[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.
* * * * *
[FR Doc. 2018-05038 Filed 3-13-18; 8:45 am]
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