of the functions of ACF,                                                                           in 25 U.S.C. 1903(8).
                                                                                                       Alaskan Native children and their
                                               including whether the information will                                                                            Parent has the same meaning as in 25
                                                                                                       family structure, tribal notification and
                                               have practical utility;                                                                                        U.S.C. 1903(9).
                                                                                                       intervention in state court proceedings,
                                                  2. Evaluating whether the proposed                                                                             Reservation has the same meaning as
                                                                                                       the relationship of the foster parents and
                                               collection is sufficient to assess and                                                                         in 25 U.S.C. 1903(10).
                                                                                                       other providers to the child, decisions to                Tribal court has the same meaning as
                                               serve the unique needs of AI/AN                         place a child in out-of-home care
                                               children under the placement and care                                                                          in 25 U.S.C. 1903(12).
                                                                                                       (including data on active efforts and                     (2) For all children in the out-of-home
                                               of title IV–E agencies;                                 continued custody), whether a
                                                  3. Evaluating the accuracy of ACF’s                                                                         care reporting population per
                                                                                                       placement was licensed by an Indian                    § 1355.41(a), the state title IV–E agency
                                               estimate of the burden of the proposed                  tribe, whether the placement
                                               collection of information, including the                                                                       must complete the data elements in
                                                                                                       preferences in ICWA were followed, and                 paragraphs (i)(3) through (5) of this
                                               validity of the methodology and                         termination of parental rights (both
                                               assumptions used;                                                                                              section. If the state title IV–E agency
                                                                                                       voluntary and involuntary).                            responds with ‘‘yes’’ to the data
                                                  4. Enhancing the quality, usefulness,
                                               and clarity of the information to be                    List of Subjects in 45 CFR Part 1355                   elements in paragraph (i)(4) or (5) of this
                                               collected; and                                                                                                 section, then the agency must complete
                                                  5. Minimizing the burden of the                        Adoption and foster care, Child                      the remaining applicable paragraphs
                                               collection of information on those who                  welfare, Grant programs—social                         (i)(6) through (29) of this section.
                                               are to respond, including through the                   programs.                                                 (3) Identifying an ‘‘Indian Child’’
                                               use of appropriate automated,                           (Catalog of Federal Domestic Assistance                under the Indian Child Welfare Act.
                                               electronic, mechanical, or other                        Program Number 93.658, Foster Care                     Indicate whether the state title IV–E
                                               technology, e.g., permitting electronic                 Maintenance; 93.659, Adoption Assistance;              agency researched whether there is a
                                                                                                       93.645, Child Welfare Services—State                   reason to know that the child is an
                                               submission of responses.
                                                                                                       Grants).
                                                  OMB is required to make a decision                                                                          Indian child under ICWA in each
                                               concerning the collection of information                Mark H. Greenberg,                                     paragraph (i)(3)(i) through (viii) of this
                                               contained in these proposed regulations                 Acting Assistant Secretary for Children and            section.
                                               between 30 and 60 days after                            Families.                                                 (i) Indicate whether the state agency
                                               publication of this document in the                       Approved: February 17, 2016.                         inquired with the child’s biological or
                                               Federal Register. Therefore, a comment                  Sylvia M. Burwell,                                     adoptive mother. Indicate ‘‘yes,’’ ‘‘no’’
                                               is best assured of having its full effect               Secretary.                                             or ‘‘the biological or adoptive mother is
                                               if OMB receives it within 30 days of                                                                           deceased.’’
                                               publication. This does not affect the                     For the reasons set forth in the                        (ii) Indicate whether the biological or
                                               deadline for the public to comment to                   preamble, 45 CFR part 1355 as proposed                 adoptive mother is a member of an
                                               the Department on the proposed                          to be amended on February 9, 2015 (80                  Indian tribe. Indicate ‘‘yes,’’ ‘‘no’’ or
                                               regulations. Written comments to OMB                    FR 7132), is proposed to be further                    ‘‘unknown.’’
                                               for the proposed information collection                 amended as follows:                                       (iii) Indicate whether the state agency
                                               should be sent directly to the following:                                                                      inquired with the child’s biological or
                                                                                                       PART 1355—GENERAL                                      adoptive father. Indicate ‘‘yes,’’ ‘‘no,’’ or
                                               Office of Management and Budget,
                                               either by fax to 202–395–6974 or by                                                                            ‘‘the biological or adoptive father is
                                                                                                       ■ 1. The authority citation for part 1355
                                               email to OIRA_submission@                                                                                      deceased.’’
                                                                                                       continues to read as follows:                             (iv) Indicate whether the biological or
                                               omb.eop.gov. Please mark faxes and
Lhorne on DSK5TPTVN1PROD with PROPOSALS




                                               emails to the attention of the desk                       Authority: 42 U.S.C. 620 et seq., 42 U.S.C.          adoptive father is a member of an Indian
                                               officer for ACF.                                        670 et seq.; 42 U.S.C. 1302.                           tribe. Indicate ‘‘yes,’’ ‘‘no,’’ or
                                                                                                       ■ 2. Amend § 1355.43 by adding                         ‘‘unknown.’’
                                               VII. Tribal Consultation Statement                                                                                (v) Indicate whether the state agency
                                                                                                       paragraph (i) to read as follows:
                                                  As we stated in section IV of this                                                                          inquired with the child’s Indian
                                               SNPRM, we held one Tribal                               § 1355.43 Out-of-home care data file                   custodian, if the child has one. Indicate
                                               consultation session via a                              elements.                                              ‘‘yes,’’ or ‘‘no’’ or ‘‘child does not have
                                               teleconference call on May 1, 2015 and                  *       *     *       *      *                         an Indian custodian.’’


                                          VerDate Sep<11>2014   15:16 Apr 06, 2016   Jkt 238001   PO 00000   Frm 00039   Fmt 4702   Sfmt 4702   E:\FR\FM\07APP1.SGM   07APP1


                                               20300                    Federal Register / Vol. 81, No. 67 / Thursday, April 7, 2016 / Proposed Rules

                                                  (vi) Indicate whether the state agency               case to the tribal court of the Indian                    (12) Indicate whether the court found,
                                               inquired with the child who is the                      child’s tribe, in accordance with 25                   in a court order, that the state title IV–
                                               subject of the proceeding. Indicate ‘‘yes’’             U.S.C. 1911(b), at any point during the                E agency made active efforts to prevent
                                               or ‘‘no.’’                                              report period. Indicate ‘‘yes’’ or ‘‘no.’’ If          the breakup of the Indian family for the
                                                  (vii) Indicate whether the child is a                the state title IV–E agency indicated                  most recent removal reported in
                                               member of or eligible for membership in                 ‘‘yes,’’ then the state title IV–E agency              paragraph (d) of this section and that
                                               an Indian tribe. Indicate ‘‘yes,’’ ‘‘no,’’ or           must complete the data element in                      these efforts were unsuccessful in
                                               ‘‘unknown.’’                                            paragraph (i)(7) of this section. If the               accordance with 25 U.S.C. 1912(d).
                                                  (viii) Indicate whether the domicile or              state title IV–E agency indicated ‘‘no,’’              Indicate ‘‘yes’’ or ‘‘no.’’
                                               residence of the child, parent, or the                  the state title IV–E agency must leave                    (13) Indicate the active efforts that the
                                               Indian custodian is known by the                        the data element in paragraph (i)(7) of                state title IV–E agency made to prevent
                                               agency to be, or is shown to be, on an                  this section blank.                                    the breakup of the Indian family in
                                               Indian reservation. Indicate ‘‘yes’’ or                    (7) If the state court denied the                   accordance with 25 U.S.C. 1912(d).
                                               ‘‘no.’’                                                 request to transfer the case to tribal                 Indicate ‘‘yes’’ or ‘‘no’’ for each
                                                  (4) Application of ICWA. Indicate                    court, indicate whether there is a court               paragraph (i)(13)(i) through (xi) and
                                               whether the state title IV–E agency                     order that indicates the reason(s) why                 (xiii) of this section. Indicate ‘‘yes,’’
                                               knows or has reason to know that the                    the case was not transferred to the tribal             ‘‘no’’ or ‘‘N/A’’ for paragraph (i)(13)(xii)
                                               child is an Indian child as defined by                  court. Indicate ‘‘yes’’ or ‘‘no.’’ If the title        of this section.
                                               ICWA. Indicate ‘‘yes’’ or ‘‘no.’’ If the                IV–E agency indicated ‘‘yes,’’ then the                   (i) Identify appropriate services to
                                               state title IV–E agency indicated ‘‘yes,’’              title IV–E agency must indicate whether                help the parent.
                                               the state title IV–E agency must                        each reason in each paragraphs (i)(7)(i)                  (ii) Actively assist the parent to obtain
                                               complete the data elements in                           through (iii) of this section is in the                services.
                                               paragraphs (i)(4)(i) and (ii) of this                   court order by indicating ‘‘yes’’ or ‘‘no.’’              (iii) Invite representatives of the
                                               section. If the state title IV–E agency                 If the state title IV–E agency indicates               Indian child’s tribe to participate in the
                                               indicated ‘‘no,’’ the state title IV–E                  ‘‘no,’’ the title IV–E agency must leave               proceedings.
                                               agency must leave the data elements in                  the data elements in paragraphs (i)(7)(i)                 (iv) Complete a comprehensive
                                               paragraphs (i)(4)(i) and (ii) of this                   through (iii) of this section blank.                   assessment of the family.
                                               section blank.                                             (i) Either of the parents objected to                  (v) Focus on safe reunification as the
                                                  (i) Indicate the date that the state title           transferring the case to the tribal court.             goal for the Indian child.
                                               IV–E agency discovered the information                     (ii) The tribal court declined the                     (vi) Consult with extended family
                                               that indicates that the child is or may be              transfer to the tribal court.                          members to provide support for the
                                               an Indian child.                                           (iii) The state court found good cause              Indian child.
                                                  (ii) Indicate the name(s) of all                     not to transfer the case to the tribal                    (vii) Arrange for family interaction in
                                               federally recognized Indian tribe(s) that               court.                                                 most natural setting safely possible.
                                               may potentially be the Indian child’s                      (8) Notification. (i) Indicate whether                 (viii) Monitor progress and
                                               tribe(s).                                               the Indian child’s parent or Indian                    participation in services to reunite the
                                                  (5) Indicate whether a court order                   custodian was given legal notice more                  Indian family.
                                               indicates that the court found that                     than 10 days prior to of the first child                  (ix) Consider alternative ways of
                                               ICWA applies. Indicate ‘‘yes, ICWA                      custody proceeding in accordance with                  addressing the needs of the Indian
                                               applies,’’ ‘‘no, ICWA does not apply,’’ or              25 U.S.C. 1912(a). Indicate ‘‘yes’’ or                 child’s parent and extended family if
                                               ‘‘no court finding.’’ If the state title IV–            ‘‘no.’’                                                services do not exist or are not available.
                                               E agency indicated ‘‘yes, ICWA                             (ii) Indicate whether the Indian                       (x) Support regular visits and trial
                                               applies,’’ the state title IV–E agency                  child’s tribe(s) was given legal notice                home visits consistent with ensuring the
                                               must complete paragraphs (i)(5)(i) and                  more than 10 days prior to the first child             Indian child’s safety.
                                               (ii) of this section. If the state title IV–            custody proceeding in accordance with                     (xi) Conduct or cause to be conducted
                                               E agency indicated ‘‘no, ICWA does not                  25 U.S.C. 1912(a). Indicate ‘‘yes’’, ‘‘no’’            a diligent search for the Indian child’s
                                               apply,’’ the state title IV–E agency must               or ‘‘the child’s Indian tribe is                       extended family members for assistance
                                               complete the data element in paragraph                  unknown.’’                                             and possible placement.
                                               (i)(5)(i) of this section and leave the data               (9) Indicate the name(s) of the Indian                 (xii) Keep siblings together.
                                               element in paragraph (i)(5)(ii) of this                 tribe(s) that were sent notice for a child                (xiii) Other.
                                               section blank. If the state title IV–E                  custody proceeding as required in ICWA                    (14) Removals. Indicate ‘‘yes’’ or ‘‘no’’
                                               agency indicated ‘‘no court finding,’’ the              at 25 U.S.C. 1912(a).                                  for paragraphs (i)(14)(i) and (ii) of this
                                               state title IV–E agency must leave the                     (10) If the tribe(s) requested additional           section: (i) Indicate whether the court
                                               data elements in paragraphs (i)(5)(i) and               information, indicate whether the state                found by clear and convincing evidence,
                                               (ii) of this section blank.                             title IV–E agency replied with the                     in a court order, that continued custody
                                                  (i) Indicate the date of the court                   additional information that the Indian                 of the Indian child by the parent or
                                               finding.                                                tribe(s) requested. If the tribe did not               Indian custodian was likely to result in
                                                  (ii) Indicate the name of the Indian                 request additional information, indicate               serious emotional or physical damage to
                                               tribe(s) that the court found is the                    ‘‘does not apply.’’ Otherwise, indicate                the Indian child in accordance with 25
                                               Indian child’s tribe, if listed on the court            ‘‘yes’’ or ‘‘no.’’                                     U.S.C. 1912(e). (ii) Indicate whether the
                                               order. If a name is not listed on the                      (11) Active efforts to prevent removal              court finding reported for this paragraph
Lhorne on DSK5TPTVN1PROD with PROPOSALS




                                               court order, the state title IV–E agency                and reunify with Indian family. Indicate               (i)(14), indicates that the state court’s
                                               must indicate ‘‘no name listed.’’                       the date that the state title IV–E agency              finding was supported by the testimony
                                                  (6) Transfer to tribal court. Indicate               began making active efforts to prevent                 of a qualified expert witness in
                                               whether there is a court order that                     the breakup of the Indian family for the               accordance with 25 U.S.C. 1912(e).
                                               indicates that the Indian child’s parent,               most recent removal reported in                           (15) Foster care and pre-adoptive
                                               Indian custodian, or Indian child’s tribe               paragraph (d) of this section of the                   placement preferences. Indicate which
                                               requested, orally on the record or in                   Indian child in accordance with 25                     foster care or pre-adoptive placements
                                               writing, that the state court transfer the              U.S.C. 1912(d).                                        that meet the placement preferences of


                                          VerDate Sep<11>2014   15:16 Apr 06, 2016   Jkt 238001   PO 00000   Frm 00040   Fmt 4702   Sfmt 4702   E:\FR\FM\07APP1.SGM   07APP1


                                                                        Federal Register / Vol. 81, No. 67 / Thursday, April 7, 2016 / Proposed Rules                                                 20301

                                               ICWA in 25 U.S.C. 1915(b) were                             (iii) The unavailability of a suitable              complete the data element in paragraphs
                                               available to accept placement. Indicate                 placement that meets the placement                     (i)(26) through (29) of this section. If the
                                               in each paragraph (i)(15)(i) through (v)                preferences in ICWA at 25 U.S.C. 1915.                 state title IV–E agency indicated ‘‘no,’’
                                               of this section ‘‘yes’’ or ‘‘no.’’                         (iv) The extraordinary physical or                  the state title IV–E agency must leave
                                                  (i) A member of the Indian child’s                   emotional needs of the Indian child.                   the data element in paragraphs (i)(26)
                                               extended family.                                           (v) Other.                                          through (29) of this section blank.
                                                  (ii) A foster home licensed, approved,                  (19) Termination of parental rights.                   (26) Indicate which adoptive
                                               or specified by the Indian child’s tribe.               Indicate whether the termination of                    placements that meet the placement
                                                  (iii) An Indian foster home licensed or              parental or Indian custodian rights was                preferences in ICWA at 25 U.S.C.
                                               approved by an authorized non-Indian                    voluntary or involuntary. Indicate                     1915(a) were willing to accept
                                               licensing authority.                                    ‘‘voluntary’’ or ‘‘involuntary.’’ If the               placement. Indicate in each paragraphs
                                                  (iv) An institution for children                     state title IV–E agency indicated                      (i)(26)(i) through (iv) of this section
                                               approved by an Indian tribe or operated                 ‘‘voluntary’’, the state title IV–E agency             ‘‘yes’’ or ‘‘no.’’
                                               by an Indian organization which has a                   must leave the data elements in                           (i) A member of the Indian child’s
                                               program suitable to meet the Indian                     paragraphs (i)(20) and (21) of this                    extended family.
                                               child’s needs.                                          section blank. If the state title IV–E                    (ii) Other members of the Indian
                                                  (v) A placement that complies with                   agency indicated ‘‘involuntary’’, the                  child’s tribe.
                                               the order of preference for foster care or              state title IV–E agency must leave the                    (iii) Other Indian families.
                                               pre-adoptive placements established by                  data elements in paragraphs (i)(22)                       (iv) A placement that complies with
                                               an Indian child’s tribe, in accordance                  through (24) of this section blank.                    the order of preference for foster care or
                                               with 25 U.S.C. 1915(c).                                    (20) Indicate whether, prior to                     pre-adoptive placements established by
                                                  (16) For the Indian child’s current                  ordering an involuntary termination of                 an Indian child’s tribe, in accordance
                                               foster care or pre-adoptive placement as                parental rights, the state court found                 with 25 U.S.C. 1915(c).
                                               of the end of the report period per                     beyond a reasonable doubt, in a court                     (27) Indicate whether the placement
                                               paragraph (e) of this section, indicate                 order, that continued custody of the                   reported in paragraph (h) of this section
                                               whether the placement meets the                         Indian child by the parent or Indian                   meets the placement preferences of
                                               placement preferences of ICWA in 25                     custodian is likely to result in serious               ICWA in 25 U.S.C. 1915(a) by indicating
                                               U.S.C. 1915(b) by indicating with whom                  emotional or physical damage to the                    with whom the Indian child is placed.
                                               the Indian child is placed. Indicate ‘‘a                Indian child in accordance with 25                     Indicate ‘‘a member of the Indian child’s
                                               member of the Indian child’s extended                   U.S.C. 1912(f). Indicate ‘‘yes’’ or ‘‘no.’’            extended family,’’ ‘‘other members of
                                               family,’’ ‘‘a foster home licensed,                        (21) Indicate whether the court                     the Indian child’s tribe,’’ ‘‘other Indian
                                               approved, or specified by the Indian                    finding reported for paragraph (i)(20) of              families,’’ ‘‘a placement that complies
                                               child’s tribe,’’ ‘‘an Indian foster home                this section, indicates that the state                 with the order of preference for foster
                                               licensed or approved by an authorized                   court’s finding was supported by the                   care or pre-adoptive placements
                                               non-Indian licensing authority,’’ ‘‘an                  testimony of a qualified expert witness                established by an Indian child’s tribe, in
                                               institution for children approved by an                 in accordance with 25 U.S.C. 1912(f).                  accordance with 25 U.S.C. 1915(c),’’ or
                                               Indian tribe or operated by an Indian                   Indicate ‘‘yes’’ or ‘‘no.’’                            ‘‘none.’’
                                               organization which has a program                           (22) If voluntary, indicate whether                    (28) If the placement preferences for
                                               suitable to meet the Indian child’s                     there is a court order that indicates that             adoption were not followed, indicate
                                               needs,’’ ‘‘a placement that complies                    the voluntary consent to termination for               whether the court made a finding of
                                               with the order of preference for foster                 the biological or adoptive mother was                  good cause, on a court order, to place
                                               care or pre-adoptive placements                         made in writing and recorded in the                    the Indian child with someone who is
                                               established by an Indian child’s tribe, in              presence of a judge in accordance with                 not listed in the placement preferences
                                               accordance with 25 U.S.C. 1915(c)’’ or                  25 U.S.C. 1913. Indicate ‘‘yes,’’ ‘‘no,’’ or           of ICWA in 25 U.S.C. 1915(a) or the
                                               ‘‘none.’’                                               ‘‘does not apply’’ if the mother is                    placement preferences of the Indian
                                                  (17) If the placement preferences for                deceased.                                              child’s tribe. Indicate ‘‘yes’’ or ‘‘no.’’ If
                                               foster care or pre-adoptive placements                     (23) If voluntary, indicate whether                 the state title IV–E agency indicated
                                               were not followed, indicate whether the                 there is a court order that indicates that             ‘‘yes,’’ then the state title IV–E agency
                                               court made a finding of good cause, on                  the voluntary consent to termination for               must complete the data element in
                                               a court order, to place the Indian child                the biological or adoptive father was                  paragraph (i)(29) of this section. If the
                                               with someone who is not listed in the                   made in writing and recorded in the                    state title IV–E agency indicated ‘‘no,’’
                                               placement preferences of ICWA in 25                     presence of a judge in accordance with                 then the state title IV–E agency must
                                               U.S.C. 1915(b) or the placement                         25 U.S.C. 1913. Indicate ‘‘yes,’’ ‘‘no’’ or            leave the data element in paragraph
                                               preferences of the Indian child’s tribe.                ‘‘does not apply’’ if the father is                    (i)(29) of this section blank.
                                               Indicate ‘‘yes’’ or ‘‘no.’’ If the state title          deceased.                                                 (29) Indicate whether there is a court
                                               IV–E agency indicated ‘‘yes,’’ then the                    (24) If voluntary, indicate whether                 order that indicates the court’s basis for
                                               state title IV–E agency must complete                   there is a court order that indicates that             the finding of good cause, by indicating
                                               the data element in paragraph (i)(18) of                the voluntary consent to termination for               ‘‘yes’’ or ‘‘no’’ in each paragraph
                                               this section. If the state title IV–E agency            the Indian custodian was made in                       (i)(29)(i) through (v) of this section.
                                               indicated ‘‘no,’’ then the state title IV–              writing and recorded in the presence of                   (i) Request of the biological parents.
                                               E agency must leave the data element in                 a judge in accordance with 25 U.S.C.                      (ii) Request of the Indian child.
                                                                                                                                                                 (iii) The unavailability of a suitable
Lhorne on DSK5TPTVN1PROD with PROPOSALS




                                               paragraph (i)(18) of this section blank.                1913. Indicate ‘‘yes,’’ ‘‘no’’ or ‘‘does not
                                                  (18) Indicate the state court’s basis for            apply’’ if there is no Indian custodian.               placement that meets the placement
                                               the finding of good cause, as indicated                    (25) Adoption proceedings. Indicate                 preferences in ICWA at 25 U.S.C. 1915.
                                               on the court order, by indicating ‘‘yes’’               whether the Indian child exited foster                    (iv) The extraordinary physical or
                                               or ‘‘no’’ in each paragraph (i)(18)(i)                  care to adoption per paragraph (g) of                  emotional needs of the Indian child.
                                                                                                       this section. Indicate ‘‘yes’’ or ‘‘no.’’ If              (v) Other.
                                               through (v) of this section.
                                                  (i) Request of the biological parents.               the state title IV–E agency indicated                  [FR Doc. 2016–07920 Filed 4–5–16; 8:45 am]
                                                  (ii) Request of the Indian child.                    ‘‘yes,’’ the state title IV–E agency must              BILLING CODE P




                                          VerDate Sep<11>2014   15:16 Apr 06, 2016   Jkt 238001   PO 00000   Frm 00041   Fmt 4702   Sfmt 9990   E:\FR\FM\07APP1.SGM   07APP1



Document Created: 2016-04-06 23:43:46
Document Modified: 2016-04-06 23:43:46
CategoryRegulatory Information
CollectionFederal Register
sudoc ClassAE 2.7:
GS 4.107:
AE 2.106:
PublisherOffice of the Federal Register, National Archives and Records Administration
SectionProposed Rules
ActionSupplemental notice of proposed rulemaking.
DatesSubmit written or electronic comments on this Supplemental Notice of Proposed Rulemaking on or before May 9, 2016.
ContactKathleen McHugh, United States Department of Health and Human Services, Administration for Children and Families, Director, Policy Division. To contact Kathleen McHugh,
FR Citation81 FR 20283 
RIN Number0970-AC47
CFR AssociatedAdoption and Foster Care; Child Welfare and Grant Programs-Social Programs

2025 Federal Register | Disclaimer | Privacy Policy
USC | CFR | eCFR