Adoption and Foster Care Analysis and Reporting System, 20283-20301 [2016-07920]

Download as PDF Federal Register / Vol. 81, No. 67 / Thursday, April 7, 2016 / Proposed Rules List of Subjects in 40 CFR Part 300 Environmental protection, Air pollution control, Chemicals, Hazardous substances, Hazardous waste, Intergovernmental relations, Natural resources, Oil pollution, Penalties, Reporting and recordkeeping requirements, Superfund, Water pollution control, Water supply. Authority: 33 U.S.C. 1321(d); 42 U.S.C. 9601–9657; E.O. 13626, 77 FR 56749, 3CFR, 2013 Comp., p. 306; E.O. 12777, 56 FR 54757, 3 CFR, 1991 Comp., p.351; E.O. 12580, 52 FR 2923, 3 CFR, 1987 Comp., p.193. Dated: March 28, 2016. Mathy Stanislaus, Assistant Administrator, Office of Land and Emergency Management. [FR Doc. 2016–07671 Filed 4–6–16; 8:45 am] BILLING CODE 6560–50–P DEPARTMENT OF HEALTH AND HUMAN SERVICES Administration for Children and Families 45 CFR Part 1355 RIN 0970–AC47 Adoption and Foster Care Analysis and Reporting System 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. AGENCY: 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 outof-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 Lhorne on DSK5TPTVN1PROD with PROPOSALS SUMMARY: VerDate Sep<11>2014 15:16 Apr 06, 2016 Jkt 238001 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/. 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: cbcomments@acf.hhs.gov. 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: PO 00000 Frm 00023 Fmt 4702 Sfmt 4702 20283 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 E:\FR\FM\07APP1.SGM 07APP1 20284 Federal Register / Vol. 81, No. 67 / Thursday, April 7, 2016 / Proposed Rules Lhorne on DSK5TPTVN1PROD with PROPOSALS 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 reexamined 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 selfsufficiency. 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 VerDate Sep<11>2014 15:16 Apr 06, 2016 Jkt 238001 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 PO 00000 Frm 00024 Fmt 4702 Sfmt 4702 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 casespecific 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’’ E:\FR\FM\07APP1.SGM 07APP1 Lhorne on DSK5TPTVN1PROD with PROPOSALS Federal Register / Vol. 81, No. 67 / Thursday, April 7, 2016 / Proposed Rules (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 overrepresented 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 overrepresentation 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 ICWArelated 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 VerDate Sep<11>2014 15:16 Apr 06, 2016 Jkt 238001 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 PO 00000 Frm 00025 Fmt 4702 Sfmt 4702 20285 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 (GenI), ‘‘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/ E:\FR\FM\07APP1.SGM 07APP1 20286 Federal Register / Vol. 81, No. 67 / Thursday, April 7, 2016 / Proposed Rules Lhorne on DSK5TPTVN1PROD with PROPOSALS 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 selfdetermination. Indian Tribes exercise inherent sovereign powers over their citizens and territory. The U.S. shall continue to work with Indian Tribes on a government-togovernment basis to address issues concerning Tribal self-government, Tribal trust resources, Tribal treaties and other rights.’’ VerDate Sep<11>2014 15:16 Apr 06, 2016 Jkt 238001 ‘‘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 selfgovernment 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 ICWArelated data elements in proposed paragraph (i) because ICWA does not apply to placements by Indian tribes. The data elements in § 1355.43(i) are subject to the same compliance and penalty requirements in §§ 1355.45 and 1355.46, respectively, proposed in the PO 00000 Frm 00026 Fmt 4702 Sfmt 4702 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 E:\FR\FM\07APP1.SGM 07APP1 Lhorne on DSK5TPTVN1PROD with PROPOSALS Federal Register / Vol. 81, No. 67 / Thursday, April 7, 2016 / Proposed Rules 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 VerDate Sep<11>2014 15:16 Apr 06, 2016 Jkt 238001 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 ICWArelated regulations, including AFCARS. As part of on-going intra- and interagency 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). PO 00000 Frm 00027 Fmt 4702 Sfmt 4702 20287 After considering all of the aforementioned input, ACF proposes the addition of paragraph (i) to § 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 casespecific 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 datainformed 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 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 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 § 1355.43(i) are subject to the same compliance and penalty requirements in §§ 1355.45 and 1355.46, respectively, proposed in the February 2015 AFCARS NPRM (80 FR 7187–7192 and 7220– 7221). Lhorne on DSK5TPTVN1PROD with PROPOSALS 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- VerDate Sep<11>2014 15:16 Apr 06, 2016 Jkt 238001 of-home care reporting population per § 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 PO 00000 Frm 00028 Fmt 4702 Sfmt 4702 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 E:\FR\FM\07APP1.SGM 07APP1 Federal Register / Vol. 81, No. 67 / Thursday, April 7, 2016 / Proposed Rules Lhorne on DSK5TPTVN1PROD with PROPOSALS (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 VerDate Sep<11>2014 15:16 Apr 06, 2016 Jkt 238001 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 PO 00000 Frm 00029 Fmt 4702 Sfmt 4702 20289 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 ICWArelated AFCARS data element will provide data on the extent to which E:\FR\FM\07APP1.SGM 07APP1 20290 Federal Register / Vol. 81, No. 67 / Thursday, April 7, 2016 / Proposed Rules Lhorne on DSK5TPTVN1PROD with PROPOSALS 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 VerDate Sep<11>2014 15:16 Apr 06, 2016 Jkt 238001 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 preadoptive 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 PO 00000 Frm 00030 Fmt 4702 Sfmt 4702 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 E:\FR\FM\07APP1.SGM 07APP1 20291 Federal Register / Vol. 81, No. 67 / Thursday, April 7, 2016 / Proposed Rules 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 § 1355.43(g). In paragraph (i)(25), the state title IV– E agency must indicate whether the child exited foster care to adoption per § 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 § 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 ICWAplacement 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 Identifying an ‘‘Indian Child’’ under the Indian Child Welfare Act. These data elements will be reported for all children. 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: • Indicate whether the state agency inquired with the child’s biological or adoptive mother. ................................................... • Indicate whether the biological or adoptive mother is a member of an Indian tribe. Lhorne on DSK5TPTVN1PROD with PROPOSALS • Indicate whether the state agency inquired with the child’s biological or adoptive father. • Indicate whether the biological or adoptive father is a member of an Indian tribe. • Indicate whether the state agency inquired with the child’s Indian custodian, if the child has one. VerDate Sep<11>2014 15:16 Apr 06, 2016 Jkt 238001 PO 00000 Frm 00031 Fmt 4702 Sfmt 4702 Yes. No. The biological or adoptive mother is deceased. Yes. No. Unknown. Yes. No. The biological or adoptive father is deceased. Yes. No. Unknown. Yes. No. Child does not have an Indian custodian. E:\FR\FM\07APP1.SGM 07APP1 Section citation 1355.43(i)(3). 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 • Indicate whether the state agency inquired with the child who is the subject of the proceeding. • Indicate whether the child is a member of or eligible for membership in an Indian tribe. Application of ICWA .................... These data elements will be reported for all children. These data elements will be reported for all children. Transfer to tribal court ................ These data elements and all of those below only apply to Indian children. Notification .................................. Lhorne on DSK5TPTVN1PROD with PROPOSALS Active efforts to prevent removal and reunify with Indian family. VerDate Sep<11>2014 15:16 Apr 06, 2016 • 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 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 the date 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) of all federally recognized Indian tribe(s) identified that may potentially be the Indian child’s tribe(s). Indicate whether a court order indicates that the court found that ICWA applies. • Indicate the date of the court finding ............... • Indicate the name of the Indian tribe(s) that the court found is the Indian child’s tribe, if listed on the court order. 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. 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. • Either of the parents objected to transferring the case to the tribal court. • The tribal court declined the transfer to the tribal court. • The state court found good cause not to transfer the case to the tribal court. Indicate whether the Indian child’s parent or Indian 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 child’s tribe(s) 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 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). 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. 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 § 1355.43(d) of the Indian child in accordance with 25 U.S.C. 1912(d). 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 § 1355.43(d) and that these efforts were unsuccessful in accordance with 25 U.S.C. 1912(d). Jkt 238001 PO 00000 Frm 00032 Fmt 4702 Sfmt 4702 Section citation Yes. No. Yes. No. Unknown. Yes. No. Yes ............................................ No. 1355.43(i)(4). Date.. Name(s).. Yes, ICWA applies ................... No, ICWA does not apply. No court finding. Date. Name(s). No name listed. 1355.43(i)(5). Yes ............................................ No. 1355.43(i)(6). Yes ............................................ No. 1355.43(i)(7). Yes. No. Yes. No. Yes. No. Yes ............................................ No. Yes No. The child’s Indian tribe is unknown. Name(s) .................................... 1355.43(i)(8). 1355.43(i)(9). Yes ............................................ No. Does not apply. 1355.43(i)(10). Date .......................................... 1355.43(i)(11). Yes ............................................ No. 1355.43(i)(12). E:\FR\FM\07APP1.SGM 07APP1 20293 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 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). • Identify appropriate services to help the parent. • Actively assist the parent in obtaining services ................................................... • Invite representatives of the Indian child’s tribe to participate in the proceedings. • Complete a comprehensive assessment of the family. • Focus on safe reunification as the goal for the Indian child. • Consult with extended family members to provide support for the Indian child. • Arrange for family interaction in most natural setting safely possible. • Monitor progress and participation in services to reunite the Indian family. • 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. • Support regular visits and trial home visits consistent with ensuring the Indian child’s safety. • Conduct or cause to be conducted a diligent search for the Indian child’s extended family members for assistance and possible placement. • Keep siblings together ..................................... • Other ................................................................ Removals .................................... Lhorne on DSK5TPTVN1PROD with PROPOSALS Foster care and pre-adoptive placement preferences. VerDate Sep<11>2014 15:16 Apr 06, 2016 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). Indicate 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). Indicate which foster care or 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 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). For the Indian child’s current foster care or preadoptive placement as of the end of the report period per § 1355.43(e), 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. Jkt 238001 PO 00000 Frm 00033 Fmt 4702 Sfmt 4702 Section citation 1355.43(i)(13). Yes. No. Yes. No. Yes. No. Yes. No. Yes. No. Yes. No. Yes. No. Yes. No. Yes. No. Yes. No. Yes. No. Yes. No. N/A. Yes. No. Yes ............................................ No. 1355.43(i)(14). Yes. No. ................................................... 1355.43(i)(15). Yes. No. Yes. No. Yes. No. Yes. No. Yes. No. A member of the Indian child’s extended family. A foster home licensed, approved, or specified by the Indian child’s tribe. E:\FR\FM\07APP1.SGM 07APP1 1355.43(i)(16). 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 If the placement preferences for foster care or preadoptive 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 basis for the finding of good cause, as indicated on the court order. • Request of biological parents .......................... • Request of 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. • Other ................................................................ Lhorne on DSK5TPTVN1PROD with PROPOSALS Termination of parental rights ..... Adoption proceedings ................. VerDate Sep<11>2014 15:16 Apr 06, 2016 Indicate whether the termination of parental (or Indian custodian rights was voluntary or involuntary. Indicate whether, prior to ordering a 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 whether the court finding, reported for 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 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. 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. 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 whether the Indian child exited foster care to adoption per § 1355.43(g). Indicate which adoptive placements that meet the placement preferences in ICWA at 25 U.S.C. 1915(a) were willing to accept placement. Jkt 238001 PO 00000 Frm 00034 Fmt 4702 Sfmt 4702 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. Yes ............................................ No. ................................................... Section citation 1355.43(i)(17). 1355.43(i)(18). Yes. No. Yes. No. Yes. No. Yes. No. Yes. No. Voluntary ................................... Involuntary. Yes ............................................ No. 1355.43(i)(19). 1355.43(i)(20). Yes ............................................ No. 1344.43(i)(21). Yes ............................................ No. Does not apply. 1355.43(i)(22). Yes ............................................ No. Does not apply. 1355.43(i)(23). Yes ............................................ No. Does not apply. 1355.43(i)(24). Yes ............................................ No. ................................................... 1355.43(i)(25). E:\FR\FM\07APP1.SGM 07APP1 1355.43(i)(26). 20295 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 • 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). Indicate whether the placement reported in § 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. 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 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 whether there is a court order that indicates the court’s basis for the finding of good cause. • 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. • Other ................................................................ VI. Regulatory Impact Analysis Lhorne on DSK5TPTVN1PROD with PROPOSALS 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. VerDate Sep<11>2014 15:16 Apr 06, 2016 Jkt 238001 Yes. No. Yes. No. Yes. No. Yes. No. A member of the Indian child’s extended family. Other members of the Indian child’s tribe. 1355.43(i)(27). Yes ............................................ No. 1355.43(i)(28). ................................................... 1355.43(i)(29). Yes. No. Yes. No. Yes. No. Yes. No. Yes. No. 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 PO 00000 Frm 00035 Fmt 4702 Sfmt 4702 Section citation 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 E:\FR\FM\07APP1.SGM 07APP1 Lhorne on DSK5TPTVN1PROD with PROPOSALS 20296 Federal Register / Vol. 81, No. 67 / Thursday, April 7, 2016 / Proposed Rules 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 wellestablished 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 ICWArelated 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 § 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 VerDate Sep<11>2014 15:16 Apr 06, 2016 Jkt 238001 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 PO 00000 Frm 00036 Fmt 4702 Sfmt 4702 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 § 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. E:\FR\FM\07APP1.SGM 07APP1 Federal Register / Vol. 81, No. 67 / Thursday, April 7, 2016 / Proposed Rules Number of respondents Collection Lhorne on DSK5TPTVN1PROD with PROPOSALS Annual Record Keeping and Reporting Burden ............................................ One-Time Burden .......................................................................................... 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. VerDate Sep<11>2014 15:16 Apr 06, 2016 Jkt 238001 52 52 • 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 ICWArelated 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. PO 00000 Frm 00037 Fmt 4702 Sfmt 4702 Number of responses per respondent Average burden per year per respondent 2 1 3,697.79 1,636 20297 Total burden hours 192,285 85,072 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 onetime 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 E:\FR\FM\07APP1.SGM 07APP1 20298 Federal Register / Vol. 81, No. 67 / Thursday, April 7, 2016 / Proposed Rules Lhorne on DSK5TPTVN1PROD with PROPOSALS 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 × 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 × 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-ofhome 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 × 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 ICWArelated 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 ICWArelated information in the AFCARS outof-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 Average hourly labor rate + overhead Hours Total One-Time Burden ....................................................................... Total Annual recordkeeping and reporting burden .............................. VerDate Sep<11>2014 15:16 Apr 06, 2016 Jkt 238001 PO 00000 Frm 00038 85,072 192,285 Fmt 4702 Sfmt 4702 $76.24 76.24 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 × 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 onetime burden to be $6,485,889.28 (85,072 one-time hours × $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 × $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. Total cost nationwide Number of respondents $6,485,889.28 14,659,808.40 E:\FR\FM\07APP1.SGM 07APP1 52 52 Net average cost per respondent $124,728.64 One-Time. 281,919.39 Annually. Lhorne on DSK5TPTVN1PROD with PROPOSALS Federal Register / Vol. 81, No. 67 / Thursday, April 7, 2016 / Proposed Rules 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 OIRA_submission@ omb.eop.gov. 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 VerDate Sep<11>2014 15:16 Apr 06, 2016 Jkt 238001 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 1. The authority citation for part 1355 continues to read as follows: ■ Authority: 42 U.S.C. 620 et seq., 42 U.S.C. 670 et seq.; 42 U.S.C. 1302. 2. Amend § 1355.43 by adding paragraph (i) to read as follows: ■ § 1355.43 Out-of-home care data file elements. * PO 00000 * * Frm 00039 * Fmt 4702 * Sfmt 4702 20299 (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 § 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.’’ E:\FR\FM\07APP1.SGM 07APP1 Lhorne on DSK5TPTVN1PROD with PROPOSALS 20300 Federal Register / Vol. 81, No. 67 / Thursday, April 7, 2016 / Proposed Rules (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 VerDate Sep<11>2014 15:16 Apr 06, 2016 Jkt 238001 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). PO 00000 Frm 00040 Fmt 4702 Sfmt 4702 (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 E:\FR\FM\07APP1.SGM 07APP1 Lhorne on DSK5TPTVN1PROD with PROPOSALS Federal Register / Vol. 81, No. 67 / Thursday, April 7, 2016 / Proposed Rules 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. VerDate Sep<11>2014 15:16 Apr 06, 2016 Jkt 238001 (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 PO 00000 Frm 00041 Fmt 4702 Sfmt 9990 20301 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 E:\FR\FM\07APP1.SGM 07APP1

Agencies

[Federal Register Volume 81, Number 67 (Thursday, April 7, 2016)]
[Proposed Rules]
[Pages 20283-20301]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-07920]


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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.

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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: cbcomments@acf.hhs.gov. 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 
OIRA_submission@omb.eop.gov. 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