Rule2025-04971
Unaccompanied Children Program Foundational Rule; Update To Accord With Statutory Requirements
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
March 25, 2025
Effective
March 25, 2025
Issuing agencies
Health and Human Services DepartmentChildren and Families Administration
Abstract
ORR is amending a regulation so that it comports with the express language of the governing legislation. That regulation relates to key aspects of the placement, care, and services provided to unaccompanied alien children (UACs) referred to ORR, pursuant to ORR's responsibilities for coordinating and implementing the care and placement of UACs who are in Federal custody by reason of their immigration status under the Homeland Security Act of 2002 (HSA) and the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 (TVPRA).
Full Text
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<title>Federal Register, Volume 90 Issue 56 (Tuesday, March 25, 2025)</title>
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[Federal Register Volume 90, Number 56 (Tuesday, March 25, 2025)]
[Rules and Regulations]
[Pages 13554-13556]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2025-04971]
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DEPARTMENT OF HEALTH AND HUMAN SERVICES
Administration for Children and Families
45 CFR Part 410
RIN 0970-AD16
Unaccompanied Children Program Foundational Rule; Update To
Accord With Statutory Requirements
AGENCY: Office of Refugee Resettlement (ORR), Administration for
Children and Families (ACF), U.S. Department of Health and Human
Services (HHS).
ACTION: Interim final rule with comment period (IFR).
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SUMMARY: ORR is amending a regulation so that it comports with the
express language of the governing legislation. That regulation relates
to key aspects of the placement, care, and services provided to
unaccompanied alien children (UACs) referred to ORR, pursuant to ORR's
responsibilities for coordinating and implementing the care and
placement of UACs who are in Federal custody by reason of their
immigration status under the Homeland Security Act of 2002 (HSA) and
the William Wilberforce Trafficking Victims Protection Reauthorization
Act of 2008 (TVPRA).
DATES: This IFR is effective March 25, 2025. Comments on this IFR must
be received on or before May 27, 2025.
ADDRESSES: You may send comments, identified by docket number ACF-2025-
0003 and/or RIN 0970-AD16, by any of the following methods:
<bullet> Federal eRulemaking Portal: <a href="http://www.regulations.gov">http://www.regulations.gov</a>.
Follow the instructions for submitting comments.
<bullet> Email: <a href="/cdn-cgi/l/email-protection#4b1e081b242722283266192e2c3e272a3f2439320a2d2d2a2239380b2a282d65232338652c243d"><span class="__cf_email__" data-cfemail="015442516e6d6862782c536466746d60756e737840676760687372416062672f6969722f666e77">[email protected]</span></a>. Include
[docket number and/or RIN] in the subject line of the message.
Instructions: All submissions received must include the agency name
and docket number or RIN for this rulemaking. For detailed instructions
on submitting comments and additional information on the rulemaking
process, see the ``Public Participation'' section of this document.
FOR FURTHER INFORMATION CONTACT: Toby Biswas, Director of Policy,
Division of Unaccompanied Children Policy, Unaccompanied Children
Bureau, Office of Refugee Resettlement, Administration for Children and
Families, Department of Health and Human Services, Washington, DC,
(202) 205-4440 or <a href="/cdn-cgi/l/email-protection#c3968093acafaaa0baee91a6a4b6afa2b7acb1ba82a5a5a2aab1b083a2a0a5edababb0eda4acb5"><span class="__cf_email__" data-cfemail="c4918794aba8ada7bde996a1a3b1a8a5b0abb6bd85a2a2a5adb6b784a5a7a2eaacacb7eaa3abb2">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION:
I. Executive Summary
This interim final rule (IFR) removes a specific provision of the
Code of Federal Regulations introduced by the April 30, 2024
``Unaccompanied Children Program Foundational Rule'' (Foundational
Rule) at 45 CFR 410.1201(b). This provision precludes ORR from
``shar[ing] any immigration status information relating to potential
sponsors with any law enforcement or immigration enforcement related
entity at any time.'' The regulatory provision conflicts with a federal
statute, which provides, in part, as follows:
Notwithstanding any other provision of Federal, State, or local
law, a Federal, State, or local government entity or official may not
prohibit, or in any way restrict, any government entity or official
from sending to, or receiving from, the Immigration and Naturalization
Service information regarding the citizenship or immigration status,
lawful or unlawful, of any individual.
8 U.S.C. 1373(a). Inasmuch as the regulation directly conflicts
with federal law, it is ``not in accordance with law,'' 5 U.S.C.
706(2)(A), and is thus subject to invalidation. Accordingly, the
information-sharing provision of the Foundational Rule must be removed.
II. Background and Scope of Regulatory Action
On April 30, 2024, ORR published the ``Unaccompanied Children
Program Foundational Rule,'' which establishes regulations relating to
key aspects of the placement, care, and services provided to
unaccompanied alien children referred to the Office of Refugee
Resettlement (ORR), pursuant to ORR's responsibilities for coordinating
and implementing the care and placement of unaccompanied alien children
who are in Federal custody by reason of their immigration status under
the Homeland Security Act of 2002 (HSA) and the William Wilberforce
Trafficking Victims Protection Reauthorization Act of 2008 (TVPRA).
Consistent with its statutory responsibilities, ORR must, among other
things, conduct safety and suitability assessments of potential
sponsors for the child. See generally 8 U.S.C. 1232(c)(3). As explained
in the preamble to the Foundational Rule, in the process of vetting
potential sponsors for unaccompanied alien children, the potential
sponsor's immigration status is one factor that bears on the potential
sponsor's suitability to care for the child. See 89 FR at 34442 (``To
the extent ORR does collect information on the immigration status of a
potential sponsor, it would be only for the purposes of evaluating the
potential sponsor's ability to provide care for the child.''). And so
ORR may collect information on the potential sponsor's immigration
status, independent of a law enforcement or immigration enforcement
purpose. Id.
In the Foundational Rule, ORR included a provision stating: ``ORR
shall not disqualify potential sponsors based solely on their
immigration status and shall not collect information on immigration
status of potential sponsors for law enforcement or immigration
enforcement related purposes. ORR shall not share any immigration
status information relating to potential sponsors with any law
enforcement or immigration enforcement related entity at any time.'' 45
CFR 410.1201(b). But this provision contravenes a federal statute: it
contravenes existing statutory limitations on ORR's authority described
at 8 U.S.C. 1373. And so, it must be excised from the Foundational
Rule.
ORR's authority is limited by 8 U.S.C. 1373(a) and (b). Subsection
(a) states: ``Notwithstanding any other provision of Federal, State, or
local law, a Federal, State, or local government entity or official may
not prohibit, or in any way restrict, any government entity or official
from sending to, or receiving from, the Immigration and Naturalization
Service information regarding the citizenship or immigration status,
lawful or unlawful, of any individual.'' Subsection (b) states:
``Notwithstanding any other provision of Federal, State, or local law,
no person or agency may prohibit, or in any way restrict, a Federal,
State, or local government entity from doing any of the following with
respect to information regarding the immigration status, lawful or
unlawful, of any individual: (1) Sending such information to, or
requesting or receiving such information
[[Page 13555]]
from, the Immigration and Naturalization Service. (2) Maintaining such
information. (3) Exchanging such information with any other Federal,
State, or local government entity.''
The statute unambiguously limits ORR's authority. Notably, nowhere
in the preamble to the Foundational Rule was 8 U.S.C. 1373 even
mentioned, even though the information-sharing provision of the
Foundational Rule, 45 CFR 410.1201(b), obviously and directly
contravenes that statutory limit. Thus, ORR must update the
Foundational Rule to strike 45 CFR 410.1201(b), effective
immediately.\1\ That is, ORR removes the prohibition on sharing
immigration status information relating to potential sponsors with law
enforcement and immigration enforcement entities.
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\1\ The Foundational Rule contains a severability provision. 45
CFR 410.1000. 45 CFR 410.1201(b)'s parts are inextricably linked and
there was no indication in the Foundational Rule that it was
intended to treat the information-sharing and the eligibility issues
as distinct. In the alternative, as explained in the preamble of the
Foundational Rule, 89 FR at 34389, that severability runs--at most--
to provisions, not to portions of provisions. Thus, for this
alternative reason as well, the entirety of 45 CFR 410.1201(b) must
be removed due to the conflict with 8 U.S.C. 1373.
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III. Good Cause for Issuing This IFR
Under the Administrative Procedure Act, 5 U.S.C. 553(b)(B), notice
and public comment is not required when an agency, for good cause,
finds it is impracticable, unnecessary, or contrary to the public
interest. The agency must incorporate a statement of the finding and
the agency's reasons in the rule issued.
HHS finds there is good cause to dispense with notice and comment
here and issue this as an IFR. As explained above, 45 CFR 410.1201(b)
contravenes 8 U.S.C. 1373. ORR had no authority to promulgate such a
rule; revoking it immediately is in the public interest; and notice and
comment is unnecessary and contrary to the public interest because no
amount of public input could give ORR the power to contravene a duly-
enacted law of Congress via regulation.
IV. Good Cause for Immediate Effect
Good cause exists for immediate effect, see 5 U.S.C. 553(d)(3),
because this IFR brings an ORR regulation into compliance with a
federal statute and regulated entities do not need time to adjust their
behavior before this rule takes effect.
V. Public Participation
ORR encourages all interested parties to participate in this
rulemaking by submitting written comments, views, and data on any or
all aspects of this IFR. ORR also invites comments that relate to the
economic, environmental, or federalism effects that might result from
this IFR. ORR will review all comments received, but ORR will only post
comments that address the topic of the IFR. All comments ORR posts to
<a href="https://www.regulations.gov">https://www.regulations.gov</a> will include any personal or commercial
information you provide.
Comments that will provide the most assistance to ORR will
reference a specific portion of the IFR, explain the reason for any
recommended change, and include data, information, or authority that
support such recommended change. If you submit comments, please
indicate the specific section of this document to which each comment
applies and provide a reason for each suggestion or recommendation. You
may submit your comments and materials online or by email, but please
use only one of these means. If you submit a comment online via <a href="https://www.regulations.gov">https://www.regulations.gov</a>, it will be considered received when it is
received at the Docket Management Facility.
Instructions: To submit your comments online, go to <a href="https://www.regulations.gov">https://www.regulations.gov</a> and insert ``ACF-2025-0003'' in the ``Search'' box.
Click on the ``Comment Now!'' box and input your comment in the text
box provided. Click the ``Continue'' box, and if you are satisfied with
your comment, follow the prompts to submit it.
For additional information, please read the ``Privacy and Security
Notice'' that is available via the link in the footer of <a href="https://www.regulations.gov">https://www.regulations.gov</a>.
ORR will consider all comments and materials received during the
comment period.
Docket: To view posted comments, as well as documents mentioned in
this preamble as being available in the docket, go to <a href="https://www.regulations.gov">https://www.regulations.gov</a> and insert ``ACF-2025-0003'' in the ``Search'' box.
Click on the ``Open Docket Folder,'' and you can click on ``View
Comment'' or ``View All'' under the ``Comments'' section of the page.
Individuals without internet access can make alternate arrangements for
viewing comments and documents related to this rulemaking by contacting
ORR through the FOR FURTHER INFORMATION CONTACT section above. You may
sign up for email alerts on the online docket to be notified when
comments are posted, or a final rule is published.
As stated above, please be aware that anyone can search the
electronic form of comments received into any dockets by the name of
the individual submitting the comment (or signing the comment, if
submitted on behalf of an association, business, labor union, etc.).
V. Regulatory Analyses
This IFR meets the applicable standards set forth in sections 3(a)
and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize
litigation, eliminate ambiguity, and reduce burden.
The Regulatory Flexibility Act (RFA) only applies in situations
where an agency engages in notice-and-comment rulemaking. 5 U.S.C.
603(a). It does not apply here, because the agency is promulgating an
IFR effective immediately without preceding notice and comment. The
same is true for analysis pursuant to the Unfunded Mandates Reform Act
(UMRA). 2 U.S.C. 1532(a). Moreover, the Foundational Rule explains the
non-applicability of the UMRA. See 89 FR at 34582.
Under the Paperwork Reduction Act of 1995 (PRA), HHS is required to
provide 60-day notice in the Federal Register and solicit public
comment before a collection of information requirement is submitted to
the Office of Management and Budget (OMB) for review and approval. An
agency may not conduct or sponsor, and a person is not required to
respond to, a collection of information unless it displays a control
number assigned by OMB. The PRA does not apply here because this IFR
does not establish a collection of information; it removes a limitation
in the Foundational Rule that conflicts with federal law.
In accordance with section 6 of Executive Order 13132, it is
determined that this IFR does not have sufficient federalism
implications to warrant the preparation of a federalism summary impact
statement. This comports with the same determination made in the
Foundational Rule. See 89 FR at 34583.
Section 654 of the Treasury and General Government Appropriations
Act of 1999 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 criteria specified in the law. This regulation will not have
an impact on family well-being as defined in this legislation, which
asks agencies to assess policies with respect to whether the policy:
strengthens or erodes family stability and the authority and rights of
parents in the education, nurture, and supervision of their children;
helps the family perform its functions; and increases or decreases
disposable income.
[[Page 13556]]
Dated: March 19, 2025.
Robert F. Kennedy, Jr.,
Secretary, Department of Health and Human Services.
For the reasons set forth in the preamble, ORR amends 45 CFR part
410 to read as follows:
PART 410--CARE AND PLACEMENT OF UNACCOMPANIED CHILDREN
0
1. The authority citation for part 410 continues to read as follows:
Authority: 6 U.S.C. 279, 8 U.S.C. 1232.
Sec. 410.1201 [Amended]
0
2. Amend Sec. 410.1201 by removing paragraph (b) and redesignating
paragraph (c) as paragraph (b).
[FR Doc. 2025-04971 Filed 3-24-25; 8:45 am]
BILLING CODE 4184-45-P
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</html>Indexed from Federal Register on March 25, 2025.
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