[Federal Register Volume 83, Number 51 (Thursday, March 15, 2018)]
[Proposed Rules]
[Pages 11450-11452]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-05038]


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DEPARTMENT OF HEALTH AND HUMAN SERVICES

Administration for Children and Families

45 CFR Part 1355

RIN 0970-AC47


Adoption and Foster Care Analysis and Reporting System

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

ACTION: Notice of Proposed Rulemaking; delay of compliance and 
effective dates.

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SUMMARY: The Children's Bureau proposes to delay the compliance and 
effective dates in the Adoption and Foster Care Analysis and Reporting 
System (AFCARS) 2016 final rule for title IV-E agencies to comply with 
agency rules for an additional two fiscal years. We propose to delay 
the compliance and effective dates at the same time we seek public 
comment through an Advance Notice of Proposed Rulemaking (ANPRM), 
published elsewhere in this issue of the Federal Register, on 
suggestions to streamline the AFCARS data elements and remove any undue 
burden related to reporting AFCARS.

DATES: In order to be considered, we must receive written comments on 
this NPRM on or before April 16, 2018.

ADDRESSES: You may submit comments, identified by [docket number and/or 
RIN number], by one of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
     Email: [email protected]. Include [docket number and/
or RIN number] in subject line of the message.

[[Page 11451]]

     Mail: Written comments may be submitted to Kathleen 
McHugh, United States Department of Health and Human Services, 
Administration for Children and Families, Director, Policy Division, 
330 C Street SW, Washington, DC 20024. Please be aware that mail sent 
in response to this NPRM may take an additional 3 to 4 days to process 
due to security screening of mail.
    Instructions: All submissions received must include the agency name 
and docket number or Regulatory Information Number (RIN) for this 
rulemaking. All comments received will be posted without change to 
https://www.regulations.gov, including any personal information 
provided.

FOR FURTHER INFORMATION CONTACT: Kathleen McHugh, Division of Policy, 
Children's Bureau at (202) 401-5789.

SUPPLEMENTARY INFORMATION: In the AFCARS final rule issued on December 
14, 2016 (81 FR 90524), ACF provided an implementation timeframe of two 
fiscal years for title IV-E agencies to comply with 45 CFR 1355.41 
through 1355.47 (81 FR 90529). On February 24, 2017, the President 
issued Executive Order 13777 on Enforcing the Regulatory Reform Agenda. 
In response to the President's direction that federal agencies 
establish a Regulatory Reform Task Force to review existing regulations 
and make recommendations regarding their repeal, replacement, or 
modification, the HHS Task Force identified the AFCARS regulation as 
one where there may be areas for reducing reporting burden.
    Therefore, we are engaging in two regulatory actions to adhere to 
our obligations under the EO. Through this NPRM, ACF proposes to revise 
Sec.  1355.40 to provide an additional two fiscal years to comply with 
Sec. Sec.  1355.41 through 1355.47. ACF also proposes to delay the 
effective dates of instructions 3 and 5 in the rule published December 
14, 2016 (81 FR 90524), from October 1, 2019, to October 1, 2021. If 
this rule is finalized, the implementation timeframe would be delayed 
for title IV-E agencies to make revisions to their systems to comply 
with Sec. Sec.  1355.41 through 1355.47. This NPRM is open for a 30-day 
comment period. Per Executive Order 12866, the typical comment period 
is 60 days. However, the reasons for the shorter comment period for 
this NPRM is that any delay in issuing a final rulemaking might lead to 
title IV-E agencies diverting resources to unnecessary changes to their 
systems to comply with the December 2016 AFCARS final rule. 
Furthermore, this rule does not establish additional regulatory 
obligations or impose any additional burden on regulated entities. ACF 
believes that a 30-day comment period on this non-substantive 
rulemaking is a sufficient amount of time for the public to comment and 
ACF does not believe that a 30-day comment period will hamper public 
comment. ACF is publishing an ANPRM elsewhere in this issue of the 
Federal Register to seek suggestions on streamlining the data elements 
and potentially reducing burden to title IV-E agencies to report AFCARS 
data.

Section-by-Section Discussion

Section 1355.40 Foster Care and Adoption Data Collection

    We propose to revise the compliance date in the regulation to 
provide an additional two fiscal years to comply with Sec. Sec.  
1355.41 through 1355.47. State and tribal title IV-E agencies must 
continue to report AFCARS data in the same manner they do currently, 
per Sec.  1355.40 and appendices A through E of part 1355 until 
September 30, 2021. We propose that as of October 1, 2021, state and 
tribal title IV-E agencies must comply with Sec. Sec.  1355.41 through 
1355.47.
    In assessing the AFCARS regulation in response to E.O. 13777, we 
identified the following issues:
     In the December 2016 final rule, there are 272 individual 
data points, of which 153 data points are new items added to AFCARS. Of 
the 153 data points, 65 are new items related to the Indian Child 
Welfare Act (ICWA).
     State commenters expressed concerns with data points that 
could not be easily reported to AFCARS because they are qualitative 
data points of which nuances about the circumstances of the child 
cannot be reported to AFCARS a quantitative data system, they are of a 
sensitive nature, or could not be aggregated easily at the national 
level for national statistics. These points included child, adoptive 
parent, guardian, and foster parent sexual orientation, health 
assessments, educational information, adoption and guardianship subsidy 
amounts, and information on legal guardians.
     The scope and complexity of data elements related to ICWA 
was also a concern. We note that most of the ICWA-related data elements 
in the December 2016 AFCARS final rule are not tied to statutory 
reporting requirements in title IV-E or IV-B. Rather, they were 
finalized to be consistent with the Department of Interior's (DOI) 
final rule on ICWA (published on June 14, 2016, 81 FR 38778) which is 
directed to state courts. Furthermore, the majority of the ICWA-related 
data elements related to activities undertaken by the court are not 
routinely collected in child welfare electronic databases. The court 
findings and other activity taking place before the court represent a 
shift away from a child welfare agency reporting on its own activity to 
reporting on the activity of an independent third party. This raises 
questions of efficiency, reliability and consistency, which section 
479(c)(1) and 479(c)(2) of the Social Security Act require for the 
AFCARS data collection.
     We also anticipate states having many questions about how 
to report the ICWA-related data elements. HHS has no expertise in ICWA 
compliance, statute, and regulations and is not the cognizant authority 
over it, yet the December 2016 final rule places HHS in the position of 
interpreting various ICWA requirements when providing technical 
assistance to state title IV-E agencies on how to report on those data 
elements. How states report the data ultimately impacts practice, 
potentially introducing inconsistency with DOJ and DOI's interpretation 
of ICWA.
     Costs for system changes, training to consistently collect 
and report ICWA-related data and time to gather/enter data (sometimes 
manually) into the case management system.
    The Supplemental Notice of Proposed Rulemaking that added the ICWA 
compliance data elements to the AFCARS was only open for comment for 30 
days. This was an insufficient amount of time for states to fairly 
analyze unfamiliar data elements, accurately calculate burden 
associated with these elements, and move any comments through their 
chain of command for submission to HHS for consideration. The ANPRM, on 
the other hand, will be open for comment for 90 days. It asks title IV-
E agencies and the public to comment on the data elements of the 
December 2016 final rule.
    Therefore, in order to get additional feedback on these and other 
issues we are issuing a proposed rule to delay implementation of the 
December 2016 AFCARS final rule. As States must go to the expense to 
revise their data collection systems in response to the December 2016 
final rule, we do not want states to incur these costs unnecessarily as 
we further assess burden under the rule. This is an opportunity for 
commenters to provide HHS with specific feedback on the data elements 
and how HHS can revise AFCARS to balance updating requirements, the 
need for better data, and the burden on title IV-E agencies. Through 
the aforementioned ANPRM

[[Page 11452]]

commenters will have the opportunity to tie ICWA related data elements 
to HHS functions/provisions thus adequately justifying their inclusion 
in the AFCARS collection.

Regulatory Impact Analysis

Executive Orders 12866, 13563, and 13771

    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 emphasizes the importance of quantifying both costs and 
benefits, of reducing costs, of harmonizing rules, and of promoting 
flexibility. ACF consulted with the Office of Management and Budget 
(OMB) and determined that this rule does meet the criteria for a 
significant regulatory action under E.O. 12866. Thus, it was subject to 
OMB review. ACF determined that the costs to title IV-E agencies as a 
result of this rule will not be significant as defined in Executive 
Order 12866 (have an annual effect on the economy of $100 million or 
more or adversely affect in a material way the economy, a sector of the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or State, local, or tribal governments or 
communities). Because the rule is not economically significant as 
defined in E.O. 12866, no cost-benefit analysis needs to be included in 
this NPRM. This proposed rule, if finalized as proposed, would be 
considered an E.O. 13771 deregulatory action.

Regulatory Flexibility Analysis

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

Unfunded Mandates Reform Act

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

Congressional Review

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

Assessment of Federal Regulations and Policies on Families

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

Paperwork Reduction Act

    Under the Paperwork Reduction Act (44 U.S.C. 35, as amended) (PRA), 
all Departments are required to submit to OMB for review and approval 
any reporting or recordkeeping requirements inherent in a proposed or 
final rule. PRA rules require that ACF estimate the total burden 
created by this proposed rule regardless of what information is 
available. ACF provides burden and cost estimates using the best 
available information. Information collection for AFCARS is currently 
authorized under OMB number 0970-0422. This notice of proposed 
rulemaking does not make changes to the AFCARS requirements for title 
IV-E agencies; it delays the effective date and provides title IV-E 
agencies with additional time to comply with sections 1355.41 through 
1355.47. Thus, the annual burden hours for recordkeeping and reporting 
does not change from those currently authorized under OMB number 0970-
0422. Therefore, we are not seeking comments on any information 
collection requirements through this NPRM.

List of Subjects in 45 CFR Part 1355

    Adoption and foster care, Child welfare, Computer technology, Grant 
programs--social programs, Reporting and recordkeeping requirements.

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

    Dated: February 27, 2018.
Steven Wagner,
Acting Assistant Secretary for Children and Families.

    Approved: March 8, 2018.
Alex M. Azar II,
Secretary.

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

PART 1355--GENERAL

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

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

0
2. Amend Sec.  1355.40 by revising paragraph (a) to read as follows:


Sec.   1355.40 Foster care and adoption data collection.

    (a) Scope. State and tribal title IV-E agencies must follow the 
requirements of this section and appendices A through E of this part 
until September 30, 2021. As of October 1, 2021, state and tribal title 
IV-E agencies must comply with Sec. Sec.  1355.41 through 1355.47.
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[FR Doc. 2018-05038 Filed 3-13-18; 8:45 am]
 BILLING CODE 4184-25-P