The Energy Policy and Conservation Act, Public Law 94-163, as amended (“EPCA”), 1 authorizes DOE to regulate the energy efficiency of a number of consumer products and certain industrial equipment. (42 U.S.C. 6291-6317) Title III, Part C of EPCA, 2 established the Energy Conservation Program for Certain Industrial Equipment. (42 U.S.C. 6311-6317) Such equipment includes walk-in coolers and walk-in freezers  3 (hereafter referred to as “walk-ins” or “WICFs”), the subject of this notification.

The current energy conservation standards for walk-ins are set forth in DOE's regulations at 10 CFR 431.306. Rather than establishing standards for complete walk-in systems, DOE has established standards for the principal components that make up a walk-in ( i.e., doors, panels, and refrigeration systems). The current energy conservation standards for walk-in doors are in terms of maximum daily energy consumption, which is measured in kWh/day (see Table I.1). The current energy conservation standards for walk-in panels are in terms of R-value, which is measured in h-ft 2 -°F/Btu (see Table I.2). The current energy conservation standards for refrigeration systems are in terms of annual walk-in energy factor (“AWEF”), which is measured in Btu/(W-h) (see Table I.3).

To evaluate whether to propose amendments to the energy conservation standards for walk-ins, DOE issued a request for information (“RFI”) in the Federal Register on July 16, 2021 (“July 2021 RFI”). 86 FR 37687. In the July 2021 RFI, DOE sought data, information, and comment pertaining to walk-ins. 86 FR 37687, 37689. DOE subsequently announced the availability of the preliminary analysis it had conducted for the purpose of evaluating the need for amending the current energy conservation standards for walk-ins in the Federal Register on June 30, 2022, (“June 2022 Preliminary Analysis”). The analysis was set forth in the Department's accompanying preliminary technical support document (“TSD”). The June 2022 Preliminary Analysis summarized and addressed the comments received in response to the July 2021 RFI in chapter 2 of the June 2022 Preliminary Analysis TSD. DOE held a public meeting via webinar to discuss and receive comment on the June 2022 Preliminary Analysis on July 22, 2022. The meeting covered the analytical framework, models, and tools that DOE used to evaluate potential standards; the results of the preliminary analyses performed by DOE; the potential energy conservation standard levels derived from those analyses; and other relevant issues.

In a test procedure final rule published May 4, 2023 (“May 2023 TP Final Rule”), DOE amended the test procedures for walk-in components. DOE also established a new appendix, appendix C1 to subpart R (“appendix C1”), and a new energy metric, AWEF2, for refrigeration systems. ( See 88 FR 28780 and 10 CFR part 431, subpart R, appendix C1.) Manufacturers would be required to begin using appendix C1 as of the compliance date of an energy conservation standards promulgated as a result of this rulemaking.

On September 5, 2023, DOE published a notice of proposed rulemaking in the Federal Register , regarding energy conservation standards for walk-in coolers and freezers (“September 2023 NOPR”). 88 FR 60746. Specifically, DOE proposed amended standards for walk-in non-display doors and walk-in refrigeration systems based on the amended or new test procedures adopted in the May 2023 TP Final Rule. For refrigeration systems, DOE proposed amended standards in terms of the AWEF2 metric based on appendix C1. The September 2023 NOPR summarized and addressed comments received in response to the June 2022 Preliminary Analysis. However, comments from one interested party, listed in Table I.4 of this document, were considered in developing the September 2023 NOPR, but were not summarized and discussed in the NOPR.

A parenthetical reference at the end of a comment quotation or paraphrase provides the location of the item in the public record. 4

DOE notes that it also received comments in response to the June 2022 Preliminary Analysis in the form of confidential business information from two stakeholders, which have been restricted on the public docket. 5 To the extent that these stakeholders provided confidential information, DOE did not address those comments directly due to the confidential nature of the comments received. However, DOE considered these confidential comments in its analysis presented in the September 2023 NOPR.

This section summarizes the comments received from the CA IOUs and provides DOE's responses that were not addressed in the September 2023 NOPR. Separate subsections address each component of DOE's analyses on which DOE has received comment from the CA IOUs.

The CA IOUs recommended that DOE consider linear AWEF energy conservation standards for refrigeration systems that vary with capacity. (CA IOUs, No. 43 at p. 3) The CA IOUs stated that refrigeration efficiency typically increases with system capacity and pointed to the energy conservation standards for Commercial Refrigeration Equipment and Automatic Commercial Ice Makers, which are dependent on capacity. ( Id. ) The CA IOUs further provided examples supporting its assertion that efficiency increases with capacity for both dedicated condensing units and unit coolers. Specifically, the CA IOUs showed examples of standard options offered for model lines of medium- and low-temperature unit coolers; these examples show a larger capacity model line that is available with several options that are not available as standard features for the smaller capacity model line, including electronic expansion valves (“EEVs”), evaporator fan control boards, variable-speed electronically commutated fan motors (“ECMs”), and electronic controller systems that offer on-cycle evaporator fan controls and adaptive defrost capability. ( Id. at pp. 3-4) The CA IOUs also included in its comment examples of dedicated condensing system model lines that showed higher cooling efficiencies (in terms of energy efficiency ratio (“EER”)) for larger capacity systems. ( Id. at p. 4) The CA IOUs also pointed to the baseline AWEFs presented in the preliminary analysis TSD, which increased with capacity. ( Id. at pp. 5-7)

In its analysis for the September 2023 NOPR, DOE evaluated the economics of each efficiency level for each representative unit, which indicated that more stringent standards were generally economically justified for larger units. Therefore, DOE proposed standards that varied with capacity for many refrigeration system equipment classes in the September 2023 NOPR. 88 FR 60746, 60748-60749. The proposed standards are summarized in section I of the September 2023 NOPR.

As discussed in the September 2023 NOPR, DOE develops information in the market and technology assessment that provides an overall picture of the market for the equipment concerned, including the purpose of the equipment, the industry structure, manufacturers, market characteristics, and technologies used in the equipment. 88 FR 60746, 60760. This activity includes both quantitative and qualitative assessments, based primarily on publicly available information. The subjects addressed in the market and technology assessment for this rulemaking include (1) a determination of the scope of the rulemaking and equipment classes, (2) manufacturers and industry structure, (3) existing efficiency programs, (4) shipments information, (5) market and industry trends; and (6) technologies or design options that could improve the energy efficiency of walk-ins.

As discussed in the September 2023 NOPR, DOE considered separate technology options for whole walk-ins, doors, and panels, and refrigeration systems. 88 FR 60746, 60764-60765. In the preliminary market analysis and technology assessment, DOE identified 16 technology options that would be expected to improve the efficiency of refrigeration systems. DOE requested comment on the technology options in section ES.4.2 of the June 2022 Preliminary Analysis TSD. In response, the CA IOUs suggested several modifications to the technology options analyzed by DOE in the June 2022 Preliminary Analysis. (CA IOUs, No. 43 at p. 8)

In section 5.7.2.1 of chapter 5 of the June 2022 Preliminary Analysis TSD, DOE stated that at the time, it lacked data on the performance of multiple-capacity and variable-capacity compressors, but DOE intended to collect more data to evaluate these compressors as design options for the NOPR analysis. In response to the June 2022 Preliminary Analysis, the CA IOUs commented that they support the evaluation of variable-capacity compressors as a design option. (CA IOUs, No. 43 at p. 8) The CA IOUs recommended that DOE request full EER curves of amperage versus capacity for variable-capacity compressors from manufacturers. ( Id. ) The CA IOUs also recommended that DOE perform testing to record the efficiency gains of variable-capacity compressors and evaluate the reduction in compressor cycling and improved ability of the compressor to match the system cooling loads. ( Id. at pp. 8-9)

As discussed in the September 2023 NOPR, DOE analyzed variable-capacity compressors for low- and medium-temperature refrigeration systems and assumed that the system was redesigned to take advantage of the variable-capacity compressor. 88 FR 60746, 60776. However, DOE was unable to obtain performance data from manufacturers as recommended by the CA IOUs, and therefore based the variable-capacity design option performance on its test data. Additional details of the variable-capacity compressor design option implementation in the NOPR analysis can be found in chapter 5 of the accompanying TSD. 6

In the June 2022 Preliminary Analysis, DOE analyzed floating head pressure and floating head pressure with an EEV as design options for outdoor dedicated condensing units. See section 5.7.2.7 of the June 2022 Preliminary Analysis TSD. In response to the June 2022 Preliminary Analysis, the CA IOUs suggested that DOE analyze EEVs as a technology option separate from floating head pressure. (Ca IOUs, No. 43 at p. 10) The CA IOUs provided an example where the use of an EEV rather than a thermostatic expansion valve (“TXV”) saved energy by reducing cycling losses where the TXV “hunts” for the optimal opening range. ( Id. ) Further, the CA IOUs commented that EEVs allow for more precise superheat control over TXVs, which could improve energy efficiency. ( Id. at p. 10)

DOE notes that the tests conducted as part of the test procedures in appendix C1 are steady-state tests. Because of this, DOE has tentatively concluded that a test performed with a TXV would result in the same measured efficiency as a test of the same unit performed with an EEV. DOE acknowledges that a unit cooler installed with an EEV may be able to achieve more capacity for a given suction condition given that EEVs can achieve less superheat than a TXV would be able to. Considering feedback received during manufacturer interviews, DOE has tentatively concluded that manufacturers would not recommend a lower superheat value for unit coolers installed with an EEV rather than a TXV. Additionally, DOE notes that Figure 8 presented in the CA IOUs comment shows that at the steady-state operation that is the basis of test procedures, systems equipped with TXVs are no less efficient than systems equipped with EEVs. As such DOE has tentatively concluded that when performing a valid refrigeration system test according to the DOE test procedure, replacing a TXV with an EEV would not improve measured efficiency. For this reason, DOE did not analyze EEVs as a standalone technology in the September 2023 NOPR analysis. See section 5.7.2.7 of the September 2023 NOPR TSD for discussion of how DOE considered head pressure control in the analysis.

See chapter 3 of the September 2023 NOPR TSD for further discussion of the market and technology assessment.

As discussed in the September 2023 NOPR, the purpose of the engineering analysis is to establish the relationship between the efficiency and cost of each component of walk-ins ( e.g., doors, panels, and refrigeration systems). 88 FR 60746, 60767. There are two elements to consider in the engineering analysis; the selection of efficiency levels to analyze ( i.e., the “efficiency analysis”) and the determination of product cost at each efficiency level ( i.e., the “cost analysis”). In determining the performance of higher-efficiency walk-ins, DOE considers technologies and design option combinations not eliminated by the screening analysis. For each walk-in component equipment class, DOE estimates the baseline cost, as well as the incremental cost for the walk-in component at efficiency levels above the baseline. The output of the engineering analysis is a set of cost-efficiency “curves” that are used in downstream analyses ( i.e., the LCC and PBP analyses and the NIA).

In section ES4.4 of the June 2022 Preliminary Analysis TSD, DOE requested comment on the efficiency levels considered in the analysis. Specifically, DOE sought feedback on whether the efficiency levels beyond the baseline are appropriate, including the maximum technology efficiency level.

The CA IOUs commented that, based on its evaluation, the ratings in DOE's Compliance Certification Management System Database (“CCD”) for display doors are conservative. The CA IOUs asserted that the ratings in CCD for display doors should not be used as the basis for establishing an updated energy conservation standard because their analysis suggests the ratings are conservative. Rather, the CA IOUs encouraged DOE to independently evaluate the performance of representative display doors in its analysis. (CA IOUs, No. 43 at pp. 7-8, 21)

In response, DOE notes that it did not analyze higher efficiency levels for display doors solely using data from CCD, but rather conducted testing on doors with varying glass pack designs. See sections 5.6.1 and 5.7.1.1 of the NOPR TSD for further discussion on DOE's methodology for developing the baseline and higher efficiency energy consumption characteristics for the representative units of display doors analyzed.

The CA IOUs stated that the AWEF levels in CCD are based on the base model of a product line rather than the models that utilize higher efficiency design options. (CA IOUs, No. 43 at p. 3) The CA IOUs also commented that DOE's performance modeling in the June 2022 Preliminary Analysis underestimated the efficiency benefits of the design options currently available in the market. ( Id. ) The CA IOUs recommended that DOE validate the results of the June 2022 Preliminary Analysis by conducting testing on representative examples of walk-in refrigeration systems. ( Id. )

As discussed in the September 2023 NOPR, DOE used a design-option approach for dedicated condensing units and single-packaged dedicated systems. 88 FR 60746, 60768. DOE's performance modeling of each design option for dedicated condensing units and single-packaged dedicated systems in the September 2023 NOPR analysis was developed with manufacturer feedback through confidential manufacturer interviews. Additionally, DOE notes that is has validated its results of the September 2023 NOPR analysis through its own walk-in refrigeration system testing. See section 5.7.2 of the September 2023 NOPR TSD for details of the refrigeration systems engineering analysis.

Furthermore, DOE used both an efficiency-level approach and design option approach for its analysis of unit coolers, depending on equipment class. 88 FR 60746, 60768. DOE's performance modeling of medium- and low-temperature unit coolers in the September 2023 NOPR analysis was based on the capacities certified in the CCD, fan power data from product literature, and the default defrost energy use from AHRI 1250-2020  7 adjusted such that the lowest calculated AWEFs match the current energy conservation standard. DOE notes that while most of the unit coolers in the CCD are rated at baseline, when AWEF is calculated using the data as described, many units appear to have efficiencies above baseline. DOE has tentatively determined that the results of these analyses are representative of the units and technologies currently available on the market. Details of the unit cooler engineering analysis are discussed in section 5.8 of the September 2023 NOPR TSD.

The CA IOUs commented that it expects that the use of R-404A to estimate the performance of CO 2 -based unit coolers (which DOE did in the June 2022 Preliminary Analysis) would result in a similar AWEF to that of an AWEF that was based on performance data of CO 2 . However, the CA IOUs recommended that DOE use CO 2 data in its analysis to avoid confusion. The CA IOUs stated that DOE should use available CO 2 -specific data, request information from manufacturers, and derive EER curves using software tools. (CA IOUs, No. 43 at p. 14)

DOE acknowledges that there is some performance data available for CO 2 unit-coolers. However, the CCD and manufacturer product literature have more data available for unit coolers that use R-404A. In response to the preliminary analysis, as discussed in the September 2023 NOPR, HTPG supported the use of R-404A to analyze medium- and low-temperature unit coolers. 88 FR 60746, 60779. Additionally, as the CA IOUs stated, the performance results of unit coolers using R-404A and CO 2 are similar. DOE has tentatively concluded that using R-404A as the refrigerant for the analysis of medium- and low-temperature unit coolers is representative of the unit cooler market. Therefore, as discussed in the September 2023 NOPR, DOE used R-404A as the refrigerant in its analysis of medium- and low-temperature unit coolers. 88 FR 60746, 60780. Further, DOE notes that the EERs used to calculate unit cooler AWEF and AWEF2 are prescribed by the suction conditions and EER table of the DOE test procedure at section 3.4.14 of appendix C1. As such, DOE did not consider alternative EER curves in the September 2023 NOPR analysis.

In section 2.2 of the June 2022 Preliminary Analysis TSD, DOE stated that it has not seen condensate heaters on any of the single-packaged dedicated systems that it has tested. When making this statement in the June 2022 Preliminary Analysis, DOE was referring to pan heaters. In response, the CA IOUs commented that they are aware of three manufacturers of packaged systems that currently offer a condensate heater element and showed examples of unit coolers that offer drain line heaters as standard features or options. (CA IOUs, No. 43 at pp. 12-14) Additionally, the CA IOUs stated that in specific applications ( e.g., meat and dairy coolers) medium-temperature coolers typically use condensate heaters. ( Id. at p. 12) Therefore, the CA IOUs recommended that AWEF should include an allocation for condensate heater energy use. ( Id. )

DOE has not encountered drain line heaters on any of the single-packaged dedicated systems or unit coolers that it has tested and DOE expects that drain line heaters would typically be provided as an optional feature and installed by a contractor. In the September 2023 NOPR analysis, DOE evaluated what it considers to be “representative units” in the market; therefore, DOE did not evaluate units with drain line heaters.

DOE has encountered low-temperature unit coolers with pan heaters. In the September 2023 NOPR analysis, DOE based the low-temperature unit cooler defrost power on the default defrost power calculations in AHRI 1250-2020. See section C10.2 of AHRI 1250-2020 for details. These calculated power values are representative of the power draw of the entire unit cooler during a defrost cycle. Additionally, the default defrost power calculations in AHRI 1250-2020 include a set of calculations for units with hot gas coil defrost and an electric resistive pan heater. See section C10.1.2 of AHRI 1250-2020. As such, DOE has tentatively determined that the AHRI 1250-2020 default power calculations include representative pan heater power consumption and that an allocation for condensate heater energy use is not warranted at this time.

For each equipment class, DOE generally selects a baseline model as a reference point for each class, and measures changes resulting from potential energy conservation standards against the baseline. The baseline model in each equipment class represents the characteristics of equipment typical of that class ( e.g., capacity, physical size). Generally, a baseline model is one that just meets current energy conservation standards, or, if no standards are in place, the baseline is typically the most common or least efficient unit on the market.

The CA IOUs stated that when DOE updates a test procedure for equipment already included in the DOE regulatory program, DOE typically performs a cross-walk analysis to ensure energy conservation standards set using the new test procedure do not result in backsliding. (CA IOUs, No. 43 at p. 1) The CA IOUs commented that the June 2022 Preliminary Analysis TSD does not appear to include a cross-walk analysis ( Id. ) The CA IOUs stated that, therefore, its comments regarding the baseline efficiency assumed the analysis presented in the preliminary TSD was based on the current test procedure at appendix C to subpart R of 10 CFR part 431. ( Id. at pp. 2-3) Based on this assumption, the CA IOUs encouraged DOE to align the baseline efficiency level of all refrigeration systems with the current minimum energy conservation standards and indicated which representative units they interpreted as having efficiency levels below the current minimum energy conservation standards. Id.

Current energy conservation standards for walk-in refrigeration systems are in terms of the AWEF metric and the energy conservation standards proposed in the September 2023 NOPR use the AWEF2 metric. The primary difference between these two metrics is that AWEF2 includes off-cycle power consumption. 8 As discussed in the September 2023 NOPR, DOE set baseline efficiency levels for dedicated condensing units with energy conservation standards at the current minimum standard level using the appendix C test procedure ( see appendix C to subpart R to 10 CFR 431). 88 FR 60746, 60778. For example, for a medium-temperature, outdoor dedicated condensing unit, DOE determined which technology options would just meet the current AWEF standard of 7.6 Btu/(W-h) using the appendix C test procedure. Id. Once each representative unit had its baseline design options set, DOE conducted the remainder of the efficiency analysis using the appendix C1 test procedure to determine AWEF2 values for each efficiency level, including the baseline. Id. DOE notes that in the June 2022 Preliminary Analysis, refrigeration system efficiency values were labeled as AWEF; however, all efficiency values calculated in accordance with the appendix C1 test procedure were AWEF2 values, as defined in appendix C1. Id.

The representative units that DOE modeled in the September 2023 NOPR analysis were based on actual units that are certified at the currently applicable minimum energy conservation standards ( i.e., baseline AWEF) in CCD. To account for the differences between AWEF and AWEF2, DOE determined representative off-cycle power values for each representative unit analyzed in the September 2023 NOPR using product catalogs and feedback from manufacturer interviews.

Additionally, in the September 2023 NOPR, DOE proposed more stringent energy conservation standards for the majority of refrigeration system equipment classes. 88 FR 60746, 60748-60749. The only equipment classes with standards proposed at the equivalent current baseline in terms of the new AWEF2 metric are medium-temperature indoor dedicated condensing systems with a capacity of less than 8,000 Btu/h and low-temperature indoor dedicated condensing systems with a capacity of 9,000 Btu/h. See section IV.C.1.d of the September 2023 NOPR for further discussion of the analysis based on AWEF2.

In chapter 5 of the June 2022 Preliminary Analysis TSD, DOE analyzed improved condenser coils as a design option for dedicated condensing system equipment classes. See section 5.7.2.2 of the Preliminary Analysis TSD for details of this analysis. Based on information gathered during previous rulemakings and feedback received during the preliminary analysis manufacturer interviews, DOE determined representative improved midpoint condensing temperatures for the representative units analyzed. DOE published the following table to summarize the baseline and improved condensing midpoint temperatures.

In response to the June 2022 Preliminary Analysis, the CA IOUs recommended that DOE should review the baseline and improved condensing midpoint assumptions used for high-temperature single-packaged dedicated systems, as the temperature differences and ambient air temperatures do not sum to equal the corresponding midpoint temperature. (CA IOUs, No. 43 at p. 16)

DOE acknowledges that the baseline and improved temperature differences for high-temperature single-packaged dedicated condensing systems were incorrectly printed in table 5.7.13 in the June 2022 Preliminary Analysis TSD. For high-temperature single-packaged dedicated condensing systems, the table should have listed the baseline temperature difference as 25 °F and the improved temperature difference as 20 °F. These misprints only occurred in this table and the correct values were used in conducting the June 2022 Preliminary Analysis. Similarly, as discussed in section 5.7.2.2 of the September 2023 NOPR TSD, DOE did not use the incorrect values in the September 2023 NOPR analysis.

In the June 2022 Preliminary Analysis, DOE analyzed head pressure controls as a design option for outdoor dedicated condensing system equipment classes. See section 5.7.2.7 of the June 2022 Preliminary Analysis TSD for details. Head pressure controls allow outdoor condensing units' head pressure to “float” down to a minimum condensing pressure as the ambient air temperature falls. This allows the compressor to operate more efficiently and therefore reduces the power consumption of the system without reducing the capacity. As discussed in section 5.7.2.7 of the June 2022 Preliminary Analysis TSD, DOE evaluated two design options pertaining to head pressure control for the representative units of outdoor dedicated condensing units and outdoor single-packaged dedicated systems analyzed. These two design options were floating head pressure and floating head pressure with an EEV. 9 DOE assumed fixed head pressure would be the baseline design. Based on information collected during previous rulemakings, DOE determined the minimum condensing pressure associated with these design options. DOE converted all minimum condensing pressures to minimum condenser dewpoint temperatures so that the values would be refrigerant agnostic. DOE assumed this minimum dewpoint would apply at the lowest ambient rating condition—35 °F. At the intermediate rating temperature of 59 °F, DOE estimated the head pressure for fixed and floating systems when using a TXV based on testing results. DOE did not have testing results for a system with an EEV, so DOE calculated the degree to which the pressure would “float” down based on an assumption that the condenser TD would scale with the capacity. DOE used test results and scaling to estimate a minimum dewpoint offset at 59 °F. Minimum condensing dewpoints at the 35 °F C test point and at the 59 °F B test point are summarized in Table II.2.

Under the Administrative Procedure Act, adjudications required by a statute to be determined on the record after an opportunity for an agency hearing are subject to certain procedural requirements. 5 U.S.C. 554. In 1980, the Commission adopted Rules of Practice for Adjudicative Proceedings (Rules) to govern such Commission proceedings. 16 CFR part 1025.

On April 13, 2016, the Commission issued a notice of proposed rulemaking (NPR) to update the Rules. 81 FR 21775. The Commission proposed to modernize the Rules to reflect changes in civil and administrative litigation and revisions to the Federal Rules of Civil Procedure and Federal Rules of Evidence since adoption of the Rules. The Commission received four comments on the proposed rule.

In November 2019, Commission staff sent to the Commission a draft supplemental notice of proposed rulemaking (SNPR). The draft SNPR proposed additional changes to the Rules in light of comments received on the NPR and the Commission's experience with adjudicative proceedings since publication of the NPR. The Commission did not take any action on the draft SNPR.

Because the Commission has not taken action on this proposed rule since 2016, the Commission is terminating this proceeding. 1 In the future, the Commission may consider revisions to the Rules in light of its experience with agency adjudications and relevant circumstances including changes to rules for Federal judicial proceedings.

The Delaware River Basin Commission (“DRBC” or “Commission”) is a Federal-interstate compact agency formed by the enactment of concurrent legislation by four states and the United States in 1961  1 to manage the water resources of the Delaware River Basin (the “Basin”) without regard to political boundaries. The Commission's members are, ex officio, the governors of the basin states (Delaware, New Jersey, New York, and Pennsylvania) and the Division Engineer of the U.S. Army Corps of Engineers North Atlantic Division, who represents the United States.

The Commission's Rules of Practice and Procedure (“RPP”), comprising part 401 of Title 18 of the Code of Federal Regulations, govern the adoption and revision of the Commission's Comprehensive Plan and Water Resources Program, the exercise of the Commission's authority pursuant to the provisions of Article 3.8 of the Delaware River Basin Compact (the “Compact”) and other actions of the Commission mandated or authorized by the Compact, including but not limited to the administration of public access to records and information in the Commission's possession.

The proposed amendments are intended primarily to resolve ambiguities in the current language of paragraph (a) of § 401.41 (“Limitation of approval”); to replace certain out-of-date provisions, such as the requirement for paper copies of project review applications under Section 3.8 of the Compact, that no longer conform to current practice; and to eliminate references to the Federal Freedom of Information Act (“FOIA”) in Subpart H—Public Access to Records and Information, because the Commission is not a Federal agency and because the Compact expressly exempts the Commission from the Federal Administrative Procedure Act, of which FOIA is a part. The changes proposed to § 401.41 create the need for conforming changes in four other provisions of Subpart C but do not alter the Commission's interpretation or implementation of these provisions.

Ambiguities in the language of paragraph (a) of § 401.41 came to light in 2022 in connection with a request in accordance with this provision for extension of an approval issued in 2019 under Section 3.8 of the Compact. The current provision states that a Commission approval “shall expire three years from the date of Commission action unless prior thereto the sponsor has expended substantial funds (in relation to the cost of the project) in reliance upon such approval.” The provision further provides that “[a]n approval may be extended or renewed by the Commission upon application.” The questions raised by this language include: whether, if the listed conditions are met, an expiring docket automatically extends or renews without the need for Commission action; whether, if acknowledgement or a decision is necessary, the Commission must vote on the matter or the Executive Director may issue the acknowledgment or render the decision; whether the project sponsor may be relieved of the requirement that it have “expended substantial funds” if circumstances beyond the sponsor's control have prevented it from doing so; whether public notice and a public hearing should be provided before an extension is acknowledged, approved or denied; and the duration of an extension if acknowledged or approved.

Proposed § 401.41(a). Paragraph (a) of § 401.41 operates when the instrument of Commission approval contains no expiration date. This occurs when the Commission approves an activity such as dredging under Section 3.8 of the Compact and accompanying regulations at 18 CFR 401.35(a)(7) or construction under the Commission's Flood Plain Regulations, 18 CFR part 415. Because the Commission exercises no continuing oversight over dredging and construction activities, no renewal of an approval for such activities is ordinarily required. Section 401.41(a) serves as a backstop in the unusual instances in which the approved activity is not promptly undertaken. In contrast, approvals for ongoing withdrawals and discharges are issued for limited terms of ten and five years, respectively, as set forth in the instrument of approval. Under existing regulations, an application for renewal of an approval, when required, must be submitted no fewer than 120 days in advance of the assigned expiration date unless the instrument of approval provides otherwise. See 18 CFR 401.43(b)(4)(ii). (An amendment proposed in this rulemaking would change the required timing of submission to 180 days in advance of the assigned expiration date.) That paragraph (a) of § 401.41 operates only when an approval contains no expiration date is made explicit in the amended rule.

In addition, the proposed amendments extend from three years to five the time by which a Commission approval that lacks an expiration date “shall expire” if certain requirements are not met. In the Commission's view, a period of five years, rather than the current three, is appropriate given modern permitting and construction timeframes for Commission-approved projects. As noted above, five years is also the term of a Commission approval for a wastewater discharge, and is the term normally applied to individual permits issued under the Coastal Zone Management Rules established by an agency of one of the Commission's member states, the New Jersey Department of Environmental Protection (“NJDEP”) ( see N.J. Admin. Code Sec. 7.7-8.2).

Additional changes to § 401.41 are proposed to resolve ambiguities in the current language. Under the proposed revision, the project sponsor must submit a written request for an extension, accompanied by supporting documentation. In response, the Executive Director by a written determination must grant a five-year extension if the sponsor's request and supporting documentation demonstrate to the Executive Director's satisfaction that certain criteria are met. Specifically, the Executive Director must grant the extension if he or she determines: (1) that no material change is proposed to the project as approved; (2) that the sponsor has expended, at a minimum, the lesser of one million dollars or substantial funds in relation to the cost of the project or has been prevented from doing so by circumstances beyond the sponsor's control; and (3)-(4), that neither the Commission's Comprehensive Plan nor the condition of the project site has changed in a manner important to determining whether the project would substantially impair or conflict with the Comprehensive Plan.

The term “material change” is proposed to be added to Subpart I—General Provisions, § 401.121 (Definitions), and defined as, “a change to a project previously approved by the Commission that is important in determining whether the project would substantially impair or conflict with the Commission's comprehensive plan.” The proposed definition restates the purpose of the Commission's review as set forth in Article 3.8 of the Compact, which provides in relevant part that “[t]he commission shall approve a project whenever it finds and determines that such project would not substantially impair or conflict with the comprehensive plan and may modify and approve as modified, or may disapprove any such project whenever it finds and determines that the project would substantially impair or conflict with such plan.”

As proposed, amended § 401.41(a) would also require public notice of a determination by the Executive Director on or before the Commission's next quarterly public hearing or business meeting. The proposed language establishes that determinations by the Executive Director under the provision are appealable in accordance with Subpart F—Administrative and Other Hearings, §§ 401.81-401.90.

Proposed § 401.41(b). The proposed amendments include a new § 401.41(b), which makes clear that if one or more material changes to an approved project are proposed, or if the Executive Director determines that any one or more of the other criteria listed at proposed § 401.41(a) are not satisfied, the project sponsor must apply for renewal and modification of its approval in accordance with the customary application procedure for any docket renewal or approval issued by the Commission. This section applies to any Commission approval, whether or not it includes an expiration date, and regardless of whether the project sponsor has expended a minimum amount of funds in relation to the cost of a project (Existing § 401.43(b)(4)(iii) sets forth the fee associated with modification of a Commission approval).

Proposed § 401.41(c). Proposed § 401.41(c) would effectively preserve the current § 401.41(b), which provides that a project review application (as opposed to a Commission approval) that remains dormant (defined by the rule as “no active pursuit of approvals”) for three years from the date of Commission receipt of the application will terminate without further action by the Commission.

Introduction of the new defined term, “material change,” creates the need to replace existing language with the new term in four other provisions of part 401. In each of these instances, the current language includes the undefined term “substantial change,” or some variant of that term. The affected provisions are §§ 401.8(a), 401.42(e), 401.43(b)(1)(ii), and 401.43(b)(4)(iii).

The proposed amendments would revise provisions of the RPP concerning the Water Resources Program (subpart B) and the review of projects under Section 3.8 of the Compact (subpart C), to align them with current practice.

Period to be covered by the Water Resources Program. Article 13.2 of the Compact requires the Commission to “annually adopt a water resources program, based upon the comprehensive plan, consisting of the projects and facilities which the commission proposes to be undertaken . . . during the ensuing six years or such other reasonably foreseeable period as the commission may determine.” Currently, § 401.22 dictates that the Water Resources Program “will be a reasonably detailed amplification of that part of the Comprehensive Plan which the Commission recommends for action within the ensuing six-year period.” The proposed revision would restore the flexibility the Compact allows regarding the period to be covered by the annual program.

Information required for concurrent inclusion of a project in the Comprehensive Plan and Water Resources Program. Section 401.23 establishes that a project may be added to the Comprehensive Plan and included in the Water Resources Program by concurrent action of the Commission, provided that in such instances the project sponsor has furnished the Commission with detailed information, a list of which is set forth in the provision. As amended, the list is replaced by a reference to § 401.4(b), which contains a list of the information that must be provided for any project proposed to be included in the Comprehensive Plan.

Removal of provisions concerning out-of-use classifications. Sections 401.24-401.26 relate to a system of classifying projects included in the Water Resources Program as either “A” list or “B” list projects. Because this classification system is no longer in use, these sections are proposed to be deleted.

Time of referral of a project by a State or Federal agency. The proposed amendments include a revision of § 401.38, captioned “Form of referral by State or Federal agency,” to conform the language of this provision to current practice. In practice, the Commission reviews projects concurrently with reviews performed by the regulatory agencies of its member states and the Federal government. Accordingly, as proposed, § 401.38 provides that upon receipt of an application for a project that is subject to Commission review (rather than upon issuance of an approval as in the current rule), the member state agency will refer the application to the Commission.

Form of submission of a project review application. The proposed rule would amend § 401.39, captioned “Form of submission of projects,” to provide that for any project subject to review under Section 3.8 of the Compact, an application will be considered complete and ripe for technical review by Commission staff when the project sponsor submits a completed application using the form provided on the Commission's website and pays the applicable fee plus any outstanding fees, penalties, or interest. The Commission's ability to request additional information from a project sponsor is preserved. The amendment would leave certain submission requirements and procedures to the instructions in the applicable form. It would conform § 401.39 to the practice already used by the Commission and most applicants, as well as by some regulatory agencies of the Commission's State and Federal members.

Timely submission of a renewal application. The proposed amendments include the revision of paragraph § 401.43(b)(4)(ii) to provide that a project sponsor must file its application for renewal of an expiring approval 180 calendar days prior to the date of expiration of the approval to avoid a late fee. The current rule requires that to avoid a late fee, a renewal application must be filed 120 days prior to the date of expiration of the approval.

Fees for name change and change of ownership. The amendments are proposed to include consolidation into a single fee of the fees that currently apply, respectively, when the sponsor of a project undergoes a name change (§ 401.43(b)(4)(iv)) and when the project undergoes a change of ownership (§ 401.43(b)(4)(v)). A corresponding change is required to the accompanying Table 3 to § 401.43. The amendment is proposed because the two types of events entail comparable time and effort on the part of the Commission's project review staff.

Subpart H of the RPP contains regulations related to the disclosure of Commission records to members of the public upon request. The rules currently identify the Federal FOIA as authority pursuant to which the Commission promulgated Subpart H, and the subpart contains multiple references to the FOIA. Although certain language in the current Subpart H is identical to language in the FOIA, the Commission, a Federal-interstate compact agency, is not a Federal agency, and the Commission is expressly exempt by § 15.1(m) of the Compact from the Federal Administrative Procedure Act, of which FOIA is a part. The agenda for a January 29, 1975 Commission conference session and business meeting at which adoption of the then-draft Subpart H regulations was discussed makes clear the Commission understood this at the time. The agenda states, “The Commission is not subject to the Administrative Procedures ( sic ) Act. However, staff recommends approval of these regulations in any case as a matter of desirable policy.” At a business meeting on February 26, 1975, the Commission adopted the Subpart H regulations as proposed.

References to the FOIA in Subpart H have created confusion on the part of individuals who seek access to Commission records. In particular, requests for records filed with the Commission under Subpart H often cite to procedural provisions of the FOIA that differ from those in Subpart H. The proposed amendments would eliminate an important source of such confusion. The proposed amendments also would remove gendered pronouns used in the current regulations to align with the Commission's support of diversity, equity, inclusion and belonging.

Substance of comments. The Commission welcomes and will consider comments that concern the potential impacts of the proposed amendments on the conservation, utilization, development, management and control of the water and related resources of the Delaware River Basin and on public participation in the Commission's water resource management activities.

Non-digitized, voluminous materials such as books, journals and collections of documents will not be accepted. Digital submissions of articles and websites must be accompanied by a statement containing citations to the specific findings or conclusions the commenter wishes to reference.

Submission of written comments. Written comments along with any attachments should be submitted through the Commission's web-based comment system ( https://hearing.drbc.commentinput.com?id=T95htQGAg ) until 5 p.m. on Thursday, November 30, 2023. All materials should be provided in searchable formats, preferably in .pdf searchable text. Notably, a picture scan of a document may not result in searchable text. Comments received through any method other than the designated on-line method, including via email, fax, postal/delivery services or hand delivery, will not be considered or included in the rulemaking record unless accompanied by a written request for an exception based on lack of access to the web-based comment system. Such requests and accompanying materials may be sent to: Commission Secretary, DRBC, P.O. Box 7360, West Trenton, NJ 08628.

Public hearings. To provide for an orderly process, support public and community health measures, and provide expanded access to interested parties regardless of their geographic location, the Commission is conducting its public hearings virtually. Attendance at the hearings is not limited and requires no registration. However, to eliminate uncertainty on the part of attendees about whether they will have an opportunity to provide oral comment, those who wish to speak at a hearing must register in advance to do so, using the link on the Commission's website. Registrations will be monitored, and if capacity is not adequate to accommodate all who wish to speak, additional opportunities may be added. Key elements of the procedure are as follows:

Online registration to speak at a public hearing will remain open until 5 p.m. the day prior to each hearing.

Each person who wishes to provide oral comment may do so at only one public hearing.

Speaking time will be limited to approximately three minutes per speaker.

Elected government officials and their staff will have the opportunity to identify themselves when registering to attend a hearing.

Attendance at the public hearings is not limited and requires no advance registration.

Written and oral comment will receive equal consideration.

The Commission appreciates the public's participation and input on this matter.

Translation Services for Rulemaking Materials. The Commission will consider requests for translation of this notice and the proposed rule text into languages other than English. To request translation of documents related to this rulemaking, please send an email to translate@drbc.gov. Please specify both the requested language and the requested documents.

More Information. Detailed and up-to-date information about the public process, including all proposed rule text, related documents, and links for online registration to speak at each of the scheduled public hearings can be found on the Commission website, www.drbc.gov.

For the reasons set forth in the preamble, the Delaware River Basin Commission proposes to amend title 18, chapter III of the Code of Federal Regulations as follows:

The revisions and addition read as follows:

In the proposed rules, “Requirements Related to the Mental Health Parity and Addiction Equity Act,” released by the Departments of the Treasury, Labor, and HHS (collectively, the Departments) on July 25, 2023, and published in the Federal Register on August 3, 2023 (88 FR 51552), the Departments solicited public comments on proposals to amend the regulations that implement the Paul Wellstone and Pete Domenici Mental Health Parity and Addiction Equity Act of 2008 (MHPAEA) and establish new regulations for the nonquantitative treatment limitation (NQTL) comparative analyses required under MHPAEA, as amended by the Consolidated Appropriations Act, 2021. The proposed rules would amend the existing NQTL standard to prevent group health plans and health insurance issuers offering group or individual health insurance coverage that provides both medical and surgical benefits and mental health or substance use disorder benefits from using NQTLs to place greater limits on access to mental health and substance use disorder benefits as compared to medical/surgical benefits. As part of these proposed changes, the proposed rules would require plans and issuers to collect and evaluate relevant data in a manner reasonably designed to assess the impact of NQTLs on access to mental health and substance use disorder benefits and medical/surgical benefits, and propose a special rule for NQTLs related to network composition. The proposed rules also would amend existing examples and add new examples on the application of the rules for NQTLs to clarify and illustrate the protections of MHPAEA. In addition, the proposed rules would set forth the content requirements for NQTL comparative analyses and specify how plans and issuers must make these comparative analyses available to the Departments, as well as to an applicable State authority, and participants, beneficiaries, and enrollees. The Departments also solicited comments on whether there are ways to improve the coverage of mental health and substance use disorder benefits through other provisions of Federal law. Additionally, HHS proposed amendments to implement the sunset provision for self-funded, non-Federal governmental plan elections to opt out of compliance with MHPAEA, as adopted in the Consolidated Appropriations Act, 2023. The comment period for the proposed rules was scheduled to close on October 2, 2023.

Additionally, on July 25, 2023, DOL, in collaboration with HHS and the Treasury Department, issued Technical Release 2023-01P. 1 The Technical Release sets out principles and seeks public comment to inform future guidance with respect to the application of the proposed data collection and evaluation requirements to NQTLs related to network composition and a potential time-limited enforcement safe harbor for plans and issuers that include data in their comparative analyses that demonstrates they meet or exceed all of the thresholds identified in future guidance with respect to NQTLs related to network composition. Specifically, the Technical Release solicits feedback on the type, form, and manner for the data that plans and issuers would be required to include, along with other relevant data as appropriate, as part of their comparative analyses for NQTLs related to network composition which must be submitted to the Departments upon request. The Technical Release also solicits feedback on how to define certain thresholds for required data and a potential time-limited enforcement safe harbor to be specified in future guidance that, if satisfied, would demonstrate to the Departments that a plan or coverage provides comparable access to in-network providers for mental health and substance use disorder benefits as compared to medical/surgical benefits. In turn, if all of these safe harbor thresholds are met or exceeded, the plan or issuer would not be subject to Federal enforcement under MHPAEA with respect to NQTLs related to network composition for a specified period of time. Comments on Technical Release 2023-01P should be sent via email to mhpaea.rfc.ebsa@dol.gov. All comments on Technical Release 2023-01P submitted to DOL will be shared with HHS, the IRS, and the Treasury Department and posted on DOL's Employee Benefits Security Administration's (EBSA) website. The comment period for Technical Release 2023-01P was scheduled to close on October 2, 2023.

Since the publication of the proposed rules in the Federal Register and the release of Technical Release 2023-01P on EBSA's website, there has been considerable interest expressed in these documents, and some interested parties have requested additional time to review and submit comments. The Departments value public feedback as they consider whether and how to issue final rules and future guidance. In response to these requests, the Departments are extending the period for submitting comments on the proposed rules to October 17, 2023. Additionally, to ensure consistency with the comment period for the proposed rules, DOL is simultaneously extending the comment period for Technical Release 2023-01P to October 17, 2023. To be assured consideration, comments on the proposed rules and Technical Release must be received no later than October 17, 2023.

In this NPRM, FinCEN is proposing to amend the Reporting Rule  1 to extend the deadline to file initial BOI reports for entities created or registered on or after the rule's effective date of January 1, 2024, and before January 1, 2025. Under the Reporting Rule, such entities must file initial BOI reports with FinCEN within 30 days of notice of their creation or registration. The proposed amendment would extend that filing deadline from 30 days to 90 days for entities created or registered on or after January 1, 2024, and before January 1, 2025, to give those entities additional time to understand the new reporting obligation and collect the necessary information to complete their filings. Entities created or registered on or after January 1, 2025, would have 30 days to file their BOI reports with FinCEN, as required under the Reporting Rule.

On September 30, 2022, FinCEN published the Reporting Rule, with an effective date of January 1, 2024. 2 The Reporting Rule requires certain corporations, limited liability companies, and other similar entities (“reporting companies”)  3 to report certain identifying information about the beneficial owners who own or control such entities and the company applicants who form or register them. 4 These requirements are intended to facilitate access to BOI for certain authorized recipients, including law enforcement and regulators, for the purpose of countering money laundering, the financing of terrorism, and other illicit activity. 5 The Corporate Transparency Act (CTA) directs FinCEN to promulgate regulations that achieve the objectives of the statute, while minimizing burdens on reporting companies to the greatest extent practicable and ensuring that the BOI collected is “highly useful” for national security, intelligence, and law enforcement activities. 6

The Reporting Rule requires reporting companies to report to FinCEN within prescribed time periods information about themselves, as well as information about two categories of individuals: (1) the beneficial owners of the reporting company; and (2) the company applicants, who are the individuals who filed a document to create the reporting company or register it to do business. For a domestic or foreign reporting company created or registered to do business in the United States before the rule's effective date of January 1, 2024, an initial BOI report must be filed by January 1, 2025. 7 For a reporting company created or registered on or after January 1, 2024, however, the Reporting Rule requires that an initial BOI report must be filed within 30 days of the earlier of the date on which it receives actual notice or public notice that it has been created or registered. 8

FinCEN proposes to extend the period for certain reporting companies to file initial BOI reports. Under this proposed amendment to the Reporting Rule, reporting companies created or registered on or after January 1, 2024, and before January 1, 2025, would have 90 days to submit their initial BOI reports, instead of 30 days. 9 Reporting companies formed on or after January 1, 2025, would continue to be required to submit their initial BOI reports within 30 days.

In the preamble to the Reporting Rule, FinCEN explained its expectation that a 30-day timeframe for initial reports would provide sufficient time for reporting companies to resolve various issues after initial creation, including obtaining necessary information and identifying their beneficial owners with sufficient time to file an initial report. 10 Upon continued dialogue with partners in the private sector, including trade associations, non-profits, and other key stakeholder organizations, FinCEN believes that extending the deadline for reporting companies created or registered on or after January 1, 2024, and before January 1, 2025, to file an initial BOI report from 30 to 90 days will have multiple benefits. 11

First, this extension will increase the time available for these entities to understand and comply with their new regulatory obligations under the Reporting Rule. FinCEN recognizes that there are many aspects of the Reporting Rule that newly created or registered entities will need to navigate, including whether the new legal entity falls under the definition of “reporting company” or qualifies for an exemption, the meaning of “beneficial owner” under the rule, and the application of other key terms and requirements. FinCEN is developing simple, easy-to-read guidance and educational materials such as frequently asked questions (FAQs), videos, infographics, and compliance guides to help reporting companies comply with the new rules. FinCEN published initial guidance and educational materials on March 24, 2023, and a Small Entity Compliance Guide on September 18, 2023. FinCEN aims to publish additional materials in the near future. Additionally, FinCEN continues to conduct extensive outreach to ensure that all stakeholders understand their obligations and how best to seek assistance to have their questions answered. Yet FinCEN recognizes the novelty of the BOI reporting requirement and the need to provide filers, many of which are interfacing with FinCEN for the first time, particular consideration when it comes to the reporting deadline for entities created or registered in 2024.

Second, the extension will provide new reporting companies additional time to obtain the information necessary to complete their initial BOI reports. The Reporting Rule requires reporting companies to obtain and report certain BOI to FinCEN. At the outset of the implementation of the rule, making and responding to requests for BOI will be an unfamiliar exercise for many new companies or third-party service providers, and beneficial owners. FinCEN recognizes that additional time could greatly benefit these parties, particularly those who have not interacted with FinCEN before. 12

Furthermore, the extension will give reporting companies more time to resolve questions that may arise in the process of completing their initial BOI reports. FinCEN continues to work actively to develop and issue guidance and educational materials such as FAQs, videos, infographics, and compliance guides to help reporting companies complete and submit their BOI reports to FinCEN. FinCEN also continues to engage in extensive outreach to ensure that stakeholders are able to submit BOI reports in a streamlined and efficient manner. Reporting companies and other stakeholders may want more time to become familiar with these guidance and educational materials given the new obligations and reporting timeframes. In addition, reporting companies may wish to consult with a third-party service provider such as an accountant or lawyer, or to contact FinCEN with an inquiry. FinCEN aims to establish a contact center prior to January 1, 2024, to field questions about the BOI reporting requirements from reporting companies and other stakeholders. Extending the reporting deadline from 30 to 90 days will allow all parties additional time to resolve questions about the new reporting requirements. It will also help FinCEN manage the volume of contact center inquiries and provide more comprehensive customer service by giving reporting companies and other stakeholders more time to consult guidance materials and internally resolve questions about the new requirements.

The proposed extension to 90 days would apply to both domestic and foreign entities created or registered in the United States in the first year after the Reporting Rule becomes effective, but entities created or registered on or after January 1, 2025, would remain subject to the 30-day deadline established in the Reporting Rule. FinCEN believes that extending the time period in the first year is appropriate because of the novelty of the beneficial ownership reporting regime created by Congress under the CTA. For the first time, the United States is now requiring legal entities to submit beneficial ownership information to a centralized, Federal Government database, and the reporting requirements are likely to be entirely new to business owners, corporate formation professionals, secretary of state offices, and other key stakeholders. After January 1, 2025, however, FinCEN expects that the BOI reporting requirements will be more familiar to those involved in corporate formation, and newly created or registered companies should be in a better position to promptly file their BOI reports.

Although FinCEN believes that providing this additional time and flexibility for reporting companies created or registered in 2024 to file their initial BOI reports will benefit reporting companies and their service providers, FinCEN recognizes that the extension could cause a delay in submissions to the BOI database in the first year of its operation. For example, under the proposed rule, if entities are created or registered on December 31, 2024, they would have until April 1, 2025 (90 days after December 31, 2024) to submit their initial BOI reports. In contrast, under the Reporting Rule, law enforcement could expect all compliant reporting companies created or registered on or before December 31, 2024, to have submitted their initial BOI reports by January 30, 2025 (30 days after December 31, 2024). With all of that taken into account, FinCEN still believes that the potential adverse effects of any such delay in the first year of the program are outweighed by the relief they will provide for small businesses, as explained above. FinCEN solicits comment on this assessment, and on whether there are any other potential consequences of the extension that it has not identified.

FinCEN has analyzed the proposed rule as required under Executive Orders 12866, 13563, and 14094; the Regulatory Flexibility Act; the Unfunded Mandates Reform Act; and the Paperwork Reduction Act. This proposed rule would not have an annual effect on the economy of $200 million or otherwise constitute a “significant regulatory action” as defined in section 3(f) of Executive Order 12866, as amended. Pursuant to the Regulatory Flexibility Act, FinCEN certifies that the proposed rule would not have a significant economic impact on a substantial number of small entities. FinCEN assessed that this proposed rule would result in no additional costs to small businesses. Furthermore, pursuant to the Unfunded Mandates Reform Act, FinCEN has concluded that the proposed rule would not result in an expenditure of $177 million or more annually by state, local, and Tribal governments or by the private sector. 13 FinCEN does not estimate any burden, as defined by the Paperwork Reduction Act, associated with the proposed rule.

FinCEN assesses that the extension of the reporting deadline for entities created or registered in the first year of the reporting requirement will not impose new costs. The costs for BOI reporting have been estimated in the regulatory impact analysis (RIA) in the Reporting Rule. 14 In that RIA, FinCEN estimated the total number of reporting companies in 2024, the first year that the Reporting Rule will go into effect, to be approximately 32.6 million. The Reporting Rule RIA also estimated the costs for these reporting companies in filing their initial BOI reports, analyzing the potential cost of each step in the filing process. 15 FinCEN's analysis in the final Reporting Rule would not be changed by an extension of the reporting timeline for new reporting companies created or registered in 2024 from 30 days to 90 days.

FinCEN acknowledges that this change would shift some of the estimated aggregate cost in the Reporting Rule RIA from “Year 1” (2024) to “Year 2” (2025) in the analysis. This shift in cost is difficult to quantify. However, FinCEN assesses that the shift of these costs would be de minimis and would not change the conclusions of the Reporting Rule's RIA. Additionally, the per-reporting company burden and cost estimate in the Reporting Rule RIA would not be affected by this proposed change.

Furthermore, as discussed in Section III, FinCEN notes that the proposed change in the reporting timeline for reporting companies created or registered in 2024 would likely have multiple benefits. These benefits include additional time for these reporting companies to understand and comply with the requirements of the Reporting Rule as well as greater opportunities for FinCEN to efficiently respond to questions and address problems that reporting companies may have in complying. FinCEN invites comment on whether the proposed rule may provide for other benefits to reporting companies, their service providers, or other stakeholders. FinCEN also solicits comments on whether any aspects of this proposed rule would result in cost or burden, or whether the proposed rule would affect the estimate of the cost, burden, and impact of the Reporting Rule in the Reporting Rule's RIA.

For the reasons set forth in SUPPLEMENTARY INFORMATION , FinCEN proposes to amend part 1010 of chapter X of title 31 of the Code of Federal Regulations, as amended September 30, 2022, at 87 FR 59498, effective January 1, 2024, as follows:

The EPA is proposing to approve New Jersey's State Implementation Plan (SIP) submittals consisting of new rules, repeals, and amendments to subchapter 8, subchapter 16, subchapter 17, subchapter 18, subchapter 19, subchapter 21, and subchapter 22 of New Jersey Administrative Code, Title 7, Chapter 27 (N.J.A.C. 7:27), as well as to subchapter 3 of N.J.A.C., Title 7, Chapter 27A.

New Jersey's revisions to N.J.A.C. 7:27 implement changes based on the experience the State has gained in response to disruptions caused by natural disasters such as Superstorm Sandy and discussions that the State has held with representatives of the regulated community and environmental groups. New Jersey's revisions include exemptions from air emission control and permitting requirements that will provide flexibility for facilities to use low-emitting temporary and portable equipment to improve resiliency during emergency situations.

Additionally, New Jersey's revisions update HAP reporting thresholds using the most recent science-based methodologies; amend the rules governing emissions statements to require each facility to report criteria pollutants and precursors (including PM 2.5 and ammonia) at the source level; revise the rules governing certification and electronic submittal of emissions statements; revise the New Source Review (NSR) requirements to implement the National Ambient Air Quality Standards (NAAQS) for fine particles (PM 2.5 ); and modify penalty provisions to provide consistency with the State's revisions being proposed for approval within this notice. For the reasons herein stated, the EPA proposes to approve the revisions made by New Jersey to strengthen the effectiveness of the State's SIP.

On December 14, 2017, New Jersey submitted to the EPA, proposed SIP revisions to subchapter 8, subchapter 18, subchapter 21, and subchapter 22 of N.J.A.C. 7:27. Additionally, on August 23, 2018, New Jersey submitted proposed revisions to subchapter 8, subchapter 16, subchapter 17, subchapter 19, subchapter 21 and subchapter 22 of N.J.A.C. 7:27, and to subchapter 3.10 of N.J.A.C., Title 7, Chapter 27A. These proposed revisions to the State's SIP and are listed in the following table. This submission included supplemental materials such as documentation of the public hearing, public comment period, and the State's responses to public comments. These materials are in the EPA's docket for this proposal.

Table of Contents I. Overview Information II. Background A. What is the history of the delisting program? B. What is a delisting petition, and what does it require of a petitioner? C. What factors must the EPA consider in deciding whether to grant a delisting petition? D. Environmental Justice Evaluation III. The EPA's Evaluation of the Waste Information and Data A. What waste did the Petitioner petition the EPA to delist? B. How did the Petitioner generate the waste? C. How did the Petitioner sample and analyze the petitioned waste? D. What factors did the EPA consider in deciding whether to grant the delisting petition? E. How did the EPA evaluate the risk of delisting this waste? F. What did the EPA conclude? IV. Conditions for Exclusion A. How will the Petitioner manage the waste if it is delisted? B. What are the maximum allowable concentrations of hazardous constituents in the waste? C. How frequently must the Petitioner test the waste? D. What data must the Petitioner submit? E. What happens if the Petitioner fails to meet the conditions of the exclusion? F. What must the Petitioner do if the process changes? V. When would the EPA finalize the proposed delisting exclusion? VI. How would this action affect states? VII. Public Comments Received From the Previous Proposed Exclusion A. Who submitted comments on the previous proposed rule? B. Comments Submitted on the November 23, 2022, Proposed Rule (Docket ID Number EPA-R06-RCRA-2022-0653) VIII. Statutory and Executive Order Reviews I. Overview Information

The EPA is proposing to grant a May 2020 petition (“Delisting Petition for Stormwater Solids”) request submitted by WRB Refining LP in Borger, Texas to exclude (or “delist”) up to 7,000 cubic yards per year of F037 stormwater solids from the list of federal hazardous waste set forth in 40 CFR 261.3 (hereinafter, all sectional references are to 40 CFR unless otherwise indicated). The Petitioner claims that the petitioned wastes do not meet the criteria for which the EPA listed it, and that there are no additional constituents or factors which could cause the waste to be hazardous. Based on our review described in Section III, we propose to approve the petition request, and allow the delisted waste to be disposed in a Subtitle D landfill. A copy of the May 2020 petition is located in the docket to this proposal action.

The EPA published an amended list of hazardous wastes from non-specific and specific sources on January 16, 1981, as part of its final and interim final regulations implementing section 3001 of RCRA. The EPA has amended this list several times and codifies the list in §§ 261.31 and 261.32.

The EPA lists the Petitioner's wastes as hazardous because: (1) the wastes typically and frequently exhibit one or more of the characteristics of hazardous wastes identified in Subpart C of part 261 (that is, ignitability, corrosivity, reactivity, and toxicity), (2) the wastes meet the criteria for listing contained in § 261.11(a)(2) or (a)(3), or (3) the wastes are mixed with or derived from the treatment, storage or disposal of such characteristic and listed wastes and which therefore become hazardous under § 261.3(a)(2)(iv) or (c)(2)(i), known as the “mixture” or “derived-from” rules, respectively.

Individual waste streams may vary, however, depending on raw materials, industrial processes, and other factors. Thus, while a waste described in these part 261 regulations or resulting from the operation of the mixture or derived-from rules generally is hazardous, a specific waste from an individual facility may not be hazardous.

For this reason, 40 CFR 260.20 and 260.22 provide an exclusion procedure, called delisting, which allows persons to prove that the EPA should not regulate a specific waste from a particular generating facility as a hazardous waste.

A delisting petition is a request from a facility to the EPA or an authorized state to exclude wastes from the list of hazardous wastes. The facility petitions the EPA because it does not consider the waste as hazardous under RCRA regulations.

In a delisting petition, the petitioner must show that wastes generated at a particular facility do not meet any of the criteria for which the waste was listed. The criteria for which the EPA lists a waste are in 40 CFR part 261 and further explained in the background documents for the listed waste in the June 30, 1992 publication of the “Final Best Demonstrated Available Technology (BDAT) Background Document for Newly Listed Refinery Wastes F037 and F038” ( https://nepis.epa.gov/Exe/ZyNET.exe/P100VUGS.TXT?ZyActionD=ZyDocument&Client=EPA&Index=1991+Thru+1994&Docs=&Query=&Time=&EndTime=&SearchMethod=1&TocRestrict=n&Toc=&TocEntry=&QField=&QFieldYear=&QFieldMonth=&QFieldDay=&IntQFieldOp=0&ExtQFieldOp=0&XmlQuery=&File=D%3A%5Czyfiles%5CIndex%20Data%5C91thru94%5CTxt%5C00000035%5CP100VUGS.txt&User=ANONYMOUS&Password=anonymous&SortMethod=h%7C-&MaximumDocuments=1&FuzzyDegree=0&ImageQuality=r75g8/r75g8/x150y150g16/i425&Display=hpfr&DefSeekPage=x&SearchBack=ZyActionL&Back=ZyActionS&BackDesc=Results%20page&MaximumPages=1&ZyEntry=1&SeekPage=x&ZyPURL ).

In addition, under 40 CFR 260.22, a petitioner must prove that the waste does not exhibit any of the hazardous waste characteristics (that is, ignitability, reactivity, corrosivity, and toxicity) and must present sufficient information for EPA to decide whether factors other than those for which the waste was listed warrant retaining it as a hazardous waste.

Generators remain obligated under RCRA to confirm whether their waste remains non-hazardous based on the hazardous waste characteristics even if EPA has “delisted” the waste.

Besides considering the criteria in 40 CFR 260.22(a) and § 3001(f) of RCRA, 42 U.S.C. 6921(f), and in the background documents for the listed wastes, EPA must consider any factors (including additional constituents) aside from those for which EPA listed the waste, if a reasonable basis exists that these additional factors could cause the waste to be hazardous.

The EPA must also consider hazardous waste mixtures containing listed hazardous wastes and wastes derived from treating, storing, or disposing of listed hazardous waste. See § 261.3(a)(2)(iii and iv) and (c)(2)(i), called the “mixture” and “derived-from” rules, respectively. These wastes are also eligible for exclusion and remain hazardous wastes until excluded. See 66 FR 27266 (May 16, 2001).

To better meet EPA's “responsibilities related to the protection of public health and the environment, EPA has developed a new environmental justice (EJ) mapping and screening tool called EJ Screen” that reports values as a percentile when compared to a state or the nation. “It is based on nationally consistent data and an approach that combines environmental and demographic indicators in maps and reports,” ( https://www.epa.gov/ejscreen ). EPA is providing analysis of environmental justice associated with this action. We are doing so for the purpose of providing information to the public, not as a basis of our final action.

EPA utilized EJScreen to evaluate potential environmental justice concerns in communities at one-, three-, and five-mile radiuses around the Borger facility. EPA considers the potential for EJ concerns in a community when one or more of the 13 supplemental EJ indices is at or above the 80th percentile when compared to the rest of the USA. At the one-mile radial measurement, six supplemental EJ indices exceeded the 80th percentile, at the three-mile radial measurement, five supplemental EJ indices exceeded the 80th percentile, and at the five-mile radial measurement, three supplemental EJ indices exceeded the 80th percentile. This information is provided below in Table 1. More information on EJ Screen, including an explanation of the 13 EJ indices can be found at www.epa.gov/ejscreen/what-ejscreen .

In May 2020, WRB Refining LP petitioned the EPA to exclude from the list of hazardous wastes contained in § 261.31, stormwater tank solids (F037) generated from its facility located in Borger, Texas. The waste falls under the classification of listed waste pursuant to § 261.31. Specifically, in its petition, WRB Refining requested that the EPA grant a standard exclusion for 7,000 cubic yards per year of the stormwater tank solids.

The principal products manufactured at the Refinery are gasoline, diesel, aviation fuel, natural gas liquids (NGL), petroleum coke, and solvents. The stormwater tanks are active and have been in operation for approximately 25 years. To restore capacity in the stormwater tanks, the Borger Refinery will be removing accumulated solids. The solids removal process will typically occur within a calendar year and will be an ongoing operational item for the refinery in the future.C

The solids are removed from the four stormwater tanks. These tanks are listed as the North Stormwater Tank, West Stormwater Tank, North Dropout Basin, and West Grit Trap (hereafter collectively referred to as “the stormwater tanks”). The four stormwater tanks are identified as solid waste management unit (SWMU) No. 50 on the facility's notice of registration (NOR) with the Texas Commission on Environmental Quality (TCEQ).

The stormwater tanks solids originated from both historical and current operation of the wastewater treatment system at the refinery. To the extent possible, hydrocarbons present in refinery wastewaters have been recovered. However, historically more hydrocarbons passed through the “oil recovery system” and flowed into the stormwater tanks. Hydrocarbons in the wastewater can result from various sources ( e.g., crude oil). Over time, more of the oily streams were routed to storage tanks from collection system piping and/or smaller tanks for interception and recovery instead of into the stormwater tanks. Recovered oil from the oil recovery system is stored in tanks prior to being reintroduced into the refining process. Historically, these oily flows occurred in conjunction with facility operations, were relatively routine in nature, and not directly associated with precipitation. As such, they were classified by the EPA as “dry weather” flows. By contrast, wastewater directly associated with precipitation ( i.e., stormwater) is referred to as “wet weather” flows. The EPA listing criteria for F037 generally encompasses primary solids associated with dry-weather, oily flows.

Since the stormwater tanks receive what could be classified as dry-weather, oily flows as specified in the November 2, 1990, Federal Register rule publication (55 FR 46354, Nov. 2, 1990), the solids within the four tanks are believed to be classified as F037 when generated. WRB Refining assumes that solids removed from the stormwater tanks bear the F037 (primary oil/water/solids separation sludge) listing when generated.

A total of eight acceptable sample results were provided by Petitioner to support the petition. The EPA considered all 8 samples of the stormwater tank solids and the disposal scenario of the landfill was modeled using the Delisting Risk Assessment Software. The worst-case scenario of the constituents' concentrations for the F037 solids were used as input in the model to determine if it would meet the hazardous waste criteria for which it was listed. The maximum total and leachate concentrations for the inorganic and organic constituents which were found in the analytical data provided by Petitioner are presented in Table 2.

In reviewing this petition, we considered the original listing criteria and the additional factors required by the Hazardous and Solid Waste Amendments of 1984 (HSWA). See § 222 of HSWA, 42 U.S.C. 6921(f), and 40 CFR 260.22(d)(2) through (4). We evaluated the petitioned wastes against the listing criteria and factors cited in § 261.11(a)(2) and (3).

In addition to the criteria in 40 CFR 260.22(a), 261.11(a)(2) and (3), 42 U.S.C. 6921(f), and in the background documents for the listed wastes, the EPA also considered factors (including additional constituents) other than those for which EPA listed the waste if these additional factors could cause the waste to be hazardous ( See the background documents).

Our proposed decision to grant the May 2020 petition to delist the waste from Petitioner's facility in Borger, Texas is based on our evaluation of the wastes for factors or criteria which could cause the waste to be hazardous. These factors included: (1) Whether the waste is considered acutely toxic; (2) the toxicity of the constituents; (3) the concentration of the constituents in the waste; (4) the tendency of the constituents to migrate and to bioaccumulate; (5) the persistence in the environment of any constituents once released from the waste; (6) plausible and specific types of management of the petitioned waste; (7) the quantity of waste produced; and (8) waste variability.

The EPA must also consider as hazardous wastes mixtures containing listed hazardous wastes and wastes derived from treating, storing, or disposing of listed hazardous waste. See 40 CFR 261.3(a)(2)(iv) and (c)(2)(i), called the “mixture” and “derived-from” rules, respectively. Mixture and derived-from wastes are also eligible for exclusion but remain hazardous until excluded.

For this proposed delisting determination, we evaluated the risk that the waste would be disposed of as a non-hazardous waste in a landfill. We considered transport of waste constituents through groundwater, surface water and air. We evaluated Petitioner's analysis of the petitioned waste using the Delisting Risk Assessment Software (DRAS) to predict the concentration of hazardous constituents that might be released from the petitioned waste and to determine if the waste would pose a threat to human health and the environment. The DRAS software and associated documentation can be found at www.epa.gov/hw/hazardous-waste-delisting-risk-assessment-software-dras.

To predict the potential for release to groundwater from landfilled wastes and subsequent routes of exposure to a receptor, the DRAS uses dilution attenuation factors derived from the EPA's Composite Model for leachate migration with transformation products. From a release to groundwater, the DRAS considers routes of exposure to a human receptor through ingestion of contaminated groundwater, inhalation from groundwater while showering and dermal contact from groundwater while bathing.

From a release to surface water by erosion of waste from an open landfill into storm water run-off, DRAS evaluates the exposure to a human receptor by fish ingestion and ingestion of drinking water. From a release of waste particles and volatile emissions to air from the surface of an open landfill, DRAS considers routes of exposure of inhalation of volatile constituents, inhalation of particles, and air deposition of particles on residential soil and subsequent ingestion of the contaminated soil by a child. The technical support document and the user's guide to DRAS are available at https://www.epa.gov/hw/hazardous-waste-delisting-risk-assessment-software-dras.

Petitioner stated in its petition that the petitioned waste meets the criteria of F037 for which the EPA listed it. Petitioner also stated that no additional constituents or factors could cause the waste to be hazardous. Petitioner also stated that disposal in a landfill will not adversely impact human health or the environment. The EPA's review of this petition included consideration of the original listing criteria, and the additional factors required by the Hazardous and Solid Waste Amendments of 1984 (HSWA). See section 3001(f) of RCRA, 42 U.S.C. 6921(f), and CFR 260.22(d)(1)-(4). In making the initial delisting determination, the EPA evaluated the petitioned waste against the listing criteria and factors cited in § 261.11(a)(2) and (a)(3). Based on this review, the EPA agrees with the Petitioner that the petitioned waste is nonhazardous with respect to the original listing criteria. (If the EPA had found, based on this review, that the waste remained hazardous based on the factors for which the waste was originally listed, the EPA would propose to deny the petition.) The EPA evaluated the waste with respect to other factors or criteria to assess whether there is a reasonable basis to believe that such additional factors could cause the waste to be hazardous. The EPA considered whether the waste is acutely toxic, the concentration of the constituents in the waste, their tendency to migrate and to bioaccumulate, their persistence in the environment once released from the waste, plausible and specific types of management of the petitioned waste, the quantities of waste generated, and waste The EPA believes that the petitioned waste does not meet the listing criteria and thus, should not be a listed waste. The EPA's proposed decision to delist the waste from Petitioner's facility is based on the information submitted in support of this rule, including descriptions of the wastes and analytical data from the Borger, Texas facility, and that is contained in the Petition and attachments, all of which are included in the docket to this action.

If the petitioned wastes are delisted as proposed, the Petitioner must dispose of them in a Subtitle D landfill which is permitted, licensed, or registered by a state to manage industrial waste or in the on-site landfill.

The EPA notes that in some instances the maximum allowable total constituent concentrations provided by the DRAS model exceed 100% of the waste—these DRAS results are an artifact of the risk calculations that do not have physical meaning. In instances where DRAS predicts a maximum constituent greater than 100 percent of the waste (that is, greater than 1,000,000 mg/kg or mg/L, respectively, for total and TCLP concentrations), the EPA is not proposing to require the Petitioner to perform sampling and analysis for that constituent and sampling type (total or TCLP).

The testing approach for this waste stream will be conducted as generated. Prior to disposal of any future tank cleanouts, Petitioner must conduct sampling and analysis as described in the delisting sampling and analysis plan and ensure that the wastes do not exceed the delisting parameters. If compliance with the delisting parameters is demonstrated with analytical testing (TCLP analysis), the Petitioner may dispose of the tank cleanouts. The annual amount of solids generated from the tank clean outs may not exceed 7,000 cubic yards. The annual sampling report shall include the volume of solids disposed of in the landfill, as well as annual testing event data. The petitioner should monitor and report increasing trends of constituents which will affect the overall compliance with the stormwater discharge permit.

The Petitioner must submit the data obtained through verification testing to U.S. EPA Region 6, Office of Land, Chemicals and Redevelopment Division, 1201 Elm Street, Suite 500, M/C 6LCR-RP, Dallas, Texas 75270-2102, within 30 days after receiving the final results from the laboratory. These results may be submitted electronically to Harry Shah, shah.harry@epa.gov. The Petitioner must make those records available for inspection. All data must be accompanied by a signed copy of the certification statement in 40 CFR 260.22(i)(12).

If this Petitioner violates the terms and conditions established in the exclusion, the Agency may start procedures to withdraw the exclusion. Additionally, the terms of the exclusion provide that “[a]ny waste volume for which representative composite sampling does not reflect full compliance with the exclusion criteria must continue to be managed as hazardous.”

If the testing of the waste does not demonstrate compliance with the delisting concentrations described in section IV.C above, or other data (including but not limited to leachate data or groundwater monitoring data from the final land disposal facility) relevant to the delisted waste indicates that any constituent is at a concentration in waste above specified delisting verification concentrations in Table 1, the Petitioner must notify the Agency within 10 days, or such later date as the EPA may agree to in writing, after receiving the final verification testing results from the laboratory or of first possessing or being made aware of other relevant data. The EPA may require the Petitioner to conduct additional verification sampling to better define the particular volume of wastes within the affected unit that does not fully satisfy delisting criteria. For any volume of wastes for which the corresponding representative sample(s) do not reflect full compliance with delisting exclusion levels, the exclusion by its terms does not apply, and the waste must be managed as hazardous.

The EPA has the authority under RCRA and the Administrative Procedures Act, 5 U.S.C. 551 (1978 ) et seq. to reopen a delisting decision if we receive new information indicating that the conditions of this exclusion have been violated or, are otherwise not being met.

Any process changes or additions implemented at Petitioner's facility which would significantly impact the constituent concentrations of the waste must be reported to the EPA in accordance with Condition VI. of the exclusion language.

HSWA specifically requires the EPA to provide notice and an opportunity for public comment before granting or denying a final exclusion. Thus, the EPA will not make a final decision or grant an exclusion until it has addressed all timely public comments, including any at public hearings. Upon receipt and consideration of all comments, the EPA will publish its final determination as a final rule. Since this rule would reduce the existing requirements for persons generating hazardous wastes, the regulated community does not need a six-month period to come into compliance in accordance with § 3010 of RCRA, as amended by HSWA.

Because the EPA is proposing to issue this exclusion under the federal RCRA delisting regulations, only states subject to federal RCRA delisting provisions will be affected. This exclusion may not be effective in states which have received authorization from the EPA to make their own delisting decisions.

RCRA allows states to impose more stringent regulatory requirements than RCRA's under § 3009 of RCRA. These more stringent requirements may include a provision that prohibits a federally-issued exclusion from taking effect in the state. We urge Petitioners to contact the state regulatory authority to establish the status of its wastes under the state law.

The EPA has also authorized some states to administer a delisting program in place of the federal program, that is, to make state delisting decisions. Therefore, this exclusion does not apply in those states. If the Petitioner manages the wastes in any state with delisting authorization, the Petitioner must obtain delisting authorization or other determination from the receiving state before it can manage the waste as nonhazardous in that state.

The EPA received four public comments on the November 23, 2022 (87 FR 71532), proposed rule via regulations.gov and email submittal. The previous proposed rule has since been withdrawn due to a discrepancy with information contained in the Federal Register publication, which was brought to EPA's attention by the Petitioner. The Petitioner subsequently submitted a public comment via email during the public comment period to the EPA Region 6 office identifying the discrepancy regarding the delisting constituents and values listed in the table titled “Appendix IX to Part 261 Wastes Excluded Under §§ 260.2 and 260.22” (see comment 4). Since the previous proposed rule was withdrawn, the four previously submitted public comments will be addressed under a new proposed rule at the conclusion of a new 30-day comment period.

Comment 1. “Although I am not sure where I stand overall on delisting the waste in question, I do believe that the processes in which this decision was made were appropriate. I trust the EPA in its decision to approve delisting the waste and removal of solids at WRB Refining LP in Borger, Texas. The how this decision was made could have been a lot more careless. However, the EPA took a lot into consideration and tested multiple samples from the petitioner's facility and agreed with the petitioner that the wastes are nonhazardous. It also did an environmental justice evaluation. Environmental justice is often overlooked when it comes to making decisions concerning discarding waste. This proposed rule is a great example of how to go about making such decisions while taking caution.”

Comment 2. “I appose this rule/exception being passed through. When you take the table and look at some of the chemicals that make up this storm drain runoff products there are some very hazardous chemicals that make up these products. One chemical that makes up this product is Beryllium. Beryllium can be lethal in humans and cause a variety of health concerns. According to the EPA website “beryllium is toxic at 0.002 milligrams per kilogram body weight per day (mg/kg/d)” (Beryllium compounds—US EPA). Using this equation the average size man weighing 200lbs can only be exposed to .4mg a day. That is roughly only 146mg a year. The refinery is requesting that they be allowed to dump .91mg per kg a year into a nonhazardous waste landfill. That would mean that they would be dumping enough material (Beryllium) to lethally infect 50,000 people per year.”

Comment 3. “I believe that to not consider stormwater as a hazardous waste is a bold statement, but since a lot of measures are taken to ensure this is not a health hazard for animals and for humans. I think if it keeps being measured how many toxic chemicals this stormwater has before being disposed somewhere else. Since the stormwater waste is going to be disposed in a landfill that is permitted to manage industrial waste, this can give a sense of safety, but it is not truly known how this landfill will manage and treat this waste, and if it will do it correctly to ensure that no animals have contact or do not get poisoned by the stormwater. Stormwater usually has many toxic chemicals that can pollute water sources such as oil, pesticides, antifreeze, grease and other types of chemicals that can be dangerous and poisonous to the environment and the wildlife that inhabit these water sources. Also, one of the consequences is that they can cause toxic algae blooms that sink and decompose in the water removing oxygen from it. Animals and other organisms can't live in water with low dissolved oxygen levels. It can also contaminate drinking water supplies if not treated properly. These consequences should be kept in mind before agreeing, as the public, to these types of petitions. If stormwater is treated properly in a treatment plant this can reduce how hazardous this might be. Since the stormwater that the petitioner wants to delist as a possible hazard has such small amounts of these toxic chemicals, it makes sense why the EPA thinks to delist this waste. One of the examples of this small amounts is Arsenic, which is a solid that occurs naturally in water and soil but that is also produced industrially in big quantities. The amount of Arsenic that is considered as a hazard is 6.1 while the amount of arsenic that the stormwater in this facility has it's 0.1. However, all these amounts need to be tested each time that the facility wants to dispose of them, to ensure that it is still not considered a hazard, which is one of the rules of EPA to consider the petition of the facility. I think if it is proved that the stormwater waste from this facility is treated properly in this landfills, it is safe to say that this would not be a hazard for humans or wildlife.

Comment 4. “On November 23, 2022, EPA published the draft delisting petition for WRB Refining LP (Petitioner), which was submitted in May 2020. On behalf of WRB Refining LP and Big Star Consulting LLC, please accept the comments to the draft publication that are contained herein.

The delisting levels calculated using EPA's Delisting Risk Assessment Software (DRAS) were presented in the 2020 petition request and subsequently updated in March 2022 using DRAS Version 4.0. The delisting values reflected in the Federal Register are not in agreement with the calculated values. Specifically, it appears that the delisting values published on November 23rd were inadvertently carried forward from a prior delisting petition. We respectfully request that Item (1) in the table found on Page 71538 of the Federal Register be revised to reflect the following desilting levels:

Stormwater Solids Leachate: Acenapthene—219; Anthracene—534; Antimony—2.52; Arsenic—0.266; Barium—100; Benz(a)anthracene—10.5; Benzo(a)pyrene—3,960; Benzo(b)fluoranthene—33,700; Benzene—1.59; 2-Butanone—7,150; Cadmium—1.0; Carbondisulfide—1,150; Chromium—1.56; Chrysene—1,050; Cobalt—5.56; Di-n-butyl-phthalate—507; Ethylbenzene—16.2; Fluoranthrene—50.7; Fluorene—101; Indeno(1,2,3-cd)pyrene—3.71; Lead—5.0; Mercury—0.2; Napthalene—1.95; Nickel—279; Pyrene—91.7; Selenium—1.0; Silver—5.0; Toluene—311; Vanadium—85.6; Xylenes, Total—177; Zinc—4,060.

Additional information about these statutes and Executive Orders can be found at https://www2.epa.gov/laws-regulations/laws-and-executive-orders.

This proposed action is exempt from review by the Office of Management and Budget because it is a rule of particular applicability, not general applicability. The proposed action approves a delisting petition under RCRA for the petitioned waste at a particular facility.

This proposed action does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ) because it only applies to a particular facility.

Because this rule is of particular applicability relating to a particular facility, it is not subject to the regulatory flexibility provision of the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ).

This proposed action does not contain any unfunded mandate as described in the Unfunded Mandates Reform Act (2 U.S.C. 1531-1538) and does not significantly or uniquely affect small governments. The action imposes no new enforceable duty on any state, local, or tribal governments or the private sector.

This proposed action does not have federalism implications. It will not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government.

This proposed action does not have tribal implications as specified in Executive Order 13175. This proposed action applies only to a particular facility on non-tribal land. Thus, Executive Order 13175 does not apply to this action.

This proposed action is not subject to Executive Order 13045 because it is not economically significant as defined in Executive Order 13045 and because the EPA does not believe the environmental health or safety risks addressed by this action present a disproportionate risk to children. This proposed action's health and risk assessments using the Agency's Delisting Risk Assessment Software (DRAS), which considers health and safety risks to children, are described in section III.E above. The technical support document and the user's guide for DRAS are included in the docket.

This proposed action is not subject to Executive Order 13211, because it is not a significant regulatory action under Executive Order 13211.

This proposed action does not involve technical standards as described by the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note).

Executive Order 12898 (59 FR 7629, Feb. 16, 1994) directs federal agencies to identify and address “disproportionately high and adverse human health or environmental effects” of their actions on minority populations and low-income populations to the greatest extent practicable and permitted by law. The EPA defines environmental justice (EJ) as “the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies.” The EPA further defines the term fair treatment to mean that “no group of people should bear a disproportionate burden of environmental harms and risks, including those resulting from the negative environmental consequences of industrial, governmental, and commercial operations or programs and policies,” ( https://www.epa.gov/environmentaljustice/learn-about-environmental-justice ).

The EPA believes that this proposed action does not have disproportionately high and adverse human health or environmental effects on minority populations, low-income populations, and/or indigenous peoples. The EPA has determined that this proposed action will not have disproportionately high and adverse human health or environmental effects on minority or low-income populations because it does not affect the level of protection provided to human health or the environment. The Agency's risk assessment, as described in section III.E above, did not identify risks from management of this material in an authorized, solid waste landfill ( e.g., RCRA Subtitle D landfill, commercial/industrial solid waste landfill, etc.) or the on-site landfill. Therefore, the EPA believes that any populations in proximity of the landfills used by the Borger facility should not be adversely affected by common waste management practices for this delisted waste.

This proposed action is exempt from the Congressional Review Act (5 U.S.C. 801 et seq. ) because it is a rule of particular applicability.

For the reasons set out in the preamble, the EPA proposes to amend 40 CFR part 261 as follows:

Titles IV-E and IV-B of the Social Security Act (the Act) require title IV-E/IV-B agencies (referred to as “agencies”) to provide case plans for all children in foster care that include “a plan for assuring that the child receives safe and proper care and that services are provided to the parents, child, and foster parents in order to improve the conditions in the parents' home, facilitate return of the child to his own safe home or the permanent placement of the child, and address the needs of the child while in foster care.” Section 475(1)(B). Agencies must also have case review systems through which they ensure that each foster child's case plan is “designed to achieve placement in a safe setting that is the least restrictive (most family like) and most appropriate setting available and in close proximity to the parents' home, consistent with the best interest and special needs of the child[.]” Section 475(5). In order to receive IV-E and IV-B funds, title IV-E/IV-B agencies must have plans approved by ACF that provide for case plans and case review systems that meet these statutory requirements. Section 471(a)(16) and section 422(b).

Additionally, in order to receive IV-E funds, states and tribes must certify in their IV-E plans that they will ensure that before a child in foster care is placed with prospective foster parents, the prospective foster parents “will be prepared adequately with the appropriate knowledge and skills to provide for the needs of the child . . .”. In addition, the preparation “shall include . . . knowledge and skills relating to the developmental stages of the cognitive, emotional, physical, and behavioral capacities of a child.” Section 471(a)(24). Agencies must also ensure that at least one staff member at any child-care institution providing foster care receives this training. Section 471(a)(10).

The Act authorizes the Secretary of Health and Human Services (the Secretary) to review state compliance with the title IV-E and IV-B program requirements. Specifically, the Act requires the Secretary to determine whether state programs are in substantial conformity with state plan requirements under IV-E and IV-B, implementing regulations promulgated by the Secretary, and the states' approved state plans. Section 1123A.

Section 1102 of the Act authorizes the Secretary to publish regulations as may be necessary for the efficient administration of the functions for which the Secretary is responsible under the Act.

Titles IV-E and IV-B of the Act set forth numerous requirements for state and tribal title IV-E/IV-B agencies (referred to as “agencies”) to meet for children in foster care. This NPRM applies to the state or tribal agency administering or supervising the administration of the title IV-E and title IV-B plans.

Titles IV-E and IV-B of the Act provide protections that are designed to ensure that while in foster care, children receive safe and proper care. As part of its title IV-E and IV-B plan, an agency must develop a case plan for each child in care that, among other things, assures that the child receives “safe and proper” care, and “address(es) the needs of the child while in foster care.” (Title IV-E, section 475(1)(B) of the Act). This includes a “discussion of the appropriateness of the services that have been provided to the child under the plan” ( Id. ). Similarly, the title IV-E/IV-B case review system requires that the agency have procedures for assuring that each child has a case plan designed to achieve placements in the most appropriate setting available, consistent with the best interests and special needs of the child (422(b), 471(a)(16), 475(1)(B), and 475(5)).

In addition, the Act requires the agency to certify that foster parents are “prepared adequately with the appropriate knowledge and skills to provide for the needs of the child [and] that the preparation will be continued, as necessary, after the placement of the child” (471(a)(24)). Finally, the Act requires agencies to develop and implement standards to ensure that children in foster care placements are provided quality services that protect their safety and health (471(a)(22)).

LGBTQI+ children are overrepresented in the foster care population. One recent confidential survey revealed that 32 percent  1 of foster children ages 12-21 surveyed report that they identify as having a diverse sexual orientation or gender identity. A recent study using nationally representative survey data found that youth with a minority sexual orientation, such as lesbian, gay, and bisexual youth, are nearly 2.5 times as likely as heterosexual youth to experience a foster care placement. 2

A study published in 2016 of the population of youth who have been involved in both the foster care and juvenile justice systems found that LGBTQI+ juvenile-justice involved youth were much more likely to have been removed from their home and to have experienced being physically abused. 3

LGBTQI+ youth are overrepresented in the child welfare system because of a confluence of factors. Studies suggest that many LGBTQI+ youth face higher rates of parental physical abuse, 4 and are more likely to run away from home or be kicked out, often because of conflict over their sexual orientation or gender identity. 5 These experiences place LGBTQI+ youth at greater risk of entering foster care, and mean that many LGBTQI+ youth enter foster care with complex needs and trauma related to the discrimination and stigma they have experienced because of their sexual orientation or gender identity. 6

Research shows that the treatment LGBTQI+ youth receive from their families and caregivers related to their sexual orientation or gender identity is highly predictive of their mental health and wellbeing. For example, a 2021 survey  7 found that “LGBTQ youth who felt high social support from their family reported attempting suicide at less than half the rate of those who felt low or moderate social support. Moreover, the survey  8 found the five most common ways that LGBTQ youth reported feeling supported by their parents or caregivers included having been welcoming to their LGBTQ friends or partners, talking with them respectfully about their LGBTQ identity, using their name and pronouns correctly, supporting their gender expression, and educating themselves about LGBTQ people and issues. 9

Another study further quantified the negative impacts of family rejection of LGBTQI+ children, which can lead to greater representation in foster care. The study found that family behaviors, including excluding LGBTQI+ children from family events and activities because of their identity and not letting their child learn about their LGBTQI+ identity, that tried to change their child's LGBTQ identity increased the risk of depression, suicide, illegal drug use and other serious health risks. 10 The study also found that family behaviors that support LGBTQI+ children including by standing up for their child when others mistreat them because of their LGBTQI+ identity had positive outcomes, helped promote self-esteem, overall health, and protected against suicidal behavior, depression and substance abuse. 11 The study found that LGB young adults who reported high levels of family rejection during adolescence were more than eight times more likely to report having attempted suicide, nearly six times more likely to report high levels of depression, and more than three times more likely to use illegal drugs compared with their LGB counterparts from families that reported no or low levels of family rejection. 12 Moreover, rejecting caregiver behavior—including refusing to use a child's chosen name and pronouns, ridiculing or name-calling because of the child's LGBTQI+ identity, or isolating behaviors such as blocking access to LGBTQI+ friends, events, and resources—contributes to higher rates of health and mental health problems. 13 Conversely, the study found improved health outcomes in youth whose caregivers demonstrated supportive behavior towards the child's LGBTQI+ identity, including connecting the child to an LGBTQI+ adult role model. 14

A meaningful body of research demonstrates that LGBTQI+ children in foster care face disproportionately worse outcomes and experiences than other children in foster care due to their specific health and well-being needs are often unmet. LGBTQI+ youth in foster care report experiencing mistreatment related to their sexual orientation or gender identity. One study  15 found that, “one of the most consistent themes that LGBTQ youth have conveyed in focus groups and qualitative interviews is a tendency to be harassed, teased, and bullied by staff, peers, and care providers . . . LGBTQ youth are often excluded and rejected by their peers and caretakers . . . It is common for LGBTQ youth in group home and foster home settings to be isolated to their own bedroom or to their own wing of the house due to fears of placing them with youth of the same sex.”

Children in foster care who identify as LGBTQI+ are more likely to be placed in congregate care settings (group homes and residential care), experience multiple placements, and have adverse experiences in their placement than non-LGBTQI+-identifying youth. 16 One study found that LGBTQI+ youth in foster care are more likely to experience at least 10 foster care placements, with youth of color who are LGBTQ reporting the highest rates. 17 Moreover, older children identifying as LGBTQI+ in foster care report less satisfaction with their child welfare experience and had higher rates of negative outcomes, including emotional distress, greater rates of homelessness, and more placements. 18

Children in foster care who identify as LGBTQI+ report a perception of poor treatment by the foster care system more frequently than their non-LGBTQI+ counterparts, and feel less frequently that they can be themselves. 19 Children in foster care who identify as LGBTQI+ are less likely to report at least “good” physical and mental health, and are less likely to have at least one supportive adult on whom they can rely for advice or guidance, than their non-LGBTQI+ counterparts in foster care. 20

In one study that looked at LGBTQI+ status-related discrimination, 37.7 percent of children in foster care ages 12 through 21 who identify asLGBTQI+-reported poor treatment connected to their gender expression, sexual minority status, or transgender status. 21 The study also showed that LGBTQI+ foster youth were more likely than their non-LGBTQI+ foster youth counterparts to have been hospitalized for emotional reasons or been homeless at some point in their life. 22 Youth in foster care identifying as LGBTQI+ have also reported more fights in school and more mental health problems compared with their non-LGBTQI+ counterparts. 23

Research has also demonstrated correlations between LGBTQI+ children who spent time in foster care and who later experienced housing instability, homelessness, and food insecurity. 24

These many findings illustrate the need for child welfare personnel and foster parents to be educated and trained on their critical role in the lives of LGBTQI+ youth to avoid re-traumatization and further victimization of youth. 25 Implementing strategic foster parent training and recruitment to meet the well-being needs of children who are LGBTQI+ is critical.

Research consistently shows that when LGBTQI+ youth experience supportive environments and services, they experience the same positive mental health outcomes as other youth. 26 However, research demonstrates that LGBTQI+ youth in foster care face significant mental health disparities that result from experiences of stigma and discrimination. A 2020 survey found that LGBTQI+ youth in foster care were 2.6 times more likely to report a past year suicide attempt than LGBTQI+ youth who were not in foster care, with 35 percent of LGBTQI+ foster youth reporting such an attempt. 27 Reports of past year suicide attempt rates were even higher among LGBTQI+ foster youth of color (38 percent) and non-binary and transgender foster youth (45 percent). 28 Additionally, two child welfare agency studies showed that foster youth who identified as LGBTQI+ were more likely to be hospitalized for emotional reasons compared to non- LGBTQI+ foster youth. 29 Due to the mental health challenges experienced by LGBTQI+ children in foster care it is essential to place LGBTQI+ children in placements that can provide the support and specialized resources necessary to support their health and wellbeing. We encourage the public to submit additional data, including personal stories from current and former LGBTQI+ foster children and others, that speak to the risks to children of placements that are not safe and appropriate, and the advantages of placements that are.

One area of particular concern for the mental health of LGBTQI+ youth in foster care may be the possible exposure to so-called “conversion therapy.” Efforts to change or suppress a child's sexual orientation, gender identity, or gender expression are not supported by credible evidence and have been rejected as harmful by the American Academy of Child and Adolescent Psychiatry, the American Academy of Pediatrics, the American Psychiatric Association, the American Psychological Association, and the National Association of Social Workers, among others. 30 The American Psychological Association (APA) has concluded that any behavioral health or gender identity change effort that attempts to change an individual's gender identity or expression is inappropriate. 31 After reviewing scientific evidence on gender identity change efforts, harm, affirmative treatments, and professional practice guidelines, the APA has affirmed gender identity change efforts are associated with reported harm, and the APA opposes gender identity change efforts because of their association with harm. 32 Likewise, according to the APA sexual orientation change efforts are “coercive, can be harmful, and should not be part of behavioral health treatment.”  33

Further, evidence from qualitative studies, listening sessions, and Congressional testimony makes clear that many LGBTQI+ foster youth do not currently receive placements or services that are safe and appropriate, as required by statute. 34

Current approaches for meeting the needs of LGBTQI+ children vary across states and tribes. Some agencies use, or are working towards implementing, child welfare practice models that address the specific needs of LGBTQI+ children, in line with existing Federal statutory requirements applicable to all children in foster care. In 2023, the Child Welfare Information Gateway issued Protecting the Rights and Providing Appropriate Services to LGBTQI+ Youth in Out-of-Home Care (the Report). 35 The report provides a review of state laws, regulations, and policies related to reducing the negative experiences of any child who identifies as LGBTQI+, including laws and policies that support a child's ability to be safe and free from discrimination; have access to needed care and services; and be placed in safe and appropriate placement settings with caregivers who have received appropriate training. The Report found that 22 states and the District of Columbia require agencies to provide youth who identify as LGBTQI+ with services and supports that are tailored to meet the specific needs of an LGBTQI+ child, such as providing clothing and hygiene products and referring to the child by the name and pronouns that align with their gender identity. 36 Eight states and the District of Columbia offer developmentally appropriate case management that helps child welfare workers support LGBTQI+ youth. 37 Fifteen states and the District of Columbia require training on LGBTQI+ issues for foster caregivers and related staff, including on how to communicate effectively and professionally with youth who identify as LGBTQI+, and education on current social science research and common risk factors for LGBTQI+ youth experiencing various negative outcomes. 38

However, the Report also demonstrates that a majority of agencies do not have laws, regulations, or policies to make appropriate services and supports, or safe and appropriate placements, available to a child in foster care who identifies as LGBTQI+. Without such laws or policies, agencies may not adequately meet statutory requirements that guarantee LGBTQI+ youth in foster care face, like all foster youth, a safe and appropriate placement. In March 2022, ACF published Information Memorandum (IM) ACYF-CB-IM-22-01 which included suggestions on how agencies could best provide services and supports to each child who identifies as LGBTQI+ who is at risk of entering or is in foster care. 39 ACF is proposing this NPRM to address the extensively documented risk factors and adverse outcomes that children in foster care who identify as LGBTQI+ experience.

To support states and tribes in complying with Federal laws that require that all children in foster care receive safe and proper care, in this NPRM, ACF is proposing to require that agencies implement specific processes and requirements to ensure children in foster care who identity as LGBTQI+ are provided with placements the agency designates as safe and appropriate for an LGBTQI+ child, and with services that are necessary to support their health and wellbeing. These requirements clarify how title IV-E/IV-B agencies must meet IV-E and IV-B statutory requirements, including for the case review system and case plan, to appropriately serve children in foster care who identify as LGBTQI+. While the general requirements for the case review system are not new, ACF is proposing to prescribe how agencies must implement the requirements to provide placements and services to children in foster care who identity as LGBTQI+.

Under this proposed rule, agencies must ensure that a safe and appropriate placement is available for and provided to any child in foster care who identifies as LGBTQI+ and requests such a placement. The NPRM proposes to require agencies to ensure that the totality of their child welfare system includes sufficient placements for LGBTQI+ children that meet these standards, but would not require that every provider become designated as a safe and appropriate placement for LGBTQI+ children. 40 To be considered as a safe and appropriate placement for a LGBTQI+ child means the provider with whom the agency places the child will establish an environment free of hostility, mistreatment, or abuse based on the child's LGBTQI+ status, the provider is trained to be prepared with the appropriate knowledge and skills to provide for the needs of the child related to the child's self-identified sexual orientation, gender identity, and gender expression, 41 and the provider will facilitate the child's access to age-appropriate resources, services, and activities that support their health and well-being (671(a)(24)) if the child wishes to access those resources, services, and activities. The proposed rule also includes requirements to notify children about the availability of these placements, the process to request such a placement, and the process to report placement concerns. The proposed requirements would also prohibit retaliation against a child who identifies as or is perceived to be LGBTQI+, require specific steps before the placement of transgender, intersex, and gender non-conforming children in sex-segregated child-care institutions (CCIs), require specific training for IV-E/IV-B agency caseworkers and supervisors ton how to appropriately serve LGBTQI+ youth and on how to implement the procedural requirements of this proposed rule, The proposed requirements would also require IV-E/IV-B agencies to ensure that agency contractors and subrecipients, as well as any placement providers who do not seek designation as safe and appropriate placements, are informed of the procedural requirements of the proposed rule. These proposed requirements aim to fulfill existing case review system requirements and other statutory requirements that require that all children in foster care are appropriately placed in a safe setting consistent with the best interest and special needs of each child. The details of our proposals are described further in the section by section of the preamble below.

Furthermore, ACF is proposing to modify the current regulations in § 1355.34 to monitor a state agency's compliance with the requirement in proposed § 1355.22(a)(1) through the Child and Family Service Reviews (CFSR). The CFSRs are a formal monitoring protocol in which the state's efforts to comply with title IV-E and IV-B program requirements are assessed at the case and systems level. No tribal title IV-E agency is subject to CFSRs because none has a sufficient number of children in foster care and children receiving in-home services for ACF to apply the onsite CFSR case sampling procedures.

Upon enactment of a final rule, ACF proposes to monitor both state and tribal title IV-E/IV-B agency's plan compliance with the proposed requirements of § 1355.22(a) through (c) using the existing partial review process outlined in § 1355.34 because these requirements must be included in the state or tribe's title IV-E plan that ACF must review and approve. Therefore, no regulatory changes to the partial review process are necessary. If ACF becomes aware of a potential non-compliance issue with § 1355.22, it will initiate the partial review process. Evidence of non-conformity identified through the partial review process may result in the state/tribal title IV-E/IV-B agency entering into a program improvement plan. The program improvement plan will be developed on a case-by-case basis by ACF and the agency will consider the extent of noncompliance. If the title IV-E/IV-B agency remains out of compliance, the agency will be subject to a penalty related to the extent of the noncompliance.

This NPRM is consistent with the Administration's priority of advancing equity for LGBTQI+ individuals as well as those historically underserved and adversely affected by persistent poverty and inequality (see Advancing Racial Equity and Support for Underserved Communities Through the Federal Government (Executive Order (E.O.) 13985), issued Jan. 20, 2021; Advancing Equality for Lesbian, Gay, Bisexual, Transgender, Queer, and Intersex Individuals (E.O. 14075), issued June 15, 2022). E.O. 14075 laid out objectives to reduce disparities that LGBTQI+ children face, including in foster care. LGBTQI+ children often have greater service needs, are at an increased risk for poor outcomes, are more likely to be placed in group settings and experience more placements, including those that may harm their well-being by undermining or suppressing their identity. By requiring agencies to ensure that safe and appropriate placements are available for and provided to LGBTQI+ children, we will work with agencies to ensure compliance with statutory requirements for all children in foster care to have a safe and appropriate placement that supports their health and well-being.

Title IV-E establishes case plan requirements in sections 471(a)(16), 475(1) and 475(5)(A) and (D) of the Act and 45 CFR 1356.21(g), assuring that a child in foster care receives safe and proper care consistent with the best interest and special needs of the child, and that the case plan provide a discussion of the safety and appropriateness of the child's placement. To ensure that LGBTQI+ youth receive safe and proper care consistent with their best interests and special needs, in paragraph (a), ACF proposes procedural requirements that the title IV-E/IV-B agency must meet for each child in foster care who self-identifies as LGBTQI+ or who has entered the child welfare system, in whole or in part, because of familial conflict related to their LGBTQI+ identity.

ACF proposes to require in paragraph (a)(1) that the title IV-E/IV-B agency ensure a safe and appropriate placement is available for, and provided to, any child in foster care who identifies as LGBTQI+.

For a placement to be considered safe and appropriate for a child who identifies as LGBTQI+, we propose to require that the title IV-E/IV-B agency make available and ensure that a child is placed with a foster care provider ( e.g., foster family home, child care institution) who: (1) will establish an environment free of hostility, mistreatment, or abuse based on the child's LGBTQI+ status, (2) is trained to be prepared with the appropriate knowledge and skills to provide for the needs of the child related to the child's self-identified sexual orientation, gender identity, and gender expression, and (3) will facilitate the child's access to age-appropriate resources, services, and activities that support their health and well-being.

Title IV-E provides that each child in foster care must receive a placement that is safe. In paragraph (a)(1)(i) we propose that the agency must place the child with a placement provider ( e.g., foster family home, child care institution) who will establish an environment free from hostility, mistreatment, or abuse based on the child's LGBTQI+ identity and status. In the background section of this proposed rule, we explain the significant body of evidence which demonstrates that when LGBTQI+ children face hostility, stigma, or rejection related to their sexual orientation or gender identity they are put at significant increased risk of adverse mental health outcomes and attempt suicide at higher rates. 42 For example, under the proposed requirement, a provider who used derogatory language or slurs about a child's LGBTQI+ identity would not be a safe and appropriate placement. Similarly, a provider who attempted to undermine, suppress, or change the sexual orientation, gender identity, or gender expression of a child, including through the use of so-called “conversion therapy” would not be a safe and appropriate placement As explained by the Substance Abuse and Mental Health Services Administration (SAMHSA), efforts that attempt to suppress or change a child's sexual orientation or gender identity “are inappropriate, ineffective, and harmful practices that should not be provided to children and adolescents.”  43 In meeting the proposed requirement, the agency must not place LGBTQI+ identifying children with a provider who unreasonably limits or denies a child's ability to express their sexual orientation, gender identity, or gender expression. For example, to be considered a safe and appropriate placement, a provider is expected to utilize the child's identified pronouns, chosen name, and allow the child to dress in an age-appropriate manner that the child believes reflects their self-identified gender identity and expression.

For a placement to be considered safe and appropriate for children who identify as LGBTQI+, we propose in paragraph (a)(1)(ii) that the agency must place the child with a placement provider who is trained to be prepared with the appropriate knowledge and skills to provide for the needs of the child related to the child's self-identified sexual orientation, gender identity, and gender expression. This includes foster family home providers and staff who work in child-care institutions (CCIs) as defined in 45 CFR 1355.20. 44

Title IV-E requires the agency to certify that foster parents are “prepared adequately with the appropriate knowledge and skills to provide for the needs of the child [and] that the preparation will be continued, as necessary, after the placement of the child” (471(a)(24)). These requirements are important for protecting the safety and mental health of the child. As explained in studies cited above and SAMHSA's 2023 report Moving Beyond Change Efforts: Evidence and Action to Support and Affirm LGBTQI+ Youth, research demonstrates that when a LGBTQI+ child has their identity respected and supported by the caregivers in their life, their risks of attempted suicide decrease dramatically.

Some states already provide training of practices to serve LGBTQI+ children, as noted on the Child Welfare Information Gateway's State Statutes Search. 45 Many agencies have not yet incorporated provider training addressing the needs of a child who identifies as LGBTQI+ into their curriculum. We anticipate that all title IVE/IVB agencies will need to develop or revise their training curriculum to meet the proposed provider training requirements in this NPRM.

We are not proposing a specific training curriculum that agencies would need to use to train foster care providers ( i.e., foster family homes and child care institutions). However, agencies would need to ensure that the training curriculum adequately prepares foster family home and child-care institution providers to meet the best interests and special needs of an LGBTQI+ child. For a training to adequately prepare a provider to meet the best interests and special needs of an LGBTQI+ child, it would need to be a training that reflects evidence, studies, and research about the impacts of rejection, discrimination, and stigma on the safety and wellbeing of LGBTQI+ youth, and provides information for providers about practices that promote the safety and wellbeing of LGBTQI+ youth. HHS seeks comments on how ACF can ensure these training curriculums for foster care providers are of high quality.

We encourage agencies to consider using or adapting foster care provider training already established by entities with specialized knowledge on this topic, such as the National SOGIE Center, a collaborative led by Innovations Institute at the University of Connecticut School of Social Work and funded by the ACF Children's Bureau to improve permanency, stability, and well-being for this population. 46 The Child Welfare Information Gateway has also issued publications providing guidance on how to create a welcoming and safe placement for children in foster care who identify as LGBTQI+, including Supporting LGBTQ+ Youth: A Guide for Foster Parents. 47

As explained in studies cited above and SAMHSA's 2023 Moving Beyond Change Efforts: Evidence and Action to Support And Affirm LGBTQI+ Youth, research demonstrates that even just one supportive adult can positively impact the mental health of LGBTQI+ youth. This support can reduce negative mental health outcomes and risk of suicide. The placement provider can and should be a supportive adult for the children in their care. Moreover, the SAMHSA report also found that “family or caregiver, peer, school, and community support for youth of diverse sexual orientation and/or gender identity promotes better mental health and fewer negative outcomes and can lead to positive development and emotional resilience.”  48 These findings demonstrate how a supportive placement can promote positive outcomes, while also illustrating how a lack of support on the part of an adult caregiver does not.

The title IV-E/IV-B case review system requires that the agency have procedures for assuring that each child has a case plan designed to achieve placements in the most appropriate setting available consistent with the best interests and special needs of the child (422(b), 471(a)(16), 475(1)(B), and 475(5)). To ensure that children have their special needs met, we propose in paragraph (a)(1)(ii)(B) that the agency must place the LGBTQI+ child with a placement provider will facilitate the child's access to age-appropriate resources, services, and activities that support the child's health and wellbeing, which may include services and supports related to their sexual orientation or gender identity. This proposal will ensure specifically that a child who identifies as LGBTQI+ will have access to a range of services and activities that addresses their specific health and wellbeing needs. These may include, but are not limited to, facilitating access to behavioral health supports respectful of their LGBTQI+ identity, interacting with LGBTQI+ mentors and peers, joining and participating in affinity groups, and connecting the child to available LGBTQI+ supportive resources and events, either in person or virtually depending on local availability. A significant body of research demonstrates that these services are essential to support the child's safe and appropriate placement, and to support the emotional, developmental, and behavioral health needs of LGBTQI+ children in foster care. 49 As such, a safe and appropriate provider for an LGBTQI+ child must not discourage or prevent the child who identifies as LGTBQI+ from receiving age-appropriate services and supports that support their health and well-being related to the child's self-identified sexual orientation, gender identity, or gender expression. HHS understands that some IV-E/IV-B agencies will have more limited access to age-appropriate resources, services, and activities due to fewer service providers able to provide LGBTQI+ supportive services. HHS seeks comments on how ACF can best support agencies, including those located in rural and other resource limited areas, in fulfilling this requirement.

Title IV-E/IV-B agencies are prohibited from disclosing information concerning foster children for any purpose except for those specifically authorized by statute section 471(a)(8). Information about a foster child's LGBTQI+ identity, as well as any other information in their foster care case file, is protected by these confidentiality requirements. Foster children's personal information may only be disclosed for specific authorized purposes, which are, in paraphrase: the administration of the title IV-E plan and that of other Federal assistance programs; any investigation, prosecution, or audit conducted in connection with any of those programs; and reporting child abuse and neglect to appropriate authorities. Under ACF regulations and policy, information that the IV-E/IV-B agency discloses for those allowable purposes may not be redisclosed by recipients unless the redisclosure is also for one of the enumerated allowable purposes. 45 CFR 205.50; Child Welfare Policy Manual 8.4E.

In paragraph (a)(2) ACF proposes to require that the title IV-E/IV-B agency establish a process by which a child identifying as LGBTQI+ may request a safe and appropriate placement as described in paragraph (a)(1). This will help the agency ensure that plan requirements regarding placements are fulfilled, consistent with the child's best interest and special needs. In paragraph (a)(2)(i), we propose that the agency's process include a notice to specified children of the availability of these placements and how to request them. Specifically, at a minimum, the agency must provide notice to a child aged 14 and over, and a child under age 14 if the child was removed, either in whole or in part, as a result of familial conflict about their actual or perceived LGBTQI+ identity, or if the child's LGBTQI+ identity is otherwise known to the agency. This proposed requirement is imposed on the state or tribal agency and is not a requirement of providers. As discussed further on in the proposed rule, this proposal gives states and tribes flexibility to determine how to work with providers to disseminate such information.

We are proposing the agency provide notification to all children aged 14 and older because the existing case plan requirement in section 475(1)(B) of the Act already requires that each child's case plan “shall be developed in consultation with the child” for children 14 and older. Nothing in this proposed rule would preclude agencies from notifying children earlier of the availability of safe and appropriate placements.

In paragraph (a)(2)(ii), ACF proposes that the notice must be provided in an age-appropriate manner, both verbally and in writing. We propose these two communication forms to provide the child with different opportunities and ways to understand that placements described in paragraph (a)(1) are available and how they can be requested. For example, having a verbal conversation provides a ready opportunity for a child to ask questions to their caseworker as needed. In contrast, written information allows the agency to provide children with uniform, consistent information that a child or youth can review at their convenience. The agency process for a child to request a placement defined in proposed paragraph (a)(1) may vary by state, tribe, and/or locality. Examples include a process for the child to: call or text the agency caseworker/other agency personnel, inform agency personnel in person, or email the agency caseworker/other agency personnel. Other options may include establishing private, secure accounts on a social media platform or smart phone application that could be used by children in foster care and accessed by designated agency caseworkers or agency personnel. In paragraph (a)(2)(iii), we propose that the notice must inform the child of how they may request a safe and appropriate placement.

Once the child's LGBTQI+ identity is known to the title IV-E/IV-B agency, it is the responsibility of the agency to provide the required information to the child, while protecting the privacy and confidentiality of the child. Regardless of the method used, agencies must ensure the privacy and confidentiality of any information shared by a child who is seeking a safe and appropriate placement.

In paragraph (a)(3), ACF proposes to require the title IV-E/IV-B agency to implement a process for children identifying as LGBTQI+ to report concerns about any placements that do not meet the requirements of paragraph (a)(1). We are proposing this requirement to ensure that agencies meet case plan requirements to assure that the child receives safe and appropriate care.

In paragraph (a)(3)(i), we propose that the agency provide a notice of the availability of this process to all children who meet the requirements of paragraphs (a)(2)(i)(A) and (B). Specifically, we propose that the agency provide the notice to all children in foster care age 14 and over, and a child under age 14 if the child was removed, either in whole or in part, as a result of familial conflict about their actual or perceived LGBTQI+ identity, or if the child's LGBTQI+ identity is otherwise known to the agency. Once the child's LGBTQI+ identity is known to the title IV-E/IV-B agency, it is the responsibility of the agency to provide the information about the agency's process to the child.

The proposed agency process for children to report concerns about their placement may vary by state, tribe, and/or locality. Examples include a process for the child to: call or text the agency caseworker/other agency personnel, inform agency personnel in person, call a hotline, or email the agency caseworker/other agency personnel. Other options may include establishing private, secure accounts on a social media platform or smart phone application that could be used by children and accessed by designated agency caseworkers or agency personnel. Regardless of the method used, agencies must ensure the privacy and confidentiality of any information shared by a child who is seeking a safe and appropriate placement. In paragraph (a)(3)(ii), ACF proposes that the agency must provide notice to the child explaining how to report concerns about placements to the child in an age-appropriate manner, both verbally and in writing. We propose these two communication forms to provide the child with different opportunities and ways to understand the agency's process for the child to make a report about their placement concerns not meeting paragraph (a)(1). For example, having a verbal conversation provides a ready opportunity for a child to ask questions to their caseworker as needed. In contrast, written information allows the agency to provide children with uniform, consistent information that a child or youth can review at their convenience.

We propose in paragraph (a)(3)(iii) that the agency respond promptly to the child's reported concerns. The title IV-E/IV-B agency must notify all children who meet the requirements of paragraph (a)(2)(i) of the availability of this process in an age-appropriate manner, both verbally and in writing and in a manner consistent with the agency's timeframes for investigating child abuse and neglect reports.

ACF has reviewed state agencies policies and practices about investigating child abuse and neglect in order to provide context for this proposal and identified existing state agency requirements for handling such reports and responding to reports with different levels of urgency. 50 We propose that the agency determine the timeframe for responding promptly to a child's report by requiring the agency to align this proposed process with existing timelines for agency child abuse and neglect reporting and investigating procedures. All states are required to initiate a child abuse and neglect investigation in a timely manner, which is generally defined as within 72 hours. However, when there is reasonable cause to believe that a child is in imminent danger, most agencies require investigations to be initiated immediately, in as little as two hours and not longer than 24 hours after the report is made. Further, in many agencies, the investigation must begin within 12 hours of a report if serious harm is indicated. In certain cases, we anticipate that a report from a LGBTQI+ youth that they feel their placement is not safe or appropriate should merit a response of great urgency from the agency. For example, given the extensive evidence that LGBTQI+ youth who face bullying, discrimination, or harassment related to their sexual orientation or gender identity are at significantly increased risk of violence or self-harm, we anticipate that agencies should respond with urgency when a LGBTQI+ child raises concerns that a placement that is not safe and appropriate.

ACF solicits public comment on whether and how best to define “promptly” as applied to this provision, understanding that the circumstances of the child's report may dictate the timeframes and immediacy of the action the IV-E/IV-B agency must take in responding to the report.

In paragraph (a)(4), ACF proposes to require that the title IV-E/IV-B agency have a procedure to ensure that no child in foster care experiences retaliation when the child has disclosed their LGBTQI+ identity, is otherwise reported or perceived to have an LGBTQI+ identity, has requested a safe and appropriate placement, or has reported concerns that the placement is not meeting the requirements of paragraph (a)(1). Retaliation in this context can be committed by title IV-E/IV-B agency personnel, the agency's contractors, or foster care providers. This proposed requirement will assist agencies in ensuring that a child in foster care receives safe and appropriate care consistent with the best interest and special needs of the child. The term retaliation means imposing negative consequences on the child because of the child's disclosure of their LGBTQI+ identity, perceived LGBTQI+ identity, request, or report. This may include such things as unwarranted placement changes (including unwarranted placement in congregate care rather than in family-like settings), restriction of access to LGBTQI+ peers or age-appropriate materials, required participation in efforts to degrade, disparage or change the child's sexual orientation or gender identity, disclosing the child's LGBTQI+ identity in ways that cause harm or risk the privacy of the child, or other activities that stigmatize a child's LGBTQI+ identity.

ACF is proposing this requirement because we are concerned about the potential for a child who identifies or is perceived as LGBTQI+ to be subjected to negative consequences in response to disclosure of their actual or perceived LGBTQI+ identity.

The agency must ensure that children who disclose their identity, are perceived to have an LGBTQI+ identity, report a problem with a placement, or request a safe and appropriate placement are not subjected to any attempt to undermine, suppress, or change their sexual orientation, gender identity, or gender expression, efforts sometimes referred to as so-called “conversion therapy.” This includes ensuring the privacy and confidentiality of any information shared during these processes. As described in the background section of this proposed rule, these practices put LGBTQI+ youth at significant risk and are never safe or appropriate.

In paragraph (a)(5), ACF proposes to require that the title IV-E/IV-B agency ensure that children who identify as LGBTQI+ have access to age-appropriate services that support their needs related to their sexual orientation and gender identity or expression This includes clinically appropriate mental and behavioral health care supportive of their sexual orientation and gender identity and expression as needed. Clinically appropriate services means that they are based on current evidence and generally accepted medical standards of care.

Studies show that LGBTQI+ children have higher rates of suicidality than their heterosexual peers. 51 Two recent child welfare agency studies showed that LGBTQI+ youth in foster care were more likely to be hospitalized for emotional reasons compared to non-LGBTQI+ youth. 52 Being in foster care also appears to be an independent risk factor for LGBTQI+ youth: a 2020 survey found that “LGBTQ youth who reported having been in foster care had three times greater odds of reporting a past-year suicide attempt compared to those who had not.”  53

The proposal to ensure that children who identify as LGBTQI+ have access to services that are tailored to their specific needs, including needs related to their LGBTQI+ identity is supported by the existing case plan requirements as defined in section 475(1)(B) of the Act, specifically, the section requiring that each child have a plan “for assuring that . . . services are provided to the parents, child, and foster parents in order to . . . address the needs of the child while in foster care, including a discussion of the appropriateness of the services that have been provided to the child under the plan.” The proposal also provides guidance to states and tribes regarding how ACF interprets, for LGBTQI+ children, the IV-E state plan requirement that agencies develop and implement standards to ensure that children in foster care placements are provided quality services that protect their safety and health. Section 471(a)(22).

ACF understands that some states also have few services providers able to provide LGBTQI+ supportive services. ACF seeks comments on how ACF can best support agencies, including those located in rural and other resource limited areas, in fulfilling this requirement.

The title IV-E statute provides that each child must have a case plan designed to achieve placements in the most appropriate setting available consistent with the best interests and special needs of the child (422(b), 471(a)(16), 475(1)(B), and 475(5)). To meet these statutory requirements, in paragraph (b), ACF proposes to require when the title IV-E/IV-B agency is placing a transgender, gender non-conforming, and intersex child with a safe and appropriate provider that is a sex segregated child-care institution, that they must make placements consistent with the child's self-identified gender identity. Evidence demonstrates that when transgender, intersex, or gender non-conforming youth have their gender identity respected it reduces the risk of adverse mental health outcomes and attempted suicide, and provides benefits such as enhancing a child's sense of safety and overall well-being, supporting their sense of self and positively impacting their mental health. Conversely, when transgender  54 gender non-confirming youth are forced to use sex-segregated spaces that do not align with their gender identity it can exacerbate the psychological distress related to gender dysphoria. 55 The IV-E/IV-B agency must consult with the transgender, gender non-conforming, or intersex child to provide an opportunity to voice any concerns related to placement when the agency is considering a placement in such a facility. when the agency is considering a placement in such a facility.

In paragraph (c), ACF proposes to require that title IV-E/IV-B agencies ensure that their employees who have responsibility for placing children in foster care, making foster care placement decisions, or providing services are trained to implement the procedural requirements of this proposed rule and to appropriately serve LGBTQI+ children. Such training should adequately prepare caseworkers and supervisors with the appropriate knowledge and skills to address the needs of foster children on their caseload related to sexual orientation, gender identity, and expression. The training should also ensure that all agency caseworkers and supervisors are prepared to implement and fulfill the requirements of this proposed rule. For a training to adequately prepare agency staff to meet the best interests and special needs of an LGBTQI+ child, it would need to be a training that reflects evidence, studies, and research about the impacts of rejection, discrimination, and stigma on the safety and wellbeing of LGBTQI+ youth, and provides information for agency staff about practices that promote the safety and wellbeing of LGBTQI+ youth. This proposed requirement is necessary to ensure that IV-E/IV-B agencies can properly implement the case plan and case review requirements of the Act for LGBTQI+ foster children.

In paragraph (c), ACF also proposes to require that title IV-E/IV-B agencies ensure that all agency contractors and subrecipients who have responsibility for placing children in foster care, making placement decisions, or providing services are informed of the procedural requirements necessary to comply with this proposed rule. Similarly, we propose to require that agencies ensure that all placement providers who have not chosen to seek designation as safe and appropriate placement providers for LGBTQI+ foster children are also informed of the procedural requirements necessary to comply with this proposed rule. As part of this requirement, agencies would be required to ensure that contractors, subrecipients, and placement providers are all informed of the required non-retaliation provisions outlined in paragraph (a)(4).

ACF proposes to revise the Child and Family Services Review (CFSR) regulations to make clear that the CFSR process will assess agencies on their compliance with the requirements of these proposed regulations. Specifically, we propose to revise § 1355.34(c)(2)(i) to add “including placements described in § 1355.22(a)(1)” to the case review system requirement for provisions to place the child in an appropriate placement that meets their needs. We also propose to add at the end of § 1355.34(c)(2)(i) within the parenthetical “§ 1355.22(a)(1))”. Under the current CFSR regulations, the Children's Bureau reviews how title IV-E agencies ensure the safety and appropriateness of foster care placements. This proposed amendment will ensure that the requirements proposed to be added to § 1355.22(a)(1) are included in the CFSRs, and specifically examined under the case review systemic factor outlined in § 1355.34(c)(2)(i).

In implementing the requirements proposed under this rule, ACF anticipates that agencies will likely need to produce new administrative records to monitor and track requests for safe and appropriate placements and adjudication of those requests. Such administrative records, including at the case file level, may be reviewed through the CFSR process. ACF invites public comment on what further guidance states may need on producing such administrative records, while protecting the privacy and confidentiality of LGBTQI+ youth.

For the reasons described above, ACF believes that its authority to implement each of the provisions in the proposed regulation is well-supported in law and practice and should be upheld in any legal challenge. ACF also believes that its exercise of its authority reflects sound policy. However, in the event that any portion of the proposed rule is declared invalid, ACF intends that the other provisions be severable.

ACF appreciates the vital role that religious providers play in providing care and services to children in the child welfare system. ACF values the child welfare services that faith-based organizations provide, consistent with HHS-wide regulations governing social services ensuring that religious organizations are eligible on the same basis as any other organization to participate in child welfare programs administered with title IV-E and IV-B funds. See 45 CFR 87.3(a). ACF takes seriously its obligations to comply with the Constitution and Federal laws that support and protect religious exercise and freedom of conscience, including the First Amendment and the Religious Freedom Restoration Act (RFRA), 42 U.S.C. 2000bb et seq., as well as all other applicable Federal civil rights laws and HHS regulations including 45 CFR part 87 (“Equal Treatment for Faith-Based Organizations”). ACF will continue to operate the title IV-E and IV-B programs in compliance with these legal requirements. ACF remains fully committed to thoroughly considering any organization's assertion that any obligations imposed upon them that are necessitated by this proposed rule as finalized conflicts with their rights under those laws.

If a title IV-E/IV-B provider alleges that any obligation that this proposed rule as finalized requires a state or tribe to impose substantially burdens the provider's religious exercise, ACF will apply the test set out by RFRA to determine whether an exemption is required. Under RFRA, when Federal action substantially burdens an individual or entity's exercise of religion, the Federal government must afford that individual or entity an exemption to the rule unless the government can demonstrate that applying the burden in that particular instance furthers a compelling governmental interest and is the least restrictive means of doing so. See 42 U.S.C. 2000bb-1(b). Accordingly, under RFRA, we first assess whether the particular application of the rule substantially burdens the provider's exercise of religion. If so, we assess whether applying the requirement furthers a compelling interest and whether there are less restrictive alternatives available. Thus, even if the rule substantially burdens a religious practice, an exemption would not be required if the burden is necessary to the advancement of a compelling government interest through the least restrictive means possible. We will apply RFRA in accordance with the statutory text and applicable case law.

When drafting this proposed rule, ACF has taken these RFRA principles into account, and has endeavored to write each provision to provide states and tribes with the flexibility to implement the measures without imposing any substantial burdens on providers' religious exercise that we can reasonably anticipate. Most importantly, nearly all of the requirements in this proposed rule would be imposed directly on state and tribal IV-E/IV-B agencies, as opposed to on any private foster care agency, foster parent, kinship caregiver or other provider. The only requirement that would be imposed on private providers by the proposed rule is the requirement to be informed of the procedural requirements to comply with the proposed rule (including the required non-retaliation provisions outlined in paragraph (a)(4)). All other requirements would be responsibilities of the state and tribal IV-E/IV-B agencies, and ACF believes that these responsibilities have been drafted in a manner that the IV-E/IV-B agencies can satisfy without imposing any substantial burden on religious providers that is reasonably foreseeable.

As the Supreme Court has recently made clear, the First Amendment protects faith-based entities that provide foster care services. See Fulton v. City of Philadelphia, 593 U.S. __(2021). Consistent with this protection, the proposed rule, if adopted, would not require any faith-based provider to seek designation as a safe and appropriate provider for LGBTQI+ children as described in this proposed rule if the provider had sincerely held religious objections to doing so. When drafting the text, ACF was cognizant that a foster care requirement that precludes a child welfare provider from participating in the program while adhering to its religious beliefs might substantially burden religious exercise. Rather than placing requirements on child welfare providers, this rule as proposed would require agencies to ensure that their child welfare networks as a whole include sufficient numbers of providers that are willing to supply safe and appropriate placements for LGBTQI+ children so that all children who request such a placement will receive an appropriate one. To the extent that current networks are insufficient, the Department believes that IV/B/IV-E agencies will be able to meet this requirement through outreach, training and other supply-building activities to build their provider networks, and can do so without imposing substantial burdens on religious exercise of providers. When states and tribes select organizations to participate in the child welfare program, ACF would recommend that states and tribes do not adopt selection criteria that adversely disadvantages any faith-based organizations that express religious objections to providing safe and appropriate placements for LGBTQI+ children.

While this proposed rule would require title IV-E/IV-B agencies to establish processes for children to receive notification concerning the availability of safe and appropriate placements, how to request them and the means of reporting any concerns about such placements, ACF expects agencies would adopt these notice requirements without substantially burdening the religious exercise of any child welfare providers that expressed religious objections to disseminating the notices in any reasonably foreseeable way. For example, under the proposed rule, a title IV-E/IV-B agency may provide the notices directly through agency staff. Alternatively, state and tribal agencies may require the providers in their child welfare network to disseminate the notices as a general matter while exempting any entities that express religious objections to doing so and utilizing agency staff in those limited instances. In addition, HHS is not aware of any instances in which a faith-based organization has requested a religious exemption from an HHS notice requirement that is generally applicable to social service providers notwithstanding the fact that the notice informs beneficiaries of alternative providers.

This proposed rule similarly would enable title IV-E/IV-B agencies to retain discretion when determining how to ensure that contracted caseworkers and supervisors who are responsible for placing children in foster care, making placement decisions or providing services, as well as placement providers who choose not to seek designation as safe and appropriate placements are informed of the requirements of this rule. To be clear, this proposed regulatory requirement only requires that contractors/subrecipients and those placement providers who are not seeking designation as safe and appropriate placements for LGBTQI+ children are informed of the procedural requirements, including the non-retaliation provision.

This proposed rule enables title IV-E/IV-B agencies to retain flexibility to determine how title IV-E/IV-B agencies will ensure that LGBTQI+ children will upon request be transferred from any entity that will not provide a safe and appropriate placement as described by the finalized rule to one that will. ACF expects agencies to adopt transfer processes that minimize the extent of any obligations on faith-based providers that need to transfer children as a result of this proposed rule as finalized. ACF notes that it has no historical basis to anticipate religious objections to cooperating with such transfers, as HHS has not received any religious objections in other instances in which HHS required faith-based grantees to refer third parties impacted by religious objections to alternative providers.

As we have explained, we have crafted this proposed rule to minimize the likelihood that it will impose substantial burdens on religious exercise in violation of the Constitution or RFRA. Nevertheless, should any child welfare service provider incur any unforeseen religious objections to compliance with an obligation that is necessitated by this proposed rule as finalized (as opposed to any discretionary measure imposed by a state or tribe) ACF will consider requests for accommodation on a case-by-case basis in accordance with the Constitution and Federal statutes. ACF recognizes that RFRA requires a fact-specific case-by-case analysis of whether any specific obligation necessitated by this proposed rule imposes a substantial burden on religious exercise, and, if so, whether that obligation is in the particular case the least restrictive means of furthering a compelling government interest. See Gonzales v. Centro, 546 U.S. 418 (2006). This case-by-case analysis will allow ACF to consider whether any substantial burden imposed on the provider's exercise of religion is in furtherance of a compelling governmental interest, and is the least restrictive means of advancing that interest. This will involve considering any harm an exemption could have on third parties involved in the child welfare program. See Cutter v. Wilkinson, 544 U.S. 709, 720 (2005). This process provides an opportunity for service providers to raise with ACF any concerns regarding obligations necessitated by this proposed rule as finalized, which would enable ACF to determine whether an exemption or modification of the application of the provision at issue is appropriate under the Federal religious freedom law at issue.

As to the process for filing any requests for religious accommodation, state and tribal child welfare agencies must continue to notify sub-awardees of their religious freedom rights. As required under 45 CFR 87.3(a) and (k), state and tribal child welfare agencies must continue to ensure that their notices or announcements of award opportunities include language that is substantially similar to that in section (a) of appendix A to part 87. Similarly, notices of award or contract must include language that is substantially similar to that in section (a) of appendix B to part 87. In relevant part, these appendices require that sub-awards and contracts inform sub-awardees of their right to carry out child welfare programs consistent with religious freedom, nondiscrimination, and conscience protections in Federal law, including the Free Speech and Free Exercise Clauses of the First Amendment of the U.S. Constitution, RFRA, or any related or similar Federal laws or regulations; and that religious accommodations may also be sought under many of these religious freedom, nondiscrimination, and conscience protection laws.

A provider requesting any religious accommodation would submit the request to their state's or tribe's title IV-E/IV-B agency. If the request concerns a religious objection to an obligation that is required or necessitated by this proposed rule as finalized, the title IV-E/IV-B agency must promptly forward the request to ACF, which will consider the request in collaboration with the Office of the General Counsel.

A significant body of evidence demonstrates that when children in the foster care system are placed with kinship caregivers that they have better outcomes. 56 We note that a title IV-E agency shall consider giving preference to an adult relative over a non-related caregiver when determining an out-of-home placement for a child, provided that the relative caregiver meets all relevant state or tribal child protection standards (section 471(a)(19) of the Act). HHS invites public comment on how agencies can best comply with the requirements of this proposed rule and prioritize placements with kinship caregivers. In particular, HHS invites public comment on what resources agencies may need from HHS to support kinship caregivers in caring for an LGBTQI+ child.

In order to comply with the requirements in this proposed rule, we anticipate that a majority of states would need to expand their efforts to recruit and identify providers and foster families that the state or tribe could designate as safe and appropriate placements for a LGBTQI+ child to ensure that the totality of their child welfare system includes enough safe and appropriate placements to meet the needs of LGBTQI+ children in care. To support states and tribes in meeting these recruitment needs, ACF allows sharing costs between the Federal Government and state and tribal governments, providing Federal title IV-E funding for 50 to 75 percent of the administrative, recruitment and training costs of this NPRM. HHS invites public comment on how best we can support states and tribes in recruiting providers to provide safe and appropriate placements.

Executive Orders 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 is supplemental to, and reaffirms the principles, structures, and definitions governing regulatory review as established in Executive Order 12866, emphasizing the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. Section 3(f) of Executive Order 12866, as amended by Executive Order 14094, defines “a significant regulatory action” as an action that is likely to result in a rule that may: (1) have an annual effect on the economy of $200 million or more (adjusted every 3 years by the Administrator of the Office of Information and Regulatory Affairs (OIRA) for changes in gross domestic product), or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or state, local, territorial, or tribal governments or communities; (2) create a serious inconsistency or otherwise interfere with an action taken or planned by another agency; (3) materially alter the budgetary impact of entitlements, grants, user fees, or loan programs, or the rights and obligations of recipients thereof; or (4) raise legal or policy issues for which centralized review would meaningfully further the President's priorities or the principles set forth in the order. OIRA has determined that this proposed rule does meet the criteria for a significant regulatory action under section 3(f) of Executive Order 12866. Thus, it was subject to Office of Management and Budget (OMB) review.

The benefits of this NPRM are that placing children in foster care with providers the agencies designate as safe and appropriate for LGBTQI+ children will reduce the negative experiences of such children by allowing them to have access to needed care and services and to be placed in nurturing placement settings with caregivers who have received appropriate training. Ensuring such placements may also reduce LGBTQI+ foster children's high rates of homelessness, housing instability and food insecurity. 57 As thoroughly documented by SAMHSA, “[s]upportive family, caregivers, community, school, child welfare, and healthcare environments have been shown to positively impact both the short- and long-term health and well-being of LGBTQI+ youth.”  58 This proposed rule promotes a supportive environment for children in foster care who self-identify as LGBTQI+.

ACF acknowledges that there will be a cost to implement changes made by this proposed rule as we anticipate that a majority of states would need to expand their efforts to recruit and identify providers and foster families that the state or tribe could designate as safe and appropriate placements for a LGBTQI+ child. This cost would vary depending on an agency's available resources to implement an eventual final rule. To inform the final rule, ACF intends to seek comments on whether state and tribal agencies are likely to incur additional substantial costs.

As an alternative to this NPRM, ACF considered providing sub-regulatory guidance requiring agencies to implement the provisions of the NPRM for children who identify as LGBTQI+. However, this alternative was rejected because it would not have the force of law and thus could not effectively ensure that LGBTQI+ children and youth in foster care receive appropriate placements and services. ACF has already provided extensive resources and sub-regulatory guidance to agencies about improving the health and wellbeing of LGBTQI+ children in foster care, but those resources alone have not been sufficient to ensure that LGBTQI+ youth are protected from mistreatment in foster care. 59

The Regulatory Flexibility Act (RFA) ( see 5 U.S.C. 605(b) as amended by the Small Business Regulatory Enforcement Fairness Act) requires Federal agencies to determine, to the extent feasible, a rule's impact on small entities, explore regulatory options for reducing any significant impact on a substantial number of such entities, and explain their regulatory approach. The term “small entities,” as defined in the RFA, comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. HHS considers a rule to have a significant impact on a substantial number of small entities if it has at least a 3 percent impact on revenue on at least 5 percent of small entities. However, the Secretary certifies, under 5 U.S.C. 605(b), as enacted by the RFA (Pub. L. 96-354), that this proposed rule will not result in a significant impact on a substantial number of small entities. Therefore, an initial regulatory flexibility analysis is not required for this document.

The Unfunded Mandates Reform Act of 1995 (UMRA) (Pub. L. 104-4) was enacted to avoid imposing unfunded Federal mandates on state, local, and tribal governments, or on the private sector. Section 202 of UMRA requires that agencies assess anticipated costs and benefits before issuing any rule whose mandates require spending in any 1 year of $100 million in 1995 dollars, updated annually for inflation. In 2022, that threshold is approximately $177 million. This proposed rule does not contain mandates that will impose spending costs on state, local, or tribal governments in the aggregate, or on the private sector, in excess of the threshold.

Section 654 of the Treasury and General Government Appropriations Act of 1999 requires Federal agencies to determine whether a policy or regulation may negatively affect family well-being. If the agency determines a policy or regulation negatively affects family well-being, then the agency must prepare an impact assessment addressing seven criteria specified in the law. ACF believes it is not necessary to prepare a family policymaking assessment (see Pub. L. 105-277) because this proposed rule will not have a negative impact on the autonomy or integrity of the family as an institution.

Executive Order 13132 requires Federal agencies to consult with state and local government officials if they develop regulatory policies with federalism implications. Federalism is rooted in the belief that issues that are not national in scope or significance are most appropriately addressed by the level of government close to the people. ACF conducted a regulatory impact analysis (RIA) to estimate costs, transfers, and benefits of provisions in the proposed rule. The cost of implementing changes made by this proposed rule would vary depending on a state's specific situation and implementation choices. This proposed rule would not have substantial direct impact on the relationship between the Federal Government and the states, or on the distribution of power and responsibilities among the various levels of government. However, we anticipate that this proposed rule will have a substantial direct impact on the cost that title IV-E agencies will incur to implement administrative procedures and recruit and train their workforce and providers. Therefore, in accordance with section 6 of Executive Order 13132, it is determined that this action has sufficient federalism implications that warrants the preparation of a federalism summary impact statement.

The Social Security Act requires agencies to provide children in foster care with safe and appropriate placements and services (42 U.S.C. 675(1)(b)) and ensure that prospective foster parents are prepared adequately with the appropriate knowledge and skills to provide for the needs of the child (42 U.S.C. 671(a)(24)). ACF believes this proposed regulation is necessary to ensure children in foster care who identify as LGBTQI+ are provided appropriate placements and access to support services that address the well documented disparities that LGBTQI+ youth in foster care face. LGBTQI+ youth are overrepresented in the child welfare system, far too often experience trauma, including being placed in foster care or congregate care settings that are hostile to their identity, or lacking access to health care and mental health services to support them. This proposal may have federalism implications due to the substantial direct financial impact on state or local governments. Although ACF has not consulted directly with state or local governments prior to issuing this NPRM, ACF has spent years reviewing research and agency practices, and supporting pilot programs in this area. For example, the National Quality Improvement Center (QIC) on Tailored Services, Placement Stability, and Permanency for Lesbian, Gay, Bisexual, Transgender, Questioning, and Two-Spirit Children and Youth in Foster Care (LGBTQ2S+ QIC) was led by the Institute for Innovation & Implementation at the University of Maryland School of Social Work in Baltimore along with participating core partners: Human Service Collaborative, National Indian Child Welfare Association, Ruth Ellis Center, Tufts University, and Youth M.O.V.E. National. 60 61 State and local governments may be concerned about the cost imposed by the NPRM. ACF has attempted to meet this concern by sharing costs between the Federal government and state governments, providing Federal title IV-E funding for 50 to 75 percent of the administrative, recruitment and training costs of this NPRM. We also believe that after the first 3 years of implementation, the financial impact on state governments would be minimal. To inform the final rule, ACF will seek to further consult with state and local governments and request that such governments provide comments on provisions in the proposed rule and on whether state and local governments are likely to incur additional substantial costs.

The Paperwork Reduction Act of 1995 (Pub. L. 104-13) seeks to minimize government-imposed burden from information collections on the public. In keeping with the notion that government information is a valuable asset, it also is intended to improve the practical utility, quality, and clarity of information collected, maintained, and disclosed. The Paperwork Reduction Act defines “information” as any statement or estimate of fact or opinion, regardless of form or format, whether numerical, graphic, or narrative form, and whether oral or maintained on paper, electronic, or other media (5 CFR 1320.3(h)). This includes requests for information to be sent to the government, such as forms, written reports and surveys, recordkeeping requirements, and third-party or public disclosures (5 CFR 1320.3(c)).

Information collection requirements for case plans required under title IV-E and IV-B are currently authorized under OMB number #0970-0428. This NPRM does not require changes to the existing information collection as there will be minimal burden associated with the proposed case plan requirements. Any additional costs would be minimal because agencies are already required to provide case review protections to children in foster care, and the NPRM simply provides more specificity for an LGBTQ child. While agencies will need to develop policies to comply with some of the provisions in the NPRM, the casework to provide safe placements, consult with children, and notify them of the procedures for reporting concerns or requests for placement changes is part of the agency's ongoing work with a child in foster care.

Information collection for the CFSR is currently authorized under OMB # is 0970-0214. This NPRM does not significantly change or add burden to existing information collection requirements because the CFSR already includes reviewing case plan requirements for safe and appropriate placements and collecting information on the state's case review system under the statewide assessment. Therefore, no revisions are needed in that collection.

ACF estimated that the proposed regulatory changes would cost the Federal Government $9,712,740 over three fiscal years (2025-2027). ACF estimated that the combined total Federal and agency costs over three fiscal years would be $40,834,548.

The estimate for this NPRM was derived using fiscal year (FY) 2021 data from the Adoption and Foster Care Analysis and Reporting System (AFCARS) on children in foster care, FY 2022 claiming data from the Form CB-496 “Title IV-E Programs Quarterly Financial Report (Foster Care, Adoption Assistance, Guardianship Assistance, Prevention Services and Kinship Navigator Programs),” National Child Abuse and Neglect Data System (NCANDS) child protection caseworker data collected between FY 2003 and FY 2014, state surveys, and the U.S. Department of Labor Bureau of Labor Statistics (BLS).

The portions of this NPRM's requirements determined to have an identifiable impact on title IV-E/IV-B agency costs were as follows:

• To comply with the requirement that all LGBTQI+ children in foster care have access to a safe and appropriate placement, agencies will likely need to increase the recruitment of providers who are qualified to provide safe and appropriate care.

• Training agency caseworkers and supervisors on the procedural requirements in the NPRM and on how to adequately serve LGBTQI+ foster children, and training placement providers seeking to become designated as safe and appropriate placement providers on how to meet the needs of LGBTQI+ children in foster care, as required in the proposal.

Assumptions: ACF made several assumptions when calculating administrative and training costs for this proposed rule.

ACF assumes that quantifiable incremental costs with respect to the above activities will largely be incurred on behalf of children in foster care who are age 14 and older. ACF expects the population of children under age 14 who meet the proposed requirements of paragraph (a)(2)(i)(A) or (B) to be relatively small, and therefore not likely to have a significant impact on cost. We are, however, accounting for the cost to recruit and train sufficient safe and appropriate placement providers to serve all children in need of such a placement regardless of age. This is accomplished by calculating recruitment and training costs using the maximum expected level of affirmative placement needs for children ages 14 and older.

We assume that states and tribes will not be able to use title IV-B funding to implement this NPRM if it becomes a final rule. Children in foster care who are not title IV-E eligible are also subject to the proposed requirements based on the proposed rule's applicability to title IV-E and IV-B agencies. Title IV-B funding is available for 75 percent Federal financial participation (FFP) for recruitment and training of placement providers (42 U.S.C. 624(a)). However, those funds are limited to an annual allotment provided to each title IV-B agency. Therefore, we assume agencies will likely need to cover 100 percent of the safe and appropriate placement provision costs on behalf of non-title IV-E eligible children in foster care.

ACF assumes an overall annual one percent caseload growth rate in the foster care population based on our current title IV-E budgetary projections. Since this NPRM focuses on older children in foster care, we increased this growth rate slightly (to an average of 1.4 percent annually) to consider an expected further growth in the age 18 and older foster care population, as more states opt to extend foster care through age 20.

ACF assumes that if the proposal becomes final, the requirements will become effective at the beginning of FY 2025 and thus will apply to the entire population of children in foster care who are age 14 and older in that FY. This will result in the majority of incremental costs for the NPRM activities occurring in FY 2025. We expect costs in FYs 2026 and 2027 to be about half of those for FY 2025 since the required activities will affect primarily those children in care who are turning age 14 in the FY, or who are newly entering care at age 14 and older. After the third year of implementation, we anticipate that incremental costs will largely be eliminated as available safe and appropriate placement providers are recruited and the proposed policies, procedures, and training requirements are implemented.

Federal cost estimate for implementation of safe and appropriate placements: The table below displays the individual calculations by line. All entries in the table and the narrative below are rounded to the nearest whole number. The calculations to obtain these amounts, however, were performed without applying rounding to the involved factor(s).

Line 1. National number of children in foster care (FC). Line 1 of the table below displays the actual number of children in FC at the beginning of FY 2022 (baseline), which was 391,098. Line 1 also displays estimates of the annual number of children in FC in the subsequent FYs 2025, 2026, and 2027.

Line 2. National number of children in FC age 14 and older. Line 2 of the table below displays the actual number of children in FC who were age 14 and older at the beginning of FY 2022 (baseline) which was 92,852. We also provide estimates of the number of children in FC age 14 and older in the following subsequent FYs 2025, 2026, and 2027. In 2027 the caseload is estimated at 104,705.

Line 3. National average monthly number of children in title IV-E FC age 14 and older. Line 3 of the table below displays the actual number of title IV-E eligible children in FC age 14 or older at the beginning of FY 2022 (baseline), which was 36,817. This number is calculated by applying the percentage of all children in FC (title IV-E and non-IV-E eligible) that are age 14 or older to the reported count of title IV-E eligible children receiving FC administrative cost services. For example, in FY 2022 the title IV-E FC caseload for administrative costs was 155,075 and the percentage of all children in FC who were age 14 or older was 23.74 percent. Therefore, the calculated count of title IV-E eligible children in FC age 14 and older is 36,817 (155,075 × 23.74%). We also provide estimates of the number of children in FC age 14 and older in the following subsequent years: FYs 2025, 2026, and 2027.

Line 4. National number of children to be notified of safe and appropriate (S&A) placement requirements. Line 4 of the table below provides an estimate of the number of children in FC who must be notified of the safe and appropriate placement provisions in proposed § 1355.22(a)(2)(i). For the first year of implementation (FY 2025) this number is the same as the Line 2 number (national number of children in foster care age 14 and older) since all of these children are required to be so notified. For FYs 2026 and 2027, we multiplied the national number of children in FC age 14 and older (Line 2) by the proportion of this population that entered care in that FY based on baseline year AFCARS data showing 40.64 percent. This step avoids counting children that are likely to have already received the notification in a prior FY. For example, in FY 2027 the national number of children that must be notified of safe and appropriate placement requirements is 42,552 (104,705 (Line 2) × 40.64% (Line 4) = 42,552).

Line 5. Percentage of national foster care placements for children needing S&A placements. Line 5 of the table below displays the estimated percentage of national foster care safe and appropriate placements needed for children who identify as LGBTQI+. For each FY, we divided the number of children in foster care ages 14 and older (Line 4) by the expected total annual number of children entering foster care. Data available through surveys shows that about 30 percent of older children in foster care identify as LGBTQI+. For example, a 2014 survey of children ages 12 through 21 in foster care in Los Angeles County, California, found that 19 percent of children in foster care identified as LGBTQI+. 62 Similarly, a 2021 study of foster children ages 12 through 21 in Cuyahoga County, Ohio, found that 32 percent identified as LGBTQI+. 63 For the purposes of this cost estimate, ACF's estimate of children age 14 and over in foster care who identify as LGBTQI+ is 30 percent. For example, in FY 2025 on Line 4, the national number of children to be notified of safe and appropriate placement provisions is 97,973 and the base year total foster care entries is 206,812. ACF estimated 30 percent of older children in foster care identify as LGBTQI+. Therefore, Line 5, the percentage of national foster care placements for LGBTQI+ children needing safe and appropriate placements, is 14.2 percent ((97,973 × 30%) ÷ 206,812). This estimate is purposefully high to account for some children under age 14 who may also need such safe and appropriate placements.

Line 6. Total incremental costs (Federal and non-Federal) for recruiting safe and appropriate foster care placements. Line 6 of the table below displays the estimated total cost of recruiting placement providers to meet the proposed requirements for safe and appropriate placement providers for LGBTQI+ children in the foster care system. This estimate for each FY is based on data collected from ten title IV-E/IV-B agencies across the Nation with respect to their current annual budgets for foster care recruitment activities. We used this data to calculate a nationwide total estimated annual foster care recruitment cost of $185,998,176 based on an extrapolation of the provided data using FY 2022 foster care caseload information. This figure was then multiplied by the calculated portion of the FC caseload ages 14 and older, and then further reduced to 30 percent of that number (estimated LGBTQI+ identification percentage) to reflect the maximum anticipated need for new safe and appropriate placements in each FY. The resulting amount was then reduced by another 50 percent to reflect the likelihood that a significant portion of the safe and appropriate placement recruitment budget would be obtained by refocusing the existing budget for recruitment costs towards safe and appropriate placements. This would promote the agency's ability to comply with the proposed requirement in paragraph (a)(1), given agency recruitment budgets may be limited.

For example, in FY 2025 we estimate that up to 30 percent of notified children (Line 4) as a percentage of all newly placed children in that FY may require the availability of a placement that is designated by the agencies as safe and appropriate. This percentage for FY 2025 of 14.2 percent (29,392 ÷ 206,812) is then multiplied by the national estimated foster care recruitment cost budget ($185,998,176) resulting in a total of $26,433,752. This figure is then reduced by 50 percent to reflect the anticipated incremental cost for safe and appropriate placement provider recruitment efforts of $13,216,876. This estimate is purposefully high to account for some children under age 14 who may also need safe and appropriate placements. The total cost for FYs 2025, 2026, and 2027 is $24,521,626.

Line 7. Total costs (Federal and non-Federal) for safe and appropriate placement training (caseworkers, supervisors & providers). Line 7 of the table below provides the estimated total cost of training required for safe and appropriate placements. This estimate for each FY is derived by first identifying the baseline cost of providing a model SOGIE training curriculum developed by the National Quality Improvement Center on Tailored Services, Placement Stability, and Permanency for LGBTQ2S Children and Youth in Foster Care (QIC-LGBTQ2S); a project funded by ACF. This curriculum provides for a two-hour training that can be conducted in-person or remotely for an average group of 30 participants. The identified average cost of delivering this training is $300 plus overhead of 100 percent bringing the total cost to $600 or $20 per participant. Our estimate increases this figure by three percent per year to account for inflation.

We estimate the number of caseworker and casework supervisor (staff) in FY 2025 to be 100 percent of individuals in these positions. National foster care caseworker staffing level data was obtained from reports provided by six state title IV-E/IV-B agencies representing about 16 percent of the national FY 2021 foster care population. This data was then extrapolated using FC caseloads to obtain an estimate of the total number of national FC caseworkers in FY 2021. An estimated annual caseworker growth rate of +2.2 percent was also computed using national NCANDS child protection caseworker data collected between FY 2003 and FY 2014. This data results in an estimated FY 2025 national total of 38,374 FC caseworkers. The casework supervisor count uses the generally applied ratio of one supervisor for five workers resulting in an FY 2025 number of 7,675. The provider trainee population is calculated by using the count of children to be notified of safe and appropriate placement provisions (Line 4) multiplied by 30 percent (maximum expected portion of these children identifying as LGBTQI+) and is then further reduced by the expectation that each provider will, on average, serve 1.5 children. This results in an FY 2025 safe and appropriate placement provider trainee population of 22,044. The expected number of trainees for subsequent FYs is lower based on the expected number of newly placed children in each of these FYs.

Other costs included in the training estimate are staff participation costs and travel and per diem for in-person trainings conducted outside of the local area. Staff participation costs include salary and overhead for each worker spent in the training (two hours). Caseworker title average salary data (as of May 2022) sourced from the U.S. Department of Labor; Bureau of Labor Statistics (BLS) was used in the calculation along with an estimated overhead cost rate of 100 percent. This results in an FY 2022 (baseline) hourly cost (salary + overhead) of $55.98. The cost for two hours of activity is thus $111.97 per participant. A cost-of-living adjustment of +2 percent per year is than added for each subsequent year. Travel and per diem costs are estimated in FY 2022 (base year) as $100 per participant at in-person trainings which are expected to constitute 50 percent of total trainings. An inflation factor of three percent per year is applied to these costs for later FYs. For example, in FY 2025 we expect a total of 68,092 trainees (caseworkers, supervisors & foster care providers). Therefore, the 50 percent of that total expected to have travel & per diem costs is 34,046 trainees. At an average cost of $109 per participant the total cost in this category is $3,711,035. The total FY 2025 estimate for safe and appropriate placement training is $10,137,404. This amount lowers to $3,180,036 for FY 2027. The total cost for FYs 2025, 2026, and 2027 is $16,312,223.

Line 8. Total costs (Federal and non-Federal) for all safe and appropriate placement activities. Line 8 displays the annual estimated total (Federal + non-Federal) costs for all recruitment and training activities for LGBTQI+ children. This is the sum of lines 6 and 7. We estimate these total costs in FY 2025 as $23,354,280 and the total cost for FYs 2025, 2026, and 2027 is $40,834,548.

Line 9. Total title IV-E FFP for all safe and appropriate placement activity costs. Line 9 displays the annual estimated total title IV-E Federal share of costs for all placement activities for LGBTQI+ children. This is calculated by applying the applicable match rate and the estimated title IV-E participation (eligibility) rate that is generally used to allocate foster care administrative costs. Title IV-E agencies may claim FFP for 50 percent of the administrative costs that agencies incur to provide for activities performed on behalf of title IV-E eligible children in foster care, recruitment of foster homes and CCIs, and certain other administrative activities identified in 45 CFR 1356.60. The agency must pay the remaining 50 percent non-Federal share of title IV-E administrative costs with state or tribal funds.

Title IV-E agencies may claim reimbursement for 75 percent of allowable training costs to provide for activities performed on behalf of title IV-E eligible children in foster care including training of agency caseworkers and supervisors (including staff participation costs) and training of foster care providers providing care to title IV-E eligible children. The title IV-E agency must pay the remaining 25 percent non-Federal share of title IV-E training costs with state or tribal funds. For example, the FY 2025 amount is calculated by using the FY 2025 estimated title IV-E foster care participation rate of 39.65 percent along with the applicable FFP rates of 50 percent for administrative costs and 75 percent for training costs. We estimate these total title IV-E FFP costs beginning in FY 2025 as $5,635,017 and the total cost for FYs 2025, 2026, and 2027 is $9,712,740.

Line 10. Total title IV-E non-Federal share for all safe and appropriate placement activity costs. Line 10 displays the annual estimated total title IV-E non-Federal (state or tribe) share of costs for all safe and appropriate placement activities for LGBTQI+ children. This is calculated by applying the applicable non-Federal share match rate and the estimated non-IV-E participation (eligibility) rate that is generally used to allocate foster care administrative costs. For example, the FY 2025 amount is calculated by using the FY 2025 estimated title IV-E foster care participation rate of 39.65 percent along with the applicable non-Federal share matching rates of 50 percent for administrative costs and 25 percent for training costs. We estimate these total title IV-E non-Federal share costs beginning in FY 2025 as $3,625,219 and the total cost for FYs 2025, 2026, and 2027 is $6,478,612.

Line 11. Total title IV-B non-Federal share for all safe and appropriate placement activity costs. Line 11 displays the annual estimated total title IV-B non-Federal (state or tribe) share of costs for all safe and appropriate placement activities. This is calculated by deducting such placement activity costs that are allocable to title IV-E from such total costs. Although costs allocated to title IV-B are subject to Federal matching at the 75 percent rate, as explained previously we assume that none of these costs will be federally reimbursed through title IV-B due to the limited annual allotments for the title IV-B program. Therefore, agencies may need to fund the cost entirely from state or tribal funds or other sources of funding. We estimate these total title IV-B non-Federal share costs beginning in FY 2025 as $14,094,043 and the total cost for FYs 2025, 2026, and 2027 is $24,643,197.

Line 12. Total title IV-E and IV-B non-Federal share for all safe and appropriate placement activity costs. Line 12 displays the annual estimated total title IV-E and IV-B non-Federal share of costs for all safe and appropriate placement activities. This is the sum of amounts on Lines 10 and 11. We estimate these total title IV-E and IV-B non-Federal share costs beginning in FY 2025 as $17,719,263 and the total cost for FYs 2025, 2026, and 2027 is $31,121,809.

Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, requires agencies to consult with Indian tribes when regulations have substantial direct effects on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes and either impose substantial direct compliance costs on tribes or preempt tribal law. Similarly, ACF's Tribal Consultation Policy says that consultation is triggered for a new rule adoption that significantly affects tribes, meaning the new rule adoption has substantial direct effects on one on more Indian Tribes, on the amount or duration of ACF program funding, on the delivery of ACF programs or services to one or more Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. This proposed rule does not meet either standard for consultation.

Some title IV-E/IV-B tribal agencies may need to amend their practices to ensure that a placement is available for and provided to an LGBTQI+ child in foster care that supports the child's identity. However, we do not expect the costs to be substantial. Tribal title IV-E agencies may claim FFP for title IV-E foster care administrative and training costs for a portion of the administrative costs incurred. We intend to notify tribal title IV-E/IV-B agency leadership about the opportunity to provide comment on the NPRM no later than the day of publication. In addition, we intend to engage in consultation with tribes during the comment period of this NPRM.

Jeff Hild, Acting Assistant Secretary of the Administration for Children & Families, approved this document on September 22, 2023.

For the reasons set forth in the preamble, ACF proposes to amend 45 CFR part 1355 as follows:

This NPRM is published under the authority granted to the Secretary of Health and Human Services (the Secretary) by section 1102 of the Social Security Act (the Act), 42 U.S.C. 1302. Section 1102 of the Act authorizes the Secretary to publish regulations, not inconsistent with the Act, as may be necessary for the efficient administration of the functions for which the Secretary is responsible under the Act. Section 474(a)(3) of the Act authorizes Federal reimbursement for title IV-E foster care program administrative costs, which are defined as costs “found necessary by the Secretary for the provision of child placement services and for the proper and efficient administration of the State [title IV-E] plan.” This authorization applies to an Indian tribe, tribal organization, or tribal consortium that has an approved title IV-E plan, in the same manner as it applies to states.

Many families that come to the attention of a child welfare agency are in the midst of or recovering from familial, health, housing, or economic challenges or crises. These obstacles can impede a family's ability to provide a safe and stable environment for their children. Access to independent legal representation can help stabilize families and reduce the need for more formal child welfare system involvement, including foster care. For families with children that have been placed in foster care, independent legal representation can expedite reunification and improve permanency or help provide access to needed supports for youth transitioning out of the child welfare system. For Indian children that have been placed in foster care, and their families, early representation of an Indian child's tribe in foster care proceedings promotes stability for the child by minimizing unnecessary separation of children and their parents, and by maximizing placements of the child with extended family and other preferred placements.

The Indian Child Welfare Act (ICWA) and regulations allow an Indian child's tribe to intervene in any state court proceeding for the foster care placement of, or termination of parental rights to, an Indian child (25. U.S.C. 1911(c)). “Indian child,” means any unmarried person who is under age eighteen and 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 (25 U.S.C. 1903(4)). An “Indian child's tribe” means the Indian tribe in which an Indian child is a member or eligible for membership or, in the case of an Indian child who is a member of or eligible for membership in more than one tribe, the Indian tribe with which the Indian child has the more significant contacts (25 U.S.C. 1903(5)).

The regulation at 45 CFR 1356.60(c) details cost-sharing requirements for the Federal and non-Federal share of title IV-E foster care program expenditures for the cost of administrative activities. A title IV-E agency may claim FFP at the rate of 50 percent for allowable title IV-E foster care administrative costs. A title IV-E agency may also claim FFP for allowable administrative costs incurred by any other public agency or tribe which has an agreement in effect under which the other agency has placement and care responsibility of a title IV-E eligible child pursuant to 472(a)(2)(B)(ii) of the Act. Another “public agency” is child placing agency authorized by state/tribal law to operate a program of services to children and families, with supervision by the title IV-E agency (CWPM 8.1G #1). Examples of other public agencies may be found in section G of the Child Welfare Policy Manual, and could include the state/tribal juvenile justice agency, a court, or state/tribal mental health agency. The regulation at § 1356.60(c)(2) provides examples of allowable title IV-E foster care administrative expenditures that are necessary for the administration of the title IV-E agency's plan, such as preparation for and participation in judicial determinations, referral to services, development of the case plan, case reviews, and case management and supervision.

ACF policy historically allowed title IV-E agencies to claim FFP for the foster care administrative costs of “preparation for and participation in judicial determinations” as described in § 1356.60(c)(2)(ii), only for the title IV-E agency's (and if applicable, the tribe or other public agency's) legal representation. However, in 2019, ACF revised the policy to allow title IV-E agencies to also claim FFP for the administrative costs of independent legal representation provided by attorneys representing children who are candidates for title IV-E foster care, children who are in title IV-E foster care (hereafter, “child who is eligible for title IV-E foster care” refers to both a child who is a candidate and child who is in foster care), and the children's parent(s) in all stages of foster care legal proceedings (Child Welfare Policy Manual [CWPM] 8.1B #30, 31, and 32). This policy was revised to ensure that reasonable efforts are made to prevent removal and finalize the permanency plan; and parents and youth are engaged in and complying with case plans. A “candidate” for title IV-E foster care is a child who is potentially eligible for title IV-E foster care maintenance payments and is at serious risk of removal from home as evidenced by the title IV-E agency either pursuing the child's removal from the home or making reasonable efforts to prevent such removal (section 472(i) of the Act). Further, the agency must document the child's candidacy for title IV-E foster care maintenance payments through one of the three acceptable methods identified in the Child Welfare Policy Manual, such as a case plan. (CWPM 8.1D #2) A child is not considered a candidate for title IV-E foster care when the title IV-E agency has no formal involvement with the child or simply because the child has been described as “at risk” due to circumstances such as social or interpersonal problems or a dysfunctional home environment (CWPM 8.1D). This policy change was well received and generated positive interest from title IV-E agencies and child welfare and legal stakeholders.

This NPRM proposes to codify and expand the policy in CWPM 8.1B #30, 31, and 32. Recent research, as described in the Section-by-Section, demonstrates that providing independent legal representation early in foster care proceedings and other civil legal proceedings can help prevent children from entering foster care, and for youth already in foster care, can improve the rate of reunification and result in more permanent outcomes for the child and the family. Therefore, this NPRM proposes that providing independent legal representation to a child who is eligible for title IV-E foster care, their parent(s), and their relative caregiver(s) to prepare for and participate in civil legal proceedings is an allowable administrative cost when necessary to carry out the requirements in the agency's title IV-E foster care plan in accordance with section 471(a) of the Act.

ACF proposes to revise § 1356.60(c) to add a new paragraph (4) providing examples of allowable administrative costs for legal representation and add a new paragraph (c)(2)(xi) to include a reference to paragraph (4).

In a new paragraph (4)(i), we propose to clarify that a title IV-E agency may claim administrative costs for legal representation when incurred by the title IV-E agency, or any other public agency or tribe that has an agreement with the title IV-E agency for placement and care responsibility of a title IV-E eligible child under section 472(a)(2)(B)(ii) of the Act in foster care proceedings. This proposal is not new as regulations currently allow this cost under the example of preparing for and participating in judicial determinations. We are specifying this type of legal representation for agency attorneys as a separate example of allowable costs and to make clear that it encompasses public agencies and tribes that have an agreement under section 472(a)(2)(B)(ii) of the Act with the title IV-E agency.

In a new paragraph (4)(ii), we propose that a title IV-E agency may claim FFP for administrative costs of independent legal representation provided by an attorney representing a child who is eligible for title IV-E foster care, their parent(s), and their relative caregiver(s), to prepare for and participate in foster care and other civil legal proceedings necessary to carry out the requirements in the agency's title IV-E foster care plan. We are also proposing that legal representation in civil legal proceedings may include facilitating, arranging, brokering, advocating, or otherwise linking clients with providers and services as identified in the child's case plan pursuant to section 475(1) of the Act. Consistent with Children's Bureau policy, a title IV-E agency may claim title IV-E administrative costs of paralegals, investigators, peer partners or social workers that support an attorney providing such independent legal representation to the extent that they are necessary to support the attorney. Under title IV-E of the Act, the term “parent(s)” means a biological or adoptive parent(s) or legal guardian(s), as determined by applicable state or tribal law (section 475(2) of the Act). The term “legal guardianship” means a judicially created relationship between child and caretaker (legal guardian) which is intended to be permanent and self-sustaining as evidenced by the transfer to the caretaker of the following parental rights with respect to the child: protection, education, care and control of the person, custody of the person, and decision making (section 475(7) of the Act). Therefore, this NPRM proposes that title IV-E agencies may claim allowable administrative costs of independent legal representation for a legal guardian(s) of a child eligible for title IV-E foster care, if state or tribal law considers a legal guardian(s) a parent(s), and consistent with Federal law, such legal guardian(s) is intended to be the permanent caretaker of the child.

Under this proposal, title IV-E agencies will also be allowed to claim administrative costs for independent legal representation provided to relative caregivers, even when those relative caregivers are not a foster child's legal guardian. For purposes of claiming the cost of independent legal representation provided to the relative caregiver of a child who is eligible for title IV-E foster care, the title IV-E agency may define the term “relative.” For example, a title IV-E agency may define relative to include kin and “fictive-kin.”

Finally, in paragraph (c)(2) we propose to add a new paragraph (xi) referencing the proposed new paragraph (4) to clarify that such legal representation is an allowable administrative cost.

This NPRM proposes that the title IV-E agency may determine what `independent' means for purposes of providing such legal representation. However, at a minimum, such legal representation should be provided by an attorney who: does not have a concurrent conflict of interest, such as when the representation of one client will be directly adverse to the lawyer's responsibilities to another client, a former client or a third person; does not accept compensation for representing a client from someone other than the client unless the client gives informed consent; and there is no interference with the lawyer's independence of professional judgment or with the client-lawyer relationship.

Many families involved in the child welfare system encounter barriers to accessing services that can help them overcome family, health, or economic challenges or crises. Such challenges or crises may include loss of employment, inadequate income, unstable housing or homelessness, food insecurity, mental health and/or substance misuse disorders, and family violence. These crises can impede a family's ability to provide a safe and stable environment for their children (ACYF-CB-IM-21-02, p.2; ACYF-CB-IM-21-06 p. 12), which can lead to placement in foster care or delayed permanency when the family is not prepared for a child to return home. For example, of all children that entered foster care in Federal fiscal year (FY) 2021, 63 percent of removals were related to neglect (including failure to provide adequate food, clothing, shelter, and supervision or care by a person who is responsible for the child's welfare). Nine percent were experiencing housing issues at the time of removal (Adoption and Foster Care Analysis and Reporting System (AFCARS) FY 2021 Report). In 2020, a peer-reviewed journal article conducted a systematic search of peer-reviewed studies conducted in the U.S. regarding the association of housing stress with child maltreatment. The literature indicates indicate that “housing stress is associated with an increased likelihood of caregiver or child self-reported maltreatment, child protective services (CPS) reports, investigated and substantiated CPS reports, out-of-home placements, and maltreatment death (Chandler CE, Austin AE, Shanahan ME. Association of Housing Stress With Child Maltreatment: A Systematic Review. Trauma Violence Abuse. 2022 Apr;23(2):639-659. doi: 10.1177/1524838020939136. Epub 2020 Jul 17. PMID: 32677550; PMCID: PMC7855012).

Preventing a child from being removed from their home is critical to a child's well-being because removal, even for a short period of time, exposes the child to a range of trauma and stress (Sankaran, Vivek. “Using Preventive Legal Advocacy to Keep Children from Entering Foster Care.” Wm. Mitchell L. Rev. 40, (3): 1036-1047, 2014). A child who is at risk of entering foster care has better outcomes when they remain at home compared to when they are placed into foster care (Joseph J. Doyle, Jr. “Causal Effects of Foster Care: An Instrumental Variables Approach.” Children and Youth Services Review 35(7): 1143-1151, 2013.).

Research demonstrates that providing independent legal representation in foster care and other civil legal proceedings can minimize some of these barriers that contribute to bringing families with children at risk of entering foster care in contact with the child welfare system and may help prevent children from entering foster care (Sankaran, Vivek. “Using Preventive Legal Advocacy to Keep Children from Entering Foster Care.” Wm. Mitchell L. Rev. 40, (3): 1036-1047, 2014). One recent study showed that when parents are represented by an interdisciplinary law office with legal specialists to assist with immigration, benefits, criminal, housing, or other concerns, children placed in foster care were safely returned to their families about 43 percent more often in the first year, children's time in foster care was reduced by nearly four months, and families were no more likely to experience a subsequent substantiated report of maltreatment (Gerber, Lucas A., Pang, Yuk C., Ross, Timothy, Guggenheim, Martin, Pecora, Peter J., & Miller, Joel. “Effects of an interdisciplinary approach to parental representation in child welfare,” Children and Youth Services Review, Volume 102, 2019, Pages 42-55, ISSN 0190-7409, https://doi.org/10.1016/j.childyouth.2019.04.022 ).

Outcome data from legal service programs and pilot projects demonstrate that providing independent legal representation to address a family's civil legal issues results in a high success rate for preventing children from entering foster care and for children who are in foster care, expediting permanency (American Bar Association Center on Children and the Law & National Council of Juvenile and Family Court Judges. Supporting Early Legal Advocacy before Court Involvement in Child Welfare Cases (March, 2021). For example:

• The Detroit Center for Family Advocacy conducted a pilot program to provide independent legal representation to address civil legal issues for families in which a child has been found abused or neglected. Typically, lawyers filed for a restraining order, drafted a power of attorney, filed for a guardianship, applied for public benefits, or helped with special-education entitlements. Of the 55 families who were caring for 110 children served, none of the children entered foster care. (Detroit Center for Family Advocacy Pilot Evaluation report July 2009-June 2012; Sankaran, Vivek. Case Closed: Addressing Unmet Legal Needs and Stabilizing Families. M.L. Raimon, co-author. Center for the Study of Social Policy [2014] [Detroit model project])

• Iowa Legal Aid is piloting an early representation program for parents before petitions are filed. The program assists with private guardianship, custody, protective orders, landlord/tenant disputes, and appeals of denials of public benefits. Outcome data from 2018 show the program, in four counties, prevented over 100 children from becoming court involved (Family Justice Initiative. Implementing FJI System Attributes, Attribute 4: Timing of Appointment, 2020.; Iowa Legal Aid. Parent Representation Project, undated.).

• Legal Services of New Jersey has operated a pre-petition representation program since 2018. The cases are referred by the child welfare agency and typically involve representation around public benefits and access to affordable housing, child support and custody issues, and school-related issues. Outcome data indicate that by 2020, the program had prevented 200 removals (Implementing FJI System Attributes, Attribute 4: Timing of Appointment, 2020.).

• The Washington Family Intervention Response to Stop Trauma Clinic provides pre-petition representation to parents of substance-exposed infants. The program often works with the parent to identify and obtain temporary custody with relatives or others. Attorneys also advocate around services for parents with substance use disorders, including for programs that allow continued placement of the child with the parent. While this is a small and relatively new program, initial outcome data suggests the majority of the parents working with the program can avoid a dependency filing and, thus, prevent the removal of their children from the home (Family Justice Initiative, 2020; Wall, Tonya and Adam Ballout. “Using Legal Services to Keep Children in Families: The F.I.R.S.T. Clinic.” Children's Rights Litigation, October 3, 2019.).

• The Vermont Parent Representation Center provides legal representation in civil matters in cases where a child faces a significant risk of being removed from his or her home. In 78 percent of cases, children did not enter foster care. In cases in which children entered foster care, 50 percent went home to their families expeditiously ( VPRC's Performance Measures, Vermont Parent Representation Center, Inc.) ( Why VPRC Is Important to Vermont Families, Vermont Parent Representation Center, Inc.).

• Children's Law Center of California (CLC) provides pre-court legal advocacy to expecting and parenting youth who have a dependency case. Case managers and attorneys address issues such as drug use, child trafficking and exploitation, mental health and domestic violence. The project has successfully prevented filings in cases involving domestic violence by counseling clients and helping them obtain restraining orders once a referral was triggered.

• Legal Aid Services of Oklahoma operates an early legal advocacy project. In cases where the state will not reunify a child in foster care because of domestic abuse, attorneys provide legal representation in divorce, guardianship and landlord tenant issues. The benefit of this early advocacy project is that it avoids removal of children.

• In New York, the Bronx Defenders provide legal representation for parents in abuse and neglect cases in Bronx Family Court, advocates for families during the child protection investigation before a legal case is filed and advises pregnant women who are at risk of child protection involvement. Attorneys advise parents of their rights, accompany them to meetings and conferences with the Administration for Children's Services, refer them to community-based services, and work with parents to identify family supports.

Under the revision proposed in this NPRM, we specify that allowable administrative costs of an attorney providing independent legal representation in other civil legal proceedings may include facilitating, arranging, brokering, advocating, or otherwise linking clients with providers and services as identified in the child's case plan. For example, a family may need to secure safe and stable housing to prevent the unnecessary removal of a child from the home, or a youth aging out of foster care may need access to stable housing to finalize a case plan in support of their permanency goal as required by, respectively, sections 471(a)(15) and 475(5)(H) of the Act. Allowable civil legal representation may include preparing for or participating in a legal proceeding to advocate with a housing authority to help a family or a youth aging out of foster care secure a housing voucher, appealing a denial of a housing voucher, or suing a landlord whose housing has unsafe conditions in order to execute the child's case plan.

Additional examples of legal representation in civil legal proceedings that may be necessary to carry out the title IV-E foster care plan include:

• An attorney providing independent legal representation to an eligible child/parent to prepare for and participate in a legal proceeding to establish paternity when it is necessary to establish title IV-E eligibility or meet the requirement for the agency to file for termination of parental rights when a child has been in foster care for 15 of the most recent 22 months (section 475(5)(E) of the Act).

• An attorney providing independent legal representation to an eligible child/parent/relative caregiver to prepare for and participate in a legal proceeding to help a victim of family violence obtain an order of protection against the abuser to maintain or secure custody of their child(ren), secure stable housing, secure public benefits, or establish custody or guardianship, when it is necessary to meet the plan requirement to make reasonable efforts to prevent the unnecessary removal of a child from the home or to finalize a case plan in support of a child's permanency goal as required by section 471(a)(15) of the Act.

• An attorney providing independent legal representation to an eligible child/parent/relative caregiver to prepare for and participate in a legal proceeding to enroll a child in school or access education records when it is necessary to meet plan requirements to ensure the educational stability of the child while in foster care, taking into account the appropriateness of the current educational setting and the proximity to the school in which the child is enrolled at the time of placement in foster care; provide a copy of educational records to a child at no cost at the time the child leaves foster care; and ensure a child is enrolled in school per sections 471(a)(30) and 475(1)(G) and (5)(D) of the Act.

• An attorney providing independent legal representation to an eligible child to prepare for and participate in a proceeding to establish a health care power of attorney, health care proxy, or other similar document recognized under State law when it is necessary to meet the requirement to develop a transition plan in the 90-day period immediately prior to the date on which the child will age out of foster care, per section 475(5)(H) of the Act.

• An attorney providing independent legal representation to an eligible child/parent/relative caregiver to prepare for and participate in a proceeding to resolve inaccuracies in a youth's credit report when it is necessary to meet the plan requirement to provide a youth a copy of any consumer report each year until the child is discharged from care, and provide assistance (including, when feasible, from any court-appointed advocate for the child) in interpreting and resolving any inaccuracies in the report, per section 475(5)(I) of the Act.

• An attorney providing independent legal representation to an eligible child/parent/relative caregiver to prepare for and participate in a proceeding to help a child obtain, change, or correct official documentation when it is necessary to meet the plan requirements to provide youth discharged from foster care an official or certified copy of the United States birth certificate of the child, a social security card issued by the Commissioner of Social Security, health insurance information, a copy of the child's medical records, and a driver's license or identification card issued by a State in accordance with the requirements of section 202 of the REAL ID Act of 2005, and any official documentation necessary to prove that the child was previously in foster care per sections 475(5)(I) and 471(a)(27) of the Act.

• An attorney providing independent legal representation to an eligible child/parent/relative caregiver to prepare for and participate in a proceeding to help a youth aging out of foster care access public benefits, housing, health insurance, and education when it is necessary to meet the plan requirement to develop a transition plan 90-days immediately prior to the date on which the child will age out of foster care, per section 475(5)(H) of the Act.

In a new paragraph (4)(iii), ACF proposes that a title IV-E agency with placement and care responsibility for an Indian child may claim FFP for administrative costs of legal representation provided by an attorney representing an Indian child's tribe (as defined by 25 U.S.C. 1903(5)), when the child's tribe intervenes in any state court proceeding for the foster care placement or termination of parental rights of an Indian child who is in title IV-E foster care or an Indian child who is a candidate for title IV-E foster care when such legal representation is found necessary by the Secretary to carry out the requirements in the title IV-E agency's title IV-E state plan. The ICWA was passed by Congress in 1978 to address the long history of failing “to recognize the essential tribal relations of Indian people and the cultural and social standards prevailing in Indian communities and families.” (25 U.S.C. 1901(5)). ICWA protects the “best interests of Indian children and promotes the stability and security of Indian tribes and families by the establishment of minimum Federal standards for the removal of Indian children from their families and the placement of such children in foster or adoptive homes which will reflect the unique values of Indian culture, and by providing for assistance to Indian tribes in the operation of child and family service programs.” (25 U.S.C. 1902).

As one tribal leader told Congress, tribes cannot long survive as “self-governing” communities if they cannot pass their “heritage” on to the next generation. Holyfield at 34 (citation omitted). Congress thus recognized that, by severing that connection to future generations, the breakup of Indian families threatens “the continued existence and integrity of Indian tribes.” 25 U.S.C. 1901(3). The Federal Government has an interest in ensuring that Indian tribes, vested with a statutory right to intervene in state foster care placement proceedings in accordance with 25 U.S.C. 1911(c), have legal representation to preserve and protect the continued existence and integrity of Indian tribes. As the Supreme Court noted in a case interpreting ICWA, “Congress [ ] found that the breakup of Indian families harmed not only Indian children and their parents, but also their tribes.” Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30 at 33-34 (1989).

This proposal supports the goal of tribal self-governance by supporting Indian families, both by minimizing unnecessary separations of Indian children from their parents and by maximizing their placement with extended family, other tribal members, or other tribal families when they cannot remain with their parents. It is well documented that for Indian children who have been placed in foster care, and their families, early representation of an Indian child's tribe in foster care placement proceedings promotes stability for the child by minimizing unnecessary separation of children and their parents, and by maximizing placements of the child with extended family and other preferred placements (Frequently Asked Questions Bureau of Indian Affairs Final Rule: Indian Child Welfare Act (ICWA) Proceedings, June 17, 2016).

The information provided by the tribe's attorney provides the cultural and social standards of the child's tribe that are necessary for the court to make essential determinations that reasonable efforts were made as required under the title IV-E plan. For example, the Act requires the court to determine whether the agency made reasonable efforts to finalize a permanency plan. The tribal attorney's representation of the cultural and social standards for family connection, reunification and what permanency looks like in the child's tribe, may be necessary to finalize the permanency plan for an Indian child. For example, if adoption is the permanency plan for an Indian child, the tribal attorney can provide information on customary adoption, which ensures “the same stability and permanence of traditional adoption without terminating parental rights.” As with all allowable administrative costs, it is the option of the title IV-E agency with placement and care responsibility of the child whether or not to implement this option to claim FFP for this purpose.

ACF is making this proposal because legal representation provided by an attorney to an Indian child's tribe intervening in state court proceedings as described above, would be an allowable administrative cost necessary for the proper and efficient administration of the title IV-E plan when it fulfills a specific title IV-E plan requirement. Such representation also avoids unintended consequences adverse to a child's interests, such as loss of tribal membership and benefits (ICWA Compliance Task Force Report to the California Attorney General's Bureau of Children's Justice. 2017).

This NPRM is consistent with the administration's priority of advancing equity for those historically underserved and adversely affected by persistent poverty and inequality (Executive Order 13985, Advancing Racial Equity and Support for Underserved Communities Through the Federal Government [Jan. 20, 2021]). Research well-documents the overrepresentation of certain racial and ethnic groups in foster care relative to their representation in the general population. African American and American Indian or Alaska Native children are at greater risk than other children of being confirmed for maltreatment and placed in out-of-home care. They stay in foster care longer and have disparate outcomes. For example, they are less likely to reunify with their families (Child Welfare Information Gateway. (2021). Child welfare practice to address racial disproportionality and disparity. U.S. Department of Health and Human Services, Administration for Children and Families, Children's Bureau. https://www.childwelfare.gov/pubs/issue-briefs/racialdisproportionality/ ). Access to legal representation for an Indian child's tribe promotes equity for those historically and adversely affected by inequality by minimizing unnecessary separation of children and their parents, and by maximizing placements of the child with extended family, within the tribal community, and other preferred placements. Research also documents the overrepresentation of children and parents with disabilities in foster care relative to their representation in the general population. As many as 60 percent of children in foster care have disabilities. Parents with disabilities are more likely than nondisabled parents to have child welfare system involvement. Children with disabilities are institutionalized at higher rates and for longer periods of time. Children of parents with disabilities have higher out-of-home placement than other children. Studies have also found disabled parents have high rates of termination of parental rights (Albert SM, Powell RM. Supporting disabled parents and their families: perspectives and recommendations from parents, attorneys, and child welfare professionals. J Public Child Welf. 2020;15(5):529. doi: 10.1080/15548732.2020.1751771. PMID: 37220548; PMCID: PMC10202498.).

Access to independent legal representation early in foster care and other civil legal proceedings necessary to carry out the requirements in the agency's title IV-E foster care plan may prevent children of color from entering foster care. For children in foster care, it may increase the rate of reunification and provide a quicker timeframe for achieving permanency. For young adults aging out of foster care, such legal representation may provide access to services and supports needed to achieve permanency and long-term stability.

This proposed change can also help low-income families adversely affected by persistent poverty who are struggling with unemployment, inadequate income, unstable housing, evictions or homelessness, and food insecurity when confronted with potential removal of a child from the home, or when a relative is caring for a child in their home. According to a 2017 study, 71 percent of low-income households experienced at least one civil legal problem in the previous year, including problems with health care, housing conditions, disability access, veterans' benefits, and domestic violence. Of the low-income households reporting civil legal problems, 86 percent received inadequate or no legal help; ( Washington, D.C.: The University of Chicago for Legal Services Corporation, 2017 ). As previously explained, studies also show that when a child is removed from the home, having access to legal representation not only for child welfare proceedings but also for other civil legal issues earlier in a case can improve the rate of reunification, halve the amount of time needed to secure legal guardianship or adoption, and result in more permanent outcomes for the child and the family (Thornton, Elizabeth, & Gwin, Betsy. High-Quality Legal Representation for Parents in Child Welfare Cases Results in Improved Outcomes for Families and Potential Cost Savings. 46 Fam. L.Q. 139 (2012)). That means that parents without independent legal representation in child welfare proceedings and in other civil legal proceedings are at a disadvantage in having their children returned to them. Therefore, providing families adversely affected by poverty with independent legal representation in foster care and other civil legal proceedings necessary to carry out the requirements in the agency's title IV-E foster care plan may improve outcomes related to reunification and permanency.

In addition, access to legal representation for an Indian child's tribe promotes equity for those historically and adversely affected by inequality by minimizing unnecessary separation of children and their parents, and by maximizing placements of the child with extended family, within the tribal community, and other preferred placements.

Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). E.O. 13563 is supplemental to, and reaffirms the principles, structures, and definitions governing regulatory review as established in E.O. 12866, as amended by Executive Order 14094, emphasizing the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. Section 3(f) of E.O. 12866, as modified by 14094, defines “a significant regulatory action” as an action that is likely to result in a rule (1) having an annual effect on the economy of $200 million or more in any 1 year, or adversely and materially affecting a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, and tribal governments or communities; (2) creating serious inconsistency or otherwise interfering with an action taken or planned by another agency; (3) materially altering the budgetary impacts of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or (4) raising legal or policy issues for which centralized review would meaningfully further the President's priorities, or the principles set forth in the Executive order. This proposed rule is a significant rule and the Regulatory Impact Analysis for this proposed rule identifies economic impacts that exceed the threshold for significance under section 3(f)(1) of Executive Order 12866. The estimated cost and transfer impacts of this regulatory proposal are provided below. As described in the Section-by-Section discussion above, providing legal representation in foster care proceedings and other civil legal proceedings minimize barriers that contribute to bringing families with children at risk of entering foster care in contact with the child welfare system and may help prevent children from entering foster care. For youth already in foster care, such legal representation can improve the rate of reunification resulting in more permanent outcomes for the child and the family. For young adults transitioning out of foster care, such legal representation may provide access to services and supports needed to achieve permanency and for long-term stability.

Alternatives Considered: In 2019, ACF revised the Child Welfare Policy Manual to allow title IV-E agencies to claim FFP for the administrative costs of independent legal representation provided by attorneys representing children who are candidates for title IV-E foster care, children who are in title IV-E foster care, and the children's parent(s) in all stages of foster care legal proceedings. As an alternative to this NPRM, we considered only codifying this policy (see CWPM 8.1B #30, 31, and 32). However, this alternative would not meet our goals for two reasons. First, the alternative would not allow an agency to claim such costs in non-foster care civil legal proceedings, meaning that an agency could only continue using state/tribal or local funds for legal representation in civil legal proceedings. As described in the Section-by-Section, allowing administrative costs for legal representation in civil legal proceedings can help prevent children from entering foster care, and for youth already in foster care, can improve the rate of reunification and result in more permanent outcomes for the child and the family. Second, the alternative would only allow independent legal representation for the child's parent(s) and not the child's relative caregiver(s) as proposed. However, such legal representation for the growing number of relative caregivers, who often lack advance preparation and struggle with similar legal barriers as a parent(s), will reduce the need for more formal child welfare system involvement. For children in foster care, providing legal representation to relative caregivers would minimize some of the barriers that prevent a child from being placed with a relative caregiver, enable more children to maintain family connections, stabilize placements and result in more permanent outcomes for the child and the family.

We also considered narrowly defining the activities an attorney may perform to prepare for and participate in civil legal proceedings for which a title IV-E agency may claim FFP. However, as described in the Section-by-Section, legal service programs and pilot projects that provided legal representation in a wide range of civil legal issues demonstrated a high success rate for preventing children from entering foster care and for children who are in foster care, expediting permanency. Therefore, the proposal broadens “preparation for and participation in civil legal proceedings” to include facilitating, arranging, brokering, advocating, or otherwise linking clients with providers and services as identified in the child's case plan.

We further considered whether the statute would permit the proposal to be mandatory for title IV-E agencies. However, title IV-E does not provide authority to require agencies to provide such representation or to claim FFP for administrative costs. This is because title IV-E agencies determine the costs necessary to administer the title IV-E Foster Care Program, and in turn, Federal reimbursement for allowable costs is permitted at 50 percent FFP.

Without this proposal codified, title IV-E agencies may continue to claim FFP for the administrative costs of independent legal representation provided by attorneys, representing children who are eligible for title IV-E foster care, and the children's parent(s) only in foster care legal proceedings.

Finally, as an alternative to this NPRM, we considered continuing to not allow title IV-E agencies to claim FFP for the administrative cost of independent legal representation provide by an Indian child's tribe when the tribe intervenes in state court child welfare proceedings. However, such legal representation promotes stability for the child by minimizing unnecessary separation of children and their parents, and by maximizing placements of the child with extended family, tribal community, and other preferred placements.

The Regulatory Flexibility Act (RFA) ( see 5 U.S.C. 605(b) as amended by the Small Business Regulatory Enforcement Fairness Act) requires Federal agencies to determine, to the extent feasible, a rule's impact on small entities, explore regulatory options for reducing any significant impact on a substantial number of such entities, and explain their regulatory approach. The term “small entities,” as defined in the RFA, comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. HHS considers a rule to have a significant impact on a substantial number of small entities if it has at least a 3 percent impact on revenue on at least 5 percent of small entities. However, the Secretary certifies, under 5 U.S.C. 605(b), as enacted by the RFA (Pub. L. 96-354), that this rulemaking will not result in a significant impact on a substantial number of small entities. This proposed rule does not affect small entities because it is applicable only to state and tribal title IV-E agencies. Therefore, an initial regulatory flexibility analysis is not required for this document.

The Unfunded Mandates Reform Act of 1995 (UMRA) (Pub. L. 104-4) was enacted to avoid imposing unfunded Federal mandates on state, local, and tribal governments, or on the private sector. Section 202 of UMRA requires that agencies assess anticipated costs and benefits before issuing any rule whose mandates require spending in any 1 year of $100 million in 1995 dollars, updated annually for inflation. In 2022, that threshold is approximately $165 million. This rulemaking does not contain mandates that will impose spending costs on state, local, or tribal governments in the aggregate, or on the private sector, in excess of the threshold.

The Congressional Review Act (CRA) allows Congress to review major rules issued by Federal agencies before the rules take effect ( see 5 U.S.C. 801(a)(1)(A)). The CRA defines a “major rule” as one that has resulted, or is likely to result, in (1) an annual effect on the economy of $100 million or more; (2) a major increase in costs or prices for consumers; individual industries; Federal, State, or local government agencies; or geographic regions; or (3) significant adverse effects on competition, employment, investment, productivity, or innovation, or on the ability of United States-based enterprises to compete with foreign-based enterprises in domestic and export markets ( see 5 U.S.C. chapter 8). Based on our estimates of the impact of this rulemaking, the Office of Information and Regulatory Affairs (OIRA) in OMB anticipates that a final rule would be `major' under the CRA.

Section 654 of the Treasury and General Government Appropriations Act of 1999 requires Federal agencies to determine whether a policy or regulation may negatively affect family well-being. If the agency determines a policy or regulation negatively affects family well-being, then the agency must prepare an impact assessment addressing seven criteria specified in the law. ACF believes it is not necessary to prepare a family policymaking assessment, see Public Law 105-277, because the action it takes in this NPRM will not have any impact on the autonomy or integrity of the family as an institution.

Executive Order 13132 requires Federal agencies to consult with state and local government officials if they develop regulatory policies with federalism implications. Federalism is rooted in the belief that issues that are not national in scope or significance are most appropriately addressed by the level of government close to the people. This rulemaking will not have substantial direct impact on the states, on the relationship between the Federal Government and the states, or on the distribution of power and responsibilities among the various levels of government. Therefore, in accordance with section 6 of Executive Order 13132, it is determined that this action does not have sufficient federalism implications to warrant the preparation of a federalism summary impact statement.

The Paperwork Reduction Act of 1995 (Pub. L. 104-13) seeks to minimize government-imposed burden from information collections on the public. In keeping with the notion that government information is a valuable asset, it also is intended to improve the practical utility, quality, and clarity of information collected, maintained, and disclosed.

The Paperwork Reduction Act defines “information” as any statement or estimate of fact or opinion, regardless of form or format, whether numerical, graphic, or narrative form, and whether oral or maintained on paper, electronic, or other media (5 CFR 1320.3(h)). This includes requests for information to be sent to the government, such as forms, written reports and surveys, recordkeeping requirements, and third-party or public disclosures (5 CFR 1320.3(c)). Collection requirements for title IV-E foster care administrative costs are currently authorized under OMB number 0970-0510 and include administrative costs for independent legal representation. This action does not include any new information collection requirements or changes to existing information collection requirements.

The Federal cost of the NPRM over ten fiscal years (2023-2032) is estimated to be $2,936,285,160 ($2,099,154,001 (foster care legal proceedings (FC)) + $631,567,527 (civil legal proceedings) + $205,563,632 (FC proceedings in which an Indian child's tribe has intervened). The combined total for Federal and agency costs over ten fiscal years is estimated to be $5,872,570,319 ($4,198,308,001 for FC legal proceedings + $1,263,135,054 for civil legal proceedings + $411,127,264 for FC proceedings in which an Indian child's tribe has intervened). It is optional for a title IV-E agency to claim the administrative cost of providing independent legal representation in foster care and civil legal proceedings to eligible children, their parents, and their relative caregivers, and for legal representation to an Indian child's tribe that intervenes in state court proceedings for the foster care placement and termination of parental rights of an eligible child.

Assumptions: ACF made several assumptions when calculating title IV-E administrative costs:

• FY 2021 title IV-E foster care administrative cost claims are used as the base year amounts for projection purposes in this NPRM and were sourced from Form CB-496 FC part 1. These are actual claims, and not estimates. For the purposes of these burden estimates, we will use the phrase “candidates” to refer to the number of children claimed as title IV-E candidates and “IV-E FC” for children who are in title IV-E foster care, the two populations of children (and their parents and relative caregivers) to which the costs of this NPRM apply.

• AFCARS data provides the number of title IV-E eligible children who identified as “American Indian\AK Native Alone Or In Combination.” We assume that this population of children is potentially subject to ICWA requirements in state court foster care placement proceedings. We further assume that each such Indian child's tribe will intervene in state court foster care placement proceedings.

• Title IV-E agencies may claim reimbursement for 50 percent of the administrative costs to provide legal representation in foster care proceedings, including those in which an Indian child's tribe has intervened in state court foster care placement proceedings, and civil proceedings, and the title IV-E agency must pay its share with state or tribal funds. This non-Federal share will be an equal percentage of 50 percent because a title IV-E agency must match the same amount of funds for which it seeks Federal reimbursement.

• We assume an overall annual 1 percent caseload growth rate in the population of candidates for title IV-E foster care and IV-E FC for whom title IV-E administrative costs will be claimed in civil legal proceedings and in FC legal proceedings, including those in which an Indian child's tribe has intervened in state court foster care placement proceedings. This is based on current title IV-E budgetary projections.

• We assume an annual FFP claims growth factor of 4.7 percent for FY 2023 and 2.3 percent from FY 2024 to FY 2032 for the administrative costs of independent legal representation in FC and in other civil legal proceedings. This is based on current title IV-E budgetary projections of the percentage of change in title IV-E administrative cost claims annually. We assume the calculated FY 2021 title IV-E foster care administration eligibility rate for children classified as American Indian\AK Native Alone Or In Combination will remain unchanged for the ten FY (FYs 2023-2032) project period.

• An implementation level is used in the calculations for the chart below as an estimated projection for the growth in the number of children (either directly or on behalf of a parent or relative caregivers) receiving independent legal representation in foster care legal proceedings or civil legal proceedings. Similarly, an implementation level is used in the calculations for the chart below as an estimated projection for the growth in the number of children whose tribe is receiving legal representation in state foster care placement and termination of parental rights legal proceedings. The implementation level is different for the cost estimates for foster care legal proceedings and civil legal proceedings, and state court foster care placement legal proceedings in which an Indian child's tribe has intervened as explained below:

○ For independent legal representation in foster care legal proceedings, the implementation level is measured separately for children who are candidates and IV-E FC. The base year (FY 2021) implementation levels are calculated from Form CB-496 FC part 1 which identifies for each title IV-E agency on a quarterly basis the average monthly number of children where independent legal representation for foster care proceedings is being provided for a candidate or IV-E FC. For FY 2021, the independent legal representation for foster care proceedings implementation level is 15.4 percent for IV-E FC and 7.9 percent for candidates. For FYs 2023-2032, the implementation levels are derived from the experience observed in the reported caseload data between FY 2020 and FY 2021 where a 24 percent growth rate occurred for children in title IV-E foster care. We assume that the growth rate will peak in the year this NPRM is finalized and then gradually diminish as more title IV-E agencies take up the option to claim for these costs, and more children are receiving this representation.

○ For legal representation by an Indian child's tribe in state court foster care placement proceedings a single implementation level is measured for children who are candidates and in IV-E FC. The base year (FY 2021) implementation level is set at zero percent since Federal funding for this service will not be available until this NPRM is finalized. Although there is no known data on the extent to which we anticipate title IV-E agencies will begin providing legal representation by tribes to intervene in state court foster care placement proceedings, we anticipate that this administrative cost will be made available to 5 percent of potentially eligible children in FY 2023 and that most of the growth will occur in years 2-5 (FYs 2024-2027). In FY 2027 we anticipate 35 percent of potentially eligible tribes will receive legal representation. In subsequent FYs, the implementation rate growth will gradually diminish as more title IV-E agencies take up the option to claim for these costs, and more children on whose behalf a tribe is receiving this representation.

○ For independent legal representation in civil legal proceedings, the implementation level presumes that administrative cost claims will be limited to those children on whose behalf independent legal representation in foster care legal proceedings are claimed. Not all children receiving legal representation in FC proceedings need representation related to civil matters because the reasons for child welfare involvement vary. Additionally, not all title IV-E agencies providing independent legal representation in foster care legal proceedings will opt to also provide such legal representation in civil proceedings. We have no estimate for FY 2021 costs for legal representation in civil legal proceedings as these will be new costs as a result of finalizing this NPRM. We assume that the proportion of children receiving legal representation for civil legal proceedings (for both candidates and IV-E FC) will be derived from among those receiving representation for foster care legal proceedings. We estimate that the civil legal proceedings title IV-E caseload will grow gradually each FY from 20 percent in FY 2023, to 45 percent in FY 2027 and up to 56 percent in FY 2032 of the children on whose behalf representation is also being provided for foster care legal proceedings. While there is a great deal of interest in providing legal representation in civil legal proceedings, our projections take into account that, in most instances, new or revised protocols will need to be developed with various organizations to implement a final rule. There will also be a need to secure state or tribal funds for the non-Federal share of funding, which often requires legislative approvals.

Here we describe the individual calculations by line that are in the following chart. All entries in the chart and the narrative below are rounded to the nearest whole number. The calculations to obtain these amounts, however, were performed without applying rounding to the involved factor(s).

Line 1. National number of children (candidates and IV-E FC) receiving legal representation in foster care legal proceedings. Line 1 of the table below provides that the actual number of children receiving independent legal representation in FC proceedings in FY 2021 (baseline) was 10,477 candidates and 26,092 IV-E FC. Line 1 also includes estimates of the annual number of children receiving independent legal representation in foster care proceedings in the following subsequent years: FYs 2023, 2024, 2025, 2027 and in 2032, the estimated number of children is 29,525 candidates and 73,530 IV-E FC.

Line 2. National average FFP claim per child (candidates and IV-E FC) for independent legal representation in foster care proceedings. Line 2 of the table below displays that in FY 2021, the actual average title IV-E administrative cost claim per child receiving independent legal representation in foster care legal proceedings was $742 for title IV-E candidates and $2,709 for children in title IV-E foster care. We also provide estimates of the average title IV-E claim per child in the following subsequent years: FYs 2023, 2024, 2025, 2027 and in 2032 the per child average claim is estimated at $3,481 (IV-E FC) and $954 (candidates).

Line 3. Average FFP claims for candidates and children in title IV-E foster care for independent legal representation in foster care legal proceedings. Line 3 of the table below displays that in FY 2021, the actual FFP for children receiving independent legal representation in foster care legal proceedings was $7,777,621 for candidates and $70,689,345 for children in IV-E FC. We also provide estimates of the average annual claims for these children in the following subsequent years: FYs 2023, 2024, 2025, 2027 and in 2032 the estimated cost is $28,160,009 (candidates) and $255,941,062 (IV-E FC).

Line 4. Total Federal costs for independent legal representation in foster care legal proceedings (candidates and IV-E FC). Line 4 of the table below provides that the actual total FFP in FY 2021 was $78,466,966, which is the sum of the costs of independent legal representation in foster care legal proceedings for candidates and IV-E FC. We also provide estimates of the total FFP for these costs in the following subsequent years: FYs 2023, 2024, 2025, 2027 and in 2032 the estimated annual cost is $284,101,071. The estimates for these subsequent FYs were calculated by multiplying line 1 by line 2 for candidates and IV-E FC.

Line 5. Non-Federal costs for independent legal representation in foster care legal proceedings. Line 5 of the table below displays the total FY 2021 non-Federal costs of independent legal representation in foster care proceedings for candidates and IV-E FC was $78,466,966. This number is the same as line 4 because the FFP rate used in these estimates is 50 percent, thus we estimate the costs for Federal and non-Federal to be the same. We also provide estimates of the total non-Federal costs of independent legal representation in foster care legal proceedings in the following subsequent years: FYs 2023, 2024, 2025, 2027 and in 2032 the estimated annual cost is $284,101,071.

Line 6. Total Federal and non-Federal costs of independent legal representation in foster care legal proceedings. Line 6 of the table below is the sum of lines 4 and 5 for the total Federal and non-Federal costs of independent legal representation in foster care legal proceedings for candidates and IV-E FC. The total FY 2021 costs were $156,933,932. We also provide estimates of these total Federal and non-Federal costs in the following subsequent years: FYs 2023, 2024, 2025, 2027 and in 2032 the estimated annual cost is $568,202,142.

Line 7. Number of children (candidates and IV-E FC) receiving independent legal representation in civil legal proceedings. Line 7 of the table below displays the estimated number of children who will receive independent legal representation in civil legal proceedings either directly, or on behalf of a parent or relative caregiver in FY 2023 as 10,137 children. There is no estimate for FY 2021 in the chart because these costs were not claimed; these will be new costs as a result of finalizing this NPRM. We also provide estimates for subsequent years: FYs 2024, 2025, 2027 and in 2032 the estimated number of children is 63,482. This is based on the implementation level which is the percentage of children receiving independent legal representation in foster care legal proceedings who are projected to also receive independent legal representation in civil legal proceedings in the year.

Line 8. National average title IV-E administrative cost claim per child for independent legal representation in civil legal proceedings. Line 8 of the table below displays that in FY 2021, we assumed the average FFP claim per child (candidates and IV-E FC) receiving independent legal representation in civil proceedings to be $1,262. We also provide estimates for these costs for the following subsequent years: FYs 2023, 2024, 2025, 2027 and in 2032, we estimate the average FFP claim per child to be $1,621. These cost estimates were derived from data provided by the “Detroit Model” legal services program in which legal representation in civil issues for child welfare clients was calculated as an average yearly amount of $2,524 gross ($1,262 50 percent FFP title IV-E Federal share) per client. We used the Detroit model project because we do not have current title IV-E administrative cost claims reported on the Form CB-496 for civil proceedings that we can use for an estimate of the cost of providing independent legal representation in civil legal proceedings in this NPRM. This is the only program model known to us providing civil legal representation in pre-petition cases for which average cost data is available, thus the only way for us to estimate these costs (Detroit Center for Family Advocacy Pilot Evaluation report July 2009-June 2012; Sankaran, Vivek. Case Closed: Addressing Unmet Legal Needs and Stabilizing Families. M.L. Raimon, co-author. Center for the Study of Social Policy [2014] [Detroit model project]).

Pursuant to the Uniform Administrative Requirements, Cost Principles, and Audit Requirements for HHS Awards, title IV-E agencies must, among other things, ensure costs are reasonable (45 CFR 1335.30(i) applying 45 CFR 75.404). A cost is reasonable if, in its nature and amount, it does not exceed that which would be incurred by a prudent person under the circumstances prevailing at the time the decision was made to incur the cost. The title IV-E agency must describe how the administrative costs of allowable legal representation are allocated in a public assistance cost allocation plan that is reviewed and approved by HHS (45 CFR 1355.30(k) applying 45 CFR 95.507). To the extent that a title IV-E agency contracts with another public or private agency to provide or assist in title IV-E allowable activities, the title IV-E agency may claim reasonable costs consistent with their cost allocation plan and supported by a written agreement that, among other things, includes the specific service(s) being purchased, and the basis for billing (45 CFR 95.507(b)(6)). Many title IV-E agencies already have contracts with attorneys providing independent legal representation in foster care related hearings on behalf of children and their parent(s) where the child is either a candidate for or in foster care. Such agencies have experience identifying reasonable rates and appropriate categories of costs for allowable legal representation. We encourage title IV-E agencies to share comments on these experiences. We also specifically request comments from the public on what a prudent person under the circumstances would reasonably pay for attorney fees in civil legal proceedings.

Line 9. Federal costs of independent legal representation in civil legal proceedings. Line 9 of the table below provides the estimated Federal administrative costs at 50 percent FFP for independent legal representation in civil legal proceedings for candidates and IV-E FC. These costs were calculated by multiplying the expected average monthly caseload (line 7) by the expected average annual claim per child (line 8). We provide estimated Federal costs of $13,393,972 for FY 2023 and in subsequent years: FYs 2024, 2025, 2027 and in 2032 the estimated Federal cost is $102,928,630.

Line 10. Non-Federal costs of independent legal representation in civil legal proceedings. Line 10 provides the estimated non-Federal share of administrative costs for independent legal representation in civil legal proceedings for candidates and IV-E FC, which is 50 percent of the total on line 11. This number is the same as line 9 because the FFP rate used in these estimates is 50 percent, thus we estimate the costs for Federal and non-Fderal to be the same. We provide estimated non-Federal costs of $13,393,972 beginning in FY 2023 and in subsequent FYs: 2024, 2025, 2027 and in 2032 the estimated non-Federal cost is $102,928,630. There is no estimate for FY 2021 in the chart because these costs were not claimed; these will be new costs as a result of finalizing this NPRM.

Line 11. Total Federal and non-Federal cost of independent legal representation in civil legal proceedings. Line 11 displays the annual estimated total (Federal + non-Federal) costs for independent legal representation for candidates and IV-E FC in civil legal proceedings. This is the sum of lines 9 and 10. We estimate these total costs beginning in FY 2023 as $26,787,943 and in subsequent FYs: 2024, 2025, 2027 and in 2032, the estimate is $205,857,260. There is no estimate for FY 2021 in the chart because these costs were not claimed; these will be new costs as a result of finalizing this NPRM.

Line 12. Number of Indian children on whose behalf a tribe may receive legal representation in foster care legal proceedings (candidates and IV-E FC). Line 12 of the table below provides the estimated number of Indian children for whom legal representation may be received by their tribe in FC proceedings. In FY 2021 (baseline) candidates and IV-E FC are not listed since this administrative cost was not available. We estimate that the total number, beginning in 2023 and subsequent FYs 2024, 2025, 2027 and 2032 is 3,342 for candidates and 7,814 for IV-E FC.

Line 13. National average FFP claim per child (candidates and IV-E FC) for tribal representation in foster care legal proceedings. Line 13 of the table below provides the average title IV-E claim per child for the tribal representation in foster care proceedings. In FY 2021 (baseline), the average title IV-E administrative cost claim per child receiving legal representation in foster care legal proceedings was $1,262 (estimated) for title IV-E candidates and $2,709 (actual) for children in title IV-E foster care. We estimate the total per child claim for subsequent FYs 2023, 2024, 2025, 2027, and 2032 is $1,621(candidates) and $3,481 (IV-E FC).

Line 14. Average FFP for IV-E FC and candidate itemized for tribal representation in foster care legal proceedings. Line 14 of the table below displays estimates for the average annual claims for children whose tribe is receiving legal representation. In FY 2021, there was no actual FFP for children receiving tribal legal representation in foster care legal proceedings. For subsequent FYs 2023, 2024, 2025, 2027 and 2032 the estimated cost is $5,419,446 (candidates) and $27,200,314 (IV-E FC).

Line 15. Total FFP for tribal representation in foster care legal proceedings. Line 15 of the table below provides the total FFP for tribal representation in foster care legal proceedings by multiplying line 12 for candidates by line 13 for IV-E FC. For FY 2021 (base year), there was no actual FFP for children receiving tribal legal representation in foster care legal proceedings. Estimates of the total annual FFP for these costs in FYs 2023, 2024, 2025, 2027 and 2032 is $32,619,760.

Line 16. Total non-Federal cost for tribal representation in foster care legal proceedings. Line 16 provides the estimated non-Federal share of administrative costs for tribal legal representation in foster care legal proceedings for candidates and IV-E FC by multiplying line 1 by line 2, which is 50 percent of the total on line 17. This number is the same as line 15 because the FFP rate used in these estimates is 50 percent, therefore we estimate the costs for Federal and non-Federal to be the same. We provide estimated non-Federal costs of $2,641,921 beginning in FY 2023 and in subsequent FYs 2024, 2025, 2027 and 2032, the estimated non-Federal cost is $32,619,760. There is no estimate for FY 2021 in the chart because these costs were not claimed; these will be new costs as a result of finalizing this NPRM.

Line 17. Total cost for foster care legal proceedings. Line 17 displays the annual estimated total Federal and non-Federal costs for tribal legal representation for candidates and IV-E FC in foster care legal proceedings. This is the sum of lines 15 and 16. We estimate these total costs beginning in FY 2023 as $5,283,842 and in subsequent FYs 2024, 2025, 2027 and 2032, the estimate is $65,239,520. There is no estimate for FY 2021 in the chart because these costs were not claimed; these will be new costs as a result of finalizing this NPRM.

ACF understands that representation for a child's tribe in foster care legal proceedings in practice may not always be by an attorney. Some states allow non-attorneys to represent a child's tribe if they are a member of and authorized to represent the child's tribe. We are considering allowing the cost of a non-attorney to represent a child's tribe when it is necessary for the administration of the title IVE plan. We are seeking comments on this proposal and are especially interested in any evidence that non-attorneys would effectively provide the information that courts need, and any recommendations for how ACF would ensure that non-attorneys adequately represent the child's tribe.