[Federal Register: March 30, 2004 (Volume 69, Number 61)]
[Rules and Regulations]
[Page 16637-16682]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr30mr04-19]
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Part II
Department of Health and Human Services
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Administration for Children and Families
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45 CFR Parts 286, 302, 309, and 310
Tribal Child Support Enforcement Programs; Final Rule
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DEPARTMENT OF HEALTH AND HUMAN SERVICES
Administration for Children and Families
45 CFR Parts 286, 302, 309 and 310
RIN 0970-AB73
Tribal Child Support Enforcement Programs
AGENCY: Office of Child Support Enforcement (OCSE), Administration for
Children and Families (ACF), Department of Health and Human Services
(HHS).
ACTION: Final rule.
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SUMMARY: ACF is issuing final regulations to implement direct funding
to Indian Tribes and Tribal organizations under section 455(f) of the
Social Security Act (the Act). Section 455(f) of the Act authorizes
direct funding of Tribal Child Support Enforcement (IV-D) programs
meeting requirements contained in the statute and established by the
Secretary of HHS by regulation. These regulations address these
requirements and related provisions, and provide guidance to Tribes and
Tribal organizations on how to apply for and, upon approval, receive
direct funding for the operation of Tribal IV-D programs.
DATES: This rule is effective March 30, 2004. For Tribes and Tribal
organizations not operating a Tribal IV-D program under 45 CFR part
310, these regulations are applicable March 30, 2004. For Tribes
operating a Tribal IV-D program under the Interim Final Rule, 45 CFR
part 310 will apply until no later than October 1, 2004. Tribes
operating under 45 CFR part 310 must comply with these final
regulations (45 CFR part 309) no later than October 1, 2004.
FOR FURTHER INFORMATION CONTACT: Paige Biava, Policy Specialist, OCSE
Division of Policy, (202) 401-5635.
Deaf and hearing-impaired individuals may call the Federal Dual
Party Relay Service at 1-800-877-8339 from Monday through Friday
between the hours of 8 a.m. and 7 p.m., Eastern Time.
SUPPLEMENTARY INFORMATION:
Statutory Authority
This final regulation implements section 455(f) of the Act, as
added by the Personal Responsibility and Work Opportunity
Reconciliation Act of 1996 (PRWORA) and amended by section 5546 of the
Balanced Budget Act of 1997 (Pub. L. 105-33). This final regulation is
also issued under the authority granted to the Secretary of HHS
(Secretary) by section 1102 of the Act, 42 U.S.C. 1302. Section 1102 of
the Act authorizes the Secretary to publish regulations that may be
necessary for the efficient administration of the functions for which
the Secretary is responsible under the Act.
Section 455(f) of the Act, as amended, reads as follows: ``The
Secretary may make direct payments under this part to an Indian Tribe
or Tribal organization that demonstrates to the satisfaction of the
Secretary that it has the capacity to operate a child support
enforcement program meeting the objectives of this part, including
establishment of paternity, establishment, modification, and
enforcement of support orders, and location of absent parents. The
Secretary shall promulgate regulations establishing the requirements
which must be met by an Indian Tribe or Tribal organization to be
eligible for a grant under this subsection.''
Scope of This Rulemaking
On August 21, 2000, a Notice of Proposed Rulemaking (NPRM) and
Interim Final Rule were published (65 FR 50800 and 65 FR 50786,
respectively). The NPRM set forth the proposed rules for direct funding
to Tribal IV-D agencies. The rulemaking process is ordinarily a lengthy
process. A number of Tribes expressed concern that efforts they had
under way would be unduly delayed or disrupted if the regulatory
process had to run its ordinary course before funds could be made
available under section 455(f). The Interim Final Rule allowed Tribes
and Tribal organizations currently operating comprehensive Tribal IV-D
programs comprising the five mandatory elements listed in section
455(f) and meeting the requirements specified in the interim rule to
apply for, and if approved, receive direct funding to operate a Tribal
IV-D program.
This rulemaking is intended to establish the minimum requirements
that must be satisfied by an Indian Tribe or Tribal organization to be
eligible for direct funding under title IV-D of the Social Security
Act. The final regulation establishes application procedures, child
support enforcement plan requirements, funding provisions, and
accountability and reporting requirements. OCSE is planning a series of
conferences across the country to explain, discuss, and respond to
questions on the final regulation. Additional information about these
conferences will be forthcoming.
The national Child Support Enforcement Program was initially
established in 1975 under title IV-D of the Act as a joint Federal/
State partnership. The goal of the Child Support Enforcement Program
(also known as the title IV-D program) is to ensure that all parents
financially support their children. The IV-D program locates
noncustodial parents, establishes paternity, establishes and enforces
support orders, and collects child support payments from parents who
are legally obligated to pay.
We believe the promulgation of these regulations is not only
consistent with the commitment of the Department to the government-to-
government relationship with Indian Tribes, but also with a productive
partnership of the Office of Child Support Enforcement in all dealings
with Tribes.
Tribal Child Support Enforcement
Prior to enactment of PRWORA, title IV-D of the Act placed
authority to administer the delivery of IV-D services solely with the
States. However, within much of Tribal territory, the authority of
State and local governments is limited or non-existent. The
Constitution, numerous court decisions, and Federal law clearly reserve
to Indian Tribes important powers of self-government, including the
authority to make and enforce laws, to adjudicate civil and criminal
disputes including domestic relations cases, to tax, and to license.
Consequently, States have been limited in their ability to provide IV-D
services on Tribal lands and to establish paternity and establish and
enforce child support orders and Indian families have had difficulty
getting IV-D services from State IV-D programs. Some child support
enforcement services have been provided through cooperative agreements
between Tribes and States and have helped bring child support services
to some Indian and Alaska Native families.
Prior to enactment of PRWORA, Federal funding under title IV-D of
the Act was limited to funding State child support enforcement programs
and there was no direct Federal funding to Tribes for child support
enforcement activities. Federal funding was only available indirectly
to Tribes through States for eligible expenditures of Tribes pursuant
to cooperative agreements with States under which the State delegated
functions of the IV-D program to the Tribal entity. The Tribal entity
was required to comply with all aspects of title IV-D of the Act
applicable to the function or functions delegated to the Tribe. Only
under these circumstances was Federal reimbursement under title IV-D
available to the State for costs incurred by the Tribal entity for
performing IV-D functions.
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For the first time in the history of the title IV-D program, PRWORA
authorized direct funding of Tribes and Tribal organizations for
operating child support enforcement programs. The Department recognizes
the unique relationship between the Federal government and Federally-
recognized Indian Tribes and acknowledges this special government-to-
government relationship in the implementation of the Tribal provisions
of PRWORA. The direct Federal funding provisions provide Tribes with an
opportunity to administer their own IV-D programs to meet the needs of
children and their families.
Principles Governing Regulatory Development
Essential to the Federal-State-Tribal effort to ensure that
noncustodial parents support their children is coordination and
partnership, especially in the processing of inter-jurisdictional
cases. Therefore, we believe that all IV-D programs must be
administered under a basic framework to ensure that the objectives of
title IV-D are successfully implemented. This common title IV-D
framework does not mean that Indian Tribes are subject to the same
regulations as States are. However, this regulation sets forth the
minimum core requirements that must be met in order for a Tribe or
Tribal organization to receive direct funding for IV-D programs.
Regulatory Flexibility Analysis
The Secretary certifies, under 5 U.S.C. 605(b), the Regulatory
Flexibility Act (Pub. L. 96-354), that these regulations will not
result in a significant impact on a substantial number of small
entities because the primary impact of these regulations is on Tribal
governments, not considered small entities under the Act.
Executive Order 12866
Executive Order 12866 requires that regulations be drafted to
ensure that they are consistent with the priorities and principles set
forth in the Executive Order. The Department has determined that this
rule is consistent with these priorities and principles. The
regulations are required by PRWORA and represent the requirements
governing direct funding to Tribal IV-D agencies that demonstrate the
capacity to operate a IV-D program, including establishment of
paternity, establishment, modification and enforcement of support
orders, and location of noncustodial parents.
The Executive Order encourages agencies, as appropriate, to provide
the public with meaningful participation in the regulatory process. ACF
consulted with Tribes and Tribal organizations and their
representatives to obtain their views prior to the publication of this
final rule. Consultations included a series of six Nation-to-Nation
meetings held across the county. In addition, a toll free ``800''
number was created to allow for additional comments and input from
Tribes and Tribal organizations and more in-depth individual
consultations also occurred.
This rule is considered a ``significant regulatory action'' under
3(f) of the Executive Order, and therefore has been reviewed by the
Office of Management and Budget.
Executive Order 13175
Executive Order 13175 (65 FR 6724, November 6, 2000) requires us to
develop an accountable process to ensure ``meaningful and timely input
by Tribal officials in the development of regulatory policies that have
Tribal implications.'' The purpose of consultation is to strengthen the
United States government-to-government relationship with Indian Tribes
and to reduce the imposition of unfunded mandates upon Indian Tribes.
ACF consulted with Tribes and Tribal organizations and their
representatives to obtain their views prior to the publication of this
final rule. Consultations included a series of six Nation-to-Nation
meetings in Albuquerque, New Mexico; Portland, Oregon; Nashville,
Tennessee; Fairbanks, Alaska; Washington, DC; and Prior Lake, Minnesota
on the Shakopee Indian Reservation. Each of the consultations lasted
for two and a half days and further follow up was conducted on an
individual level. In addition, a toll free ``800'' number was created
to allow for additional comments and input by Tribes and Tribal
organizations. The consultations were successful in elicting a wide
range of questions, issues, and suggestions.
Unfunded Mandates
Section 202 of the Unfunded Mandates Reform Act of 1995, Pub. L.
104-4, (Unfunded Mandates Act) requires that a covered agency prepare a
budgetary impact statement before promulgating a rule that includes a
Federal mandate that may result in the expenditure by State, local and
Tribal governments, in the aggregate, or by the private sector, of $100
million or more in any one year. If a covered agency must prepare a
budgetary impact statement, section 205 further requires that it select
the most cost-effective and least burdensome alternative that achieves
the objectives of the rules and is consistent with the statutory
requirements. In addition, section 203 requires a plan for informing
and advising any small government that may be significantly or uniquely
impacted by the rule.
We have determined that the rule is not an economically significant
rule and will not result in the expenditure by State, local, and Tribal
governments, in the aggregate, or by the private sector, of more than
$100 million in any one year. The following are estimated Federal
annual expenditures under the Tribal IV-D Program: FY 2004--$18.0
million; FY 2005--$38.0 million; FY 2006--$53.0 million; FY2007--$57.4
million. Accordingly, we have not prepared a budgetary impact
statement, specifically addressed the regulatory alternatives
considered, or prepared a plan for informing and advising any
significantly or uniquely impacted small government.
Congressional Review
This rule is not a major rule as defined in 5 U.S.C. Chapter 8.
Assessment of Federal Regulations and Policies on Families
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 conclusion is
affirmative, then the agency must prepare an impact assessment
addressing criteria specified in the law. We have determined that this
regulation may affect family well-being as defined in section 654 of
the law and certify that we have made the required impact assessment.
The purpose of the Tribal Child Support Enforcement Program is to
strengthen the economic and social stability of families. This rule is
responsive to the needs of Tribes and Tribal organizations and provides
them the opportunity to design programs that serve this purpose. The
rule will have a positive effect on family well-being. Implementation
of Tribal IV-D programs will result in increased child support
enforcement services, including increased child support payments, for
Tribal service populations. By helping to ensure that parents support
their children, the rule will strengthen personal responsibility and
increase disposable family income.
Executive Order 13132
Executive Order 13132 on Federalism applies to policies that have
federalism implications, defined as ``regulations, legislative comments
or proposed legislation, and other policy statements or actions that
have substantial direct
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effects on the States, on the relationship between the national
government and the States, or on the distributions of power and
responsibilities among the various levels of government.'' This rule
does not have federalism implications for State or local governments as
defined in the Executive Order.
Paperwork Reduction Act of 1995
This final rule contains reporting requirements as proposed at 45
CFR part 309. As required by the Paperwork Reduction Act of 1995 (44
U.S.C. 3507(d)), the Administration for Children and Families submitted
the requirements to the Office of Management and Budget (OMB) for its
review.
Part 309 contains a regulatory requirement that, in order to
receive funding for an independent Tribal IV-D program, a Tribe or
Tribal organization must submit an application containing standard
forms 424 and 424A and a plan describing how the Tribe or Tribal
organization meets or plans to meet the objectives of section 455(f) of
the Act, including establishing paternity, establishing, modifying, and
enforcing support orders, and locating noncustodial parents. Tribes and
Tribal organizations must respond if they wish to operate a Federally
funded program. In addition, any Tribe or Tribal organization
participating in the program would be required to submit standard form
269A and form OCSE 34A and to submit statistical and narrative reports
regarding its Tribal IV-D program. The potential respondents to these
information collection requirements are approximately 10 Federally
recognized Tribes, and Tribal organizations, during Year 1; 65
additional Federally recognized Tribes and Tribal organizations during
Year 2; and 75 additional Federally recognized Tribes and Tribal
organizations during Year 3; for a three year total of 150 grantees.
This information collection requirement will impose the estimated total
annual burden on the Tribes and Tribal organizations described in the
table below:
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Number of Responses per Average burden Total annual
Information collection respondents respondent per response burden
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Year 1
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SF 424................................ 10 1 .75 7.5
SF 424A............................... 10 1 3 30
SF 269A............................... 10 5 2 100
45 CFR 309--Plan...................... 10 1 480 4,800
Form OCSE 34A......................... 10 4 8 320
Statistical Reporting................. 10 1 24 240
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Total............................. ................ ................ ................. 5,497.5
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Year 2
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SF 424................................ 75 1 .75 56.25
SF 424A............................... 75 1 3 225
SF 269A............................... 75 5 2 750
45 CFR 309--Plan...................... 65 1 480 31,200
Form OCSE 34A......................... 75 4 8 2,400
Statistical Reporting................. 75 1 24 1,800
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Total............................. ................ ................ ................. 36,431.25
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Year 3
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SF 424................................ 150 1 .75 112.5
SF 424A............................... 150 1 3 450
SF 269A............................... 150 5 2 1,500
45 CFR 309--Plan...................... 75 1 480 36,000
Form OCSE 34A......................... 150 4 8 4,800
Statistical Reporting................. 150 1 24 3,600
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Total............................. ................ ................ ................. 46,462.5
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Total Burden for 3 Years: 88,391.25.
Total Annual Burden Averaged Over 3 Years: 29,463.75 per year.
The information collection requirements were approved by OMB under
OMB number 0970-0218.
Summary Description of Regulatory Provisions
The following is a summary of the regulatory provisions included in
this final rule. The Notice of Proposed Rulemaking (NPRM) and Interim
Final Rule for Comprehensive Tribal Child Support Enforcement Programs
were published in the Federal Register on August 21, 2000 (65 FR
50786). The NPRM contained part 309, subparts A through F, and the
Interim Final Rule contained part 310, subparts A through G. Subparts A
through F were essentially the same in part 309 and part 310, with one
exception. Part 309 included proposed provisions both for Tribes and
Tribal organizations that already are able to operate comprehensive IV-
D programs, and for Tribes and Tribal organizations that do not already
operate comprehensive IV-D programs and need program development
funding for start-up IV-D programs. Because the Interim Final Rule,
part 310, applied only to Tribes and Tribal organizations that already
operate comprehensive IV-D programs, it did not include provisions for
program development funding for start-up IV-D programs. Subpart G of
the part 310 rule contained additional specific requirements for
interim funding of operational comprehensive Tribal IV-D programs. On
the effective date of these regulations, part 310 will become time-
limited. For Tribes operating a Tribal IV-D program under the Interim
Final
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Rule, 45 CFR part 310 will be applicable to grants covering the period
up to the first day of the quarter beginning 6 months after the date of
publication of the final regulations for 45 CFR part 309. Tribes
operating under 45 CFR part 310 must make changes to their current
program to comply with this final rule not later than the first day of
the quarter beginning 6 months after the date of publication of the
final rule in order to receive continued IV-D funding.
Since issuance of the proposed rule, we have also made changes to
Sections 286 and 302. Part 286 was modified to comply with the
distribution requirements found in part 309 of the rule. Changes were
made to part 302 to include cooperation with Tribal IV-D agencies as a
requirement for State IV-D agencies.
45 CFR Chapter II
Tribal TANF Provisions, Section 286, Subpart C--Tribal TANF Plan
Content and Processing
Section 286.155 sets out the eligibility provisions for Tribal TANF
in relationship to assignment of child support. This section currently
requires the Tribal TANF agency to have procedures for ensuring that
child support collections in excess of the amount of Tribal TANF
received by the family must be paid to the family. The section was
modified to eliminate references to payments to the family because
distribution of these collections is now addressed in Sec. 309.115 of
this rule.
45 CFR Chapter III
Section 302, State Plan Requirements
Section 302.36 details the State plan requirement for States to
cooperate with other states in interstate IV-D cases. This section
title and content is modified to include cooperation with all Tribal
IV-D programs. Section 302.36(a)(2) requires States to extend the full
range of services available under its IV-D plan to all Tribal IV-D
programs.
Part 309--Comprehensive Tribal Child Support Enforcement (CSE) Programs
Subpart A--Tribal Child Support Enforcement Program (IV-D) Program:
General Provisions
Section 309.01 provides the general provisions. Section 309.05
defines key terms. We added a number of definitions for clarification
and to make the rule easier to read. Definitions were added for the
following terms: income, non-cash support, notice of disapproval, OCSE,
program development plan, TANF and Tribal custom.
This section establishes definitions for terms used throughout part
309 of this final rule. We also want to make clear that underlying
these regulations is the recognition that many Tribal customs and
traditions have the force and effect of law. We have determined that
such Tribal customs are equivalent to ``common law'' as described by
William Blackstone: ``[t]he lex non scripta, or unwritten law, includes
not only general customs, or the common law properly so called; but
also the particular customs of certain parts of the kingdom; and
likewise those particular laws, that are by custom observed only in
certain courts and jurisdictions'' (Blackstone, 1 Commentaries on the
Law of England 62).
Section 309.10 outlines who is eligible to apply for Federal
funding to operate a Tribal IV-D program. Proposed Sec. 309.10
required a Tribe or Tribal organization to have at least 100 children
under the age of majority in the population subject to the jurisdiction
of the Tribe in order to be eligible to receive Federal funding to
operate a Tribal IV-D program. In response to comments, we added a
provision at Sec. 309.10(c) that, if a Tribe or Tribal organization
can demonstrate to the satisfaction of the Secretary the capacity to
operate a child support enforcement program and provide justification
for operating a cost effective program with less than the minimum
number of children, it may be considered eligible for direct funding
under a waiver. Details on what information must be included in a
waiver request are provided in the regulation at Sec. 309.10(c)(1) and
(2) and the waiver request must be included in the original
application.
Subpart B--Tribal IV-D Program Application Procedures
Section 309.15 establishes what must be included in an application
for direct funding. The application must include a Standard Form (SF)
424, ``Application for Federal Assistance,'' SF 424A, ``Budget
Information-Non-Construction Programs'' and a Tribal IV-D plan--a
comprehensive statement that demonstrates the capacity of the Tribe or
Tribal organization to operate a IV-D program meeting the objectives of
title IV-D. This section also describes annual budget submissions
including a specific mechanism to deal with requests for inclusion of
indirect costs.
The provisions in proposed Sec. 309.15 described what was included
in the initial application, including the SF 424 and 424A, as well as
the Tribal IV-D plan. We expanded this provision to clarify the
requirements. The SF 424A, ``Budget Information--Non-Construction
Programs,'' must be completed and include: A quarter-by-quarter
estimate of expenditures for the funding period; notification of
whether the Tribe or Tribal organization is requesting funds for
indirect costs and if so, an election of a method to calculate
estimated indirect costs; a narrative justification for each cost
category on the form; a statement that the Tribe or Tribal organization
has or will have the non-Federal share of program expenditures
available, as required, or a request for a waiver of the non-Federal
share in accordance with Sec. 309.130(e), if appropriate. These new
requirements are based on our experience with the Tribal IV-D programs
currently funded under the Interim Final Rule. We discovered that our
requirements in the interim rule were not explicit enough to ensure we
received the information necessary to make an informed decision on
funding. In our review of the applications, we found that it was
necessary to request the information listed in Sec. 309.15(a)(2)(i)-
(iv). These new requirements will save time for the applicant and OCSE
by making immediately available all information needed for approval and
funding decisions.
We added language at Sec. 309.15(a)(3) giving Tribes an option
regarding the inclusion of indirect costs. If a Tribe or Tribal
organization's budget request includes indirect costs as part of its
request for Federal funds, such requests may be submitted in one of two
ways. For applications which include indirect costs, we have determined
that an applicant may, at its option, either calculate the estimated
indirect costs by documenting the dollar amount of indirect costs
allocable to the IV-D program, or submit its current indirect cost rate
negotiated with the Department of the Interior and a dollar amount of
indirect costs based on that rate. If the Tribe elects to submit actual
estimated costs attributable to the Tribal IV-D program, the
methodology used to arrive at the dollar amount must be included in the
application. Whichever option an applicant chooses, the applicants
obligations remains the same: Tribal IV-D grantees are responsible for
ensuring that actual expenditures of Federal IV-D funds are directly,
demonstrably attributable to operation of the IV-D program, i.e., all
actual costs claimed under the IV-D grant must be allocable to the IV-D
program. The Federal statute at 42 U.S.C. 651 limits the use of Federal
IV-D funds to the purposes enumerated in that section, whether
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such costs are characterized as ``direct'' or ``indirect'' costs.
Grantees are prohibited from shifting costs to IV-D grants which are
not attributable to operation of the IV-D program. Adjustments will be
made for any differences between estimated and actual costs
attributable to the IV-D program.
In the Temporary Assistance for Needy Families (TANF) program, even
though Tribal grantees may use their negotiated indirect cost rate to
calculate indirect costs, total actual costs are limited and may not go
beyond a regulatory cap on administrative expenditures. Similarly, in
the Tribal IV-D program, Tribal grantees may use their negotiated
indirect cost rate to calculate estimated indirect costs, but the
Federal statute limits the total amount of costs that may be claimed to
those that are directly attributable to administration of the IV-D
program.
We also added language at Sec. 309.15(a)(4) that the initial
application must include a comprehensive statement identifying how the
Tribe or Tribal organization is meeting the requirements of subpart C
of this part, and that describes the capacity of the Tribe or Tribal
organization to operate a IV-D program which meets the objectives of
title IV-D of the Act.
Section 309.16 establishes the rules for a Tribe or Tribal
organization to apply for start-up funding authorized under Sec.
309.65(b) if the Tribe or Tribal organization cannot, at the time of
application, meet all the Tribal IV-D plan requirements in Sec.
309.65(a). In addition to the application requirements listed in Sec.
309.15 above, a Tribe or Tribal organization must include a program
development plan describing how a Tribal IV-D agency will meet any
Tribal IV-D plan requirements not currently met within a reasonable,
specific period of time, not to exceed two years. Funding is limited to
$500,000. In extraordinary circumstances, the Secretary may grant a no-
cost extension of time.
The language at proposed Sec. 309.65(b)(1) and (2) contained
requirements for a start-up application and a program development plan.
In order to clarify the rule, we moved that language to Sec.
309.16(a)(4) and (5). We added language at Sec. 309.16(a)(3) that if a
Tribe or Tribal organization's budget for start-up funding includes a
request for indirect costs, a mechanism parallel to that described at
Sec. 309.15(a)(3) must be used. If a Tribe or Tribal organization
receives funding based on submission and approval of a Tribal IV-D
application which includes a program development plan under Sec.
309.16(a)(5), a progress report that describes accomplishments in
carrying out the plan, as required by Sec. 309.170(b)(6), must be
submitted with the next annual refunding request.
New language was added at paragraph (b) indicating that the
approval and disapproval procedures for applications for start-up
funding are found in Sec. Sec. 309.35, 309.40, 309.45 and 309.50. We
also added language that clarifies that an application for start-up
funding is not subject to administrative appeal.
Paragraph (c) of Sec. 309.16 indicates that start-up funding is
limited to $500,000 and must be obligated and liquidated within two
years from the first day of the quarter after the start-up application
is approved. The Secretary will consider a request to extend the period
of time during which the start-up funding is available or increase the
amount of funding provided. The language that addressed the no-cost
extension or the additional start-up funding was only found in the
preamble discussion of the NPRM and is now clearly stated in the final
rule in paragraphs (c)(1) and (c)(2).
Proposed Sec. Sec. 309.20 and 309.30 were consolidated in the
final rule as Sec. 309.20 for clarity. Section 309.20 now addresses
who submits a Tribal IV-D application and where it must be submitted.
The authorized representative of a Tribe or Tribal organization must
sign and submit the application. Two copies of an application or plan
amendment must be submitted: the original to the OCSE Central Office,
and a copy to the appropriate regional office.
Proposed Sec. Sec. 309.25 and 309.35 were consolidated as Sec.
309.35 for clarity. Section 309.35 now outlines the procedures for
review of IV-D program applications, plans and plan amendments. The
Secretary will determine whether the application, plan or plan
amendment meets the requirements not later than 90 days after receipt.
If additional information is required, the determination will be made
within 45 days of receipt of all necessary information. Determinations
as to whether the Tribal IV-D plan, including plan amendments, meets or
continues to meet the requirements are based on applicable Federal
statutes and regulations. Guidance may be furnished to assist in
interpretation. All relevant changes required by new Federal statutes,
rules, regulations and interpretations are required to be submitted so
that OCSE may determine whether the plan continues to meet Federal
requirements. If a Tribe or Tribal organization intends to make any
substantive change to the Tribal IV-D program, a plan amendment must be
submitted at the earliest reasonable time. The effective date of a plan
or plan amendment may not be earlier than the first day of the fiscal
quarter in which a plan or amendment is approved.
Section 309.40 describes the basis for disapproval of a Tribal IV-D
program application, IV-D plan or plan amendment. An application, plan
or plan amendment will be disapproved if the Secretary determines that:
It fails to meet, or no longer meets one or more of the Federal
requirements; the required Tribal laws, codes or regulations are not in
effect; or the application is not complete (after the Tribe or Tribal
organization has had the opportunity to submit all necessary
information.) A written Notice of Disapproval will be sent to the Tribe
or Tribal organization upon determination that any of the conditions
for disapproval applies. If the application, plan or plan amendment is
incomplete and fails to provide enough information to make a
determination, the Secretary will request the necessary information.
Section 309.45 provides that a Tribe or Tribal organization may
request reconsideration of disapproval of a Tribal IV-D application,
plan or plan amendment and describes the process. The request for
reconsideration must include all documentation that is relevant and
supportive of the application, plan or plan amendment and a written
response to each ground for disapproval. The request for
reconsideration must also include whether the Tribe or Tribal
organization requests a meeting or conference call with the Secretary.
The Secretary will have a 60-day period to make a written determination
affirming, modifying or reversing disapproval of the application.
Disapproval of start-up funding or of a request for waiver of the 100-
child rule or waiver of the required Tribal share of expenditures is
not subject to administrative appeal.
If we intend to disapprove an existing IV-D plan, we will send the
Tribe a Notice of Intent to Disapprove the plan. The Tribe may request
a hearing within 60 days of the date of the notice of our intent to
disapprove the plan if the Tribe waives its right to a reconsideration
under Sec. 309.45. Although we received no written comments on this
section, we added the opportunity for a hearing prior to disapproval of
an existing Tribal IV-D plan because of the significant consequences of
Tribal plan disapproval.
Section 309.50 describes the consequences of disapproval of an
application or plan amendment. If an
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application is disapproved, the Tribe can receive no direct funding
until a new application is submitted and approved. If a plan amendment
is disapproved, there is no funding for the proposed activity.
A Tribe or Tribal organization may reapply at any time once it has
remedied the circumstances that led to disapproval of the application,
plan or plan amendment.
Subpart C--Tribal IV-D Plan Requirements
Section 309.55 states that subpart C of Sec. 309 defines the
Tribal IV-D provisions that are required to demonstrate the Tribe or
Tribal organization has the capacity to operate a child support
enforcement program.
Section 309.60 describes who is responsible for administration of
the Tribal IV-D program under the plan. The Tribe or Tribal
organization must designate an agency to administer the Tribal IV-D
plan. The Tribe or Tribal organization is responsible and accountable
for the operation of the Tribal IV-D program. If a Tribe or Tribal
organization delegates any functions of the Tribal IV-D program to
another Tribe, State, and/or another agency or entity, the Tribe or
Tribal organization is responsible for securing compliance with the
requirements of the plan. The Tribe or Tribal organization is
responsible for submitting copies and appending to the Tribal IV-D plan
any agreements, contracts, or Tribal resolutions between the Tribal IV-
D agency and a Tribe, State, other agency or entity.
Section 309.65(a) describes what a Tribal IV-D plan must include in
order to be approved and receive Federal funds for the operation of the
Tribal IV-D program. This part outlines the 14 required elements which
include: (1) A description of the population subject to the
jurisdiction of the Tribal court or administrative agency for child
support purposes; (2) evidence that the Tribe has in place procedures
for accepting all applications for IV-D services and providing IV-D
services required by law and regulation; (3) assurance that due process
rights are protected; (4) administrative and management procedures; (5)
safeguarding procedures; (6) maintenance of records; (7) copies of
applicable Tribal laws and regulations (8) procedures for the location
of noncustodial parents; (9) procedures for the establishment of
paternity; (10) guidelines for the establishment and modification of
child support obligations; (11) procedures for income withholding; (12)
procedures for the distribution of child support collections; (13)
procedures for intergovernmental case processing; and (14) Tribally-
determined performance targets.
Section 309.65(b) includes a provision for Tribes or Tribal
organizations that can demonstrate the capacity to operate a IV-D
program but that are unable at the time of application to satisfy all
of the requirements of paragraph (a) to request start-up funding. The
NPRM at Sec. 309.65(b) outlined what must be included in a start-up
application. Those provisions are now found at Sec. 309.16. The Tribe
or Tribal organization may demonstrate capacity to operate a Tribal IV-
D program by submission of an application for start-up funding as
required by Sec. 309.16. Proposed Sec. 309.65(c) said that the
Secretary will cease funding to a Tribe or Tribal organization's start-
up efforts if that Tribe or Tribal organization fails to demonstrate
satisfactory progress pursuant to Sec. Sec. 309.15(b)(2) and 309.25(d)
toward putting a full program in place. The language was revised for
clarity and now says, ``The Secretary may cease start-up funding to a
Tribe or Tribal organization of that Tribe or Tribal organization fails
to satisfy one or more provisions or milestones described in its
program development plan within the timeframe specified in such plan.''
This requirement is now found at 309.65(b)(2).
In Sec. Sec. 309.70 through 309.120, we eliminate duplicative
language in the introduction to each section that read, ``A Tribe or
Tribal organization demonstrates capacity to operate a Tribal CSE
program meeting objectives of title IV-D of this Act.'' The language is
unnecessary as approval of a plan is based on the contents of the plan.
the new introductory language reads: ``A Tribe or Tribal organization
must include in its Tribal IV-D plan a description of. * * *''
Section 309.70 requires that the Tribe or Tribal organization
include a description of the population subject to the jurisdiction of
the Tribal court or administrative agency for child support enforcement
purposes and certify that there are at least 100 children under the age
of majority in the population subject to the Tribe's jurisdiction, in
accordance with Sec. 309.10 of this part and subject to Sec.
309.10(c)
Section 309.75 outlines the administrative and management
procedures that must be included in the plan. The plan must include a
description of the agency and the distribution of responsibilities
within the agency. In response to comments, we eliminated as
duplicative the requirement that the plan includes procedures under
which applications are made available to the public upon request and
that the plan also includes procedures under which the agency must
promptly open a case record and determine necessary action. This
requirement is found at Sec. 309.65(a)(2).
The plan must include evidence that all Federal funds and amounts
collected by the Tribal IV-D agency are protected against loss. Tribes
and Tribal organizations may comply with this requirement by submitting
documentation that every person who receives, disburses, handles, or
has access to or control over funds collected is covered by a bond or
insurance sufficient to cover all losses. In response to comments we
eliminated as duplicative the language in proposed Sec. 309.75(d)(3)
that specified, ``the requirements of this section do not reduce or
limit the ultimate liability of the Tribe or Tribal organization for
losses of support collections from the Tribal CSE agency's program.''
The plan must include that notices of support collected, itemized
by month of collection, are provided to families receiving services
under the Tribal IV-D program at least once a year and to either the
custodial or noncustodial parent upon request. The plan must include a
certification that the Tribe or Tribal organization will comply with
the provisions of chapter 75 of title 31 of the U.S.C. (the Single
Audit Act of 1984, Pub. L. 98-502, as amended) and OMB Circular A-133.
We added a new provision at Sec. 309.75(e) that if the Tribal IV-D
agency intends to charge an application fee, the plan must contain
provisions that the fee will be uniformly applied and cannot exceed
$25.00; that in intergovernmental cases referred for services, the
application fee may only be charged by the jurisdiction where the
individual applies for services; that fees may not be charged to
individuals receiving services under titles IV-A, IV-E foster care
assistance or XIX (Medicaid) of the Act; and that the Tribal IV-D
agency may recover actual costs of providing services in excess of the
application fee. Fees collected and costs recovered are considered
program income and must be used to reduce the amounts of expenditures
for Federal matching. The Tribal IV-D agency must exclude from its
quarterly expenditure claims an amount equal to all fees which are
collected and costs recovered during the quarter. Assessment of a fee
and/or recovery of costs are not mandatory requirements, but optional
provisions that some Tribes may choose to use.
Section 309.80 outlines what safeguarding procedures a Tribe or
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Tribal organization must include in its plan. The plan must include
procedures under which the use or disclosure of personal information
received by or maintained by the Tribal IV-D agency is limited to
purposes directly connected to the administration of the program, or
other programs or purposes prescribed by the Secretary in regulations.
The plan must include procedures for safeguards that are applicable to
all confidential information including safeguards against unauthorized
use or disclosure of information relating to proceedings or actions to
establish paternity, establish, modify or enforce support. Also
included are prohibitions against the release of information on the
whereabouts of one party or the child to another party when a
protective order has been entered, and against the release of
information if the Tribe has reason to believe the release of the
information may result in physical or emotional harm to the party or
child, and any other procedures in accordance with specific
safeguarding regulations applicable to Tribal IV-D programs promulgated
by the Secretary. The plan must also contain sanctions to be imposed
for unauthorized disclosure of personal information.
Although not specified in this final rule, in addition to programs
and purposes prescribed by the Secretary, Tribal IV-D programs are
authorized to disclose information to individuals for purposes
authorized by Federal statute. If a Federal statute requires a Tribal
IV-D program to share information, the agency must comply.
Section 309.85 was amended to clarify the section's requirements.
Previously, the title of the section was ``What reports and maintenance
of records procedures must a Tribe or Tribal organization include in a
Tribal IV-D plan?'' The emphasis was on procedures. The title now
reads: ``What records must a Tribe or Tribal organization agree to
maintain in a Tribal IV-D plan?'' This more appropriately places the
emphasis on what will be maintained. This section now requires that the
Tribal IV-D plan provide that the Tribal IV-D agency will maintain
records necessary for proper and efficient operation of the program
including: (1) Applications for child support services; (2) efforts to
locate noncustodial parents; (3) actions taken to establish paternity
and obtain and enforce support; (4) amounts owed, arrearages, and
amounts and sources of support collections, and the distribution of
such collections; (5) IV-D program expenditures; (6) any fees charged
and collected, if applicable; and (7) statistical, fiscal and other
records necessary for reporting and accountability. Records must be
maintained in accordance with 45 CFR 74.53. The NRPM noted that records
would be maintained in accordance with 45 CFR 92.42; however, it is
more appropriate that they be maintained in accordance with part 74.
Both require three-year records retention, but title IV-D falls under
part 74.
Section 309.90(a) requires the submission of copies of Tribal law,
code, regulations or procedures and other evidence that provides for:
(1) Establishment of paternity for any child up to at least 18 years of
age; (2) establishment and modification of child support obligations;
(3) enforcement of child support obligations including requirements
that Tribal employers comply with income withholding; and (4) location
of custodial and noncustodial parents. In the absence of written laws
and regulations, a Tribe or Tribal organization may provide in its plan
detailed descriptions of any Tribal custom or common law with the force
and effect of law which enables the Tribe or Tribal organization to
satisfy the requirements in paragraph (a).
Section 309.95 requires the plan to include provisions governing
the location of custodial and noncustodial parents and their assets.
The Tribal IV-D agency must attempt to locate custodial and
noncustodial parents or sources of income and/or assets when location
is required to take necessary action in a case, and must use all
sources of information and records reasonably available to locate
custodial and noncustodial parents and their sources of income and/or
assets. We added the reference to custodial parents to ensure that
locate sources are used to find custodial parents for whom support has
been collected and whom the Tribe may be unable to find.
Section 309.100 outlines the paternity establishment procedures
that a Tribe or Tribal organization must include in its plan. The
agency must attempt to establish paternity by the process set out under
Tribal law, code and/or custom and provide the alleged father an
opportunity to voluntarily acknowledge paternity. In a contested
paternity case the child and all other parties must submit to a genetic
test (unless otherwise barred by Tribal law) upon the request of any
party if the request is supported by a sworn statement alleging
paternity, and setting forth facts establishing a reasonable
possibility of the requisite sexual contact between parties; or denying
paternity, and setting forth facts establishing a reasonable
possibility of the nonexistence of sexual contact between the parties.
The phrase `otherwise barred by Tribal law' is intended to cover
situations where, either by action of one or both of the parties or the
application of Tribal law, or both, paternity has already been
conclusively determined and may not be reconsidered. In such cases,
genetic testing to challenge the paternity determination would not be
authorized. Examples of such a paternity determination would include a
voluntary admission of paternity or circumstances under which the Tribe
has other means of recognizing paternity under Tribal law. A Tribe,
through its own custom, tradition or procedure, may recognize a man as
the father or may preclude a man who holds himself out to be the father
from challenging paternity. Similarly, a Tribe may have a conclusive
presumption of paternity when a child is born to married parents or if
a noncustodial parent has been validly served in a paternity proceeding
and failed to contest paternity in such proceeding. A uniquely Tribal
means would be acceptable as precluding the need for genetic tests if
Tribal law is used to establish paternity. In such cases, because
paternity has already been determined, genetic testing would be
``otherwise barred by Tribal law.'' This language is consistent with
the language found at section 466(a)(5)(B) of the Act, which mandates
genetic testing in contested cases to ensure that the rights of both
parties are protected.
In any case involving incest or forcible rape, or in a case in
which legal proceedings for adoption are pending, the agency need not
attempt to establish paternity. The agency must use accredited
laboratories, which perform legally and medically-acceptable genetic
tests when genetic testing is used to establish paternity.
Establishment of paternity under this section has no effect on Tribal
enrollment or membership.
Section 309.105 indicates what procedures governing child support
guidelines must be included in the plan. We changed the title of this
section to better reflect its content. The section requires that a
Tribal IV-D plan establish one set of child support guidelines by law
or by judicial action for setting and modifying child support
obligation amounts; include a copy of the child support guidelines; and
indicate whether non-cash payments of support will be permitted to
satisfy the child support obligation. In response to comments, we added
language that the plan must indicate whether non-cash payments will be
permitted to satisfy support obligations and if so, require that Tribal
support orders allowing non-cash payments also state the specific
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dollar amount of the support obligation, and describe the types of non-
cash support that will be permitted to satisfy the underlying specific
dollar amount of the support order. We also added language providing
that non-cash payments may not be used to satisfy assigned support
obligations.
The guidelines must be reviewed, and if appropriate, revised at
least every four years and provide a rebuttable presumption that the
child support award based on the guidelines is the correct amount. The
plan must provide for the application of the guidelines unless there is
a written finding or a specific finding on the record of the tribunal
that the application of the guidelines would be unjust or inappropriate
in a particular case. The guidelines must take into account the needs
of the child and the earnings and income of the noncustodial parent and
be based on specific descriptive and numeric criteria.
Section 309.110 outlines the procedures and requirements governing
income withholding. The income withholding requirements are similar to
those requirements governing States' IV-D programs, except that income
is subject to withholding once the noncustodial parent has failed to
make a payment equal to the support payable for one month. In response
to comments from Tribes that income withholding may not be appropriate
in all cases, we added language to Sec. 309.110(h), that income
withholding will not be required in any case where either the custodial
or noncustodial parent demonstrates, and the tribunal enters a finding,
that there is good cause not to require income withholding; or a signed
written agreement is reached between the custodial and noncustodial
parent which provides for an alternate agreement. We added a
requirement at Sec. 309.110(m) indicating that the Tribal IV-D agency
must allocate amounts withheld across multiple withholding orders and
that, in no case, shall the allocation result in a withholding for one
of the orders not being implemented. Section 309.110(n) was amended by
adding a requirement that the Tribal IV-D agency is responsible for
receiving and processing income withholding orders from States or other
Tribes and ensuring orders are promptly served on employers.
Section 309.115 outlines the requirements governing distribution.
This section was rewritten for clarity. A Tribal IV-D plan must outline
procedures for distribution of child support collections. As a general
rule, the Tribal IV-D agency, in a timely manner, must apply
collections first to satisfy current support obligations, and pay all
support collections to the family unless the family is currently
receiving or formerly received assistance from the Tribal TANF program,
or the Tribal IV-D agency has received a request for assistance in
collecting support on behalf of the family from a State or Tribal IV-D
agency. Such requests for assistance may be to collect support assigned
to the State or Tribe as a condition of receiving assistance or to
provide services on behalf of a family residing in or receiving
services from the referring State or Tribe. When support is owed to
both States and Tribes, the Tribal IV-D agency may either send
collections to the requesting State or Tribe for distribution or
determine appropriate distribution by contacting the requesting State
or Tribe and distribute collections accordingly. We added a new
requirement that any collections attributable to the Federal Income Tax
Refund Offset must be applied to satisfy child support arrears. This is
consistent with section 464 of the Act. Finally, we made a conforming
change to Tribal TANF regulations at 45 CFR 286.155 to eliminate
reference to payments to the family because distribution of collections
is addressed in Sec. 309.115 of this rule.
Section 309.120 requires a Tribe or Tribal organization to specify
procedures under which the Tribal IV-D agency will extend the full
range of services available under its IV-D plan to respond to all
requests from, and cooperate with State and other Tribal IV-D programs.
The Tribe or Tribal organization must also provide assurances that it
will recognize child support orders issued by other Tribes and Tribal
organizations, and by States, in accordance with the requirements under
28 U.S.C. 1738B, the Full Faith and Credit for Child Support Orders Act
(FFCCSOA). ACF is making a parallel change to include cooperation with
Tribal IV-D agencies as a requirement for State IV-D programs at 45 CFR
302.36.
Subpart D--Tribal IV-D Program Funding
Section 309.125 provides the basis on which Tribal IV-D program
funding is determined. The funding is based on the Tribal IV-D
application, which includes the proposed budget and a description of
the nature and scope of the Tribal IV-D program and gives assurance
that the program will be administered in conformity with applicable
requirements of title IV-D of the Act, regulations contained in this
part, and other official issuances of the Department that specifically
apply to Tribes and Tribal organizations.
Section 309.130 outlines the general mechanism for funding Tribal
IV-D programs; financial form submittal requirements; the Federal share
of program expenditures; non-Federal share of program expenditures;
waiver of non-Federal share of program expenditures; an increase in an
approved budget; obtaining Federal funds and grant administration
requirements. The changes in this section are addressed below.
New language was added at Sec. 309.130(a) indicating that the
Tribe or Tribal organization will receive funds in the amount equal to
the percentage specified in paragraph (c) of the total amount of
approved and allowable expenditures. This language was added for
clarity. We also added language explaining that Tribes receiving grants
of less than $1 million per 12-month funding period will receive a
single annual award and those Tribes that receive grants of $1 million
or more per 12-month funding period will receive four equal quarterly
awards. The Department-wide grant procedures require that grant funds
be disbursed in this manner. The programs administered by the Tribes
currently being funded under the Interim Final Rule received their
grant funds in this fashion. This language was added to the rule to
clarify the manner in which funds are disbursed.
Section 309.130(b) outlines that the financial forms required must
be submitted to ACF. ACF reviews each application for direct funding.
The requirements associated with the submission of the SF 424A,
``Budget Information--Non-Construction Programs'' form have changed.
The rule now requires a quarter-by-quarter estimate of expenditures for
the fiscal year; notification of whether the Tribe or Tribal
organization is requesting funds for indirect costs; a narrative
justification for each cost category on the form for funding under
Sec. 309.65(a); and either: a statement certifying that the Tribe or
Tribal organization has or will have the non-Federal share of program
expenditures available, as required; or a request for a waiver of the
non-Federal share in accordance with paragraph (e). As mentioned
earlier in the preamble, we discovered that our requirements in the
Interim Final Rule were not explicit enough to get the information
necessary to make an informed decision on funding. In our review of
applications from Tribes being funded under the Interim Final Rule, we
found it necessary to request the information listed above. Requiring
the
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information from the onset will result in a timesaving for the
applicant and for OCSE, as we will have the necessary information
earlier in the process and the approval and funding, if appropriate,
will not be unduly delayed.
The requirement in proposed Sec. 309.140 that the Tribe or Tribal
organization must submit a Financial Status Report, SF 269, was moved
to Sec. 309.130(b)(3). We eliminated proposed Sec. 309.140. The final
rule requires that the SF 269A Financial Status Report (short form) be
submitted quarterly. We decided to substitute the short form for the
form previously required. The short form is more appropriate for Tribes
and Tribal organizations and requires less information than the
proposed form. The requirements for reporting on the OCSE 34A,
``Quarterly Report of Collections,'' previously found in proposed Sec.
309.140 were also moved to this section of the final rule. As noted in
the preamble to the NPRM, we revised the instructions for reporting on
this form. We will modify the form to apply to Tribes and Tribal
organizations operating IV-D programs through direct funding.
Section 309.130(c) outlines the Federal share of program
expenditures. During the period of start-up funding, a Tribe or Tribal
organization will receive Federal funds equal to 100 percent of the
approved and allowable expenditures made during that period. It is
important to note that this is a change from the NPRM. Previously, a
non-Federal match was required for Tribes applying for start-up
funding. In recognition of the fact that Tribes just beginning title
IV-D child support enforcement funding may have very limited funds for
this activity, we have eliminated the requirement for non-Federal match
for start-up tribes. During the initial three years of full program
operation, a Tribe or Tribal organization will receive 90 percent
Federal funding and 80 percent thereafter.
Section 309.130(d) outlines the non-Federal share of program
expenditures. This subsection states that the non-Federal share of
program expenditures must be provided either with cash or with in-kind
contributions and must meet the requirements found in 45 CFR 74.23.
This is a change from the NPRM, which stated that 45 CFR part 92 was
applicable to the administration of Tribal IV-D programs. We have
amended the rule and changed each reference from 45 CFR part 92 to 45
CFR part 74, because the language in 45 CFR part 92 clearly states that
title IV-D programs are not required to comply with part 92.
Based on comments and experience with currently operating Tribal
IV-D programs, we revised the section on waiver provisions at Sec.
309.130(e). Under certain circumstances, the Secretary may grant a
temporary waiver of the non-Federal share of expenditures. If a Tribe
or Tribal organization anticipates that it will temporarily be unable
to contribute part or all of the non-Federal share of funding, it must
submit a written request that this requirement be temporarily waived. A
request for waiver must be sent to ACF, and included with the
submission of SF 424A, no later than 60 days prior to the start of the
funding period. If, after the start of a funding period, an emergency
situation occurs that necessitates the grantee to request a waiver of
the non-Federal costs, it may do so as soon as the adverse affect of
the emergency situation giving rise to the request is known. The
request must include a statement of the amount the Tribe is requesting
be waived; a narrative statement describing the circumstances and
justification for the waiver; portions of the Tribal budget to
demonstrate that any funding shortfall is not limited to the Tribal IV-
D program and any uncommitted funds are insufficient to meet the non-
Federal funding requirement; copies of any additional financial
documents in support of the request; a detailed description of the
attempts made to secure the necessary funding from other sources; and
any other documents the Secretary may request to make this
determination.
In its request for a temporary waiver of the non-Federal share of
expenditures, the Tribe or Tribal organization must demonstrate to the
satisfaction of the Secretary that it lacks sufficient resources to
provide the required non-Federal share of costs; has made reasonable,
but unsuccessful, efforts to obtain non-Federal share contributions;
and has provided all required information requested by the Secretary.
All statements must be supported by evidence including a description of
how the Tribe or Tribal organization has the capacity to provide child
support enforcement services even though it lacks the financial
resources to provide its required non-Federal share of program costs.
The following statements are insufficient to merit a waiver without
documentary evidence satisfactory to the Secretary: funds committed to
other budget items; a high rate of unemployment; a generally poor
economic condition; a lack of or a decline in revenue from gaming,
fishing, timber, mineral rights and other similar revenue sources; a
small or declining tax base; little or no economic development.
A Tribe or Tribal organization may consider requesting a waiver if,
for example, it has experienced a natural disaster, extreme weather
conditions, or other calamities (e.g., hurricanes, earthquakes, and
fire) whose disruptive impact is so significant and unpredictable that
the applicant is temporarily unable to satisfy the non-Federal share
requirement; or isolated, unanticipated economic hardship, beyond the
control of the applicant, which makes it temporarily impossible for the
applicant to satisfy the non-Federal share requirement. The authorized
representative of the Tribe or Tribal organization must sign and submit
the Tribal IV-D waiver request. Applications must be submitted to the
Office of Child Support Enforcement, Attention: Tribal Child Support
Enforcement Program, 370 L'Enfant Promenade, SW., Washington, DC 20447,
with a copy to the appropriate regional office and must be submitted as
soon as the adverse effect of the emergency situation giving rise to
the request is known to the grantee.
We added language that the temporary waiver will expire on the last
day of the funding period for which the waiver was approved. If the
Tribe is unable to meet the non-Federal share in subsequent years, the
Tribe must submit a new request with its next budget submission. It
should also be noted that if a request for a waiver is denied, the
denial is not subject to administrative appeal.
Section 309.130(f) addresses increases in an approved budget, which
may be requested by submitting a revised copy of the SF 424A with an
explanation of why additional funds are needed. Any approved increase
in the Tribal IV-D budget will include a requirement for a proportional
increase in the non-Federal share. Tribes and Tribal organizations will
obtain Federal funds on a draw-down basis from the Department's Payment
Management System.
Section 309.135 specifies the requirements that apply to funding,
obligating and liquidating IV-D grant funds. This section outlines the
funding period, obligation period, liquidation period, funding
reductions and extension requests. This section was broken into
subsections for ease of understanding.
Proposed Sec. 309.140 required Tribes to submit a Financial Status
Report, SF 269, quarterly. Tribes must also submit the Child Support
Enforcement Program: Quarterly Report of Collections (Form OCSE 34A) on
a quarterly basis. A report on the
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liquidation of obligations must be submitted using the SF 269A. While
these requirements must still be met, they have been moved to Sec.
309.130(b)(3) and (4), as we felt these requirements made more sense in
the funding portion of the rule.
Section 309.145 outlines the allowable costs for Tribal IV-D
programs carried out under Sec. 309.65(a). This list is similar to the
list of allowable costs in the State IV-D program.
Section 309.150 outlines costs that are allowable for start-up
programs carried out under Sec. 309.65(b). Federal funds are available
for the costs of developing a Tribal IV-D program meeting Federal
requirements, provided that such costs are reasonable, necessary and
allocable to the program. Federal funding for program development
generally may not exceed a total of $500,000 except in very unusual or
extraordinary circumstances. Allowable start-up costs and activities
include: planning for the initial development and implementation of a
program; developing Tribal IV-D laws, codes, guidelines, systems and
procedures; recruiting, hiring, and training Tribal IV-D program staff;
and any other reasonable, necessary and allocable costs with a direct
correlation to the development of a Tribal IV-D program, consistent
with the cost principles of OMB Circular A-87, and approved by the
Secretary.
Section 309.155 outlines costs that are not allowable, which are
basically the same as those costs that are not allowable under the
State IV-D program. Funds may not be used for activities related to
administering other programs including those under the Social Security
Act; construction or major renovations; expenditures that have been
reimbursed by fees collected, including any fee collected from a State;
jailing of parents in Tribal IV-D cases; the cost of legal counsel for
indigent defendants in Tribal IV-D actions; the cost of guardians ad
litem or any other costs that are not reasonable, necessary and
allocable to the Tribal IV-D program.
Subpart E--Accountability and Monitoring
Section 309.160 indicates that OCSE will rely on audits required by
OMB Circular A-133, ``Audits of States, Local Governments, and Non-
Profit Organizations,'' and 45 CFR part 74. The Tribal IV-D program
will be audited as a major program in accordance with section 215(c) of
the circular. The Department may supplement the required audits through
reviews or audits conducted by its own staff.
Section 309.165 provides that the recourse for a Tribe or Tribal
organization to dispute a determination to disallow program
expenditures is governed by the procedures in 45 CFR part 16.
Subpart F--Statistical and Narrative Reporting Requirements
Section 309.170 requires Tribes to submit information and
statistics for program activities and caseload for each funding period.
The required information includes: (1) Total number of cases, and of
those, the number that are State or Tribal TANF and non-TANF; (2) total
number of out-of-wedlock births in the previous year and total number
of paternities established or acknowledged; (3) total number of cases
and the total number of cases with an order; (4) total amount of
current support due and collected; (5) total amount of past-due support
owed and total collected; (6) a narrative report on activities,
accomplishments, and progress of the program; (7) total costs claimed;
(8) total amount of fees and costs recovered; and (9) total amount of
laboratory paternity establishment costs.
The requirements found in proposed Sec. 309.175 were moved to
Sec. 309.170 for clarity.
Part 310--Comprehensive Tribal Child Support Enforcement (CSE) Programs
Part 310 establishes provisions, procedures, funding, monitoring
and reporting for Tribes currently operating a Tribal IV-D system under
the Interim Final Rule. Section 310.1(c) is added indicating that on
the effective date of these regulations, part 310 will become time-
limited for Tribes operating a Tribal IV-D program under the Interim
Final Rule. For Tribes operating under the Interim Final Rule, 45 CFR
part 310 will be applicable to grants covering the period up to the
first day of the quarter beginning six months after the date of
publication of this final rule. In order to continue to receive
funding, Tribes currently operating under 45 CFR part 310 must make
changes to their current program to comply with this final rule not
later than the first day of the quarter beginning six months after the
date of publication of this final rule.
Discussion of Regulatory Provisions and Response to Comments
The following is a discussion of the regulatory provisions included
in this final rule. The discussion follows the order of regulatory
text, describes each subpart and section and addresses all relevant
comments.
Comments were received from 14 Tribes and Tribal organizations, 15
State IV-D agencies and 10 other interested parties. A discussion of
the comments received and our responses follows:
Subpart A--Tribal Child Support Enforcement (IV-D) Program: General
Provisions
Section 309.01 describes the general parameters of the final
regulation, Sec. 309.05 defines key terms, and Sec. 309.10
establishes threshold eligibility criteria.
Section 309.01--What Does This Part Cover?
1. Comment: Two Tribal commenters suggested a provision be added
allowing the Secretary to waive any conditions of these regulations as
long as the statutory requirements are met, and good cause is shown by
the Tribe or Tribal organization.
Response: The statute directs the Secretary to establish
requirements necessary to operate a Tribal child support enforcement
program capable of meeting the program objectives of title IV-D. The
final rule establishes the minimum elements, which we have determined
to be critical to the basic framework for operation of Tribal IV-D
programs meeting the objectives of title IV-D. After consideration of
comments received on regulatory waivers, we are persuaded to permit
limited waivers. We believe that Tribes should be given an opportunity
to request a waiver of certain specific requirements in this
regulation. However, we believe that the care taken to limit Federal
regulatory requirements and to recognize Tribal sovereignty has
resulted in regulations that are essential to a successful Federally-
funded Tribal IV-D program. We have established criteria under which we
will consider requests for waiver of the following regulatory
requirements: Sec. 309.10(a) (100-child minimum) and Sec. 309.130(d)
(non-Federal share of program expenditures). Waivers of any other
regulatory requirements are not included because we have determined
that these are essential to the administration of successful Tribal
child support enforcement programs.
2. Comment: We received positive comments from States, Tribes, and
national organizations affirming that the best way for Tribal IV-D
programs to be administered is through a direct government-to-
government relationship and direct funding. One State commented that it
supported limiting the direct funding of Tribal IV-D programs to
current Federally-recognized Tribes, and a Tribal organization affirmed
its view that the basic eligibility for funds under section 455(f) of
the Act was limited to
[[Page 16648]]
Federally-recognized Tribes, as published in the Federal Register
pursuant to 25 U.S.C. 479a-1.
Response: Consistent with the government-to-government relationship
between the Federal government and Indian Tribes, eligibility for
direct IV-D funding of Tribal IV-D programs is extended to all
Federally-recognized Indian Tribes. The list of such Tribes is found in
the annual list of Federally-recognized Indian Tribes, which the
Secretary of the Interior publishes in the Federal Register pursuant to
25 U.S.C. 479a-1. Any Tribe that successfully completes the Federal
recognition process is eligible to apply for direct funding, regardless
of its status at the time of publication of this final rule. If a Tribe
is not Federally-recognized at the time of the publication of the final
rule, but is subsequently recognized, we will consider such Tribe
eligible to apply for direct funding.
3. Comment: Two Tribal commenters criticized the proposed
regulations as significantly different from the document drafted by the
joint Tribal/Federal workgroup.
Response: We worked in close consultation with Tribes prior to
publication of the NPRM. The proposed regulation was the result of a
significant amount of effort which included not only input from the
joint Tribal/Federal workgroup, but also consultation from other
stakeholders (including Tribes) and from within the Department. While
the draft document submitted by the Tribal/Federal workgroup was
significant to the development of the proposed regulation, the
Department's obligation to fulfill its statutory mandate to efficiently
administer the IV-D program necessarily required broader consultation.
The NPRM published in August 2000 reflected wide consultation and
collaboration. This final regulation reflects that input as well as
careful consideration of all relevant comments received in response to
the proposed rule. The end result reflects the Federal government's
determination of the minimum requirements necessary for the successful
administration of child support programs capable of meeting the
objectives of title IV-D.
Section 309.05--What Definitions Apply to This Part?
1. Comment: One State commented that IV-D services as defined by
the NPRM do not include services that a program may provide in addition
to those listed in the definition. The State also stated that the
definition does not include services that may be prohibited.
Response: It is not the intention of this final regulation to set
forth an exhaustive list of specific services that may be provided
under the IV-D program; thus, we do not list in the regulation every
service that may be provided and attributed to child support
enforcement. However, Sec. Sec. 309.145, 309.150, and 309.155
establish parameters for allowable costs that may be submitted for
funding at the established rate. We believe the regulations establish
an appropriate framework for Tribal child support enforcement services
that may be provided under title IV-D.
2. Comment: One State commenter noted that ``competent
jurisdiction'' is used in the definition of ``child support order'' and
``child support obligation'' but is not defined.
Response: As used in the definition, competent jurisdiction is used
in its common legal sense and refers to the legal authority to take
actions in child support matters.
3. Comment: One State commenter suggested that because the
definition of ``location'' refers to ``other sources of income and
assets,'' a definition of ``assets'' should be added to indicate assets
would include ``in-kind'' child support.
Response: We believe the definition of ``location'' appropriately
describes the term as it is used in the context of child support
enforcement and that the word ``assets'' does not require additional
elaboration. In-kind support is not within the meaning of assets.
4. Comment: One State commented that the definition of child
support order and child support obligation is incorrect when it says it
includes ``* * * a judgment * * * for the support and maintenance of a
child * * * or of the parent with whom the child is living.'' The
commenter noted that the definition would conform to the Full Faith and
Credit for Child Support Orders Act (FFCCSOA) by deleting ``of the
parent with whom the child is living.''
Response: We disagree that the regulatory definitions are
incorrect. The proposed definitions track the definition of support
found in 45 CFR part 301 governing State IV-D plans and do not conflict
with any provision of FFCCSOA. We have therefore retained such
definitions in the final regulation.
5. Comment: One Tribe thought the definition of ``Indian'' found in
the Indian Civil Rights Act would alleviate confusion that enrollment
might be required. Another thought the Pub. L. 93-638 definition of
Indian Tribes and Tribal organizations should be used.
Response: This final Tribal child support enforcement regulation
does not in any way link the definition of ``Indian'' to any Federal
standard or rule governing Tribal enrollment. The regulatory definition
of ``Indian'' is not intended to affect a Tribe's inherent ability to
determine enrollment standards or to affect the ability of any other
Federal agency to appropriately exercise authority in this area. We
agree that enrollment and membership are internal Tribal matters and
not the concern of the Federal Office of Child Support Enforcement. The
final rule defines ``Indian'' as a person who is a member of an Indian
Tribe. ``Indian Tribe'' and ``Tribe'' mean any Indian or Alaska Native
Tribe, band, nation, pueblo, village, or community that the Secretary
of the Interior acknowledges to exist as an Indian Tribe and includes
in the list of Federally-recognized Indian Tribal governments as
published in the Federal Register pursuant to 25 U.S.C. 479a-1.We have
determined that this definition of ``Indian'' is sufficient and
reference to the Indian Civil Rights Act is not necessary.
Eligibility for direct IV-D funding under section 455(f) of the Act
is limited to Federally-recognized Indian Tribal governments because
child support enforcement necessarily requires at least delegated
governmental authority. Because the definition of ``Indian Tribe'' in
Pub. L. 93-638 includes some entities that are not Tribal governments,
to avoid confusion we have not adopted that definition of ``Indian
Tribe.''
6. Comment: One State commenter thought the definition of Tribe was
insufficient in defining persons and circumstances that fall under the
jurisdiction of Tribes.
Response: We disagree. For purposes of these final regulations, we
have determined that it is not appropriate or necessary to define
``Tribe'' in terms of the limits of Tribal jurisdiction. The regulatory
definition of ``Tribe'' is appropriately related to Federal recognition
of governmental entities eligible for Federal funds. Such definition is
not intended to have any effect on the exercise of Tribal or State
jurisdiction.
7. Comment: One State commenter suggested that definitions for
``Tribal resident,'' ``reservation'' and ``Indian Country'' be added. A
Tribal commenter suggested that the regulations overlooked the special
circumstances of Alaska's Tribes when employing the term ``Indian
Country.''
Response: We have determined that it is not appropriate or
necessary in this regulation to define the territorial limits of a
Tribe's authority by defining ``Tribal resident'' or ``reservation.''
The parameters of ``Tribal resident'' and ``reservation'' are more
appropriately
[[Page 16649]]
determined by Tribal law, the jurisdiction of the Tribe's courts or
administrative process and by applicable Federal law, not by child
support enforcement regulations.
We are aware of the special circumstances in Alaska related to the
term ``Indian country'' as a consequence of the Supreme Court's
decision in Alaska v. Native Village of Venetie Tribal Government, 522
U.S. 520 (1998). For clarification, except where specifically noted,
throughout the preamble ``Indian country'' is replaced with the term
``Tribal territory'' in consideration of the special circumstances in
Alaska. The final regulatory definition of ``Indian Tribe and Tribe''
encompasses all Indian Tribes and Alaska Native entities enumerated in
the Department of the Interior's listing of Federally-recognized
entities such that each is eligible to apply for direct IV-D funding.
8. Comment: One Tribal commenter suggested that the term ``agency''
is likely to be misunderstood because ``agency'' refers to a
geographical entity delineated by a Department of the Interior
Administration area.
Response: We believe the context of these regulations make the
definition of Tribal IV-D agency clearly distinguishable from any other
type of agency and will not result in confusion.
Section 309.10--Who Is Eligible To Apply for Federal Funding To Operate
a Tribal IV-D Program?
1. Comment: Twenty-nine Tribal and State commenters opposed the
requirement that a Tribe have at least 100 children under the age of
majority as defined by Tribal law or code, in the population subject to
the jurisdiction of the Tribe to be eligible to apply for direct
funding.
Response: The main purpose of establishing the 100-child minimum is
to assure that Tribal IV-D programs will be cost effective. We also
believe this threshold eligibility requirement is a reasonable
indication of necessary IV-D program infrastructure. Any Tribe that has
at least 100 children subject to its jurisdiction clearly meets this
requirement. However, in response to comments received, we have amended
the final rule to permit waiver of the requirement that a Tribe has at
least 100 children under the age of majority subject to its
jurisdiction to be eligible for direct funding. Section 309.10(c) has
been added and specifies that a Tribe or Tribal organization with less
than 100 children subject to its jurisdiction may apply for direct
funding provided it can make the required showing. The new subsection
requires justification for waiver of the Sec. 309.10(a) requirement to
ensure that a Tribe or Tribal organization has the required
administrative capacity to undertake a child support enforcement
program.
Subpart B--Tribal IV-D Program Application Procedures
Section 309.15 describes what must be included in a Tribal IV-D
application; Sec. Sec. 309.20-309.30 establish procedures for
submitting an application for funding; Sec. 309.35 describes
procedures for approval of applications and Tribal IV-D plan
amendments; and Sec. Sec. 309.40-309.50 describe procedures related to
disapproval actions.
1. Comment: We received comments from two Tribal entities
suggesting that provision be made in the regulation for voluntary
retrocession of a IV-D program similar to the retrocession provisions
in the Tribal TANF and Indian Self-Determination and Education
Assistance Act (ISDEA) regulations.
Response: The concept of ``retrocession'' relates to transferring
authority from one governmental authority to another and is not
appropriate for these Tribal child support enforcement program
regulations. In the case of both the Tribal TANF program and contracts
under the ISDEA, retrocession describes the process under which a Tribe
voluntarily terminates its administration of a program and cedes back
(or returns) the program to the State or Federal government. If a Tribe
or Tribal organization administering a Tribal IV-D program decides not
to continue to operate a child support enforcement program, it may not
cede back the program to either a State or to the Federal government.
Therefore we have determined that retrocession provisions are
incompatible with the Tribal child support enforcement program. If a
Tribe or Tribal organization decides not to continue administration of
a Tribal IV-D program, it is not required to do so. Under the statute,
administration of Tribal IV-D programs is undertaken voluntarily by
Tribes and Tribal organizations. Should they decide to do so,
applicants on Tribal lands can apply for IV-D services from the State
as they always could.
Section 309.15--What Is a Tribal IV-D Program Application?
1. Comment: One commenter stated that the use of existing forms SF
424 and SF 424 A was helpful as Tribes are already familiar with those
forms.
Response: We appreciate that comment. We have attempted to use
existing procedures to ease the application process and alleviate undue
administrative burden.
Section 309.20--Who Submits a Tribal IV-D Program Application and
Where?
We received no comments on this section.
Section 309.25--When Must a Tribe or Tribal Organization Submit a
Tribal IV-D Application?
We received no comments on this section. The requirements in this
section were moved to Sec. 309.16, ``What rules apply to start-up
funding?''
Section 309.30--Where Does the Tribe or Tribal Organization Submit the
Application?
We received no comments on this section. This section was combined
with Sec. 309.20.
Section 309.35--What Are the Procedures for Review of a Tribal IV-D
Program Application, Plan and Plan Amendment?
1. Comment: One Tribal commenter stated that the application
process and requirements should be the same as those outlined in the
Indian Self-Determination and Education Assistance Act (ISDEA), (Pub.
L. 93-638).
Response: The differences between programs eligible for contracting
under Pub. L. 93-638 and child support enforcement programs funded
under title IV-D are so significant that we have determined it would be
inappropriate to adopt similar substantive requirements. Programs are
eligible for contracting under Pub. L. 93-638 because they are
programs, services, or functions otherwise provided by the Federal
government under Federal statute. The ISDEA is fundamentally different
from Tribal IV-D programs which are operated by Tribal governmental
entities under section 455(f) of the Social Security Act. In addition,
we have determined that an effective program that efficiently delivers
needed child support services to all families, including the effective
processing of inter-jurisdictional cases, must be governed by the
requirements and objectives of the IV-D program rather than those of
Indian-related programs.
2. Comment: One Tribal commenter objected to Sec. 309.35(a),
stating that allowing the Secretary or designee to ``determine whether
the Tribal IV-D program application or plan amendment conforms to the
requirements of approval'' subjects the applications to arbitrary
standards.
[[Page 16650]]
Response: We disagree that Tribal IV-D applications or plan
amendments are subject to arbitrary standards by requiring such
applications and plan amendments to conform to section 455(f) and final
Tribal child support enforcement regulations. We believe we have
established in these regulations appropriate and balanced standards for
the administration and operation of Tribal child support enforcement
programs that are responsive to the needs of Tribes and Tribal
organizations. The statute states clearly that the Secretary must
``promulgate regulations establishing the requirements which must be
met by an Indian Tribe or Tribal organization'' to be eligible for a
direct grant under title IV-D. These final regulations establish such
requirements and are the standards against which all applications will
be considered. The rule is also issued under the authority granted to
the Secretary by section 1102 of the Act authorizing the Secretary to
publish regulations that may be necessary for the efficient
administration of the functions for which the Secretary is responsible
under the Act. The Tribal child support enforcement regulations are the
product of a deliberative and collaborative process under which all
relevant input was fully considered. The result is a final regulation
that we believe is necessary for the efficient administration of the
national child support enforcement program; one which balances the
needs of Tribes and Tribal organizations with the need for a
predictable administrative framework.
3. Comment: Four Tribal respondents stated that the regulations
should provide a 45-day approval time rather than the 90-day timeframe.
One Tribal respondent stated that the Federal timeframe for response to
Tribal IV-D plans is appropriate.
Response: We have decided to retain the 90-day deadline for review
of applications, plans and plan amendments with an additional 45 days
to consider all additional necessary information requested from the
applicant. We have reviewed Tribal IV-D applications under 45 CFR part
310 and have determined, based on this experience, that the 90-day
deadline assures that due consideration is given to every Tribal IV-D
application. Our experience in reviewing Tribal IV-D applications under
the Interim Final regulations demonstrated that the complexity of the
documents, the technical assistance that was required, the coordination
of requests for additional information, and the consideration of such
information required a realistic timeframe. Every Tribal IV-D
application submitted to the Department under 45 CFR part 310 was
unique and many raised complex issues requiring consideration. For
these reasons, we decided that 90 days was a realistic timeframe to
complete application and plan amendment review with an additional 45
days to consider all necessary information requested from the
applicant.
4. Comment: One State suggested that copies of approved Tribal IV-D
plans be provided to the State. Another State commenter suggested that
States be notified of Tribal IV-D plan approval where the Tribe may be
using a State's automated system to provide services.
Response: While we will not routinely provide copies of approved
Tribal IV-D plans to States or Tribes, we will notify IV-D Directors of
newly approved Tribal IV-D programs in the form of a Dear Colleague
Letter. We encourage Tribes and States to stay in communication with
one another because such communication is essential to the successful
delivery of IV-D services to children and families. In support of that
goal, we are available to provide technical assistance.
Section 309.40--What Is the Basis for Disapproval of a Tribal IV-D
Program Application, Plan or Plan Amendment?
1. Comment: One Tribal commenter criticized the proposed rule as
not providing specific grounds for plan disapproval.
Response: We have revised Sec. 309.40 to clarify the specific
grounds upon which Tribal IV-D plans will be disapproved. We believe
the final regulation adequately specifies requirements which will
ensure that the objectives of title IV-D are met. These regulations
balance the needs of Tribes and Tribal organizations with the need for
a predictable administrative framework so that Tribal child support
programs successfully accomplish the outcomes specified in the statute.
Section 309.40 makes clear that Tribal IV-D applications, IV-D plans,
and plan amendments will be disapproved if applicable statutory and
regulatory requirements are not met, required procedures are not in
place, or the plan amendment is incomplete.
2. Comment: Five Tribal commenters stated that the proposed rule
imposes requirements not included in section 455(f) of the Act. The
added elements are not required by statute and should be deleted.
Response: Section 455(f) of the Act authorizes direct funding for
Tribal IV-D programs which have the capacity to ``operate a child
support enforcement program meeting the objectives of this part.''
``[T]his part'' refers to part D of title IV of the Social Security
Act. The statute specifies the mandatory objectives of title IV-D
programs: establishment of paternity, establishment, modification and
enforcement of support orders, and location of noncustodial parents.
While the statute specifies mandatory objectives, it is left to the
Secretary to promulgate Tribal regulations necessary to accomplish
these objectives. We have determined that these final regulations
fulfill the statutory mandate to ``promulgate regulations establishing
the requirements which must be met by an Indian Tribe or Tribal
organization to be eligible'' for direct IV-D funding. After
consideration of all issues raised in comments, we have established the
minimum requirements which we have determined are necessary to
reasonably support the statutory objectives of Tribal child support
enforcement programs.
3. Comment: Eleven Tribal commenters stated that Sec. 309.40(a)(2)
goes beyond the statute by specifying that the Secretary review the
Tribe's laws, code, regulations and procedures. Some also stated that
although a Tribe may be required to submit a copy of its laws, approval
of a Tribal IV-D plan or plan amendment should not be based on the
Secretary's approval of such laws.
Response: In response to Tribes' requests for clarification, we
have revised Sec. 309.40(a)(2) to more clearly reflect that Tribal IV-
D plans and plan amendments may be disapproved if required laws, code,
regulations, and procedures are not in effect. While it is necessary to
ensure that the appropriate statutes and laws are in place, we do not
intend to ratify or otherwise approve Tribal law. While the Secretary
is not approving the Tribal laws, Tribal IV-D plans must contain enough
information so that the Secretary can determine that relevant required
Tribal law, regulations and procedures are in place to operate a IV-D
program.
4. Comment: Four Tribal commenters stated the proposed regulations
provide that an application will be disapproved under certain
circumstances. The section should provide flexibility by replacing
``will'' with ``may.''
Response: Section 309.40 establishes the bases for disapproval of
an application. We have not adopted the suggestion to replace ``will''
with ``may.'' As a practical matter, deficiencies in Tribal IV-D plans
do not inevitably lead to formal Tribal IV-D plan disapproval under
these regulations. An incomplete plan, for example, is not
automatically disapproved. Instead, we will communicate with Tribal
applicants
[[Page 16651]]
and request needed information. We added Sec. 309.40(c) to clarify
that if the application or plan amendment is incomplete and does not
provide sufficient information for HHS to make a determination to
approve or disapprove, HHS will request additional information.
However, at some point, final action must be taken on a Tribal IV-D
plan or plan amendment and Sec. 309.40 specifies the circumstances
under which an application, plan or plan amendment will be disapproved.
Section 309.45--When and How May a Tribe or Tribal Organization Request
Reconsideration of a Disapproval Action?
1. Comment: Two Tribal commenters recommended that the Tribe, not
the Secretary, should have the option to request a meeting. One
commenter stated that conference calls and face-to-face meetings
provide a critical forum for interaction, communication and dialogue
and another endorsed the reconsideration process.
Response: Tribes have the option to request a meeting. However, we
have amended the language at Sec. 309.45(c) by deleting ``at the
Department's discretion,'' to eliminate any confusion.
Section 309.50--What Are the Consequences of Disapproval of a Tribal
IV-D Program Application, Plan or Plan Amendment?
We received no comments on this section.
Subpart C--Tribal IV-D Plan Requirements
Section 309.55--What Does This Subpart Cover?
1. Comment: One Tribal commenter stated that the Tribal IV-D plan
requirements go beyond the specific requirements in the statute and
that they are overly burdensome to Tribal governments.
Response: Section 455(f) of the Act requires the Secretary to
determine the minimum requirements necessary for the administration of
Tribal child support programs capable of meeting the objectives of
title IV-D. The objectives of title IV-D include the establishment of
paternity, establishment, modification, and enforcement of support
orders, and location of absent parents. We have promulgated regulations
that we believe contain the minimum procedures and processes necessary
for successful administration of IV-D programs, which are capable of
establishing paternity, establishing, modifying, and enforcing support
orders, and locating noncustodial parents.
We recognize that Tribal IV-D programs are in the early stages of
development. In Subpart C we have established requirements for Tribal
IV-D programs which accommodate the unique characteristics and
circumstances of Tribes. At the same time these regulations incorporate
a framework which has proven effective in delivering needed child
support services to families.
2. Comment: Five State commenters stated that the proposed
regulations did not sufficiently address issues of standardization and
coordination between Tribes and States. They suggested that the lack of
comparability among Tribal and State IV-D programs could limit the
ability of these programs to effectively and efficiently provide IV-D
services to families.
Response: We address these comments more fully in the discussion of
Sec. 309.120, which deals with intergovernmental coordination and
cooperation. We recognize that Tribal and State child support programs
necessarily will interact with one another and may do so through a
variety of mechanisms. Subpart C is intended to establish Tribal IV-D
program requirements, which will enhance these interactions and inter-
jurisdictional effectiveness. While Tribal IV-D programs are not
required to meet all requirements that apply to State IV-D programs,
nothing precludes them from adopting any and all of the techniques
proven successful for States. In fact, we encourage them to do so, but
remain convinced that additional mandates at this time are
inappropriate.
Section 309.60--Who Is Responsible for Administration of the Tribal IV-
D Program Under the Tribal IV-D Plan?
1. Comment: Several State commenters suggested that the regulation
clarify a State's responsibility in complying with the provisions of
approved Tribal IV-D plans under agreements where a State is providing
services under an approved Tribal IV-D plan.
Response: Both Sec. Sec. 309.60(c) and 309.145((a)(3) authorize
Tribal IV-D programs to enter into cooperative arrangements with
States. Under these provisions, child support enforcement services must
be provided in accordance with the approved Tribal IV-D plan in order
for Tribes to be eligible for Federal reimbursement. Rules governing
the negotiation of agreements between Tribes and States and other
entities are not the subject of this regulation. However, Sec.
309.60(c) makes clear that Tribes, not States, will be held accountable
for the proper operation of Tribal IV-D programs, including all actions
undertaken on behalf of such programs. The language at Sec. 309.60(c)
clearly states that if the Tribe or Tribal organization delegates any
of the functions of operating a program to another Tribe, State or any
other agency, the Tribe is responsible for compliance with the approved
Tribal IV-D plan.
2. Comment: One commenter stated that contracting with the State
would be viable for many individual Alaska Tribes, rather than
delegating functions to a regional consortium.
Response: The unique circumstances and challenges faced by child
support enforcement programs in the State of Alaska require recognition
and accommodation so that arrangements may be made for the provision of
needed services. Alaska and Alaska Native Tribal entities are
encouraged to find local solutions to meet the challenges they face.
Contracting with the State or with other Native entities is one
mechanism for delivery of IV-D services on terms that are in accordance
with title IV-D requirements and which will enable families to receive
needed support.
Section 309.65--What Must a Tribe or Tribal Organization Include in a
Tribal IV-D Plan in Order To Demonstrate Capacity To Operate a Tribal
IV-D Program?
Section 309.65(a) establishes requirements under which a Tribe or
Tribal organization may receive direct funding by submitting a Tribal
IV-D plan which meets specified criteria. We received many comments
from Tribes and States--some of them general and some specific--on this
provision which raised many complex and cross-cutting issues.
1. Comment: Tribal and State commenters provided positive comments
on this portion of the rule establishing Tribal IV-D plan requirements.
They stated that the rule clearly allows for Tribal values, customs and
traditions. Two Tribal commenters stated that the rule is simple and
provides needed flexibility.
Response: We appreciate the acknowledgment of the responsiveness to
the needs of Tribes and Tribal organizations in these first regulations
for Tribal IV-D programs and are encouraged by the positive response to
our efforts to accommodate the unique circumstances of Indian Tribes.
2. Comment: One Tribal commenter stated that during the early years
of the IV-D program, the specifications for State programs were
recommendations, not requirements and it should be the same for new
Tribal IV-D programs. The
[[Page 16652]]
commenter suggested this rule is much more prescriptive than those
initially promulgated for States.
Response: We disagree. The final rule implementing the initial
Child Support Enforcement program established by Part B of Pub. L. 93-
647 was published in the Federal Register on June 26, 1975. This
publication added 45 CFR Parts 301 (State Plan Approval and Grant
Procedures), 302 (State Plan Requirements), 303 (Standards for an
Effective Program) and 304 (Federal Financial Participation). These are
not recommendations. States are required to operate child support
enforcement programs under a specific statutory and regulatory
framework. As State programs evolved, requirements were expanded. With
this rule we have set forth minimum requirements for Tribes to ensure
effective Tribal IV-D programs that are capable of delivering child
support enforcement services to families.
3. Comment: One Tribal commenter stated that OCSE must encourage
Tribes to develop their own policies to achieve program directives,
defer to Tribes to establish standards and limit the imposition of
Federal standards in deference to Tribal authority.
Response: We believe these initial regulations implementing the
Tribal IV-D program provide the appropriate recognition of Tribal
sovereignty and culture. Tribes may develop culturally-appropriate
policies to conform to the requirements of these regulations and are
encouraged to do so. We have established a minimum administrative
framework for all Tribal IV-D programs. We recognize that individual
Tribes may establish IV-D programs within this framework through
various means.
4. Comment: One State commenter stated that it is not reasonable to
expect Tribes to be immediately accountable for the many requirements
that have evolved over 25 years for State IV-D programs, but that it is
reasonable to expect that State and Tribal IV-D programs will move in
the same direction.
Response: We agree that State and Tribal IV-D programs should move
in the same direction. As stated earlier, title IV-D has been amended
over the years to mandate specific case processing actions and
timeframes for State action as the program has evolved and become more
automated. We have determined that it is premature to consider such
specific requirements with respect to Tribal IV-D programs. Like
States, Tribes need adequate time to develop their programs and
determine appropriate approaches, levels of automation, and processes
for delivering services before it would be appropriate to consider the
need for more specific requirements. Tribes need to have sufficient
time to operate and automate programs and we need to understand how
much time it takes Tribal IV-D programs to carry out various functions
before we can consider specific actions, timeframes and processing
standards or whether such standards are necessary. These regulations
strike a balance between including requirements for specific, proven,
and critical components and aspects of a child support program, while
leaving implementation details up to the Tribes.
5. Comment: One State commenter stated that each Tribe should be
required to have a Central Registry and use CSENet (an automated system
for interstate case processing), or as an alternative, be required to
adopt the Uniform Interstate Family Support Act (UIFSA). Another State
commenter appreciated the efforts to allow Tribes flexibility to
develop and administer programs consistent with Tribal laws and
traditions, but thinks that the lack of comparability among Tribal and
State programs will limit efficiency and effectiveness.
Response: The specific State requirements raised by the commenter
related to the Central Registry and CSENet evolved over time and were
not among the initial set of State IV-D regulatory requirements. This
Tribal regulation will allow Tribes to begin planning for building
appropriate automated data processing systems and procedures over time
and does not mandate links to systems to which Tribes do not presently
have access.
As previously stated, we have begun consideration of appropriate
minimum Tribal systems automation specifications with stakeholders.
Where needed for effective and efficient programs, we have
established Tribal IV-D requirements that are comparable with State IV-
D requirements while bearing in mind that the statutory provision
authorizing direct funding to Indian Tribes was enacted to provide
much-needed services where, historically, no services were available.
As to the suggestion that Tribes be required to adopt UIFSA, we address
this issue in the discussion of Sec. 309.120.
6. Comment: Twenty-three Tribal commenters objected to this section
stating that the regulations do not match the statute and impose
unnecessary burdens. They stated that the 14 elements in Sec.
309.65(a) far exceed the five core functions listed in the statute at
section 455(f) and that Tribes should not have to include procedures
for each of the 14 criteria.
Response: We agree with the commenters that section 455(f) of the
Act specifies five core program objectives. However, we disagree that
the elements enumerated in Sec. 309.65(a) go beyond these objectives.
The statute specifies functions which must be performed and explicitly
delegates to the Secretary of HHS the authority to promulgate
regulations ``establishing the requirements which must be met by an
Indian Tribe or Tribal organization to be eligible'' for funding under
title IV-D. While, as a matter of law, the Secretary is not limited in
the number of requirements which may be promulgated, these regulations
in fact establish only the minimum requirements we have determined
necessary for the operation of Tribal child support enforcement
programs meeting the objectives of title IV-D. Every element specified
at Sec. 309.65(a) was determined to be necessary to the operation of
Tribal IV-D programs capable of meeting the specific program objectives
enumerated in the statute. This determination was made after careful
and deliberate consideration of comments received on the proposed
regulation as well as experience administering Tribal IV-D programs
under the interim final regulation.
7. Comment: One Tribal commenter stated that the regulations will
not facilitate establishment and collection of support for Native
American children because they are too process-oriented and
prescriptive for Tribal entities to achieve over the short term.
Response: These regulations establish only the minimum requirements
we have determined necessary for the operation of Tribal child support
enforcement programs meeting the mandatory objectives of title IV-D:
establishing paternity, establishing, modifying and enforcing support
orders, and locating noncustodial parents. Every requirement
established by this rule as a condition for Federal funding is intended
to ensure that Tribal IV-D programs meet the objectives of title IV-D
while at the same time recognizing the unique status and circumstances
of Indian Tribes.
8. Comment: Five Tribal commenters stated that there are too many
requirements in the rule and these prevent Tribes from designing
programs to meet their needs. The design and implementation of Indian
programs by Indian Tribes has proven that the most effective way to
deliver services is with programs designed by the Tribes themselves.
[[Page 16653]]
Response: While this regulation is responsive to the needs of
Tribes and Tribal organizations, the statute itself limits the scope of
this flexibility. The authorization for direct Federal IV-D funding of
Indian Tribes requires that Tribes demonstrate to the satisfaction of
the Secretary a capacity for accomplishing specific IV-D program
objectives. As we have stated in response to other comments, every
element specified at Sec. 309.65(a) was determined to be necessary to
the operation of Tribal IV-D programs capable of meeting the program
objectives enumerated in the statute. In this rule we have worked hard
to ensure flexibility and recognize the status of Indian Tribes and
accommodate the operational realities faced by Tribes. We agree that
section 455(f) of the Act allows for flexibility, but such flexibility
must be exercised within the parameters established in the statute.
Under this regulation we are confident that Tribes will be able to
design and implement Tribal IV-D programs that meet local needs.
9. Comment: Nine Tribal commenters stated that, while IV-D
regulations should have some areas of commonality, respect for Tribal
sovereignty and recognition of the unique aspects of Indian Tribes
require accommodation for such characteristics and appropriate
flexibility in Federal regulations. These commenters suggested that
forcing Tribal IV-D programs into the existing State model violates the
law recognizing the unique legal status of Indian Tribes and generally
stated that Tribes were not States and should not be forced to function
as States.
Response: We agree that the final regulation should accommodate the
unique status of Indian Tribes and incorporate as much flexibility as
possible while ensuring effective and efficient Tribal IV-D programs.
In particular, we emphasize that one of the key underlying principles
of these final Tribal IV-D regulations is recognition of and respect
for Tribal sovereignty and the unique government-to-government
relationship between Indian Tribes and the Federal government. We have
determined that the statute does not mandate that requirements imposed
on Tribal IV-D programs be the same as those imposed on State IV-D
programs as prerequisites for funding. Moreover, there is nothing to
suggest either in the original authorization for Tribal IV-D programs
or in a subsequent amendment, that Congress intended to limit the
Secretary's rulemaking discretion to the rules already established for
State IV-D programs. While Tribal IV-D programs must assure that
assistance in obtaining child support is available to all who request
services or are referred to the Tribal IV-D program, the rules for such
programs must also take into account the unique legal status of such
Tribes. We believe that these final Tribal IV-D regulations strike the
appropriate balance.
10. Comment: One State commenter stated that current IV-D
regulations do not allow States to refuse services to particular
applicants, no matter where they reside. If the State where the request
for services is made had no jurisdiction, the State can refer the
applicant to an agency in the appropriate jurisdiction. The same
commenter suggested that a referral process be specified in Federal
regulation for case referral among Tribes and between States and
Tribes.
Response: Under these regulations, Tribes are not permitted to
refuse services to any applicant. Tribal IV-D programs must take all
applications and open a case for each application. We know there may be
circumstances under which the only appropriate service will be to
request assistance from another Tribal or State IV-D program with the
legal authority to take actions on the case. We address these comments
more fully in the discussion of Sec. 309.120, which deals with
intergovernmental coordination and cooperation.
11. Comment: One commenter stated that Tribes should be permitted
to develop their own program operation criteria and service areas.
Response: As stated above, the statute authorizing direct IV-D
funding for Tribal programs limits the flexibility that can be
established to permit Tribes to individually create program
requirements. The authorization for direct Federal IV-D funding of
Indian Tribes requires that Tribes demonstrate to the satisfaction of
the Secretary a capacity for accomplishing specific IV-D objectives. We
have determined that every element specified at Sec. 309.65(a) is
necessary to the operation of Tribal IV-D programs capable of meeting
the objectives enumerated in the statute.
Section 309.65(a)(2) requires evidence that a Tribe or Tribal
organization has in place procedures for accepting all applications for
IV-D services and providing IV-D services as required by law and
regulation. A Tribe, when describing the population subject to its
laws, may include geographical descriptions of the area over which such
authority is exercised. However, as noted above, Tribal IV-D programs
must take all applications and open cases for each application, and
there may be instances in which the appropriate services will be to
request assistance from another Tribal or State IV-D program. Since
these regulations provide for reimbursement of all allowable costs of
administering a Tribal IV-D program at the appropriate match rate, it
is expected that a Tribe will exercise authority over Tribal members
and others on Tribal lands to the maximum extent legally permitted and
that Tribes will also provide services to all applicants.
12. Comment: One Tribal commenter stated that Tribes are not public
agencies and access to Tribal IV-D services should be limited to
reservation residents and Tribal members.
Response: As stated earlier in the preamble, these final
regulations require that Tribal child support agencies accept all
applications for services and require that the child support agency
provide all appropriate services. This is to ensure that IV-D services
are available to all who need them.
13. Comment: One Tribal commenter suggested that the wording in
Sec. 309.65(a)(2) be changed to allow Tribal IV-D agencies to refer
customers without having to go through the application process. Two
other Tribal commenters stated that ensuring access to services is not
a requirement of the statute and should be removed from the regulation.
Response: As a practical matter, we think the instances in which a
Tribal IV-D agency has no authority to take action in a particular case
will be few, but in those instances the Tribal IV-D agency will refer
the case to the appropriate IV-D agency. There will be instances in
which States and Tribes must work together to ensure families receive
the support they deserve. Under these regulations Tribes are not
permitted to refuse services to any applicant. Taking all applications,
determining what services are needed or may be provided and providing
those services either directly or through another IV-D agency are
activities that are included in categories of costs eligible for
Federal reimbursement at the appropriate funding rate. We require that
all IV-D programs accept all applications so that families receive
assistance in reaching the appropriate IV-D program and no family is
denied services which are legally available.
Tribes may not merely refer someone to another IV-D agency without
accepting an application because everyone needs to be served. However,
we recognize that as Tribal IV-D programs begin to operate, States and
Tribes may need to work out cooperative agreements to deal with cases
in specific instances, e.g., a Tribe has authority to provide certain
services
[[Page 16654]]
while only a State IV-D agency may provide others. We will provide
guidance governing referral of cases in specific instances, as needed.
14. Comment: One State commenter recommended that we provide
Federal guidance to ensure that an individual does not apply for IV-D
services at both the local State IV-D program office and the Tribal IV-
D program office. The commenter suggested that this portion of the rule
be rewritten to clarify that services by a Tribal IV-D program can only
be provided to an individual who is not receiving services from a State
IV-D program.
Response: There is nothing to preclude an individual from applying
for and receiving services from more than one IV-D agency. The fact
that a custodial parent and child may reside within a Tribe's
jurisdiction while the noncustodial parent may reside or work within a
State's jurisdiction highlights the importance of Tribal-State
communication and coordination. We encourage States and Tribes to work
together to provide needed services and coordinate those services.
15. Comment: One State commenter asked if the Tribal IV-D program
must charge an application fee as is required of State programs.
Response: Application fees are not required of Tribal IV-D programs
at this time. However, Tribes may, at their option, provide that an
application fee will be charged to individuals who apply for services
under the Tribal IV-D plan (with stated exceptions). We have added
paragraph (e) to Sec. 309.75, governing administrative and management
procedures, which reflects this option and which provides that any
application fee charged must be uniformly applied, be a flat amount not
to exceed $25.00, or be an amount based on a fee schedule not to exceed
$25.00. This is the same cap placed on State IV-D programs.
16. Comment: One Tribal commenter stated that it was unclear what
``due process'' means in Sec. 309.65(a)(3). This language offended
another Tribal commenter who stated that Tribes provide due process.
Two other Tribal commenters stated that assuring due process is not a
requirement of the statute and should be removed.
Response: The term ``due process'' in the context of Sec.
309.65(a)(3) refers to legal proceedings according to rules and
principles which have been established by the Tribe or Tribal
organization for the protection and enforcement of individual rights.
The required statement of assurance is intended to ensure that the
procedural and substantive protections of individuals are in place and
is not meant to suggest that Tribes do not provide due process.
Requiring this assurance is not indicative of a judgment as to whether
a Tribe's due process is adequate. While we do not define for Tribes
what due process is, we have determined that all IV-D programs should
have due process protections in place and we require an assurance to
that effect.
17. Comment: Three Tribal commenters stated that because the
statute does not require it, OCSE may only suggest that a Tribe include
performance targets in its plan. Another Tribal commenter stated that
some Tribes do not utilize standard performance measurements and that
measuring success by numerical or monetary targets does not allow for
intangible successes to be taken into account (such as family
reconciliation.)
Response: The Federal statute specifically authorizes the Secretary
to establish requirements which must be met in order to be eligible for
funding under title IV-D. We have determined that in order to fulfill
our responsibility to ensure the effective and efficient administration
of Federally-assisted Tribal child support enforcement programs, it is
essential that Tribes and Tribal organizations consider and articulate
performance targets or goals for their programs. In response to
comments, we have revised Sec. 309.65(a)(14) to clearly reflect that
the performance targets should be based on the particular needs and
circumstances of Tribal IV-D programs. In addition to submission of
targets for paternity and support order establishments, targets on
total amount of current collections, and targets on total amount of
past due collections, we encourage Tribes and Tribal organizations to
include Tribally-defined measures of success that go beyond numerical
or monetary description. These optional measures could include, for
example, family reconciliation or other indications of improved quality
of life for Indian families. We believe that performance targets are
essential for ensuring that Tribes focus on maintaining efficient and
effective child support services because such targets assist us and
Tribes in ensuring that Tribal IV-D programs can increase their
efficiency and effectiveness over time.
18. Comment: One Tribal commenter objected to the imposition of a
performance-based incentive and penalty system for Tribal grantees.
Another asked if we were proposing to withhold sanctions from Tribal
and State programs while performance standards are sorted out and one
commenter said that heavy penalties for failure to meet program
requirements will drive away a lot of Tribes.
Response: The proposed rule did not impose a performance-based
incentive or penalty system for Tribal IV-D grantees and we have not
imposed such systems in this final regulation. Tribal IV-D plans must
include performance targets, but funding is not contingent upon the
targets being met. In the statistical and narrative reports required
under Sec. 309.170, grantees must report on their success in reaching
their performance targets. We are not setting performance targets
because we believe that Tribes are in the best position to set
performance targets in the initial years of the Tribal IV-D program and
to estimate the targets that they can reasonably attain. Tribal IV-D
performance targets have no effect on State IV-D programs.
Sections 309.16 and Sec. 309.65(b)--Start-Up Funding
1. Comment: Thirteen Tribal commenters stated that a two-year
start-up time frame is not sufficient. Some suggested that extensions
be permitted.
Response: We were persuaded by commenters to re-evaluate the
regulatory framework for start-up funding and have added a new Sec.
309.16 to reflect provisions related to applications and approval of
start-up funding. Section 309.16(a) lays out the requirements for an
application for start-up funding including the standard application
forms SF 424, ``Application for Federal Assistance'', and SF 424A,
``Budget Information--Non-Construction Programs'', a quarter-by-quarter
estimate of expenditures for the start-up period, notification of
whether the Tribe or Tribal organization is requesting funds for
indirect costs and an election of a method to calculate estimated
indirect costs, and a narrative justification for each cost category on
the form. If the Tribe or Tribal organization requests funding for
indirect costs as part of the application for start-up funds, estimated
costs may be submitted either by a documentation of the dollar amount
of indirect costs allocable to the IV-D program, including the
methodology used to arrive at the amounts, or submission of the current
indirect costs rate negotiated with the Department of the Interior and
a dollar amount of estimated indirect costs. The amount of indirect
costs must be included within the $500,000 limit for start-up funds.
The Tribe or Tribal organization must also submit a description of the
requirements a Tribe currently meets and, if the Tribe does not
currently meet the requirements in Sec. 309.65(a), a program
development
[[Page 16655]]
plan detailing actions to be taken to meet the Tribal plan
requirements. Section 309.16(c) describes under what circumstances the
Secretary may consider extending the period of time during which start-
up funding will be available or increasing the amount of start-up
funding provided. An unfavorable decision to extend the period of time
during which start-up funding is available or to increase the amount of
start-up funding provided is not subject to an administrative appeal.
Based on the experience of Tribes of varying sizes and
circumstances that are currently operating IV-D programs, we believe
that the amount of time specified at Sec. 309.16(a)(5) will provide
Tribes and Tribal organizations with reasonable and necessary support
to complete the start-up phase necessary for comprehensive child
support enforcement programs. However, in extraordinary circumstances,
we will consider extending the period of time during which start-up
funding will be available to a Tribe or Tribal organization or
increasing the amount of start-up funding provided.
2. Comment: One commenter stated that ``demonstrate satisfactory
progress'' towards a fully operational Tribal IV-D program in proposed
Sec. 309.65(c) is vague and suggested that it be more clearly defined.
Response: The language at proposed Sec. 309.65(c) has been
reworded and moved to 309.16(a)(5) for clarity. Under Sec.
309.16(a)(5), Tribes must develop a program development plan which
demonstrates to the satisfaction of the Secretary that the Tribe or
Tribal organization will have a IV-D program meeting the requirements
of Sec. 309.65(a) within a specific period of time, not to exceed two
years. In order to demonstrate satisfactory progress toward a fully-
operational Tribal IV-D program, a Tribe would have to show it is
meeting specific goals established in the program development plan
within the timeframes established in the plan. In response to comments,
we have revised Sec. 309.65(b) to make clear that the Secretary may
terminate start-up funding if the Tribe or Tribal organization fails to
satisfy any provision or milestone described in its program development
plan within the timeframe specified in the plan. A decision to
terminate start-up funding is not subject to administrative appeal.
Section 309.65(d)--Delayed Program Requirements
1. Comment: Thirty-nine Tribal and State comments were received on
this section that outlined future requirements for Tribal IV-D
programs. While a few of the commenters thought that the requirements
for enforcement services should be the same for Tribes as for States,
the majority of the commenters recommended eliminating Sec. 309.65(d).
Most expressed concern about how Tribes will access the Federal
automated systems. They also stated that if Tribes are mandated to
enter into cooperative agreements with States to access these systems,
it would infringe on Tribal sovereignty.
Response: Based on comments, we are persuaded that it is not
appropriate at this time to impose future requirements for additional
procedures which Tribes and Tribal organizations must implement within
two years after the Secretary issues guidelines for these requirements.
These requirements were removed from the final rule. If, after
experience and consultation, additional regulations become necessary,
we will propose rules at that time. Some of the advanced child support
enforcement techniques require a minimal level of automation, and it
would not be appropriate to mandate the phase-in of such techniques in
advance of understanding more clearly the issues related to Tribal IV-D
automation. We have begun consideration of appropriate minimum Tribal
systems automation specifications with stakeholders.
Section 309.65(e)--Certification of Compliance With the 100-Child
Minimum Requirement
1. Comment: One commenter suggested the requirement to certify
compliance with the 100-child minimum be deleted except for initial
applications or when a member Tribe drops out of a consortium.
Response: One of the basic eligibility requirements--that a Tribe
is eligible to apply for funding if it has at least 100 children under
the age of majority in the population subject to its jurisdiction is
found at Sec. 309.10(a). This requirement may be subject to a waiver
under Sec. 309.10(c). We deleted the language from proposed Sec.
309.65(e) and moved it to Sec. 309.70. The Tribe must certify that
there are at least 100 children under the age of majority in the
population subject to its jurisdiction. The requirement that a
consortium demonstrate authorization of two or more Indian Tribes with
at least 100 children under the age of majority subject to its
jurisdiction remains applicable even if a member of the consortium
drops out. If, during the funding cycle, a member of a consortium drops
out, the assurance that the consortium will continue to serve at least
100 children must be resolved by the beginning of the next funding
cycle.
Section 309.70--What Provisions Governing Jurisdiction Must a Tribe or
Tribal Organization Include in a Tribal IV-D Plan?
1. Comment: Seven Tribal commenters supported the fact that the
regulation did not address jurisdiction. Several State commenters
stated that jurisdiction is not adequately addressed in the regulation
and that guidance is needed.
Response: Jurisdiction is the legal authority which a court or
administrative agency has over particular persons and over certain
types of cases. Issues related to jurisdiction are central to
intergovernmental cooperation for the provision of child support
enforcement services to families. Without proper jurisdiction, a
tribunal cannot proceed to establish, enforce, or modify a support
order or determine paternity. The legal authority to undertake these
functions is essential to the ability of both State and Tribal child
support enforcement programs to meet the statutory objectives of title
IV-D of the Social Security Act. Lack of jurisdiction does not excuse a
Tribal IV-D program from the responsibility of providing services when
asked, including seeking assistance from another IV-D program.
Section 309.75--What Administrative and Management Procedures Must a
Tribe or Tribal Organization Include in a Tribal IV-D Plan?
1. Comment: One commenter suggested that the word ``promptly''
should be replaced with a 20-calendar day time frame for opening a case
as required for State IV-D agencies by 45 CFR 303.2(b).
Response: We disagree that it is necessary at this time to require
a specific time frame for opening a Tribal IV-D case. We are satisfied
that Sec. 309.65(a)(2) is sufficient to ensure that all applications
for IV-D services are accepted and acted upon. We expect that all
applications for Tribal IV-D services will be acted upon in a prompt
and efficient manner. A Tribal IV-D agency must open a case for each
application. In some of these cases, the proper action will be to refer
the case for enforcement by a State or another Tribe with access to
enforcement tools the Tribe may not access directly, e.g. State income
tax refund offset; in others it will be to refer the case to a State or
another Tribe because the Tribe has no jurisdiction over the parties.
We have eliminated the language originally proposed in Sec. 309.75(c)
related to opening IV-D cases since it was duplicative of language in
Sec. 309.65(a)(2).
[[Page 16656]]
2. Comment: One Tribal commenter suggested deleting the requirement
for bonding in paragraph (d), as most Tribes are not able to afford
bonding. Nine other Tribal commenters suggested eliminating the
language at paragraph (d)(3) under which the requirements of this
section do not reduce or limit the ultimate liability of the Tribe or
Tribal organization for losses of support collections from the Tribal
IV-D agency's program because it implies the Tribe has liability and it
could be construed as a waiver of Tribal sovereignty.
Response: We reviewed the proposed requirement for the bonding of
employees in light of Tribal comments that such a requirement would
cause financial hardship. In response to the concerns raised, we have
revised Sec. 309.75(b) so that taking out a bond is not the only means
of satisfying the requirement for protection against loss. Under the
revised provision, Tribal IV-D programs must submit documentation that
establishes that every person who receives, disburses, handles, or has
access or control over funds collected under the Tribal IV-D program is
covered by either a bond or insurance sufficient to cover all losses.
Because the bond or insurance will cover all losses, it is not
necessary to address liability. In addition, we have eliminated as
unnecessary the language in former Sec. 309.75(d)(3) related to the
ultimate liability of Tribes.
3. Comment: One Tribal commenter objected to the requirement at
proposed paragraph (e) to provide notice of all support collections to
families and noted that States only have to provide notice of assigned
support. The proposed requirement is more stringent. Another Tribal
commenter stated that until a Tribe has a sophisticated computer system
to track individual accounts, providing a notice will be time-consuming
and the agency should provide such information only on request.
Response: As indicated earlier in this preamble, we have determined
that all regulations applicable to State IV-D programs need not apply
to Tribal IV-D programs. State IV-D programs are required to provide
monthly notice of support payments for each month to individuals who
have assigned their rights of support to the IV-A agency. However, we
believe that notices of support collections should be provided to all
families receiving services from the program. In order to recognize the
level of automation currently available to Tribal IV-D programs, we
have revised Sec. 309.75(c) to require that notice of collections be
provided to families receiving services under the Tribal IV-D program
at least once a year. This is less cumbersome than a requirement to
provide notices on a monthly basis. In addition to the annual notice, a
notice must be provided at any time to either the custodial or
noncustodial parent upon request. In this way families will receive
regular notices of collections made on their behalf.
4. Comment: One commenter recommended that we require that for each
of the first three program years, the Tribe should obtain an evaluation
every six months as well as a yearly external evaluation.
Response: We have not imposed these additional evaluation
requirements on Tribes in these final regulations. We have determined
that the required audits under Sec. 309.75(d) and the authority to
conduct Federal audits as the need arises are sufficient to ensure
accountability and additional evaluations are not necessary.
Section 309.80--What Safeguarding Procedures Must a Tribe or Tribal
Organization Include in a Tribal IV-D Plan?
1. Comment: One Tribal commenter stated that because the statute
does not require it, OCSE may only suggest that the Tribal IV-D plan
include safeguarding information in its plan. Another commenter stated
that it is critical for Tribal grantees to describe safeguarding
procedures.
Response: We disagree that because the statute does not explicitly
direct the Secretary to establish safeguarding regulations, that the
Secretary may not do so. As we noted above, the statute explicitly
delegates to the Secretary the authority to promulgate regulations
``establishing the requirements which must be met by an Indian Tribe or
Tribal organization to be eligible'' for funding under title IV-D. We
have determined that safeguarding confidential information is critical
to individual rights to privacy as well as to effective Tribal child
support programs, and that implementation of safeguarding procedures is
necessary to meet IV-D program objectives and to ensure that data and
information received from State IV-D programs are safeguarded in
accordance with statutory and regulatory requirements. Therefore, we
require minimum but critical safeguarding procedures at Sec. 309.80 to
ensure that confidential information is protected from improper
disclosure.
2. Comment: Two Tribal commenters indicated concern about
confidential information on Tribal members going into a national
database system that will be shared with States. Tribes do not want to
make their enrollment records accessible. Another Tribal commenter did
not like the proposed requirement in Sec. 309.65(d) and related
safeguarding requirements in Sec. 309.80(b) that the Tribal IV-D
agency will have to report new hires to States, which in turn would
report them to the National Directory of New Hires (NDNH).
Response: These final regulations do not require Tribes to submit
any information to a national or State database and there is nothing in
this final rule that requires Tribes to provide enrollment records to
any entity. The requirement at Sec. 309.80(b) is necessary because
Tribes may receive information from Federal sources including the NDNH
from States as well as information about state cases and must meet
Federal statutory and regulatory confidentiality requirements. In
response to comments, the requirements at proposed Sec. 309.65(d) were
eliminated.
3. Comment: One State commenter stated that Tribes have no
authority to access the FPLS or other Federal databases to locate
individuals for IV-D purposes. Another State commenter stated that if
Tribes have direct access to statewide systems, confidentiality would
be a concern.
Response: Tribes are legally precluded from direct access to the
FPLS. However, they could receive FPLS data from a State in an
intergovernmental case. The technical requirements for access to the
FPLS will be the subject of future guidelines and program instructions.
All IV-D case record information is confidential, whether a State or
Tribal IV-D program maintains it and both entities are required to
treat the information as confidential and are bound by safeguarding
requirements. State and Tribal safeguarding requirements are not in
conflict. If Tribes and States enter into agreements for reciprocal
access to each other's databases for location or other child support
purposes, such agreements must not conflict with Federal safeguarding
and other regulations and must comply with the Internal Revenue Service
(IRS) rules governing the disclosure of tax return information.
4. Comment: One commenter asked who would be prosecuted if a State
contracts with a Tribe and a violation of confidentiality of IRS
material occurs. The commenter suggested that States have hold harmless
regulations regarding release from liability of prosecution.
Response: Current Federal law does not allow a State to release tax
information to a Tribal IV-D agency.
[[Page 16657]]
When an entity directly receives tax return information from the IRS,
it has the legal responsibility to safeguard such information. Any
agreement negotiated between a Tribe and a State must address
safeguarding and comply with all applicable Federal law and
regulations.
Section 309.85--What Records Must a Tribe or Tribal Organization Agree
To Maintain in a Tribal IV-D Plan?
1. Comment: One State commenter stated that the regulations do not
address reporting of collections made by States on behalf of families
who are receiving Tribal IV-A assistance.
Response: State reporting requirements are not addressed in this
regulation. Information about any collection received by a Tribal IV-D
program from a State IV-D program must be included in the Tribal IV-D
program's records under Sec. 309.85(a)(4) and must be reported under
Sec. 309.170.
2. Comment: We received five State comments suggesting that Tribal
IV-D programs use all the standard Federal forms that State IV-D
programs use.
Response: State IV-D programs have been in operation for almost 30
years and are required to use a variety of standard Federal forms. The
requirements related to these standard forms have evolved over time and
some of them were developed or amended recently. At this initial stage
in the development of Tribal IV-D programs, we have determined that it
is not reasonable to mandate that Tribes use all the same forms as
States. Whether or not a particular standard Federal form should be
required of Tribal IV-D programs depends on whether the use of such
form is essential to the effective and efficient administration of
Tribal child support enforcement programs. We disagree that Tribes
should be required to use every standard Federal form that States
currently use, especially since many of the forms were designed for
automated case processing. Section 309.110 requires that Tribes use the
standard income withholding notice, because we have determined that the
standard use of this form by all IV-D programs is necessary for the
effective and efficient enforcement of support orders.
Section 309.90--What Governing Tribal Law or Regulations Must a Tribe
or Tribal Organization Include in a Tribal IV-D Plan?
1. Comment: One State commenter noted that Tribal laws should be
used in administering Tribal programs, but States should approve the
Tribal laws. Three Tribal commenters responded favorably to the
provision allowing Tribes to use their own laws, traditions and
customs.
Response: There is no legal authority to impose a requirement that
States approve Tribal laws. This would be a clear infringement on
Tribal sovereignty.
2. Comment: One Tribal commenter noted that not all Tribal codes
are written and it would be difficult to submit that kind of code or
law. Another commenter appreciated the fact that the rule recognized
that not all Tribes have written codes.
Response: Should a Tribe with unwritten codes and laws apply for
direct funding, these final regulations require a detailed description
of such codes and laws in its application. We recognize in this
regulation that one of the unique characteristics of Indian Tribes is
that some do not have written laws and codes, even though they have
long-standing and rich legal traditions. We have added a definition of
``Tribal custom'' at Sec. 309.05 to make clear that this term is not
open-ended, but means unwritten law that has the force and effect of
law. Section 309.90(b) permits Tribes without written laws to submit
detailed descriptions of Tribal common law as evidence that procedures
required by Sec. 309.90(a) are in place. Even though Tribal custom is
unwritten, it is nonetheless capable of being known and may be shown in
several ways: it may be shown through recorded opinions and decisions
of Tribal courts; it may be judicially noticed; or it may be
established by testimony of expert witnesses who have substantial
knowledge of Tribal common law in an area relevant to the issue before
the Tribe.
3. Comment: One State commenter suggested that the language at
Sec. 309.90 be amended to require Tribal employers to comply with an
income withholding order of another Tribe or State.
Response: We have not amended Sec. 309.90 as suggested because
Tribes are not required to adopt the Uniform Interstate Family Support
Act (UIFSA) as all States were required to do. UIFSA compels a State
employer to honor a withholding order sent directly from another State
or Indian Tribe. However, the Full Faith and Credit for Child Support
Orders Act (FFCCSOA) requires both Tribes and States to enforce valid
child support orders. Where State or Tribal orders referred to a Tribal
IV-D program include provision for income withholding, such orders must
be enforced by Tribal IV-D agencies as required by FFCCSOA. Please note
that Sec. 309.110 provides that Tribal IV-D agencies are responsible
for ensuring that valid withholding orders are promptly served.
Section 309.95--What Procedures Governing the Location of Noncustodial
Parents Must a Tribe or Tribal Organization Include in a Tribal IV-D
Plan?
We received no comments on this section.
Section 309.100--What Procedures for the Establishment of Paternity
Must a Tribe or Tribal Organization Include in a Tribal IV-D Plan?
1. Comment: Eight Tribal commenters raised concerns about the
effect of paternity establishment on Tribal enrollment and membership.
Seven of these commented that OCSE should not interfere with the
authority of Tribal governments, Tribal enrollment committees and
Tribal religious leaders in establishing paternity. They stated that
determining paternity through foreign regulations would totally disrupt
the way they deal with issues and they want to incorporate traditional
lifestyle into child support enforcement programs through Tribal
courts. Four commenters supported the provisions allowing Tribal
discretion in how paternity is established.
Response: In response to concerns raised by commenters we have
added Sec. 309.100(d) to make clear that establishment of paternity
under this regulation does not affect Tribal enrollment or membership.
Section 309.100(a)(1) provides for paternity to be established in
accordance with Tribal law, code, or custom. These regulations are not
intended to override established Tribal authority.
2. Comment: One Tribal commenter suggested that States be required
to give full faith and credit to any legal determination of paternity
considered final by a Tribal court.
Response: Under the State-enacted UIFSA statutes and FFCCSOA,
States are required to honor Tribal paternity orders when they are the
basis for child support orders pursuant to Tribal law, in the same
manner that a Tribe is compelled to honor States' paternity orders when
they are the basis for child support orders. We have determined that it
is not necessary to further regulate in this area.
3. Comment: One State commenter suggested that parents should have
the option to request genetic testing.
Response: We are persuaded that genetic testing should be provided
upon request and have added Sec. 309.100(a)(3) to require the Tribal
IV-D plan to provide procedures under which the Tribal IV-D agency is
required, in a
[[Page 16658]]
contested paternity case (unless otherwise barred by Tribal law), to
require the child and all other parties to submit to genetic tests upon
the request of any such party, if the request is supported by a sworn
statement by the party alleging paternity, and setting forth facts
establishing a reasonable possibility of the requisite sexual contact
between parties; or denying paternity, and setting forth facts
establishing a reasonable possibility of the nonexistence of sexual
contact between the parties. As stated in an earlier section of the
preamble, the phrase ``otherwise barred by Tribal law'' is intended to
cover situations where, either by action of one or both of the parties
or the application of Tribal law, or both, paternity has already been
conclusively determined and may not be reconsidered. In such cases,
genetic testing to challenge the paternity determination would not be
authorized. Examples of such a paternity determination would include a
voluntary admission of paternity or circumstances under which the Tribe
has other means of recognizing paternity under Tribal law. A Tribe,
through its own custom, tradition or procedure, may recognize a man as
the father or may preclude a man who holds himself out to be the father
from challenging paternity. Similarly, a Tribe may have a conclusive
presumption of paternity when a child is born to married parents or if
a noncustodial parent has been validly served in a paternity proceeding
and failed to contest paternity in such proceeding. A uniquely Tribal
means under Tribal law that was used to establish paternity would be
acceptable as precluding the need for genetic tests. In such cases,
because paternity had already been determined, genetic testing would be
``otherwise barred by Tribal law''. This language is consistent with
the language found at section 466(a)(5)(B) of the Act, which mandates
genetic testing in contested cases to ensure that the rights of both
parties are protected.
4. Comment: One commenter stated that the due process rights of
individuals must be protected. States should give full faith and credit
to paternity determinations made by Tribal law/ordinance but not to
processes that result in a person with whom the mother has had no
relation (either sexual or marriage) being established as the legal
father.
Response: The regulations at Sec. 309.65(a)(3) require due process
assurances and Sec. 309.100(a)(1) makes clear that such assurances
encompass paternity establishment. In light of these requirements, we
have determined that it is not necessary to mandate further paternity
establishment procedures. States and Tribes are required to recognize
and honor valid determinations of paternity.
5. Comment: One commenter said that the voluntary paternity
requirement does not go far enough. Voluntary paternity acknowledgement
services should operate in all birthing hospitals located under the
Tribe's jurisdiction.
Response: This rule is flexible enough to allow voluntary
acknowledgement of paternity at birthing hospitals as determined
appropriate by Tribes. This practice has proven to be highly effective
for States and has resulted in a record number of paternity
acknowledgements.
6. Comment: Four commenters said that the requirement at Sec.
309.100(b) should be omitted, and Tribes should determine the
exceptions to require paternity establishment actions and the
appropriate entity to make exceptions.
Response: We believe the language at Sec. 309.100(b) accommodates
the needs of Tribes to determine exceptions to paternity establishment
and allows Tribes to establish the appropriate entity to make those
determinations.
Section 309.105--What Procedures Governing Child Support Guidelines
Must a Tribe or Tribal Organization Include in a Tribal IV-D Plan?
1. Comment: Three Tribal commenters suggested that child support
guidelines are not required. One also suggested that the requirements
go beyond what Congress intended and interfere with Tribal sovereignty.
Response: We disagree that because the statute does not explicitly
direct the Secretary to establish specific minimum requirements for
support guidelines, that the Secretary may not do so. As we note above,
the statute explicitly delegates to the Secretary the authority to
promulgate regulations ``establishing the requirements which must be
met by an Indian Tribe or Tribal organization to be eligible'' for
funding under title IV-D. Although guidelines are not specifically
addressed in the statute, establishment of support orders is one of the
mandatory program objectives, and we have determined that Sec. 309.105
requirements are critical to establishing fair and consistent support
orders. Implementation of the requirements specified at Sec. 309.105
is necessary to satisfy the statutory IV-D program objective of
establishing child support orders, and we believe such requirements
respect Tribal sovereignty.
2. Comment: One State commenter stated that because there is no
requirement to enact UIFSA, a Tribal child support guideline could
allow the Tribal court to change or ignore a State's order, and
competing orders could result. The need for UIFSA is apparent.
Response: The commenter fails to take into account that Federal law
requires all tribunals to give full faith and credit to valid child
support orders. FFCCSOA requires tribunals of all United States
territories, States and Tribes to give full faith and credit to a child
support order issued by another State or Tribe that properly exercised
jurisdiction over the parties and the subject matter. A Tribe may not
modify an order valid under FFCCSOA except in certain circumstances,
nor may valid orders be modified under these regulations in any manner
that is inconsistent with that Federal law. The grounds for
modification under FFCCSOA are consistent with UIFSA.
3. Comment: One State commenter suggested we include requirements
regarding modifications, since States have very specific requirements
relating to review and adjustment, and periodic modification ensures
child support obligation amounts are appropriate over time.
Response: These regulations specify that guidelines apply to both
setting and modifying orders. We believe that Sec. 309.105(a)(4)
sufficiently addresses the commenter's concerns that periodic
modification ensures child support obligation amounts are appropriate
over time and do not believe that additional regulation is called for
at this time.
4. Comment: Numerous State commenters stated that they did not have
a clear understanding of the in-kind concept as it related to support
obligations, while numerous Tribal commenters responded positively to
the recognition that Tribal support orders could be satisfied with cash
and non-cash resources.
Response: We were urged by Tribes to accommodate the reality of
Tribal economies by recognizing that noncustodial parents could satisfy
support obligations with non-cash (in-kind) support in addition to cash
payments. Many reservations and Indian communities are located in
remote areas with little or no industry or business; thus, there are
limited opportunities for cash employment. We were persuaded by Tribes
to accommodate the long-standing recognition among Indian Tribes that
all resources that contribute to the support of children should be
recognized and valued by IV-D programs.
In-kind (non-cash) support is support provided to a family in the
nature of goods and/or services rather than in cash, but which
nonetheless has a
[[Page 16659]]
certain and specific dollar value. Non-cash support for purposes of
this regulation is support that directly contributes to the needs of a
child. Non-cash support may include services such as making repairs to
automobiles or a home, the clearing or upkeep of property, providing a
means for travel, or providing needed resources for a child's
participation in Tribal customs and practices.
In Sec. 309.105(a)(3), we allow Tribal child support guidelines to
permit support obligations to be satisfied with both cash and non-cash
payments. The regulations at Sec. 309.105(a)(3) require that a support
order which permits satisfaction with non-cash resources must include,
in the order itself, a specific dollar amount reflecting the amount of
the support obligation. The regulation allows individual Tribes to make
the determination of whether non-cash as well as cash payments can be
accepted to satisfy the support order.
Since all Tribal support orders will include a specific dollar
amount reflecting the support obligation, a specific monetary amount of
a child support obligation is clear in every order. In this way Tribal
orders contain the same information as State orders do. The only
difference is that some Tribal orders may allow the support obligation
to be satisfied with non-cash resources. Thus, States should be able to
process support payments through their automated systems and account
for support payments made under Tribal orders. Other Tribes that
receive requests for enforcement assistance where there is a support
order which can be satisfied with non-cash resources should similarly
be able to process such support payments.
5. Comment: Five State commenters suggested that the specific
dollar amount for non-cash support must be a part of the Tribal court
order. One of these suggested that satisfaction of support obligations
with non-cash payments should be limited to current support only.
Response: We agree that support orders must include specific dollar
amounts and that these amounts must be expressly reflected in the
Tribal order. Non-cash support merely recognizes that an obligation for
a specific dollar amount of child support may be satisfied with non-
cash resources. We are persuaded that this is a critical accommodation
for Tribal subsistence economies. We have added language in Sec.
309.105(a)(3) to ensure that Tribal support orders include specific
dollar amounts. If non-cash payments are permitted to satisfy Tribal
support orders, the support order must include both the specific dollar
amount of the obligation and the types of non-cash support which may be
provided to meet the obligation.
We are not persuaded that the accommodation of non-cash resources
should be limited to current support obligations only. Arrears, like
current support, are specific dollar amounts. Since each non-cash
payment will have an associated dollar value attached to it, it can be
credited toward arrears as well as current support obligations.
However, non-cash support cannot be used to satisfy assigned support
(including arrears). This is consistent with the language added to
Sec. 309.105(a)(3)(iii).
6. Comment: We received nine positive comments from Tribes on the
provision allowing non-cash (in-kind) support payments. One State
commenter stated that determining the amount of non-cash contributions
that have been made on a newly opened enforcement case would be
cumbersome and require intensive labor on the part of the State.
Response: Permitting Tribal courts to establish support orders
which can be satisfied with non-cash payments is an essential
accommodation made to recognize Tribal custom and circumstances. If a
Tribal IV-D agency refers a case to a State IV-D agency for
enforcement, the Tribal IV-D agency must provide information necessary
to work the case, which would include the payment record under the
order. Therefore, State IV-D agencies would not be required to
determine non-cash contributions made by the obligor. Non-cash payments
are merely one means by which Tribal support orders may be satisfied.
For example, a Tribal support order could provide that an obligor owes
$200 a month in current support and $100 a month for arrears which may
be satisfied with the provision of firewood suitable for home heating
and cooking to the custodial parent and child. The order could provide
that a cord of firewood has a specific dollar value of $100 based on
the prevailing market. In this case, the obligor would satisfy his
support obligation by providing two cords of firewood every month plus
$100. Such ``payments'' would be credited as $300 paid every month.
Whenever non-cash payments are permitted, the specific dollar amount
will always be known (and be reflected in the order) and can be
credited and tracked. The language at Sec. 309.105(a)(3) has been
amended to indicate that should the Tribe decide that an non-cash order
is acceptable, a specific dollar amount must be set in the order.
Permitting Tribal support orders to specify that support
obligations may be satisfied with non-cash resources is an important
recognition of the economic conditions of Indian Tribes and of the
subsistence economies prevalent throughout much of Tribal territory. In
addition, it recognizes that noncustodial parents without significant
cash resources may nonetheless satisfy support obligations and make
productive contributions to their children's lives.
7. Comment: One State commenter stated that in-kind orders are not
compatible with States' automated systems.
Response: Tribal IV-D programs are required under Sec.
309.105(a)(3) to include a specific dollar amount if obligors are
permitted to satisfy their support obligations with non-cash payments.
Since every non-cash payment will have an associated monetary value,
each payment will be reducible to a specific dollar amount, which every
automated system should be able to handle just like any other payment.
8. Comment: One Tribal commenter stated that there are many
problems associated with valuing in-kind payments which Tribes
themselves should address; OCSE officials should not propose
regulations in areas where they do not have a good understanding.
Response: Section 309.105(a)(3) requires Tribal support orders
which permit non-cash payments to establish a specific dollar amount in
the order itself. We agree that the valuation of non-cash resources is
the responsibility of Tribes themselves. The Tribe must establish
standards for valuation of non-cash resources, should it choose to
permit non-cash payments to be used to satisfy support obligations.
9. Comment: Two State commenters suggested that we clarify how
assignments to offset public assistance to a State will be handled when
the noncustodial parent is making in-kind payments and suggested that
where assignments are made to a State the obligor must pay a cash
equivalent specified within the Tribal order.
Response: Where non-cash payments are permitted to satisfy support
obligations, they are required to be represented as a specific dollar
amount which can be credited just like any other child support payment.
Where assignments of support rights are made to the State as a
condition of receipt of public assistance, any non-cash payment made by
the noncustodial parent can be credited to the family as a cash payment
would be. As specified in Sec. 309.105(a)(3)(iii), if there is an
[[Page 16660]]
assignment to the State or another Tribe, the specific dollar amount
must be paid.
10. Comment: One commenter said that the term ``cash equivalents''
has subsistence and public assistance implications and may make the
term unworkable in Alaska. The term ``cash alternatives'' would be more
acceptable.
Response: We have revised the regulation at Sec. 309.105(a)(3) to
eliminate the phrase ``cash equivalents'' to clarify the meaning of
terms and to eliminate confusion.
11. Comment: Two State commenters suggested that the obligee be
required to provide a written receipt to the obligor acknowledging a
non-cash payment.
Response: If the Tribal IV-D program decides to permit non-cash
resources to be used to satisfy a support order, the Tribe is
responsible for recording payments to ensure obligors receive credit
for meeting their child support obligations. At this time, we do not
believe the alternatives suggested by the commenters are necessary.
12. Comment: One State commenter suggested that we establish
numeric and descriptive guidelines for in-kind payments. If there is a
deviation due to in-kind support, the tribunal should make a specific
finding justifying departure from cash support and establishing that
such departure is in the best interest of the child. The Tribal IV-D
plan should specify how the noncustodial parent receives credit for in-
kind payment.
Response: We have determined that Sec. 309.105 adequately provides
for consistent and predictable support guidelines which take into
account the needs of the child and are not persuaded that the
suggestions of the commenter are necessary.
13. Comment: One State commenter stated that if a Tribe's
guidelines allow in-kind credits, then it should be the burden of the
obligor to raise the issue and prove the entitlement to such credits.
The in-kind support must directly benefit the child. This same
commenter stated that there is an issue of equal protection.
Response: As explained above, allowing Tribal orders to specify
both a specific dollar amount of support due and an equivalent non-cash
resource that can be used to satisfy the obligation is an important
accommodation for Indian Tribes. Such an accommodation permits
noncustodial parents who can provide non-cash resources which are
needed by families to meet their child support obligations even when
they do not have cash available to make cash payments. Section
309.105(b) requires Tribal child support guidelines to take the needs
of the child into account, and we do not believe it is necessary to
require any additional finding in order to allow non-cash resources to
be used to satisfy a Tribal support order. As long as the Tribal
support order indicates the specific dollar amount of the support
obligation and the dollar amount of the non-cash resource, the support
can be collected whether or not it is made in cash or non-cash
resources. Allowing non-cash support in Tribal IV-D programs recognizes
Tribal tradition and custom appropriate to Tribal IV-D programs and
consistent with Tribal sovereignty.
We do not believe there is any equal protection risk associated
with final regulations permitting Tribal support orders to be satisfied
with non-cash resources consistent with Tribal law and Tribal
economies. Singling out Indian Tribes for different regulations from
States is constitutionally sound. The United States Supreme Court has,
on numerous occasions, upheld legislation and regulations that single
out Indians for particular and different treatment.
14. Comment: Two Tribal commenters said that basing support orders
on the noncustodial parent's ability to pay is not a requirement of the
statute. If a parent cannot provide non-cash support because he/she no
longer has access to the resource, the parents should return to Tribal
court to request that the order be modified.
Response: We have determined that support guidelines that take into
account the earnings and income of the noncustodial parent are
essential to effective IV-D programs. Where a noncustodial parent is no
longer able to provide non-cash support nor able to satisfy the support
obligation with cash payments, the Tribe's procedures for modification
of support orders may be applicable on a case-by-case basis. Non-cash
support is not a substitute for support; it is a means of providing
support. If there is a change in circumstances such that the
noncustodial parent may, under Tribal law, seek modification of the
support order, the fact that non-cash support is reflected in the order
should not contribute to any delay or pose any particular problem.
15. Comment: One State commenter said that Federal child benefit
programs such as Social Security Retirement or Social Security
Disability provide for a benefit to be paid directly to the child or
guardian and that the regulations should address how these benefits
will affect the obligation of the noncustodial parent.
Response: We believe that Sec. 309.105 adequately ensures that the
needs of the child are taken into consideration while providing that
the support order is appropriate and just given the particular
circumstances of the case. If a particular child is receiving direct
payments, such payments may be taken into consideration under these
regulations.
16. Comment: One commenter suggested that OCSE examine whether
there is a need to address Tribal responsibility when a child support
order contains provisions for health care coverage.
Response: There is no requirement at this time for Tribal support
orders to include medical support. However, nothing in this regulation
precludes a Tribal order of support from including separate provisions
for medical support and we encourage Tribes to make sure children have
access to medical care through IHS or otherwise. To the extent that a
Tribe is enforcing an order containing provisions for health care
coverage, such an order is entitled to full faith and credit provided
the underlying order is valid. Just like any other valid order, Tribal
and State support orders containing provisions for health care coverage
are enforceable under FFCCSOA.
17. Comment: We received comments from six Tribal respondents
suggesting that Tribes be required to review their guidelines every
four, rather than three years.
Response: We agree with the commenters. The language at Sec.
309.105(a)(4) has been changed to require review of support guidelines
at least once every four years.
18. Comment: One Tribal commenter disagreed that the standard of
``best interest of the child'' be imposed. Requiring the tribunal to
make ``a finding'' why the application of the ``guidelines'' is unjust
is more than sufficient.
Response: Proposed Sec. 309.105(b)(1) and (e) used the term
``needs of the child'' and ``best interest of the child'' to reflect
the requirement that the particular needs of the child be taken into
consideration when support orders are established. We have maintained
this language in final regulation as recodified. In order to ensure
that support orders in Tribal IV-D programs are just and appropriate,
we require there be a rebuttable presumption that application of a
Tribe's support guidelines will result in a support order that is
correct. In recognition of the possibility that particular
circumstances may make application of the guidelines unjust or
inappropriate, we provide for variance from such guidelines on a case-
by-case basis as long as the needs of the child are taken into
consideration.
[[Page 16661]]
Section 309.110--What Procedures Governing Income Withholding Must a
Tribe or Tribal Organization Include in a Tribal IV-D Plan?
1. Comment: Eight Tribal commenters suggested that the requirement
for income withholding be eliminated because the statute does not
require income withholding. Two of these commenters stated that Tribes
need to determine if income withholding is appropriate for their
populations.
Response: Although income withholding requirements are not
specifically addressed in the statute, enforcement of support orders is
specifically required and we have determined that regulations governing
income withholding are necessary to address this important IV-D program
objective.
Income withholding has been one of the most effective means of
collecting child support from parents who receive regular income and is
especially important to ensure that the noncustodial parent does not
fall into arrears. As important as income withholding is to enforcement
of child support orders, we have tried to accommodate the needs of
Tribes and Tribal organizations in how income withholding procedures
are implemented by Tribal IV-D programs.
2. Comment: One State commenter said that Tribes should count
allotment payments (payments made to individuals from either the Tribe
or the Bureau of Indian Affairs [BIA]) or winnings from gaming as
income. Two State commenters suggested that Tribes should withhold
Tribal benefits (casino profits, oil and mineral rights) of all
obligors and allow other entities to participate in this intercept
program. A Tribal commenter suggested that the regulation should not
interfere with Indian Tribal per capita payments, Individual Indian
Monies (IIM), trust income or Social Security benefits. The commenter
also suggested that Tribes should also have the discretion to set lower
income withholding limits than the Consumer Credit Protection Act
(CCPA) allows.
Response: The extent to which trust distributions, including per
capita payments, may be garnished by a Tribe to satisfy its own order
of support is strictly a matter of Tribal law. Garnishment of Indian
trust distributions by States is prohibited under 25 U.S.C. 410. This
statute states that any money accruing from any lease or sale of lands
held in trust is not liable for the payment of any debt without the
approval of the Secretary of the Interior. For purposes of this
regulation, we have defined income at Sec. 309.05, to mean any
periodic form of payment due to an individual regardless of source,
except that the exclusion of per capita, trust or Individual Indian
Money (IIM) payments must be expressly decided by a Tribe. This allows
Tribes the flexibility to exclude specific categories of payments from
this definition, including per capita payments, trust income, and
gaming profit distributions. We have not required Tribes to withhold
the Tribal benefits (casino profits, oil and mineral rights) of
obligors. We refer here to the businesses owned by the Tribe and the
profits thereof. In respect for Tribal sovereignty, we have determined
that it is not appropriate in this regulation to directly affect Tribal
management of Tribes' own resources.
With respect to concerns about the CCPA limits, Tribes have the
discretion to set lower income withholding limits than the CCPA. These
rules only preclude income withholding beyond the upper limits set
forth in the CCPA.
3. Comment: One Tribal commenter noted that in his village, over
half of the people with child support orders lose over 50 percent of
their paychecks to income withholding. The individual's only means of
getting by is by receiving general assistance. Most, therefore, choose
not to work.
Response: The withholding limits set by a Tribe or Tribal
organization may be lower than the maximum CCPA limits, so that income
withholding itself does not create a disincentive to remain employed.
The limit set by a Tribe or Tribal organization may be lower, but may
not be higher than those set forth in the CCPA. There is nothing to
prevent a Tribe from setting the upper limit for income withholding at
any amount deemed appropriate, as long as such limit does not exceed
CCPA limits. The limits set forth in the CCPA are the highest
percentages allowed under Federal law and apply to Tribal income
withholding orders under these Tribal IV-D regulations. However, the
actual income withholding limit is set by Tribes and may be lower than
the maximum established in the CCPA.
When a noncustodial parent's financial circumstances change, or a
default order is entered because income was not known, the noncustodial
parent should go back to the appropriate tribunal to seek a
modification of the order.
4. Comment: One Tribal commenter stated that until Tribes
demonstrate substantial enforcement difficulties that can directly
benefit from income withholding, this section should be eliminated.
This commenter suggested that if the section is not eliminated, the
requirement should be made flexible, so that Tribes may adapt income
withholding to their needs. Two other Tribal commenters stated that
Tribes need to determine if income withholding is appropriate for their
populations.
Response: In response to the concerns raised by commenters, we are
persuaded that income withholding may not be appropriate in every
circumstance. Many of the comments we received from Tribes indicated
that other methods of collecting support owed are more effective than
income withholding. In some instances, the noncustodial parent is
brought before Tribal elders and asked to explain why child support
payments are not being made. This may be enough to get the noncustodial
parent to make payments. Therefore, we added language to Sec. 309.110
providing flexibility in this area. Section 309.110(h) allows for
exceptions to income withholding on a case-by-case basis if: (1) Either
the custodial or noncustodial parent demonstrates, and the tribunal
finds good cause not to require the income withholding; or (2) a signed
written agreement is reached between the custodial and noncustodial
parent which provides for an alternative arrangement and is reviewed
and entered into the record by the tribunal.
5. Comment: One State commenter suggested that Sec. 309.110
incorporate UIFSA requirements.
Response: We disagree that it is appropriate to incorporate
specific UIFSA procedures in these regulations. Section 309.110 assures
that valid income withholding orders will be honored. We have
incorporated procedures at Sec. 309.110(n) which require the Tribal
IV-D agency to receive and process income withholding orders issued by
States, other Tribes, and other entities and promptly serve such orders
on employers within the Tribe's jurisdiction.
6. Comment: One State commenter noted that the section is silent
concerning penalties against employers to enforce compliance with
income withholding orders and allocation of income withholding when
there are multiple orders.
Response: Section 309.110(g) requires that Tribes have procedures
under which employers are liable for the accumulated amount the
employer should have withheld from the noncustodial parent's income.
Section 309.110(k) requires that Tribal law must provide that the
employer is subject to a fine for discharging a noncustodial parent
from employment, refusing to
[[Page 16662]]
employ or taking disciplinary action against any noncustodial parent
because of income withholding. Section 309.110(n) income withholding
requires the Tribal IV-D agency be responsible for receiving and
processing income withholding orders from States, Tribes and other
entities, and ensuring orders are properly and promptly served on
employers within the Tribe's jurisdiction. Language concerning the
treatment of multiple orders has been added at Sec. 309.110(m) to
provide that income that is withheld be allocated across all valid
orders. We do not believe that additional regulation is required at
this time.
7. Comment: One State commenter stated that allowing direct income
withholding from another State or Tribe under UIFSA would save work for
the Tribal IV-D program and that since States are already required to
extend this privilege to Tribes the responsibility should be
reciprocal.
Response: We have not adopted this suggestion. As noted earlier,
Tribes are not required to adopt UIFSA. Tribes may choose to allow
direct income withholding but it is their choice.
8. Comment: One Tribal commenter said that requiring that income
withholding include amounts ``to be applied toward liquidation of any
overdue support'' may affect a parent's willingness to pay.
Response: Payment of overdue support remains the responsibility of
obligors. Nothing in this regulation precludes an obligor from seeking
an acceptable agreement for repayment of arrearages or, in certain
specific and appropriate instances, and with the agreement of the
State, a compromise of arrearages owed to a State pursuant to the law
which established the support obligation in the first instance. We
previously issued two Policy Interpretation Questions (PIQs) on this
subject. PIQ-99-03 and PIQ-00-03 provide general information concerning
compromise of child support arrears. This, and other policy issued by
OCSE, may be found at: https://www.acf.dhhs.gov/programs/cse/poldoc.htm
.
9. Comment: Two Tribal commenters noted that including instructions
for completing the standard Federal income withholding form in the rule
is duplicative and perhaps conflicting with regulatory income
withholding provisions.
Response: In light of the requirement that the standard Federal
income withholding form be used whenever income is to be withheld, we
agree with the commenter and have eliminated language in proposed Sec.
309.110(b) which merely duplicates language and conditions specified in
the instructions to the form itself.
10. Comment: One State commenter stated that the difference in
withholding requirements for Indian and non-Indian citizens creates
operational issues, including the fact that States' automated systems
are not equipped to handle the different timeframes. A Tribal commenter
stated that Tribes should be exempt from the immediate income
withholding.
Response: We believe that the income withholding provisions in
Sec. 309.110 are sufficiently consistent with State rules and provide
the minimum requirements necessary to ensure successful withholding
among IV-D programs when there are valid income withholding orders in
place. Use of the standard Federal income withholding form by both
State and Tribal IV-D programs will ensure responsiveness of employers.
All employers must recognize this form and respond immediately to this
important enforcement tool. The flexibility allowed under Sec.
309.110(h) to provide an alternative arrangement to income withholding
is substantially parallel to 45 CFR 303.100(b) and we do not believe
that implementation of Sec. 309.110 by Tribes will lead to operational
problems for States.
These regulations do not require immediate income withholding,
although Tribal IV-D programs may choose to impose withholding
immediately to avoid any possibility for default by obligors who are
employed. Under Sec. 309.110(i), the income of noncustodial parents is
subject to income withholding on the date on which the payments the
noncustodial parent has failed to make are at least equal to the
support payable for one month unless a determination is made to exempt
the obligor from income withholding under Sec. 309.110(h).
Section 309.115--What Procedures Governing the Distribution of Child
Support Must a Tribe or Tribal Organization Include in a Tribal IV-D
Plan?
1. Comment: Five Tribal commenters stated objections to having OCSE
impose a State-based distribution scheme. Instead, they suggested that
the regulations permit Tribes to merely describe how they will
distribute support collections.
Response: Section 457 of the Act imposes requirements which govern
distribution of support collections in a IV-D case (related custodial
parent, noncustodial parent and child(ren)) whenever a State IV-D
program is providing services under title IV-D of the Act. In
recognition of this statutory mandate, the Tribal IV-D distribution
requirements must provide for distribution in accordance with section
457 rules when a Tribe receives a request for assistance in collecting
support from a State IV-D agency.
Therefore, section 457 of the Act does not apply to collections
under the Tribal IV-D program unless a State IV-D agency requests
assistance in collecting support from a Tribal IV-D agency. Tribal IV-D
programs are not required to distribute support collections using the
complex section 457 distribution requirements under this final rule.
Rather, we have required Tribal IV-D agencies, upon receipt of a
request from a State IV-D agency for assistance in collecting support
under Sec. 309.120, which specifies required intergovernmental
procedures for Tribal IV-D programs, to either: (1) Forward collections
to the State IV-D agency for distribution using the section 457
requirements, or (2) contact the State IV-D agency to determine
appropriate distribution under section 457 and distribute the
collections accordingly. The latter option would be appropriate, for
example, if the Tribal IV-D agency is providing IV-D services to the
family and subsequently receives a request for assistance from a State
in collecting assigned support from a prior period of receipt of State
TANF.
Similarly, we have required that, if a Tribal IV-D agency receives
a request for assistance in a Tribal IV-D case under Sec. 309.120 from
another Tribal IV-D agency, collections must be either: (1) Forwarded
to the requesting Tribal IV-D agency for distribution in accordance
with Sec. 309.115; or (2) distributed in accordance with instructions
requested of, and provided by, the other Tribal IV-D agency.
2. Comment: One State commenter said that automation is a
requirement for distribution and that the regulations must be the same
for States and Tribes.
Response: Title IV-D of the Act imposes explicit distribution and
automation requirements upon State IV-D agencies but does not impose
such requirements on Tribal IV-D programs. As discussed above, we have
revised the final rule to ensure that, when appropriate, Tribal IV-D
agencies send support collections to State IV-D programs for
distribution in accordance with section 457, or contact State IV-D
agencies to determine the appropriate distribution, without requiring
Tribal IV-D programs to adopt the complex statutory distribution
requirements that apply to State IV-D programs.
[[Page 16663]]
We understand the importance of minimum automation standards for
Tribal IV-D programs to ensure program efficiency and effectiveness. To
that end, we expect to promulgate regulations establishing such minimum
standards for automated systems (beyond planning provisions articulated
under this rule) in the future after consultation with all
stakeholders.
We also recognize that some Tribal IV-D programs do, and may
continue to, contract with State IV-D programs to use the State's
automation system to calculate appropriate distribution of collections.
In these instances, forwarding collections to the State, or contacting
the State to determine appropriate distribution would be unnecessary.
3. Comment: One State commenter indicated that distribution would
require another programming change for State systems if collected
support had to be distributed to Tribal child support enforcement
programs.
Response: The impact of State IV-D program cooperation with Tribal
IV-D programs and distribution by States of collections sent to or
received from Tribal IV-D programs will depend on each State's
automated system. Federal funding is available for 66 percent of all
appropriate and allowable costs associated with any needed programming
changes to State automated systems.
4. Comment: One Tribal commenter said that because Tribes do not
have the same economic base as State governments, Tribes should not be
required to reimburse the Federal government from IV-D collections.
Response: This final rule does not require Tribal IV-D agencies to
reimburse the Federal government using retained Tribal IV-D collections
in Tribal TANF cases, or otherwise share a portion of retained Tribal
IV-D collections with the Federal government. The Federal government by
statute is entitled to a share of collections assigned to a State by a
family as a condition of receipt of assistance under titles IV-A, IV-E,
or XIX of the Act. No parallel requirement applies to Tribes.
5. Comment: One Tribal commenter said that part of child support
enforcement has to do with helping children and their families, while
the other has to do with retrieving funds that have been paid out in
public assistance. This commenter stated that the latter function has a
very negative impact on some Tribal children because so many Tribal
members have been on public assistance.
Response: These final regulations must be consistent with existing
Federal statutory law governing assignment of rights to support to
States as a condition of receipt of certain State assistance, and
distribution of support collections assigned to States. There are no
corresponding Federal assignment requirements as a condition of receipt
of assistance under Tribal assistance programs, although some Tribal
TANF programs have adopted a requirement for assignment of support as a
condition of receipt of Tribal TANF. To the extent that Federal law
requires States to retain assigned support collections as reimbursement
for receipt of State public assistance, these regulations cannot
undermine that requirement. Any changes to or simplification of the
distribution process in State IV-D programs must come about as a result
of statutory changes. The Administration has urged the Congress to
adopt simplified distribution requirements for State IV-D programs that
would ensure more support is paid to families to help them attain or
maintain their self-sufficiency.
6. Comment: One State commenter said that the regulations should
address offset of previously provided TANF benefits and priority of
distribution, especially when a family may have received State and
Tribal benefits in varying sequences throughout a significant period of
time. Another State commenter said that a hierarchy for collection and
distribution is necessary.
Response: We have revised and clarified Sec. 309.115 governing
distribution of collections in a Tribal IV-D case by Tribal IV-D
programs in response to this comment and concerns that Tribal IV-D
programs not be responsible for complex distribution requirements that
apply to State IV-D programs. Section 309.115 specifies distribution
requirements in a Tribal IV-D case based on specific circumstances that
may exist for each case. The regulation requires a Tribal IV-D agency
to distribute collections in a timely manner and to apply collections
first to satisfy current support.
The Tribal IV-D agency must pay all support to the family when the
family receiving Tribal IV-D services has never received Tribal TANF
and the Tribal IV-D agency has not received a request for assistance in
collecting support for the family from a State IV-D agency or another
Tribal IV-D agency under Sec. 309.120. A Tribal IV-D agency may
receive a request for assistance in securing support from a State if
the custodial parent resides in that State and has applied for or been
referred to the State IV-D agency for IV-D services. Or a State may
refer a case to the Tribal IV-D agency for assistance in collecting
support assigned to the State for some prior period of receipt of
assistance from the State.
Section 309.115 then addresses distribution requirements if a
family receiving Tribal IV-D services is currently receiving or
formerly received Tribal TANF and there is an assignment of support
rights to the Tribe.
A further distinction is made with respect to families who have
assigned support rights as a condition of receipt of Tribal TANF from
another Tribe. The Tribal IV-D agency may have received a request for
assistance in collecting support from a State or another Tribal IV-D
agency. If the family is currently receiving Tribal TANF, there is an
assignment to the Tribe, and the Tribal IV-D agency has received from a
State or another Tribal IV-D agency a request for assistance in
collecting support previously assigned to that State or Tribe, the
regulation allows the Tribal IV-D agency to retain assigned support up
to the amount of Tribal TANF paid to the family. The Tribal IV-D agency
must then send any remaining collections to the requesting State or
Tribal IV-D agency for distribution, as appropriate, or contact the
State or other Tribe to determine accurate distribution and distribute
the amount of the collection in excess of the Tribal TANF reimbursement
accordingly. The hierarchy for distribution in different case
circumstances is illustrated in a chart that appears later in the
discussion.
If the family formerly received Tribal TANF from another Tribe,
there is an assignment of support to that Tribe, and the Tribal IV-D
agency has received a request for assistance on behalf of the family
from a State or that other Tribal IV-D agency, the regulation requires
the Tribal IV-D agency to send all collections to the State or other
Tribal IV-D agency for distribution. The requesting State or Tribal IV-
D agency, as appropriate, is then responsible for distribution in
accordance with State IV-D program requirements at section 457 of the
Act or 45 CFR 302.51 or 302.52, or in accordance with these Tribal
distribution requirements in Sec. 309.115. Alternatively, the Tribal
IV-D agency may contact the State or other Tribal agency to determine
appropriate distribution of the collection as explained above.
The requirement to send all collections to a State or other Tribal
IV-D program that has requested assistance on behalf of a family under
certain circumstances addresses a number of
[[Page 16664]]
possible scenarios. For example, the family may have applied for IV-D
services from a State or another Tribal IV-D agency and not directly
with the Tribal IV-D agency making the collection. Or the family may be
receiving or may have formerly received TANF or other public assistance
from the requesting State or Tribal IV-D agency. As long as the family
is not currently receiving Tribal TANF from the same Tribe as the
Tribal IV-D agency making the collection, under a program that requires
an assignment of support rights, we believe the only entity in a
position to determine appropriate distribution is the requesting State
or Tribal IV-D agency. We have, however, included an option that allows
Tribal IV-D agencies to determine appropriate distribution by
contacting the requesting State or Tribe and to then distribute the
collections as directed. State and Tribal IV-D program requirements for
timely distribution and disbursement of collections will ensure
collections owed to families reach them in a timely manner.
The rules for distribution in cases involving each of these
circumstances are included in Sec. 309.115, as well as clarification
that any collection as a result of Federal income tax refund offset
that is distributed by a Tribal IV-D agency must be applied to satisfy
arrearages. The following chart should be of assistance to Tribal and
State IV-D agencies.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Tribal IV-D case type Case 1 Case 2 Case 3 Case 4 Case 5 Case 6 Case 7 Case 8 Case 9
--------------------------------------------------------------------------------------------------------------------------------------------------------
Current Tribal TANF case w/assignment................ ......... ......... ......... X X ......... ......... ......... .........
Current Tribal TANF case w/o assignment.............. ......... X ......... ......... ......... ......... ......... X .........
Never Tribal TANF case............................... X ......... X ......... ......... X ......... ......... .........
Former Tribal TANF w/assignment...................... ......... ......... ......... ......... ......... ......... X ......... X
Request for services from State IV-D agency.......... ......... ......... X ......... X ......... ......... X X
No request for services from State IV-D agency....... X X ......... X ......... X X ......... .........
Request for services from another Tribal IV-D agency. ......... ......... ......... ......... ......... X ......... ......... .........
No request for services from another Tribal IV-D X X X X X ......... X X X
agency..............................................
--------------------------------------------------------------------------------------------------------------------------------------------------------
Distribution: The Tribal IV-D agency:
Cases 1 and 2: Must send all collections to the family.
Case 3: Must send all collections to the State IV-D agency for distribution under section 457 of the Act.\*\
Case 4: May retain collections up to the total amount of Tribal TANF paid to the family, then must send excess collections to the family.
Case 5: May retain collections up to the total amount of Tribal TANF paid to the family, then must send excess collections to the State IV-D agency for
distribution under section 457 of the Act.\*\
Case 6: Must send all collections to the other Tribal IV-D agency for distribution under Sec. 309.115.
Case 7: Must pay current support to the family, may retain excess collections up to the total amount of Tribal TANF paid to the family and pay excess
collections to the family.
Case 8: Must send all collections to the State IV-D agency for distribution under section 457 of the Act.\*\
Case 9: Must send all collections to the State IV-D agency for distribution under section 457 of the Act.\*\
\*\For cases 3, 5, 8 & 9: The Tribal IV-D agency may, rather than send collections to the State IV-D agency for distribution, contact the State IV-D
agency to determine appropriate distribution, and distribute the collections as directed.
These regulations attempt to address the many possible combinations
of Tribal IV-D case circumstances involving assignment of support
rights to State and Tribal public assistance programs, and
intergovernmental requests for assistance in collecting support. We
encourage State and Tribal IV-D programs to work together to maximize
the amount of support that is paid to families and ensure support
obligations are set in an amount that is based on the obligor's ability
to pay. This will reduce circumstances under which large arrearages are
assigned to a State based on default support orders set without
knowledge of an obligor's ability to pay. If complex distribution
requirements that apply to State IV-D programs are simplified in the
future to ensure more support is paid to families, State and Tribal IV-
D programs, as well as the families themselves, will benefit from the
changes in statute.
7. Comment: One State commenter said that there is no legal basis
upon which a Tribe can distribute collections differently from States.
Response: By its terms, section 457 of the Act does not address
distribution rules applicable to Indian Tribes or support collected by
Tribal IV-D programs. However, the revised Sec. 309.115 ensures that
support collected by Tribal IV-D programs on behalf of State IV-D
programs that have requested assistance under Sec. 309.120 from the
Tribal IV-D program is sent to the State IV-D program for distribution
in accordance with section 457 of the Act, or the Tribe must contact
the State to determine appropriate distribution and distribute the
support as directed.
8. Comment: One State commenter said that the regulations should
provide that the Tribes seek retroactive support to assist a State that
has previously provided State TANF.
Response: Retroactive support is support for a prior period that is
established based on an obligor's ability to pay. For example, a Tribal
court may establish a support order in June for a six-month-old child
going back to the date of the child's birth. The amount from January to
June is considered retroactive support. While these rules do not
require Tribal IV-D agencies to establish retroactive support, Tribal
IV-D agencies may choose to do so. If a State IV-D agency has requested
assistance from a Tribal IV-D agency, the Tribe must provide all
appropriate services under its Tribal IV-D plan and forward any
collections, in accordance with Sec. 309.115, to the requesting State
for distribution in accordance with section 457 of the Act and 45 CFR
302.51 and 302.52.
9. Comment: One Tribal commenter suggested that we continue the
practice under which child support assigned to a Tribe may be retained
by the Tribe up to the amount of Tribal TANF assistance received by a
family and the amount in excess of the total TANF assistance must be
paid to the family.
Response: Underlying the distribution regulations at Sec. 309.115
is the concept that all support collections must be paid to the family
unless there is an assignment of support rights to a State or Tribe as
a condition of receipt of assistance. Whether or not a Tribe conditions
receipt of TANF assistance on assignment of support to the Tribe is
[[Page 16665]]
not mandated by Federal statute or regulation, but is an option that
Indian Tribes may exercise at their discretion. We have made a
conforming change to the Tribal TANF regulations at 45 CFR
286.155(b)(1) to remove the requirement under which amounts in excess
of the total amount of TANF assistance be paid to the family. Section
286.155(b)(1) continues to require that in no case may a Tribe retain
assigned collections in excess of the amount of Tribal TANF paid to the
family. Distribution of support beyond the total amount of Tribal TANF
assistance paid to the family is now addressed exclusively in Tribal
IV-D regulations at Sec. 309.115.
Section 309.120--What Intergovernmental Procedures Must a Tribe or
Tribal Organization Include in a Tribal IV-D Plan?
1. Comment: Eight State commenters suggested that States would need
additional resources and one stated that States will have to consider
their own program needs as a priority when responding to requests for
services from Tribal IV-D programs. Another State commenter said that
there should be a Federal directive outlining State duties, which
indicates how States will be reimbursed whenever they respond to a
Tribal request for assistance. One State suggested that reimbursement
be at 90 percent of the costs incurred.
Response: State IV-D programs may receive FFP at the 66 percent
rate for expenditures in providing services in response to a request
from a Tribal IV-D agency. Section 309.65(a)(2) requires Tribal IV-D
programs to provide IV-D services required by law and regulation,
including referral of cases to appropriate State IV-D agencies or to
other Tribal IV-D agencies and Sec. 309.120(a) requires Tribal IV-D
programs to extend the full range of services available under their
approved IV-D plans to all other IV-D programs. In addition, we have
included a parallel requirement in 45 CFR 302.36(a)(2), which requires
each State to extend the full range of services available under its IV-
D plan to all Tribal IV-D programs, including promptly opening a case
where appropriate. We encourage States and Tribes to work together to
design intergovernmental procedures and look to established, proven
interstate procedures that apply to State IV-D programs as a guide.
Even though State and Tribal IV-D agencies must respond to each
other's requests for assistance, we recognize that Tribal and State
programs are at different stages of development. We encourage, and
allow time for Tribes and States to put mutually agreeable procedures
in place to facilitate coordination between IV-D programs. We are
committed to providing Tribes and States an opportunity to work out
specific processes for cooperation without imposing more specific
regulatory mandates at this time.
The characteristics of cases requiring services, the quality of the
information received from the initiating agency, the amount of staff
and other resources available to the responding agency, and the
development of new or expanded working relationships between Tribes and
States are all factors which bear on Tribal/State cooperative
relationships. We are committed to fostering cooperative Tribal/State
relationships. If it becomes necessary to promulgate specific
regulations applicable to all IV-D programs to clarify the respective
roles in an intergovernmental relationship, we will do so in
partnership with Tribes and States.
State and Tribal IV-D agencies may claim Federal Financial
Participation (FFP) at the applicable rate otherwise provided under
applicable regulations: 66 percent of expenditures when the State
responds to a Tribal request for interjurisdictional services and 90
percent of expenditures for the first three years of a fully
operational Tribal program and 80 percent thereafter when the Tribe
responds to a State's request for interjurisdictional services. When a
case is referred for services, the responding State or Tribe must open
its own case and provide the necessary services.
2. Comment: One State commenter noted that use of tax offset and
locate functions must be done through the States because Tribes do not
have direct access to necessary tools.
Response: These regulations do not require the use of tools by
Tribal IV-D agencies for which there is no statutory authority. The
Tribe and States may enter into agreement to refer cases to the State
for submittal for Federal tax refund offset and any such access would
currently require request for services from the State. It is premature
to regulate specific procedures governing requests for services which
Tribes are legally unable to perform directly at this time. At some
future date, if it becomes necessary to establish specific new
procedures, we will consider such rules after consultation with
stakeholders.
3. Comment: One State commenter suggested that where a State enters
into an agreement to provide services to a Tribal court, the Tribe
should reimburse the State, but that a State should never be compelled
to appear in a Tribal court.
Response: When a State and Tribe enter into an agreement, the
agreement should be mutually agreeable to both parties.
4. Comment: One State commenter suggested the Federal government
should reach agreements with Tribes on issues that affect all States;
otherwise, uniformity will be sacrificed. Another State suggested that
we should establish basic rules on negotiation procedures between
States and Tribes.
Response: We are committed to working with Tribes and States to
ensure cooperation and assistance between them as necessary to ensure
children receive needed support. We believe that issues raised by
cooperation and coordination between States and Indian Tribes require
local solutions if they are to be successful. Still, we intend to work
closely with State and Tribes, issue guidance and share best practices
and, if regulations are necessary to ensure cooperation, we will work
with our State and Tribal partners to develop rules that appropriately
balance the impact on both Tribes and States.
5. Comment: One Tribal commenter stated the regulations should
clarify that States will not monitor or oversee Tribes.
Response: There is nothing in this final regulation which
authorizes or requires States to monitor Tribal IV-D programs.
6. Comment: One Alaska Native commenter stated that the regulations
assume there is a geographical component to the Tribes' jurisdiction
and that Tribal court jurisdiction does not mesh with UIFSA or FFCCSOA.
This commenter asked how controlling orders or continuing exclusive
jurisdiction determinations can be made by Tribal courts, if there is
no geographic region from which to determine whether the parent or
child resides ``in the State'' for purpose of those determinations.
Response: As noted earlier in the preamble, the lack of ``Indian
country'' in Alaska does not prevent Alaska Native villages from
applying for direct funding or from exercising jurisdiction over their
members. FFCCSOA does not limit the exercise of jurisdiction to a
geographical area. FFCCSOA only requires a court exercising
jurisdiction to have the authority to do so. UIFSA is not applicable to
Tribes and is not a factor when Tribes are making jurisdictional
determinations in relation to Tribal members.
7. Comment: One commenter observed that States recoup past assigned
child support payments as a punitive measure and that a Tribal IV-
[[Page 16666]]
D program, in complying with Sec. 309.120(a) requiring
intergovernmental cooperation, may create a disincentive to Tribal
members in remote areas from obtaining/keeping employment.
Response: The recoupment of past assigned support is not punitive,
but is required by Federal law. Section 309.120(a) requires Tribal IV-D
agencies to extend the full range of services available under their IV-
D plans upon request from a State or another Tribal IV-D program.
However, the requesting agency may not dictate the actions taken by the
responding jurisdiction. The responding agency must take enforcement
actions as required by Federal regulations and its own laws and
procedures. We recommend that IV-D programs contact each other to
determine how to most efficiently and effectively coordinate IV-D
services at the local level.
We are particularly aware of Tribal concerns about support orders
entered against Tribal members by default, resulting in large
arrearages owed to a State that an obligor is unable to pay and which
may discourage compliance. We strongly urge States and Tribes to work
together in these instances to reach agreement on steps to take that
will result in ongoing support payments to families, including the
possibility of compromising arrearages permanently assigned to the
State and/or entering into repayment agreements.
8. Comment: Two commenters suggested that the reporting
requirements must be clarified and that States will not know how to
report State/Tribal cases for purposes of completing the OCSE-157
reports.
Response: State IV-D agencies are required to submit the OCSE-157,
the Support Enforcement Annual Data Report, which is to be used to
report program status and accomplishments under title IV-D of the
Social Security Act. There are two specific parts of the OCSE-157 which
accommodate Tribal IV-D cases. At Line 1: Cases Open and the End of the
Fiscal Year, ``[i]nclude cases open at end of the fiscal year as a
result of requests for assistance received from other States, as well
as cases open in your State that you have referred to another State. Do
not include on this line Native American and international cases over
which the State has no jurisdiction. These cases should be reported
separately on line 3.'' Line 3 of the OCSE-157 is provided to report on
Cases Open for Which the State has No Jurisdiction. See OCSE-AT-01-09
for additional information.
We are working with States on revisions to the OCSE-157 form to
more accurately reflect how Tribal IV-D cases referred to the State IV-
D programs should be reported. Please note that Tribes are not required
to complete the OCSE-157 reports.
9. Comment: One State commenter stated that Tribal IV-D plans
should include assurances that the Tribe will cooperate with requests
for assistance with service of process. This commenter said that Tribes
should establish a central registry for receipt of incoming interstate
and a Tribal information agency that maintains a list of tribunal
addresses.
Response: Tribes are required to provide the full range of Tribal
IV-D services upon request of another State or Tribal IV-D program. As
noted above, Sec. 309.120 requires Tribal IV-D agencies to extend the
full range of services available under their IV-D plans to all IV-D
programs upon request and to cooperate with States and other Tribal IV-
D agencies to provide services required by law and regulation. This
could include assisting with service of process or, in the alternative,
bringing enforcement action in a Tribal tribunal. We have determined
that additional regulation is not necessary at this time.
As to the suggestion that Tribes be mandated to establish an
interstate registry, while we have not mandated such a registry, Tribal
IV-D programs may determine such a registry is helpful for management
purposes. Insofar as a State requires the address of a Tribal tribunal,
States should request the address from the Tribal IV-D agency.
10. Comment: Seven Tribal and State commenters expressed concern
that States did not have reciprocal obligations to cooperate with
Tribal IV-D programs and observed that cooperation was key to the
success of all IV-D programs.
Response: As stated in our earlier discussion of Sec. 309.120,
both Tribes and States are required to extend the full range of
services available under a IV-D plan and respond to all requests
received from other IV-D programs. We made a conforming change to
include a parallel requirement in 45 CFR 302.36(a)(2), which requires
each State to extend the full range of services available under its IV-
D plan to all Tribal IV-D programs. Without more experience with
cooperation between these entities, we do not believe that it is
appropriate to promulgate uniform regulations governing the cooperation
process. At this initial stage in the development of Tribal IV-D
programs, we want to allow States and Tribes time and maximum
flexibility to establish local procedures for coordination and
cooperation. We are committed to assisting in those efforts, providing
written guidance and sharing best practices as needed and requested. If
we determine that additional regulations mandating cooperation
requirements are necessary for the effective and efficient operation of
IV-D programs, we will promulgate them at a later date.
11. Comment: One commenter asked if cooperative arrangements with
States are going to be absolutely necessary for Tribes.
Response: Whether Tribes enter into cooperative arrangements with
States or other entities, as well as the nature of such arrangements,
is entirely at their discretion. Nothing in this regulation mandates
such arrangements as a condition of receipt of IV-D funds. Service
agreements, contracts, and other types of formal agreements between
Tribes and States may facilitate the effective and efficient delivery
of IV-D services, and we encourage them when deemed appropriate by the
parties.
12. Comment: One State commenter asked how programming costs would
be paid if Tribes enter into agreements with States to have the States'
automated systems process child support monies.
Response: We expect that processing of child support monies
collected by Tribal IV-D programs will be accomplished under the same
framework as processing by State A of support collected by State B.
Federal reimbursement is available to States at the usual match rate.
The Tribe may claim allowable contract costs and the State must account
for any payments under the contract as program income. At this time we
are not persuaded that additional regulation is necessary.
13. Comment: Eight Tribal commenters criticized the requirement
that Tribes recognize default paternity orders and default orders based
on imputed income as a matter of course when the courts that issued
such orders did not have jurisdiction in the first instance.
Response: While FFCCSOA requires orders to receive full faith and
credit, nothing in that statute nor in this regulation requires that
invalid orders be accorded full faith and credit. If invalid default
orders are entered, they are subject to challenge under ordinary rules
of State or Tribal law. See OCSE-AT-02-03 on the applicability of
FFCCSOA to States and Tribes. However, when valid default orders based
on imputed income create hardship on obligors because they are not
based on the ability of the obligor to pay support, we urge States to
modify those orders and consider compromising arrearages owed to the
[[Page 16667]]
State, when appropriate. As discussed earlier, we urge State and Tribal
IV-D programs to work together to remove impediments to timely and
consistent payment of support.
14. Comment: One State commenter stated that FFCCSOA applies to
Tribes and that Sec. 309.120 should require Tribes to comply with the
Act in its entirety, not just the enforcement section. This commenter
suggested that the word ``assurance'' was not strong enough. To address
current enforcement problems the section should require Tribes to
``recognize child support orders, including income withholding orders,
issued by other Tribes and Tribal organizations and by States.''
Response: All the requirements of FFCCSOA (28 U.S.C. 1738B) are
applicable to States and Tribes. We are not persuaded that any change
to Sec. 309.120 as suggested by the commenter is necessary to impose
this requirement. To the extent that a valid order includes provisions
for income withholding, FFCCSOA applies.
15. Comment: Numerous commenters suggested that Tribes should be
required to implement UIFSA to promote uniformity and to alleviate
jurisdictional, as well as operational problems. Several Tribal
commenters stated that it was inappropriate to require Tribes to adopt
UIFSA.
Response: As discussed previously, States are required to adopt
UIFSA as the result of an express statutory mandate. We have determined
that requiring Tribes to adopt UIFSA is neither necessary nor
appropriate.
Subpart D--Tribal IV-D Program Funding
Section 309.125--On What Basis Is Federal Funding of Tribal IV-D
Programs Determined?
No comments were received on this section. Changes were made to the
regulation, however, to specify more directly what information must be
provided in order for a Tribe to receive Federal funding. We also
clarified that official issuances of the Department refers only to
those that specifically indicate applicability to Tribal IV-D programs.
The title of the section was also modified slightly in the final rule
by changing ``funding in'' to ``funding of'' for clarity.
Section 309.130--How Will Tribal IV-D Programs Be Funded and What Forms
Are Required?
1. Comment: Several Tribal commenters stated that Tribal IV-D
programs should be funded in the same manner as State IV-D programs,
i.e., as entitlement programs. They suggested that Tribal IV-D programs
be funded continuously, with quarterly grant amounts determined, in
part, by the Tribe's own quarterly estimates. The estimates would be
subject to review and approval and the Tribes may be requested to
submit additional supporting documentation as necessary.
Response: The Tribal IV-D program is an entitlement program. The
difference between Tribal IV-D grants and State IV-D payments is that
Tribal IV-D programs are funded for expenditures under an approved IV-D
plan based on budget requests for a 12-month funding period. We have
revised Sec. 309.130 to provide that Tribal IV-D programs eligible for
grants of less than $1 million per 12-month funding period will receive
a single annual award of the total amount and Tribal IV-D programs with
funding of $1 million or more per 12-month funding period will receive
quarterly awards similar to State IV-D programs.
2. Comment: One commenter suggested clarification is required
concerning whether Tribal IV-D funds will come from a different funding
stream than State funds.
Response: As stated in the preamble to the NPRM, the funding for
Tribal IV-D activities is completely separate from funding for State
programs. A Tribe's decision to run its own IV-D program does not
impact a State's IV-D program funds. Tribal IV-D funding is not
apportioned from a State's IV-D funding. However, funds for the Tribal
IV-D programs come from the same appropriation as the State IV-D
program.
3. Comment: One commenter said that if Tribes are required to
provide a 10 or 20 percent match, then they should be able to receive
an incentive back into their programs.
Response: States receive incentive funds under section 458 of the
Act, which does not extend to Indian Tribes. There is no statutory
authority that provides for Tribal IV-D program incentives.
4. Comment: Four Tribal commenters suggested that funding should be
allocated based on population, geographical area, service area, land
base, isolation factors and local/national scale of economy. Funding
should be put under a ``special'' category similar to the category used
for Tribal Program Allocation law enforcement.
Response: Funding for Tribal IV-D programs is authorized by section
455(f) of the Social Security Act, which does not provide for
allocation of funds on the basis described. Under title IV-D of the Act
and Sec. 309.130, Tribal IV-D funding is based upon documentation
submitted by Tribes including the SF 424 and 424A and is awarded based
on reasonable, necessary, and allocable expenditures of approved Tribal
IV-D programs. We are not persuaded that the factors suggested by the
commenters are appropriate for the IV-D program. However, in their
budget requests, there is nothing to preclude Tribes from taking
service area and population into account.
5. Comment: Numerous Tribal commenters suggested that the
regulations should not require a non-Federal share and that Tribes
should receive 100 percent Federal funding. Some of these commenters
said that requiring a non-Federal share would penalize, rather than
support, family programs. Others indicated that most Tribes do not have
sufficient resources to cover the non-Federal share.
Response: Unlike other Tribal grant programs, the funding for
Tribal IV-D programs are not sum certain grants. The Tribal IV-D
program provides for 90 percent Federal funding for all reasonable,
necessary and allocable cost associated with the administration of a
IV-D program during the first three years of operation of a program,
and 80 percent thereafter. The provision of Federal funding at 90
percent of program expenditures, with a concomitant non-Federal share
of 10 percent, reflects our understanding of the unique and generally
unfavorable fiscal circumstances that Tribes face. We have determined
that a non-Federal share in expenditures is necessary, based on the
principle that better programs and better management result when local
resources are invested. We acknowledge that Tribes may have to split
limited resources between programs and make difficult decisions
concerning allocation of funds among important Tribal programs.
However, we are also aware that some Tribes may face unexpected and
uniquely adverse conditions that make them temporarily unable to
provide the non-Federal share in a particular program year. To address
these limited circumstances, we have incorporated a waiver provision at
Sec. 309.130, which allows a Tribe in this situation to request a
temporary waiver of its non-Federal share, based on requirements
described in paragraph (e), as discussed earlier in this preamble.
6. Comment: One Tribal commenter stated that the 90 percent Federal
share rate is fair and adequate. This same commenter suggested that the
Tribal non-Federal share requirement be fulfilled through in-kind
contributions. Three other Tribal commenters
[[Page 16668]]
suggested the non-Federal share be in cash or in-kind.
Response: The regulation permits Tribes to satisfy their non-
Federal share requirements with whatever resources may be available;
e.g., cash, non-cash resources provided by the Tribe, or in-kind third-
party contributions, as long as the requirements of 45 CFR 74.23 and
OMB Circular A-87 are satisfied. Regardless of how a Tribe chooses to
satisfy the non-Federal share of program expenditures, the Federal
share remains limited to the applicable rates provided in Sec.
309.130(c), absent a waiver.
7. Comment: One Tribal commenter stated the assumption that certain
collections a Tribal IV-D program makes will lose their identity and be
able to be counted as matching. Where a Tribe has both a TANF and IV-D
program, collected funds could be allowed for use as matching dollars
for its IV-D program.
Response: If a Tribe has a TANF program that requires an assignment
of support rights as a condition of receipt of Tribal TANF, and
assigned support collections are retained by the Tribe, the TANF
regulation at 45 CFR 286.155(b) applies. Section 286.155(b)(2) requires
that retained collections under TANF assignments to the Tribe must be
used ``to further the Tribe's TANF program.'' This disqualifies such
collections from also being used as the Tribe's IV-D non-Federal share.
8. Comment: One commenter asked what criteria are used to determine
whether a Tribe has sufficient resources to provide the required non-
Federal match. How will a Tribe's revenue from gaming be considered?
Response: We have substantially revised the non-Federal waiver
provisions at Sec. 309.130 to clarify that waivers of the non-Federal
share will be limited to certain temporary circumstances. In the NPRM
and the interim final regulation we intended the waiver provisions to
apply to atypical situations in a particular program year that make it
impossible for a Tribe to cover its share of program expenditures. Such
situations were expected to represent difficulties over and above the
generally poor economic conditions faced by most Tribes (e.g., high
unemployment rate, lack of economic development) which we already have
taken into account by providing for Federal funding for up to 90
percent of program expenditures in the first three years of full
funding. The final rule governing waiver requests makes more explicit
the limited availability of waivers of the non-Federal share and the
general agreement and understanding that a Tribe or Tribal organization
receiving funds under this part is expected to share in the financial
costs of the program.
In addition, the regulation makes clear that the Secretary must
make specific findings in order to grant a waiver request. The
availability of gaming or other Tribal resources is a legitimate factor
that the Secretary may consider under Sec. 309.130 in granting a
waiver, but the absence of gaming or similar revenue does not
necessarily entitle a Tribe to a waiver. Finally, Sec. 309.130 states
that Tribes and Tribal organizations are responsible for the non-
Federal share unless notified in writing that the Secretary has
approved a request for waiver. There should be no uncertainty as to
liability for the non-Federal share; a Tribe or Tribal organization is
liable for the non-Federal share unless it has received a written
approval of a waiver request.
9. Comment: One Tribal commenter suggested that we allow Tribes to
request a budget increase by submitting SF 424 and/or SF 424A with an
explanation 60 days before the funds are needed. Another three
commenters indicated that the provision for Tribes to request a mid-
year increase in their approved budgets is a positive feature.
Response: Regulations at Sec. 309.130(f) permit Tribes and Tribal
organizations to request budget adjustments by submitting the SF 424
and/or SF 424A forms with an explanation of why an adjustment is
necessary. We also revised this subsection to make clear that increases
in a Tribal IV-D budget will result in a proportional increase in a
Tribe's non-Federal share.
10. Comment: One Tribal commenter opposed the application of 45 CFR
part 95 to Tribal IV-D programs, saying that such regulation was not
appropriate for Tribes. As Tribes begin to operate IV-D programs, the
Department will gain knowledge and experience with Tribal system
development. Tribes will be able to provide technical assistance to one
another on the processes and models that they have developed.
Response: In the proposed regulation, we solicited comment on
investments in Tribal IV-D automation and specifically asked for
consideration of 45 CFR part 95 as a model. We are not regulating
Tribal IV-D automation at this time beyond allowable expenditures for
office automation and planning under Sec. 309.145, but will take the
suggestions into consideration as we deliberate in this area for the
future. Of course, no final automation requirements will be imposed on
Tribal IV-D programs without feedback from all stakeholders.
Section 309.135--What Requirements Apply to Funding, Obligating and
Liquidating Federal Title IV-D Grant Funds?
1. Comment: We received five positive Tribal comments on the time
allotted for obligating and spending IV-D grant funds. One commenter
criticized requiring Tribes to revise their financial systems.
Response: There are no provisions in Sec. 309.135 that require
Tribes to revise their financial systems. The requirements in Sec.
309.135 are consistent with requirements in other Federal programs. To
be as clear as possible about the provisions of this section, however,
we have broken up the two long paragraphs in the proposed rule into
three shorter paragraphs and added topic headings. In addition, to
smooth the transition from start-up grant to initial IV-D program
funding grants, we have added new paragraphs (a) and (b) to this
section. Paragraph (a) specifies that IV-D program grant awards will be
made for 12-month periods that coincide with the Federal fiscal year
(October 1 to September 30). Paragraph (b) provides for an initial IV-D
program funding period of 6 to 17 months, in order to bring the funding
cycle in line with the Federal fiscal year. This is necessary for an
efficient grant process and does not affect the Tribal financial system
or processes.
2. Comment: Two commenters suggested that the rule allow carry-
forward of funding to the following fiscal year.
Response: Since quarterly adjustments can be made to the Tribal IV-
D grants based on actual expenditures, carry-forward of grant funds is
not necessary. However, in the interest of providing Tribes with the
maximum flexibility, under our program regulations at Sec. 309.135, we
allow Tribes to liquidate obligations no later than the last day of the
12-month period following the funding period for which the funds were
awarded.
Proposed Section 309.140--What Are the Financial Reporting
Requirements?
We eliminated Sec. 309.140 and moved all financial reporting
requirements to Sec. 309.130, which already contained some of the same
material and is discussed earlier in this preamble. This places all
financial reporting requirements in one place in the regulations and
should make the regulations easier to use.
1. Comment: Two Tribal commenters were concerned that heavy
penalties for failure to meet program deadlines will drive away a lot
of Tribes.
[[Page 16669]]
Response: Financial Status Reports are required on a quarterly
basis and are essential to the on-going Tribal IV-D funding process.
They are required under the terms and conditions of annual IV-D grant
awards. However, to lessen the burden on Tribes, we have determined
that they may report on the SF 269A (Short Form) to provide the minimum
necessary information.
Financial Status Reports are due not later than 30 days following
the end of each of the first three quarters and no later than 90 days
following the end of the fourth quarter of each annual funding period
and of the subsequent 12-month liquidation period. Failure to meet
these deadlines will result in possible delays in Federal Tribal IV-D
funding. If Tribes require technical or other assistance to meet the
Financial Status Report deadlines, we encourage them to contact us
immediately to avoid any undue delay in Federal IV-D funding.
2. Comment: Five Tribal commenters supported less frequent
financial reporting for Tribal IV-D agencies that meet requirements.
Response: Because the information provided on the quarterly
Financial Status Reports is so essential to the Tribal IV-D funding
mechanism, especially adjustment for the prior quarter's actual
obligations, less frequent reporting is not feasible. However, we have
lessened the reporting burden to the minimum required by the SF 269A
(Short Form), rather than the SF 269 (Long Form) that was proposed. If
any aspect of financial reporting raises a concern for a Tribe, we
encourage that Tribe to contact us immediately.
Section 309.145--What Costs Are Allowable for Tribal IV-D Programs
Carried Out Under Sec. 309.65(a) of This Part?
1. Comment: We received numerous comments on automation in Tribal
IV-D programs. A majority of the comments indicated that automation was
necessary and that without the automation, it would be impossible for
Tribes to accurately and efficiently process child support collections.
Many commenters said that States would not be able to bear the burden
of manual processing, and that the regulations should require that
Tribal automated systems be compatible with State systems. Other
commenters suggested that OCSE develop a skeletal automation system for
Tribal IV-D programs, and some stated that it was inappropriate to
require a specific level of program automation. One commenter stated
that Tribes need to be wary of vendors and should evaluate vendors for
reliability.
Response: Under Sec. 309.145, Federal funds are available for
costs of operating a Tribal IV-D program carried out under Sec.
309.65(a), provided that such costs are determined by the Secretary to
be reasonable, necessary, and allocable to the program. While we agree
that automated data processing systems are helpful for record keeping,
monitoring and high speed processing in child support enforcement
cases, such automated systems are not presently required for Tribal IV-
D programs and therefore are not necessary to operation of such
programs. As stated earlier in this preamble, we have begun
consideration with stakeholders of appropriate minimum Tribal systems
automation specifications in anticipation of Tribal IV-D programs
moving toward high-speed automated data processing by convening a
workgroup. Factors such as compatibility, scale, functionality and
cost, among others, are issues being considered by this workgroup.
Section 309.145(h) states that among those Tribal IV-D costs that
are allowable are costs for ``planning efforts in the identification,
evaluation, and selection of a new or replacement automated data
processing computer system solution,'' for the ``operation and
maintenance of existing Tribal automated data processing computer
systems,'' as well as for ``essential office automation capability,''
and the ``[e]stablishment of intergovernmental agreements with States
and Tribes for use of an existing automated computer data processing
system.'' We have determined that these categories of costs, in lieu of
guidance regarding the need for or scope of Tribal IV-D automation, are
reasonable at this time. Since high-speed automated data processing
systems are not currently required under these regulations, the costs
of designing, developing and implementing such systems are not
allowable at this time.
2. Comment: Ten Tribal commenters supported the extensive list of
allowable costs. One commenter indicated that this gives the Tribes the
opportunity to continue to develop the necessary infrastructures. One
commenter suggested that in determining whether costs are reasonable,
the Secretary must realize that costs vary by geographic area.
Response: Section 309.145 makes Federal IV-D funds available for
costs of operating a Tribal IV-D program provided such costs are
determined by the Secretary to be reasonable, necessary, and allocable
to the program. Determinations as to whether or not costs are
reasonable are governed by OMB Circular A-87 and will take all relevant
factors into consideration.
3. Comment: One Tribal commenter indicated that it is unclear
whether Tribes are eligible for Federal assistance for the costs of bad
debts. Another commenter noted that bad debts are unallowable costs for
States and asked if they will be allowed for Tribes.
Response: OMB Circular A-87, Attachment B, establishes principles
to be applied in establishing the allowability or unallowability of
certain items of cost. With regard to ``bad debts,'' it states that
``[a]ny losses arising from uncollectible accounts and other claims,
and related costs are unallowable unless provided for in Federal
program award regulations.'' We encourage States and Tribes who have
questions about allowable IV-D costs to contact us with specific
information. These final regulations make no provision for the costs of
bad debts as allowable expenditures.
4. Comment: Ten Tribal commenters requested clarification on how
indirect cost rates would be treated.
Response: Section 309.145 provides that Federal IV-D funds are
available ``for the costs of operating a Tribal IV-D program under an
approved Tribal IV-D application.'' The use of a negotiated indirect
cost rate could result in recovery of costs unrelated to the IV-D
program, which is prohibited by Section 451 of the Act that expressly
limits the Congressional appropriation for the IV-D program funds. OCSE
is allowing Tribes and Tribal organizations the option to use the
negotiated indirect cost rate as a mechanism for the recovery of
allowable indirect costs. However, use of this method does not
guarantee allowability of costs, which must still be attributable to
the IV-D program. Because the title IV-D program is an uncapped
entitlement program, the funds allocated are closely scrutinized.
Actual indirect costs--just like actual direct costs--must be
demonstrably attributable to operation of the IV-D program. This means
that Tribal grantees must be able to demonstrate that whatever costs
are claimed under the IV-D grant are reasonable, necessary, and
allocable to the IV-D program.
As stated earlier in the preamble, if a Tribe or Tribal
organization's budget request includes indirect costs as part of its
request for Federal funds, such requests may be submitted in one of two
ways. For applications which include indirect costs, we have determined
that an applicant may, at its option, submit either documentation of
the dollar
[[Page 16670]]
amount of indirect costs allocable to the IV-D program, or submit its
current indirect cost rate negotiated with the Department of the
Interior and a dollar amount of indirect costs based on that rate.
Whichever option an applicant chooses, the applicant's obligation
remains the same: Tribal IV-D grantees are responsible for ensuring
that actual expenditures of Federal IV-D funds are directly,
demonstrably attributable to operation of the IV-D program, i.e., all
actual costs claimed under the IV-D grant must be allocable to the IV-D
program. The Federal statute at 42 U.S.C. 651 limits the use of Federal
IV-D funds to the purposes enumerated in that section, whether such
costs are characterized as ``direct'' or ``indirect'' costs.
If a Tribe's application includes a budget request for indirect
costs as well as direct costs, such request must either calculate the
estimated indirect cost by documenting the dollar amount of indirect
costs allocable to the IV-D program, or include the indirect cost rate
and the estimated indirect costs using the negotiated indirect cost
rate. If the Tribe elects to submit the actual estimated costs
attributable to the Tribal IV-D program, the methodology used to arrive
at the dollar amount must be included with the application.
Whichever option a Tribe choose, the Tribe's obligation is the
same: Tribal IV-D grantees are responsible for ensuring that
expenditures of Federal IV-D funds are directly, demonstrably
attributable to operation of the IV-D program, i.e., all costs claimed
under the IV-D grant must be allocable to the IV-D program. Tribal IV-D
grant funds may be used for both direct and indirect costs. However,
only such actual costs that are directly, demonstrably attributable to
operation of the IV-D program are allowable under the Federal statute.
We remind Tribal grantees that even if the Tribe has an approved
indirect cost rate agreement, any indirect costs must be allowable
under the program statute, regulations, OMB circulars and Federal
appropriations law. Any unallowable costs that are recovered under any
agreement are also unallowable and subject to disallowance. The
indirect costs must be reasonable, necessary, allocable and in
compliance with statute, rules, regulations and OMB circulars.
In addition, under Sec. 309.160 of this final regulation, Tribal
IV-D programs will be audited as a major program in accordance with
section 215 (c) of OMB Circular A-133. The annual A-133 audits will be
used to reconcile the grant award. Adjustments will be made for any
differences between estimated and actual costs attributable to the
program. The Department may supplement these required audits through
reviews or audits conducted by its own staff.
We caution Tribes that there is some risk involved in using the
negotiated indirect cost rate agreement. As stated earlier, the Federal
statute at 42 U.S.C. 651 limits the use of Federal IV-D funds to the
purposes enumerated in that section, whether such costs are
characterized as ``direct'' or ``indirect'' costs. Tribes will want to
be careful with charges to the indirect cost rate so as not to build up
a large audit exception or debt. A Tribe that initially chooses to use
the negotiated indirect cost rate to get its program operational, may
at a later date choose to document program specific indirect costs in
subsequent years to avoid a large pay-back to the Federal government,
disrupting program services to families in need.
5. Comment: One commenter stated that it is not equitable that the
salaries of chief executives are allowable costs for Tribes.
Response: OMB Circular A-87, Attachment B, Section 23.b, states,
``For Federally-recognized Indian Tribal governments and Councils Of
Governments (COGs), the portion of salaries and expenses directly
attributable to managing and operating Federal programs by the chief
executive and his staff is allowable. `` Following this guidance, we
have determined that Federal IV-D funds may be used for that portion of
the salaries and expenses of a Tribe's chief executive and staff which
are directly attributable to managing and operating the Tribal IV-D
program.
6. Comment: Five Tribal commenters supported the provision that the
portion of salaries and expenses of Tribal judges and staff that is
directly related to Tribal IV-D case program activities is an allowable
cost because Tribal IV-D programs create additional and unprecedented
workload increases for Indian tribunals. Six State commenters stated
that it is not equitable to fund Tribal court costs but not those of
State courts.
Response: We have revised Sec. 309.145(k) to permit Federal IV-D
funds to be used for the portion of salaries and expenses of tribunals
and staff directly related to required Tribal IV-D program activities.
We recognize that, at this initial stage of Tribal IV-D programs,
operation of programs and associated program requirements will result
in increased workloads for some Indian tribunals. Unlike States, Tribes
may not have a tax base or the resources to enable them to fund these
activities of the Tribal court. Child support may not be a normal
function that the court would perform. Therefore, as provided in OMB
Circular A-87, Attachment B, section 23.a.(5), we have determined that
the costs associated with such circumstances are allowable.
7. Comment: One State commenter suggested that States receive
direct Federal funds to cover costs associated with providing technical
assistance to Tribes. Another commenter suggested that the expenses for
technical assistance should be borne by the funding agency and that the
costs should not be part of the funds awarded to a Tribe.
Response: If a State enters into an agreement to provide services
which are not part of the operation of its IV-D plan, the State may
bill the Tribe or Tribal organization at rates negotiated between the
two parties. If the services provided under such purchase of service
agreements are reasonable, necessary, and allocable to the Tribal IV-D
program, the Tribe could claim the associated costs it has incurred in
obtaining the services and would be required to participate in those
costs, consistent with the required Tribal IV-D share.
8. Comment: Several Tribal commenters said that unless funds
awarded to States under section 469B of the Act, which addresses grants
to States for access and visitation programs, are opened up to Tribal
child support grantees, access and visitation activities should be
identified as allowable fundable activities.
Response: Grants under section 469B of the Act are limited by the
terms of the statute to States. We do not consider access and
visitation activities to be allowable child support activities and
therefore, expenditures related to access and visitation are not
eligible for IV-D funding under Sec. 309.145.
Section 309.150--What Start-Up Costs Are Allowable for Tribal IV-D
Programs Carried Out Under Sec. 309.65(b) of This Part?
1. Comment: Seven Tribal commenters said that a ceiling should not
be placed on start-up expenses and that in some instances the limit
will be inadequate. One commenter suggested that exceptions to this
limit be allowed if a Tribe can prove reasonable need.
Response: Based on the experiences of currently operating Tribal
IV-D programs, we continue to believe that a Tribe or Tribal
organization that receives start-up funding can generally be expected
to be ready to operate a full Tribal IV-D program within two years and
that the Federal share of start-up
[[Page 16671]]
costs should generally not exceed $500,000. However, to accommodate
extraordinary and limited circumstances we have provided, at Sec.
309.16(c), an opportunity for Tribes and Tribal organizations to
request additional time and/or funding for start-up Tribal IV-D
programs.
2. Comment: Three Tribal commenters suggested that the $500,000
limit should be exclusive of indirect costs.
Response: We have determined that the $500,000 limit for start-up
funding is not exclusive of indirect costs. Section 309.150(d) provides
that Federal funds are available for reasonable, necessary, and
allocable costs with a direct correlation to the initial development of
a Tribal IV-D program, consistent with the cost principles in OMB
Circular A-87, and approved by the Secretary. As stated earlier in the
preamble, if a Tribe or Tribal organization's budget for start-up
funding includes a request for indirect costs, a mechanism parallel to
that described at Sec. 309.15(a)(3) must be used. Applicants for
start-up funding should submit such estimates of indirect costs as
either a product of documentation showing the dollar amount of indirect
costs specifically allocable to the IV-D program or as a product of
their current negotiated indirect cost rate. The methodology used to
arrive at these amounts must be included with the application.
3. Comment: One commenter asked if ``start-up'' monies are an
``add-on'' to the amount a Tribal IV-D program will receive in direct
funding or if they are stand-alone funds for the first two years.
Response: Sections 309.16, 309.65(b) and 309.145 address funding
available for initial Tribal IV-D program development. Tribes that are
operating comprehensive child support enforcement programs under Sec.
309.65(a) have moved beyond the initial start-up stage and are not
eligible for start-up funds. The fact that a Tribe may have received
start-up funding under Sec. 309.65(b) has no bearing on any subsequent
application for funding under Sec. 309.65(a) for the operation of a
comprehensive IV-D program. Thus, start-up funds are stand-alone funds.
4. Comment: One commenter suggested that the requirement for a
match should be waived during the start-up phase.
Response: The final regulation does not require a non-Federal share
for Tribal IV-D start-up grants under Sec. Sec. 309.16 and 309.65(b).
These grants are for the initial development of Tribal IV-D programs.
Because the purpose of the start-up grants is to assist Tribes in the
development of programs that will eventually satisfy the requirements
of Sec. 309.65(a), we have determined that requiring a non-Federal
share would not be productive.
Subpart E--Accountability and Monitoring
Section 309.155--What Uses of Tribal IV-D Program Funds Are Not
Allowable?
1. Comment: Three Tribal commenters said that Tribes should be
allowed to use IV-D funds to build offices for their programs where
none are available. One of those commenters said a certain percentage
should be allowed for major renovation.
Response: Grant funds can be used for construction and major
renovations only if Congress specifically authorizes such use. The
child support statute does not provide for this use.
Although we don't believe it is necessary to include the definition
of construction in the regulation we thought it may be useful to
provide the definition here. It has been our experience that current
grantees sometimes include unallowable construction costs in budget
requests. The following definitions should be helpful.
Construction means the construction of new buildings or the
modernization of, or completion of shell space in existing buildings
(including the installation of fixed equipment, but excluding the cost
of land acquisition and off-site improvements). A trailer or modular
unit is considered construction or real property when the unit and its
installation are designed or planned to be installed permanently at a
given location so as to seem fixed to the land as a permanent structure
or appurtenance thereto.
Real property means land, including land improvements, structures
and appurtenances thereto, but excludes movable machinery and
equipment.
2. Comment: One Tribal commenter said that the Tribes need
financial supplements for the cost of jailing noncustodial parents.
Response: If jail is the penalty for violations of Tribal law,
associated expenses are considered general Tribal expenses for which
Federal IV-D funding is not available. Establishment and operation of
penalties for violations of Tribal law is solely the responsibility of
Tribal governments. These are governmental costs incurred as part of
administering a Tribal government and are not appropriately borne by
the Federal IV-D funds.
3. Comment: One commenter said that is it critical that Tribes are
able to cover legal counsel for indigent defendants and guardian ad
litem costs with IV-D program funding.
Response: To the extent that parties to IV-D cases incur legal
costs, such costs are personal and not reasonable, necessary, or
allocable to the IV-D program itself. Similarly, costs associated with
guardian ad litem are not reasonable, necessary or allocable IV-D
program costs, but are costs appropriately absorbed by the Tribal
government or the individuals involved.
Subpart F--Statistical and Narrative Reporting Requirements
Section 309.170--What Statistical and Narrative Reporting Requirements
Apply to Tribal IV-D Programs?
1. Comment: Two Tribal commenters pointed out that statistical and
narrative reporting is not required by statute.
Response: Although statistical and narrative reporting is not
expressly mandated in section 455(f) of the Act, we have determined
that the requirements in Sec. 309.170 are essential to ensuring that
Tribes and Tribal organizations operate IV-D programs that meet the
mandated program objectives specified in the statute, i.e.,
establishment of paternity, establishment, modification, and
enforcement of support orders, and location of noncustodial parents.
Efforts were made to minimize the reporting requirements to those
considered critical for program tracking, evaluation and monitoring.
List of Subjects
45 CFR Part 286
Administrative practice and procedure, Day Care, Employment, Grant
programs--social programs, Indian Tribes, Loan programs--social
programs, Manpower training programs, Penalties, Public Assistance
programs, Reporting and recordkeeping requirements, Vocational
education.
45 CFR Part 302
Child Support, grant program--social programs. Reporting and
recordkeeping requirements.
45 CFR Part 309
Child support, grant program--social programs, Indians, Native
Americans.
45 CFR Part 310
Child support, grant program--social programs, Indians, Native
Americans.
(Catalog of Federal Domestic Assistance Programs No: 93.558 TANF
Programs--Tribal Family Assistance Grants; 93.563 Child Support
Enforcement Program)
[[Page 16672]]
Dated: August 29, 2003.
Wade F. Horn,
Assistant Secretary for Children and Families.
Approved December 19, 2003.
Tommy G. Thompson,
Secretary, Department of Health and Human Services.
0
For the reasons discussed in the preamble, title 45 chapters II and III
of the Code of Federal Regulations are amended as follows:
PART 286--TRIBAL TANF PROVISIONS
0
1. The authority citation for part 286 continues to read as follows:
Authority: 42 U.S.C. 612.
0
2. In Sec. 286.155, paragraph (b)(1) is revised to read as follows:
Sec. 286.155 May a Tribe condition eligibility for Tribal TANF
assistance on assignment of child support to the Tribe?
* * * * *
(b) * * *
(1) Procedures for ensuring that assigned child support collections
in excess of the amount of Tribal TANF assistance received by the
family will not be retained by the Tribe; and
* * * * *
PART 302--STATE PLAN REQUIREMENTS
0
3. The authority citation for part 302 continues to read as follows:
Authority: 42 U.S.C. 651 through 658, 660, 664, 666, 667, 1302,
1396a(a)(25), 1396b(d)(2), 1396b(o), 1396b(p), 1396(k).
0
4. The heading and paragraph (a) of Sec. 302.36 are revised to read as
follows:
Sec. 302.36 Provision of services in interstate and intergovernmental
IV-D cases.
(a) The State plan shall provide that:
(1) The State will extend the full range of services available
under its IV-D plan to any other State in accordance with the
requirements set forth in Sec. 303.7 of this chapter; and
(2) The State will extend the full range of services available
under its IV-D plan to all Tribal IV-D programs, including promptly
opening a case where appropriate.
* * * * *
0
5. A new part 309 is added:
PART 309--TRIBAL CHILD SUPPORT ENFORCEMENT (IV-D) PROGRAM
Subpart A--Tribal IV-D Program: General Provisions
Sec.
309.01 What does this part cover?
309.05 What definitions apply to this part?
309.10 Who is eligible to apply for and receive Federal funding to
operate a Tribal IV-D program?
Subpart B--Tribal IV-D Program Application Procedures
309.15 What is a Tribal IV-D program application?
309.16 What rules apply to start-up funding?
309.20 Who submits a Tribal IV-D program application and where?
309.35 What are the procedures for review of a Tribal IV-D program
application, plan or plan amendment?
309.40 What is the basis for disapproval of a Tribal IV-D program
application, plan or plan amendment?
309.45 When and how may a Tribe or Tribal organization request
reconsideration of a disapproval action?
309.50 What are the consequences of disapproval of a Tribal IV-D
program application, plan or plan amendment?
Subpart C--Tribal IV-D Plan Requirements
309.55 What does this subpart cover?
309.60 Who is responsible for administration of the Tribal IV-D
program under the Tribal IV-D plan?
309.65 What must a Tribe or Tribal organization include in a Tribal
IV-D plan in order to demonstrate capacity to operate a Tribal IV-D
program?
309.70 What provisions governing jurisdiction must a Tribe or Tribal
organization include in a Tribal IV-D plan?
309.75 What administrative and management procedures must a Tribe or
Tribal organization include in a Tribal IV-D plan?
309.80 What safeguarding procedures must a Tribe or Tribal
organization include in a Tribal IV-D plan?
309.85 What records must a Tribe or Tribal organization agree to
maintain in a Tribal IV-D plan?
309.90 What governing Tribal law or regulations must a Tribe or
Tribal organization include in a Tribal IV-D plan?
309.95 What procedures governing the location of custodial and
noncustodial parents must a Tribe or Tribal organization include in
a Tribal IV-D plan?
309.100 What procedures for the establishment of paternity must a
Tribe or Tribal organization include in a Tribal IV-D plan?
309.105 What procedures governing child support guidelines must a
Tribe or Tribal organization include in a Tribal IV-D plan?
309.110 What procedures governing income withholding must a Tribe or
Tribal organization include in a Tribal IV-D plan?
309.115 What procedures governing the distribution of child support
must a Tribe or Tribal organization include in a Tribal IV-D plan?
309.120 What intergovernmental procedures must a Tribe or Tribal
organization include in a Tribal IV-D plan?
Subpart D--Tribal IV-D Program Funding
309.125 On what basis is Federal funding of Tribal IV-D programs
determined?
309.130 How will Tribal IV-D programs be funded and what forms are
required?
309.135 What requirements apply to funding, obligating and
liquidating Federal title IV-D grant funds?
309.145 What costs are allowable for Tribal IV-D programs carried
out under Sec. 309.65(a) of this part?
309.150 What start-up costs are allowable for Tribal IV-D programs?
309.155 What uses of Tribal IV-D program funds are not allowable?
Subpart E--Accountability and Monitoring
309.160 How will OCSE determine if Tribal IV-D program funds are
appropriately expended?
309.165 What recourse does a Tribe or Tribal organization have to
dispute a determination to disallow Tribal IV-D program
expenditures?
Subpart F--Statistical and Narrative Reporting Requirements
309.170 What statistical and narrative reporting requirements apply
to Tribal IV-D programs?
Authority: 42 U.S.C. 655(f), 1302.
Subpart A--Tribal IV-D Program: General Provisions
Sec. 309.01 What does this part cover?
(a) The regulations in this part prescribe the rules for
implementing section 455(f) of the Social Security Act. Section 455(f)
of the Act authorizes direct grants to Indian Tribes and Tribal
organizations to operate child support enforcement programs.
(b) These regulations establish the requirements that must be met
by Indian Tribes and Tribal organizations to be eligible for grants
under section 455(f) of the Act. They establish requirements for:
Tribal IV-D plan and application content, submission, approval, and
amendment; program funding; program operation; uses of funds;
accountability; reporting; and other program requirements and
procedures.
Sec. 309.05 What definitions apply to this part?
The following definitions apply to this part:
IV-D services are the services that are authorized or required for
the establishment of paternity, establishment, modification, and
enforcement of support orders, and location of noncustodial parents
under title IV-D of the Act, this rule, the Tribal IV-D plan and
program instructions issued by the Department.
ACF means the Administration for Children and Families, U.S.
Department of Health and Human Services.
[[Page 16673]]
Act means the Social Security Act, unless otherwise specified.
Assistant Secretary means the Assistant Secretary for Children and
Families, Department of Health and Human Services.
Central office means the Office of Child Support Enforcement.
Child support order and child support obligation mean a judgment,
decree, or order, whether temporary, final or subject to modification,
issued by a court of competent jurisdiction, tribunal or an
administrative agency for the support and maintenance of a child,
including a child who has attained the age of majority under the law of
the issuing jurisdiction, or of the parent with whom the child is
living, which provides for monetary support, health care, arrearages,
or reimbursement, and which may include related costs and fees,
interest and penalties, income withholding, attorneys' fees, and other
relief.
The Department means the U.S. Department of Health and Human
Services.
Income means any periodic form of payment due to an individual
regardless of source, except that a Tribe may expressly decide to
exclude per capita, trust, or Individual Indian Money (IIM) payments.
Indian means a person who is a member of an Indian Tribe.
Indian Tribe and Tribe mean any Indian or Alaska Native Tribe,
band, nation, pueblo, village, or community that the Secretary of the
Interior acknowledges to exist as an Indian Tribe and includes in the
list of Federally-recognized Indian Tribal governments as published in
the Federal Register pursuant to 25 U.S.C. 479a-1.
Location means information concerning the physical whereabouts of
the noncustodial parent, or the noncustodial parent's employer(s), and
other sources of income or assets, as appropriate, which is sufficient
and necessary to take the next appropriate action in a case.
Non-cash support is support provided to a family in the nature of
goods and/or services, rather than in cash, but which, nonetheless, has
a certain and specific dollar value.
Notice of Disapproval refers to the written notification from the
Department that the Tribal IV-D application, IV-D plan, or plan
amendment fails to meet the requirements for approval under applicable
Federal statutes and regulations.
OCSE refers to the Federal Office of Child Support Enforcement.
Program development plan means a document detailing the specific
steps a Tribe or Tribal organization will take to come into compliance
with the requirements of Sec. 309.65(a), and the timeframe associated
with each step.
Regional office refers to one of the regional offices of the
Administration for Children and Families.
Secretary means the Secretary of the Department of Health and Human
Services or designee.
TANF means the Temporary Assistance for Needy Families program as
found at section 401 et seq. of the Social Security Act (42 U.S.C. 601
et seq.).
Title IV-D refers to the title of the Social Security Act that
authorizes the Child Support Enforcement Program, including the Tribal
Child Support Enforcement Program.
Tribal IV-D agency means the organizational unit in the Tribe or
Tribal organization that has the authority for administering or
supervising the Tribal IV-D program under section 455(f) of the Act.
Tribal custom means unwritten law having the force and effect of
law within a particular Tribe.
Tribal organization means any legally established organization of
Indian Tribes which is sanctioned or chartered as a single governing
body representing two or more Indian Tribes.
Sec. 309.10 Who is eligible to apply for and receive Federal funding
to operate a Tribal IV-D program?
The following Tribes or Tribal organizations are eligible to apply
to receive Federal funding to operate a Tribal IV-D program meeting the
requirements of this part:
(a) An Indian Tribe with at least 100 children under the age of
majority as defined by Tribal law or code, in the population subject to
the jurisdiction of the Tribal court or administrative agency.
(b) A Tribal organization that has been designated by two or more
Indian Tribes to operate a Tribal IV-D program on their behalf, with a
total of at least 100 children under the age of majority as defined by
Tribal laws or codes, in the population of the Tribes subject to the
jurisdiction of the Tribal court (or courts) or administrative agency
(or agencies).
(c) A Tribe or Tribal organization that can demonstrate to the
satisfaction of the Secretary the capacity to operate a child support
enforcement program and provide justification for operating a program
with less than the minimum number of children may be granted a waiver
of paragraph (a) or (b) of this section as appropriate.
(1) A Tribe or Tribal organization's request for waiver of
paragraph (a) or (b) of this section must include documentation
sufficient to demonstrate that meeting the requirement is not
necessary. Such documentation must state:
(i) That the Tribe or Tribal organization otherwise complies with
the requirements established in subpart C of these regulations;
(ii) That the Tribe or Tribal organization has the administrative
capacity to support operation of a child support program under the
requirements of this part;
(iii) That the Tribal IV-D program will be cost effective; and
(iv) The number of children under the jurisdiction of the Tribe or
Tribal organization.
(2) A Tribe or Tribal organization's request for a waiver may be
approved if the Tribe or Tribal organization demonstrates to the
satisfaction of the Secretary that it can provide the services required
under 45 CFR part 309 in a cost effective manner even though the
population subject to Tribal jurisdiction includes fewer than 100
children.
Subpart B--Tribal IV-D Program Application Procedures
Sec. 309.15 What is a Tribal IV-D program application?
(a) Initial application. The initial application for funding under
Sec. 309.65(a) may be submitted at any time. The initial application
must include:
(1) Standard Form (SF) 424, ``Application for Federal Assistance;''
(2) SF 424A, ``Budget Information--Non-Construction Programs,''
including the following information:
(i) A quarter-by-quarter estimate of expenditures for the funding
period; and
(ii) Notification of whether the Tribe or Tribal organization is
requesting funds for indirect costs and if so, an election of a method
under paragraph (a)(3) of this section to calculate estimated indirect
costs; and
(iii) A narrative justification for each cost category on the form;
and either:
(iv) A statement that the Tribe or Tribal organization has or will
have the non-Federal share of program expenditures available, as
required; or
(v) A request for a waiver of the non-Federal share in accordance
with Sec. 309.130(e), if appropriate.
(3) If the Tribe or Tribal organization requests funding for
indirect costs, estimated indirect costs may be submitted either by:
[[Page 16674]]
(i) Including documentation of the dollar amount of indirect costs
allocable to the IV-D program; or
(ii) Submission of its current indirect cost rate negotiated with
the Department of Interior and the estimated amount of indirect costs
calculated using the negotiated cost rate.
(4) The Tribal IV-D plan. The initial application must include a
comprehensive statement identifying how the Tribe or Tribal
organization is meeting the requirements of subpart C of this part and
that describes the capacity of the Tribe or Tribal organization to
operate a IV-D program which meets the objectives of title IV-D of the
Act, including establishment of paternity, establishment, modification,
and enforcement of support orders, and location of noncustodial
parents.
(b) Additional application requirement for Tribal organizations.
The initial and subsequent annual budget submissions of a Tribal
organization must document that each participating Tribe authorizes the
Tribal organization to operate a Tribal IV-D program on its behalf.
(c) Annual budget submission. Following the initial funding period,
the Tribe or Tribal organization operating a IV-D program must submit
annually Form SF 424A, including all the necessary accompanying
information and documentation described in paragraphs (a)(2) and (a)(3)
of this section.
(d) Plan Amendments. Plan amendments must be submitted in
accordance with the requirements of Sec. 309.35(e).
Sec. 309.16 What rules apply to start-up funding?
(a) The application for start-up funding under Sec. 309.65(b) must
include:
(1) Standard Form (SF) 424, ``Application for Federal Assistance';
(2) SF 424A, ``Budget Information--Non-Construction Programs,''
including the following information:
(i) A quarter-by-quarter estimate of expenditures for the start-up
period;
(ii) Notification of whether the Tribe or Tribal organization is
requesting funds for indirect costs and, if so, an election of a method
to calculate estimated indirect costs under paragraph (a)(3) of this
section; and
(iii) A narrative justification for each cost category on the form;
(3) If the Tribe or Tribal organization requests funding for
indirect costs as part of its application for Federal start-up funds,
estimated indirect costs may be submitted either by:
(i) Including documentation of the dollar amount of indirect costs
allocable to the IV-D program including the methodology used to arrive
at these amounts; or
(ii) Submission of its current indirect cost rate negotiated with
the Department of Interior and the amount of estimated indirect costs
using that rate.
(iii) The amount of indirect costs must be included within the
limit of $500,000 specified in paragraph (c) of this section.
(4) With respect to each requirement in Sec. 309.65(a) that the
Tribe or Tribal organization currently meets, a description of how the
Tribe or Tribal organization satisfies the requirement; and
(5) With respect to each requirement in Sec. 309.65(a) that the
Tribe or Tribal organization does not currently meet, a program
development plan which demonstrates to the satisfaction of the
Secretary that the Tribe or Tribal organization has the capacity and
will have in place a Tribal IV-D program that will meet the
requirements outlined in Sec. 309.65(a), within a reasonable, specific
period of time, not to exceed two years. The Secretary must approve the
program development plan. Disapproval of a program development plan is
not subject to administrative appeal.
(b) The process for approval and disapproval of applications for
start-up funding under this section is found in Sec. Sec. 309.35,
309.40, 309.45, and 309.50. A disapproval of an application for start-
up funding is not subject to administrative appeal.
(c) Federal funding for start-up costs is limited to $500,000,
which must be obligated and liquidated within two years after the first
day of the quarter after the start-up application was approved. In
extraordinary circumstances, the Secretary will consider a request to
extend the period of time during which start-up funding will be
available and/or to increase the amount of start-up funding provided.
Denial of a request to extend the time during which start-up funding
will be available or for an increase in the amount of start-up funding
is not subject to administrative appeal.
(1) The Secretary may grant a no-cost extension of time if the
Tribe or Tribal organization demonstrates to the satisfaction of the
Secretary that the extension will result in satisfaction of each
requirement established in Sec. 309.65(a) by the grantee and
completion of the program development plan required under Sec.
309.65(b)(2).
(2) The Secretary may grant an increase in the amount of Federal
start-up funding provided beyond the limit specified at paragraph (c)
of this section and Sec. 309.150 if--
(i) The Tribe or Tribal organization demonstrates to the
satisfaction of the Secretary that a specific amount of additional
funds for a specific purpose or purposes will result in satisfaction of
the requirements specified in Sec. 309.65(a) which the Tribe or Tribal
organization otherwise will be unable to meet; and
(ii) The Tribe or Tribal organization demonstrates to the
satisfaction of the Secretary that it has satisfied every applicable
reporting requirement.
(d) If a Tribe or Tribal organization receives start-up funding
based on submission and approval of a Tribal IV-D application which
includes a program development plan under Sec. 309.65(b), a progress
report that describes accomplishments to date in carrying out the plan
must be submitted with the next annual refunding request.
Sec. 309.20 Who submits a Tribal IV-D program application and where?
(a) The authorized representative of the Tribe or Tribal
organization must sign and submit the Tribal IV-D program application.
(b) Applications must be submitted to the Office of Child Support
Enforcement, Attention: Tribal Child Support Enforcement Program, 370
L'Enfant Promenade, SW., Washington, DC 20447, with a copy to the
appropriate regional office.
Sec. 309.35 What are the procedures for review of a Tribal IV-D
program application, plan or plan amendment?
(a) The Secretary will promptly review a Tribal IV-D program
application, plan or plan amendment to determine whether it conforms to
the requirements of the Act and these regulations. Not later than the
90th day following the date on which the Tribal IV-D application, plan
or plan amendment is received by the Secretary, action will be taken
unless additional information is needed. If additional information is
needed from the Tribe or Tribal organization, the Secretary will
promptly notify the Tribe or Tribal organization.
(b) The Secretary will take action on the application, plan or plan
amendment within 45 days of receipt of any additional information
requested from the Tribe or Tribal organization.
(c) Determinations as to whether the Tribal IV-D plan, including
plan amendments, originally meets or continues to meet the requirements
for approval are based on applicable Federal statutes, regulations and
instructions applicable to Tribal IV-D programs. Guidance may be
furnished to
[[Page 16675]]
assist in the interpretation of the regulations.
(d) After approval of the original Tribal IV-D program application,
all relevant changes required by new Federal statutes, rules,
regulations, and Department interpretations are required to be
submitted so that the Secretary may determine whether the plan
continues to meet Federal requirements and policies.
(e) If a Tribe or Tribal organization intends to make any
substantial or material change in any aspect of the Tribal IV-D
program, a Tribal IV-D plan amendment must be submitted at the earliest
reasonable time for approval under this section. The plan amendment
must describe and, as appropriate, document the changes the Tribe or
Tribal organization proposes to make to its IV-D plan, consistent with
the requirements of applicable statutes and regulations.
(f) The effective date of a plan or plan amendment may not be
earlier than the first day of the fiscal quarter in which an approvable
plan or plan amendment is submitted.
Sec. 309.40 What is the basis for disapproval of a Tribal IV-D
program application, plan or plan amendment?
(a) A IV-D application, plan, or plan amendment will be disapproved
if:
(1) The Secretary determines that the application, plan, or plan
amendment fails to meet or no longer meets one or more of the
requirements set forth in this part or any other applicable Federal
regulations, statutes and implementing instructions;
(2) The Secretary determines that required Tribal laws, code,
regulations, and procedures are not in effect; and/or
(3) The Secretary determines that the application, plan, or plan
amendment is not complete, after the Tribe or Tribal organization has
had the opportunity to submit the necessary information.
(b)(1) Except as provided in paragraph (b)(2) of this section and
Sec. 309.45(h) of this part, a written Notice of Disapproval of the
Tribal IV-D program application, plan, or plan amendment, as
applicable, will be sent to the Tribe or Tribal organization upon the
determination that any of the conditions of paragraph (a) of this
section apply. The Notice of Disapproval will include the specific
reason(s) for disapproval.
(2) Where the Secretary believes an approved Tribal IV-D plan
should be disapproved, he will notify the Tribe of his intent to
disapprove the plan.
(c) If the application, plan or plan amendment is incomplete and
fails to provide enough information to make a determination to approve
or disapprove, the Secretary will request the necessary information.
Sec. 309.45 When and how may a Tribe or Tribal organization request
reconsideration of a disapproval action?
(a) Except as specified under paragraphs (g) and (h) of this
section, a Tribe or Tribal organization may request reconsideration of
the disapproval of a Tribal IV-D application, plan or plan amendment by
filing a written Request for Reconsideration to the Secretary within 60
days of the date of the Notice of Disapproval.
(b) The Request for Reconsideration must include:
(1) All documentation that the Tribe or Tribal organization
believes is relevant and supportive of its application, plan or plan
amendment; and
(2) A written response to each ground for disapproval identified in
the Notice of Disapproval, indicating why the Tribe or Tribal
organization believes its application, plan or plan amendment conforms
to the requirements for approval specified in applicable Federal
statutes, regulations and office issuances; and
(3) Whether or not the Tribe or Tribal organization requests a
meeting or conference call with the Secretary.
(c) After receiving a Request for Reconsideration that includes a
request for a conference call or meeting, OCSE will determine whether
to hold a conference call or a meeting with the Tribe or Tribal
organization to discuss the reasons for disapproval of the application,
plan, or plan amendment as well as the Tribe or Tribal organization's
response. The Secretary will notify the Tribe or Tribal organization of
the date and time of the conference call or meeting.
(d) A conference call or meeting under Sec. 309.45(c) shall be
held not less than 30 days nor more than 60 days after the date the
notice of such call or meeting is furnished to the Tribe or Tribal
organization, unless both parties agree in writing to another time.
(e) The Secretary will make a written determination affirming,
modifying, or reversing disapproval of a Tribal IV-D program
application, plan, or plan amendment within 60 days after the
conference call or meeting is held, or within 60 days after the request
for reconsideration that does not include a request for a meeting. This
determination shall be the final decision of the Secretary.
(f) The Secretary's determination that a Tribal IV-D application,
new plan or plan amendment is not approvable remains in effect pending
the reconsideration under this part.
(g) Disapproval of start-up funding, a request for waiver of the
100-child rule, and a request for waiver of the non-Federal Tribal
share is not subject to administrative appeal.
(h) Where the Secretary believes an approved Tribal IV-D plan
should be disapproved, he will notify the Tribe of his intent to
disapprove the plan. If the Tribe waives its right to reconsideration
under this section, the Tribe may request a pre-decision hearing with
60 days of the date of the Notice of Intent to Disapprove the plan. The
hearing will utilize the procedures at 45 CFR part 213.
Sec. 309.50 What are the consequences of disapproval of a Tribal IV-D
program application, plan or plan amendment?
(a) If an application or plan submitted pursuant to Sec. 309.15 is
disapproved, the Tribe or Tribal organization will receive no funding
under Sec. 309.65(a) or this part until a new application or plan is
submitted and approved.
(b) If a IV-D plan amendment is disapproved, there is no funding
for the activity proposed in the plan amendment.
(c) A Tribe or Tribal organization whose application, plan or plan
amendment has been disapproved may reapply at any time.
Subpart C--Tribal IV-D Plan Requirements
Sec. 309.55 What does this subpart cover?
This subpart defines the Tribal IV-D plan provisions that are
required to demonstrate that a Tribe or Tribal organization has the
capacity to operate a child support enforcement program meeting the
objectives of title IV-D of the Act and these regulations, including
establishment of paternity, establishment, modification, and
enforcement of support orders, and location of noncustodial parents.
Sec. 309.60 Who is responsible for administration of the Tribal IV-D
program under the Tribal IV-D plan?
(a) Under the Tribal IV-D plan, the Tribe or Tribal organization
shall establish or designate an agency to administer the Tribal IV-D
plan. That agency shall be referred to as the Tribal IV-D agency.
(b) The Tribe or Tribal organization is responsible and accountable
for the operation of the Tribal IV-D program. Except where otherwise
provided in this part, the Tribal IV-D agency need not perform all the
functions of the Tribal IV-D program, so long as the Tribe or Tribal
organization ensures that all
[[Page 16676]]
approved functions are carried out properly, efficiently and
effectively.
(c) If the Tribe or Tribal organization delegates any of the
functions of the Tribal IV-D program to another Tribe, a State, and/or
another agency or entity pursuant to a cooperative arrangement,
contract, or Tribal resolution, the Tribe or Tribal organization is
responsible for securing compliance with the requirements of the Tribal
IV-D plan by such Tribe, State, agency or entity. The Tribe or Tribal
organization is responsible for submitting copies and appending to the
Tribal IV-D plan any agreements, contracts, or Tribal resolutions
between the Tribal IV-D agency and a Tribe, State, other agency or
entity.
Sec. 309.65 What must a Tribe or Tribal organization include in a
Tribal IV-D plan in order to demonstrate capacity to operate a Tribal
IV-D program?
(a) A Tribe or Tribal organization demonstrates capacity to operate
a Tribal IV-D program meeting the objectives of title IV-D of the Act
and these regulations by submission of a Tribal IV-D plan which
contains the required elements listed in paragraphs (a)(1) through (14)
of this section:
(1) A description of the population subject to the jurisdiction of
the Tribal court or administrative agency for child support purposes as
specified under Sec. 309.70;
(2) Evidence that the Tribe or Tribal organization has in place
procedures for accepting all applications for IV-D services and
promptly providing IV-D services required by law and regulation;
(3) Assurance that the due process rights of the individuals
involved will be protected in all activities of the Tribal IV-D
program, including establishment of paternity, and establishment,
modification, and enforcement of support orders;
(4) Administrative and management procedures as specified under
Sec. 309.75;
(5) Safeguarding procedures as specified under Sec. 309.80;
(6) Assurance that the Tribe or Tribal organization will maintain
records as specified under Sec. 309.85;
(7) Copies of all applicable Tribal laws and regulations as
specified under Sec. 309.90;
(8) Procedures for the location of noncustodial parents as
specified under Sec. 309.95;
(9) Procedures for the establishment of paternity as specified
under Sec. 309.100;
(10) Guidelines for the establishment and modification of child
support obligations as specified under Sec. 309.105;
(11) Procedures for income withholding as specified under Sec.
309.110;
(12) Procedures for the distribution of child support collections
as specified under Sec. 309.115;
(13) Procedures for intergovernmental case processing as specified
under Sec. 309.120; and
(14) Tribally-determined performance targets for paternity
establishment, support order establishment, amount of current support
to be collected, amount of past due support to be collected, and any
other performance measures a Tribe or Tribal organization may want to
submit.
(b) If a Tribe or Tribal organization currently is unable to
satisfy any or all of the requirements specified in paragraph (a) of
this section:
(1) It may demonstrate capacity to operate a Tribal IV-D program
meeting the objectives of title IV-D of the Act and these regulations
by submission of an application for start-up funding as required by
Sec. 309.16(a) of this part.
(2) The Secretary may cease start-up funding to a Tribe or Tribal
organization if that Tribe or Tribal organization fails to satisfy one
or more provisions or milestones described in its program development
plan within the timeframe specified in such plan.
Sec. 309.70 What provisions governing jurisdiction must a Tribe or
Tribal organization include in a Tribal IV-D plan?
A Tribe or Tribal organization must include in its Tribal IV-D plan
a description of the population subject to the jurisdiction of the
Tribal court or administrative agency for child support enforcement
purposes and certify that there are at least 100 children under the age
of majority in the population subject to the jurisdiction of the Tribe
in accordance with Sec. 309.10 of this part and subject to Sec.
309.10(c).
Sec. 309.75 What administrative and management procedures must a
Tribe or Tribal organization include in a Tribal IV-D plan?
A Tribe or Tribal organization must include in its Tribal IV-D plan
the administrative and management provisions contained in this section:
(a) A description of the structure of the IV-D agency and the
distribution of responsibilities within the agency.
(b) Evidence that all Federal funds and amounts collected by the
Tribal IV-D agency are protected against loss. Tribes and Tribal
organizations may comply with this paragraph by submitting
documentation that establishes that every person who receives,
disburses, handles, or has access to or control over funds collected
under the Tribal IV-D program is covered by a bond or insurance
sufficient to cover all losses.
(c) Procedures under which notices of support collected, itemized
by month of collection, are provided to families receiving services
under the Tribal IV-D program at least once a year. In addition, a
notice must be provided at any time to either the custodial or
noncustodial parent upon request.
(d) A certification that for each year during which the Tribe or
Tribal organization receives or expends funds pursuant to section
455(f) of the Act and this part, it shall comply with the provisions of
chapter 75 of Title 31 of the United States Code (the Single Audit Act
of 1984, Pub. L. 98-502, as amended) and OMB Circular A-133.
(e) If the Tribe or Tribal organization intends to charge an
application fee or recover costs in excess of the fee, the Tribal IV-D
plan must provide that:
(1) The application fee must be uniformly applied by the Tribe or
Tribal organization and must be:
(i) A flat amount not to exceed $25.00; or
(ii) An amount based on a fee schedule not to exceed $25.00.
(2) The Tribal IV-D agency may not charge an application fee in an
intergovernmental case referred to the Tribal IV-D agency for services
under Sec. 309.120.
(3) No application fee may be charged to an individual receiving
services under titles IV-A, IV-E foster care maintenance assistance, or
XIX (Medicaid) of the Act.
(4) The Tribal IV-D agency must exclude from its quarterly
expenditure claims an amount equal to all fees which are collected and
costs recovered during the quarter.
Sec. 309.80 What safeguarding procedures must a Tribe or Tribal
organization include in a Tribal IV-D plan?
A Tribe or Tribal organization must include in its Tribal IV-D plan
safeguarding provisions in accordance with this section:
(a) Procedures under which the use or disclosure of personal
information received by or maintained by the Tribal IV-D agency is
limited to purposes directly connected with the administration of the
Tribal IV-D program, or titles IV-A and XIX with the administration of
other programs or purposes prescribed by the Secretary in regulations.
(b) Procedures for safeguards that are applicable to all
confidential information handled by the Tribal IV-D agency and that are
designed to protect the privacy rights of the parties, including:
[[Page 16677]]
(1) Safeguards against unauthorized use or disclosure of
information relating to proceedings or actions to establish paternity,
or to establish, modify or enforce support;
(2) Prohibitions against the release of information on the
whereabouts of one party or the child to another party against whom a
protective order with respect to the former party or the child has been
entered;
(3) Prohibitions against the release of information on the
whereabouts of one party or the child to another person if the Tribe
has reason to believe that the release of the information to that
person may result in physical or emotional harm to the party or child;
and
(4) Procedures in accordance with any specific safeguarding
regulations applicable to Tribal IV-D programs promulgated by the
Secretary.
(c) Procedures under which sanctions must be imposed for the
unauthorized use or disclosure of information covered by paragraphs (a)
and (b) of this section.
Sec. 309.85 What records must a Tribe or Tribal organization agree to
maintain in a Tribal IV-D plan?
A Tribal IV-D plan must provide that:
(a) The Tribal IV-D agency will maintain records necessary for the
proper and efficient operation of the program, including records
regarding:
(1) Applications for child support services;
(2) Efforts to locate noncustodial parents;
(3) Actions taken to establish paternity and obtain and enforce
support;
(4) Amounts owed, arrearages, amounts and sources of support
collections, and the distribution of such collections;
(5) IV-D program expenditures;
(6) Any fees charged and collected, if applicable; and
(7) Statistical, fiscal, and other records necessary for reporting
and accountability required by the Secretary.
(b) The Tribal IV-D agency will comply with the retention and
access requirements at 45 CFR 74.53, including the requirement that
records be retained for at least three years.
Sec. 309.90 What governing Tribal law or regulations must a Tribe or
Tribal organization include in a Tribal IV-D plan?
(a) A Tribe or Tribal organization must include in its Tribal IV-D
plan Tribal law, code, regulations, and/or other evidence that provides
for:
(1) Establishment of paternity for any child up to and including at
least 18 years of age;
(2) Establishment and modification of child support obligations;
(3) Enforcement of child support obligations, including
requirements that Tribal employers comply with income withholding as
required under Sec. 309.110; and
(4) Location of custodial and noncustodial parents.
(b) In the absence of written laws and regulations, a Tribe or
Tribal organization may provide in its plan detailed descriptions of
any Tribal custom or common law with the force and effect of law which
enables the Tribe or Tribal organization to satisfy the requirements in
paragraph (a) of this section.
Sec. 309.95 What procedures governing the location of custodial and
noncustodial parents must a Tribe or Tribal organization include in a
Tribal IV-D plan?
A Tribe or Tribal organization must include in its Tribal IV-D plan
the provisions governing the location of custodial and noncustodial
parents and their assets set forth in this section.
(a) The Tribal IV-D agency must attempt to locate custodial or
noncustodial parents or sources of income and/or assets when location
is required to take necessary action in a case; and
(b) The Tribal IV-D agency must use all sources of information and
records reasonably available to the Tribe or Tribal organization to
locate custodial or noncustodial parents and their sources of income
and assets.
Sec. 309.100 What procedures for the establishment of paternity must
a Tribe or Tribal organization include in a Tribal IV-D plan?
(a) A Tribe or Tribal organization must include in its Tribal IV-D
plan the procedures for the establishment of paternity included in this
section. The Tribe must include in its Tribal IV-D plan procedures
under which the Tribal IV-D agency will:
(1) Attempt to establish paternity by the process established under
Tribal law, code, and/or custom in accordance with this section;
(2) Provide an alleged father the opportunity to voluntarily
acknowledge paternity; and
(3) In a contested paternity case (unless otherwise barred by
Tribal law) require the child and all other parties to submit to
genetic tests upon the request of any such party, if the request is
supported by a sworn statement by the party--
(i) Alleging paternity, and setting forth facts establishing a
reasonable possibility of the requisite sexual contact between parties;
or
(ii) Denying paternity, and setting forth facts establishing a
reasonable possibility of the nonexistence of sexual contact between
the parties.
(b) The Tribal IV-D agency need not attempt to establish paternity
in any case involving incest or forcible rape, or in any case in which
legal proceedings for adoption are pending, if, in the opinion of the
Tribal IV-D agency, it would not be in the best interests of the child
to establish paternity.
(c) When genetic testing is used to establish paternity, the Tribal
IV-D agency must identify and use accredited laboratories which
perform, at reasonable cost, legally and medically-acceptable genetic
tests which intend to identify the father or exclude the alleged
father.
(d) Establishment of paternity under this section has no effect on
Tribal enrollment or membership.
Sec. 309.105 What procedures governing child support guidelines must
a Tribe or Tribal organization include in a Tribal IV-D plan?
(a) A Tribal IV-D plan must: (1) Establish one set of child support
guidelines by law or action of the tribunal for setting and modifying
child support obligation amounts;
(2) Include a copy of child support guidelines governing the
establishment and modification of child support obligations;
(3) Indicate whether non-cash payments will be permitted to satisfy
support obligations, and if so;
(i) Require that Tribal support orders allowing non-cash payments
also state the specific dollar amount of the support obligation; and
(ii) Describe the type(s) of non-cash support that will be
permitted to satisfy the underlying specific dollar amount of the
support order; and
(iii) Provide that non-cash payments will not be permitted to
satisfy assigned support obligations;
(4) Indicate that child support guidelines will be reviewed and
revised, if appropriate, at least once every four years;
(5) Provide that there shall be a rebuttable presumption, in any
proceeding for the award of child support, that the amount of the award
that would result from the application of the guidelines established
consistent with this section is the correct amount of child support to
be awarded; and
(6) Provide for the application of the guidelines unless there is a
written finding or a specific finding on the record of the tribunal
that the application of the guidelines would be unjust or inappropriate
in a particular case in accordance with criteria established by the
Tribe or Tribal
[[Page 16678]]
organization. Such criteria must take into consideration the needs of
the child. Findings that rebut the guidelines must state the amount of
support that would have been required under the guidelines and include
a justification of why the order varies from the guidelines.
(b) The guidelines established under paragraph (a) of this section
must at a minimum:
(1) Take into account the needs of the child and the earnings and
income of the noncustodial parent; and
(2) Be based on specific descriptive and numeric criteria and
result in a computation of the support obligation.
Sec. 309.110 What procedures governing income withholding must a
Tribe or Tribal organization include in a Tribal IV-D plan?
A Tribe or Tribal organization must include in its Tribal IV-D plan
copies of Tribal laws providing for income withholding in accordance
with this section.
(a) In the case of each noncustodial parent against whom a support
order is or has been issued or modified under the Tribal IV-D plan, or
is being enforced under such plan, so much of his or her income, as
defined in Sec. 309.05, must be withheld as is necessary to comply
with the order.
(b) In addition to the amount to be withheld to pay the current
month's obligation, the amount withheld must include an amount to be
applied toward liquidation of any overdue support.
(c) The total amount to be withheld under paragraphs (a) and (b) of
this section may not exceed the maximum amount permitted under section
303(b) of the Consumer Credit Protection Act (15 U.S.C. 1673(b)), but
may be set at a lower amount.
(d) Income withholding must be carried out in compliance with the
procedural due process requirements established by the Tribe or Tribal
organization.
(e) The Tribal IV-D agency will promptly refund amounts which have
been improperly withheld.
(f) The Tribal IV-D agency will promptly terminate income
withholding in cases where there is no longer a current order for
support and all arrearages have been satisfied.
(g) If the employer fails to withhold income in accordance with the
provision of the income withholding order, the employer will be liable
for the accumulated amount the employer should have withheld from the
noncustodial parent's income.
(h) Income shall not be subject to withholding in any case where:
(1) Either the custodial or noncustodial parent demonstrates, and
the tribunal enters a finding, that there is good cause not to require
income withholding; or
(2) A signed written agreement is reached between the noncustodial
and custodial parent, which provides for an alternative arrangement,
and is reviewed and entered into the record by the tribunal.
(i) Where immediate income withholding is not in place, the income
of the noncustodial parent shall become subject to withholding, at the
earliest, on the date on which the payments which the noncustodial
parent has failed to make under a Tribal support order are at least
equal to the support payable for one month.
(j) The only basis for contesting a withholding is a mistake of
fact, which for purposes of this paragraph, means an error in the
amount of current or overdue support or in the identity of the alleged
noncustodial parent.
(k) Tribal law must provide that the employer is subject to a fine
to be determined under Tribal law for discharging a noncustodial parent
from employment, refusing to employ, or taking disciplinary action
against any noncustodial parent because of the withholding.
(l) To initiate income withholding, the Tribal IV-D agency must
send the noncustodial parent's employer a notice using the standard
Federal income withholding form.
(m) The Tribal IV-D agency must allocate withheld amounts across
multiple withholding orders to ensure that in no case shall allocation
result in a withholding for one of the support obligations not being
implemented.
(n) The Tribal IV-D agency is responsible for receiving and
processing income withholding orders from States, Tribes, and other
entities, and ensuring orders are properly and promptly served on
employers within the Tribe's jurisdiction.
Sec. 309.115 What procedures governing the distribution of child
support must a Tribe or Tribal organization include in a Tribal IV-D
plan?
A Tribe or Tribal organization must specify in its Tribal IV-D plan
procedures for the distribution of child support collections in each
Tribal IV-D case, in accordance with this section.
(a) General Rule: The Tribal IV-D agency must, in a timely manner:
(1) Apply collections first to satisfy current support obligations,
except as provided in paragraph (e) of this section; and
(2) Pay all support collections to the family unless the family is
currently receiving or formerly received assistance from the Tribal
TANF program and there is an assignment of support rights to the
Tribe's TANF agency, or the Tribal IV-D agency has received a request
for assistance in collecting support on behalf of the family from a
State or Tribal IV-D agency.
(b) Current Receipt of Tribal TANF: If the family is currently
receiving assistance from the Tribal TANF program and has assigned
support rights to the Tribe and:
(1) There is no request for assistance in collecting support on
behalf of the family from a State or Tribal IV-D agency under Sec.
309.120 of this part, the Tribal IV-D agency may retain collections on
behalf of the family, not to exceed the total amount of Tribal TANF
paid to the family. Any remaining collections must be paid to the
family.
(2) There is a request for assistance in collecting support on
behalf of the family from a State or Tribal IV-D agency under Sec.
9.120 of this part, the Tribal IV-D agency may retain collections, not
to exceed the total amount of Tribal TANF paid to the family. Except as
provided in paragraph (f) of this section, the Tribal IV-D agency must
send any remaining collections, as appropriate, to the requesting State
IV-D agency for distribution under section 457 of the Act and 45 CFR
302.51 or 302.52, or to the requesting Tribal IV-D agency for
distribution in accordance with this section.
(c) Former Receipt of Tribal TANF: If the family formerly received
assistance from the Tribal TANF program and there is an assignment of
support rights to the Tribe and:
(1) There is no request for assistance in collecting support from a
State or Tribal IV-D agency under Sec. 309.120 of this part, the
Tribal IV-D agency must pay current support and any arrearages owed to
the family to the family and may then retain any excess collections,
not to exceed the total amount of Tribal TANF paid to the family. Any
remaining collections must be paid to the family.
(2) There is a request for assistance in collecting support from a
State or Tribal IV-D agency under Sec. 309.120 of this part, the
Tribal IV-D agency must send all support collected, as appropriate, to
the requesting State IV-D agency for distribution under section 457 of
the Act or 45 CFR 302.51 or 303.52, or to the requesting Tribal IV-D
agency for distribution under this section, except as provided in
paragraph (f) of this section.
[[Page 16679]]
(d) Requests for Assistance from State or Tribal IV-D Agency: If
there is no assignment of support rights to the Tribe as a condition of
receipt of Tribal TANF and the Tribal IV-D agency has received a
request for assistance in collecting support on behalf of the family
from a State or another Tribal IV-D agency under Sec. 309.120 of this
part, the Tribal IV-D agency must send all support collected to either
the State IV-D agency for distribution in accordance with section 457
of the Act and 45 CFR 302.51 and 302.52, or to the Tribal IV-D agency
for distribution under this section, as appropriate, except as provided
in paragraph (f) of this section.
(e) Federal Income Tax Refund Offset Collections: Any collections
received based on Federal income tax refund offset under section 464 of
the Act and distributed by the Tribal IV-D agency must be applied to
satisfy child support arrearages.
(f) Option to Contact Requesting Agency for Appropriate
Distribution: Rather than send collections to a State or another Tribal
IV-D agency for distribution as required under Sec. 309.115 (b)(2),
(c)(2) and (d), a Tribal IV-D agency may contact the requesting State
IV-D agency to determine appropriate distribution under section 457 of
the Act, or the other Tribal IV-D agency to determine appropriate
distribution under this section, and distribute collections as directed
by the other agency.
Sec. 309.120 What intergovernmental procedures must a Tribe or Tribal
organization include in a Tribal IV-D plan?
A Tribe or Tribal organization must specify in its Tribal IV-D
plan:
(a) That the Tribal IV-D agency will extend the full range of
services available under its IV-D plan to respond to all requests from,
and cooperate with, State and other Tribal IV-D agencies; and
(b) That the Tribe or Tribal organization will recognize child
support orders issued by other Tribes and Tribal organizations, and by
States, in accordance with the requirements under the Full Faith and
Credit for Child Support Orders Act, 28 U.S.C. 1738B.
Subpart D--Tribal IV-D Program Funding
Sec. 309.125 On what basis is Federal funding of Tribal IV-D programs
determined?
Federal funding of Tribal IV-D programs is based on information
contained in the Tribal IV-D application. The application must include
a proposed budget and a description of the nature and scope of the
Tribal IV-D program and must give assurance that the program will be
administered in conformity with applicable requirements of title IV-D
of the Act, regulations contained in this part, and other official
issuances of the Department that specifically state applicability to
Tribal IV-D programs.
Sec. 309.130 How will Tribal IV-D programs be funded and what forms
are required?
(a) General mechanism. (1) Tribes and Tribal organizations with
approved Tribal plans under title IV-D will receive Federal grant funds
in an amount equal to the percentage specified in paragraph (c) of this
section of the total amount of approved and allowable expenditures
under the plan for the administration of the Tribal child support
enforcement program.
(2) Tribes and Tribal organizations eligible for grants of less
than $1 million per 12-month funding period will receive a single
annual award. Tribes and Tribal organizations eligible for grants of $1
million or more per 12-month funding period will receive four equal
quarterly awards.
(b) Financial Form Submittal Requirements. Tribes and Tribal
organizations receiving Federal funding under this part are required to
submit the following financial forms, and such other forms as the
Secretary may designate, to OCSE:
(1) Standard Form (SF) 424, ``Application for Federal Assistance,''
to be submitted with the initial grant application for funding under
Sec. 309.65(a) and (b) (60 days prior to the start of the funding
period);
(2) SF 424A, ``Budget Information--Non-Construction Programs,'' to
be submitted annually, no later than August 1 (60 days prior to the
start of the funding period) in accordance with Sec. 309.15(a)(2) of
this part. With each submission, the following information must be
included:
(i) A quarter-by-quarter estimate of expenditures for the funding
period; and
(ii) Notification of whether the Tribe or Tribal organization is
requesting funds for indirect costs and an election of a method to
calculate estimated indirect costs; and
(iii) A narrative justification for each cost category on the form;
and for funding under Sec. 309.65(a) either:
(iv) A statement certifying that the Tribe or Tribal organization
has or will have the non-Federal share of program expenditures
available, as required, or
(v) A request for a waiver of the non-Federal share in accordance
with paragraph (e) of this section;
(3) SF 269A, ``Financial Status Report (Short Form),'' to be
submitted quarterly within 30 days after the end of each of the first
three quarters of the funding period and within 30 days after the end
of each of the first three quarters of the liquidation period. The
final report for each period is due within 90 days after the end the
fourth quarter of both the funding and the liquidation period; and
(4) Form OCSE-34A, ``Quarterly Report of Collections'' to be
submitted within 30 days after the end of the first three quarters and
90 days after the end of the fourth quarter.
(c) Federal share of program expenditures. (1) During the period of
start-up funding specified in Sec. 309.16, a Tribe or Tribal
organization will receive Federal grant funds equal to 100 percent of
approved and allowable expenditures made during that period. Federal
start-up funds are limited to a total of $500,000.
(2) During a 3-year period, beginning with the first day of the
first quarter of the funding grant specified under Sec. 309.135(a)(2),
a Tribe or Tribal organization will receive Federal grant funds equal
to 90 percent of the total amount of approved and allowable
expenditures made during that period for the administration of the
Tribal child support enforcement program.
(3) For all periods following the 3-year period specified in
paragraph (c)(2) of this section, a Tribe or Tribal organization will
receive Federal grant funds equal to 80 percent of the total amount of
approved and allowable expenditures made for the administration of the
Tribal child support enforcement program.
(d) Non-Federal share of program expenditures. Each Tribe or Tribal
organization that operates a child support enforcement program under
title IV-D and Sec. 309.65(a), unless the Secretary has granted a
waiver pursuant to Sec. 309.130(e), must provide the non-Federal share
of funding, equal to:
(1) 10 percent of approved and allowable expenditures during the 3-
year period specified in paragraph (c)(2) of this section or;
(2) 20 percent of approved and allowable expenditures during the
subsequent periods specified in paragraph (c)(3) of this section.
(3) The non-Federal share of program expenditures must be provided
either with cash or with in-kind contributions and must meet the
requirements found in 45 CFR 74.23.
(e) Waiver of non-Federal share of program expenditures. (1) Under
certain circumstances, the Secretary may grant a temporary waiver of
part or all of the non-Federal share of expenditures.
[[Page 16680]]
(i) If a Tribe or Tribal organization anticipates that it will be
temporarily unable to contribute part or all of the non-Federal share
of funding under paragraph (d) of this section, it must submit a
written request that this requirement be temporarily waived. A request
for a waiver of part or all of the non-Federal share must be sent to
ACF, included with the submission of SF 424A, no later than 60 days
prior to the start of the funding period for which the waiver is being
requested, except as provided in paragraph (e)(1)(ii) of this section.
An untimely or incomplete request will not be considered.
(ii) If, after the start of the funding period, an emergency
situation such as a hurricane or flood occurs such that the grantee
would need to request a waiver of the non-Federal costs, it may do so.
The request for a waiver must be submitted in accordance with the
procedures specified in paragraphs (e)(2), (3) and (4) of this section.
Any waiver request other than one submitted with the initial
application must be submitted as soon as the adverse effect of the
emergency situation giving rise to the request is known to the grantee.
(2) A request for a waiver of part or all of the non-Federal share
must include the following:
(i) A statement of the amount of the non-Federal share that the
Tribe is requesting be waived;
(ii) A narrative statement describing the circumstances and
justification for the waiver request;
(iii) Portions of the Tribal budget for the funding period
sufficient to demonstrate that any funding shortfall is not limited to
the Tribal IV-D program and that any uncommitted Tribal reserve funds
are insufficient to meet the non-Federal funding requirement;
(iv) Copies of any additional financial documents in support of the
request;
(v) A detailed description of the attempts made to secure the
necessary funds and in-kind contributions from other sources and the
results of those attempts, including copies of all relevant
correspondence; and
(vi) Any other documentation or other information that the
Secretary may require to make this determination.
(3) The Tribe or Tribal organization must demonstrate to the
satisfaction of the Secretary that it temporarily lacks resources to
provide the non-Federal share. In its request for a temporary waiver,
the Tribe or Tribal organization must be able to demonstrate that it:
(i) Lacks sufficient resources to provide the required non-Federal
share of costs;
(ii) Has made reasonable, but unsuccessful, efforts to obtain non-
Federal share contributions; and
(iii) Has provided all required information requested by the
Secretary.
(4) All statements in support of a waiver request must be supported
by evidence including, but not limited to, a description of how the
Tribe or Tribal organization's circumstances relate to its capacity to
provide child support enforcement services. The following statements
will be considered insufficient to merit a waiver under this section
without documentary evidence satisfactory to the Secretary:
(i) Funds have been committed to other budget items;
(ii) A high rate of unemployment;
(iii) A generally poor economic condition;
(iv) A lack of or a decline in revenue from gaming, fishing,
timber, mineral rights and other similar revenue sources;
(v) A small or declining tax base; and
(vi) Little or no economic development.
(5)(i) If approved, a temporary waiver submitted under either
paragraph (e)(1)(i) or (ii) of this section will expire on the last day
of the funding period for which it was approved and is subject to
review at any time during the funding period and may be revoked, if
changing circumstances warrant.
(ii) Unless the Tribe receives a written approval of its waiver
request, the funding requirements stated in paragraph (d) of this
section remain in effect.
(iii) If the request for a waiver is denied, the denial is not
subject to administrative appeal.
(f) Increase in approved budget. (1) A Tribe or Tribal organization
may request an increase in the approved amount of its current budget by
submitting a revised SF 424A to ACF and explaining why it needs the
additional funds. The Tribe or Tribal organization should submit this
request at least 60 days before additional funds are needed, to allow
the Secretary adequate time to review the estimates and issue a revised
grant award, if appropriate.
(2) If the change in Tribal IV-D budget estimate results from a
change in the Tribal IV-D plan, the Tribe or Tribal organization must
submit a plan amendment in accordance with Sec. 309.35(e) of this
part, a revised SF 424 and a revised SF 424A with its request for
additional funding. The effective date of a plan amendment may not be
earlier than the first day of the fiscal quarter in which an approvable
plan is submitted in accordance with Sec. 309.35(f) of this part. The
Secretary must approve the plan amendment before approving any
additional funding.
(3) Any approved increase in the Tribal IV-D budget will
necessarily result in a proportional increase in the non-Federal share,
unless a waiver of the non-Federal share has been granted.
(g) Obtaining Federal funds. Tribes and Tribal organizations will
obtain Federal funds on a draw down basis from the Department's Payment
Management System on a letter of credit system for payment of advances
of Federal funds.
(h) Grant administration requirements. The provisions of part 74 of
this title, establishing uniform administrative requirements and cost
principles, shall apply to all grants made to Tribes and Tribal
organizations under this part.
Sec. 309.135 What requirements apply to funding, obligating and
liquidating Federal title IV-D grant funds?
(a) Funding period. (1) Ongoing funding. Federal title IV-D grant
funds will be awarded to Tribes and Tribal organizations for use during
a 12-month period equivalent to the Federal fiscal year of October 1
through September 30.
(2) Initial grant. A Tribe or Tribal organization may request that
its initial IV-D grant be awarded for a funding period of less than one
year (but at least six months) or more than one year (but not to exceed
17 months) to enable its program funding cycle to coincide with the
funding period specified in paragraph (a)(1) of this section.
(b) Obligation period. A Tribe or Tribal organization must obligate
its Federal title IV-D grant funds no later than the last day of the
funding period for which they were awarded. Any of these funds
remaining unobligated after that date must be returned to the
Department.
(c) Liquidation period. A Tribe or Tribal organization must
liquidate the Federal title IV-D grant funds obligated during the
obligation period specified in paragraph (b) of this section no later
than the last day of the 12-month period immediately following the
obligation period. Any of these funds remaining unliquidated after that
date must be returned to the Department.
(d) Funding reductions. As required under Sec. 309.130(b)(3), a
Tribe or Tribal organization will report quarterly on Form SF 269A the
amount of Federal title IV-D grant funds that have been obligated and
liquidated and the amounts that remain unobligated and unliquidated at
the end of each fiscal quarter during the obligation and liquidation
periods. The Department
[[Page 16681]]
will reduce the amount of the Tribe or Tribal organization's Federal
title IV-D grant funds for the funding period by any amount reported as
remaining unobligated on the report following the last day of the
obligation period. The Department will further reduce the amount of the
Tribe or Tribal organization's Federal title IV-D grant funds for the
funding period by any amount reported as remaining unliquidated on the
report following the last day of the liquidation period.
(e) Extension requests. A Tribe or Tribal organization may submit a
written request for an extension of the deadline for liquidating
Federal title IV-D grant funds. Such a request must be sent to ACF, to
the attention of the Federal grants officer named on the most recent
grant award. The request must be submitted as soon as it is clear that
such an extension will be needed; any request received after the end of
the liquidation period will not be considered. The request must include
a detailed explanation of the extenuating circumstances or other
reasons for the request and must state the date by which the Tribe
anticipates all obligated funds will be liquidated. Unless the Tribe
receives a written approval of its request, the deadline stated in
paragraph (c) of this section remains in effect.
Sec. 309.145 What costs are allowable for Tribal IV-D programs
carried out under Sec. 309.65(a) of this part?
Federal funds are available for costs of operating a Tribal IV-D
program under an approved Tribal IV-D application carried out under
Sec. 309.65(a) of this part, provided that such costs are determined
by the Secretary to be reasonable, necessary, and allocable to the
program. Allowable activities and costs include:
(a) Administration of the Tribal IV-D program, including but not
limited to the following:
(1) Establishment and administration of the Tribal IV-D plan;
(2) Monitoring the progress of program development and operations,
and evaluating the quality, efficiency, effectiveness, and scope of
available support enforcement services;
(3) Establishment of all necessary agreements with other Tribal,
State, and local agencies or private providers for the provision of
child support enforcement services in accordance with Procurement
Standards found in 45 CFR part 74. These agreements may include:
(i) Necessary administrative agreements for support services;
(ii) Use of Tribal, Federal, State, and local information
resources;
(iii) Cooperation with courts and law enforcement officials;
(iv) Securing compliance with the requirements of the Tribal IV-D
program plan in operations under any agreements;
(v) Development and maintenance of systems for fiscal and program
records and reports required to be made to OCSE based on these records;
and
(vi) Development of cost allocation systems.
(b) Establishment of paternity, including:
(1) Establishment of paternity in accordance with Tribal law codes,
and/or custom in accordance with Sec. 309.100 of this part, as
outlined in the approved Tribal IV-D plan;
(2) Reasonable attempts to determine the identity of a child's
father, such as:
(i) Investigation;
(ii) Development of evidence, including the use of genetic testing
performed by accredited laboratories; and
(iii) Pre-trial discovery;
(3) Actions taken by a tribunal to establish paternity pursuant to
procedures established by Tribal law, and/or codes or custom in
accordance with Sec. 309.100 of this part;
(4) Identifying accredited laboratories that perform genetic tests
(as appropriate); and
(5) Referrals of cases to another Tribal IV-D agency or to a State
to establish paternity when appropriate.
(c) Establishment, modification, and enforcement of support
obligations, including:
(1) Investigation, development of evidence and, when appropriate,
court or administrative actions;
(2) Determination of the amount of the support obligation
(including determination of income and allowable non-cash support under
Tribal IV-D guidelines, if appropriate);
(3) Enforcement of a support obligation, including those activities
associated with collections and the enforcement of court orders,
administrative orders, warrants, income withholding, criminal
proceedings, and prosecution of fraud related to child support; and
(4) Investigation and prosecution of fraud related to child and
spousal support cases receiving services under the IV-D plan.
(d) Collection and disbursement of support payments, including:
(1) Establishment and operation of an effective system for making
collections and identifying delinquent cases and collecting from them;
(2) Referral or transfer of cases to another Tribal IV-D agency or
to a State IV-D program when appropriate; and
(3) Services provided for another Tribal IV-D program or for a
State IV-D program.
(e) Establishment and operation of a Tribal Parent Locator Service
(TPLS) or agreements for referral of cases to a State PLS, another
Tribal PLS, or the Federal PLS for location purposes.
(f) Activities related to requests to State IV-D programs for
enforcement services for the Federal Income Tax Refund Offset.
(g) Establishing and maintaining case records.
(h) Automated data processing computer systems for:
(1) Planning efforts in the identification, evaluation, and
selection of a new or replacement automated data processing computer
system solution addressing the program requirements defined in a Tribal
plan;
(2) Operation and maintenance of existing Tribal automated data
processing computer systems;
(3) Procurement, installation, operation and maintenance of
essential office automation capability;
(4) Establishment of intergovernmental agreements with States and
Tribes for use of an existing automated data processing computer system
necessary to support Tribal IV-D program operations; and
(5) Other automation and automated data processing computer system
costs in accordance with instructions and guidance issued by the
Secretary.
(i) Staffing and equipment that are directly related to operating a
Tribal IV-D program.
(j) The portion of salaries and expenses of a Tribe's chief
executive and staff that is directly attributable to managing and
operating a Tribal IV-D program.
(k) The portion of salaries and expenses of tribunals and staff
that is directly related to required Tribal IV-D program activities.
(l) Service of process.
(m) Training on a short-term basis that is directly related to
operating a Tribal IV-D program.
(n) Costs associated with obtaining technical assistance that are
directly related to operating a IV-D program, from non-Federal third-
party sources, including other Tribes, Tribal organizations, State
agencies, and private organizations, and costs associated with
providing such technical assistance to public entities.
(o) Any other costs that are determined to be reasonable,
necessary, and allocable to the Tribal IV-D
[[Page 16682]]
program in accordance with the cost principles in OMB Circular A-87.
The total amount that may be claimed under the Tribal IV-D grant are
allowable direct costs, plus the allocable portion of allowable
indirect costs, minus any applicable credits.
(1) All claimed costs must be adequately documented; and
(2) A cost is allocable if the goods or services involved are
assignable to the grant according to the relative benefit received. Any
cost that is allocable to one Federal award may not be charged to other
Federal awards to overcome funding deficiencies, or for any other
reason.
Sec. 309.150 What start-up costs are allowable for Tribal IV-D
programs carried out under Sec. 309.65(b) of this part?
Federal funds are available for costs of developing a Tribal IV-D
program, provided that such costs are reasonable, necessary, and
allocable to the program. Federal funding for Tribal IV-D program
development under Sec. 309.65(b) may not exceed a total of $500,000,
unless additional funding is provided pursuant to Sec. 309.16(c).
Allowable start-up costs and activities include:
(a) Planning for the initial development and implementation of a
Tribal IV-D program;
(b) Developing Tribal IV-D laws, codes, guidelines, systems, and
procedures;
(c) Recruiting, hiring, and training Tribal IV-D program staff; and
(d) Any other reasonable, necessary, and allocable costs with a
direct correlation to the initial development of a Tribal IV-D program,
consistent with the cost principles in OMB Circular A-87, and approved
by the Secretary.
Sec. 309.155 What uses of Tribal IV-D program funds are not
allowable?
Federal IV-D funds may not be used for:
(a) Activities related to administering other programs, including
those under the Social Security Act;
(b) Construction and major renovations;
(c) Any expenditures that have been reimbursed by fees or costs
collected, including any fee collected from a State;
(d) Expenditures for jailing of parents in Tribal IV-D cases;
(e) The cost of legal counsel for indigent defendants in Tribal IV-
D program actions;
(f) The cost of guardians ad litem in Tribal IV-D cases; and
(g) All other costs that are not reasonable, necessary, and
allocable to Tribal IV-D programs, under the costs principles in OMB
Circular A-87.
Subpart E--Accountability and Monitoring
Sec. 309.160 How will OCSE determine if Tribal IV-D program funds are
appropriately expended?
OCSE will rely on audits required by OMB Circular A-133, ``Audits
of States, Local Governments, and Non-Profit Organizations'' and 45 CFR
part 74. The Department has determined that this program is to be
audited as a major program in accordance with section 215(c) of the
circular. The Department may supplement the required audits through
reviews or audits conducted by its own staff.
Sec. 309.165 What recourse does a Tribe or Tribal organization have
to dispute a determination to disallow Tribal IV-D program
expenditures?
If a Tribe or Tribal organization disputes a decision to disallow
Tribal IV-D program expenditures, the grant appeals procedures outlined
in 45 CFR part 16 are applicable.
Subpart F--Statistical and Narrative Reporting Requirements
Sec. 309.170 What statistical and narrative reporting requirements
apply to Tribal IV-D programs?
(a) Tribes and Tribal organizations operating a Tribal IV-D program
must submit to OCSE the Child Support Enforcement Program: Quarterly
Report of Collections (Form OCSE-34A). The reports for each of the
first three quarters of the funding period are due 30 days after the
end of each quarterly reporting period. The report for the fourth
quarter is due 90 days after the end of the fourth quarter of each
funding period.
(b) Tribes and Tribal organizations must submit the following
information and statistics for Tribal IV-D program activity and
caseload for each annual funding period:
(1) Total number of cases and, of the total number of cases, the
number that are State or Tribal TANF cases and the number that are non-
TANF cases;
(2) Total number of out-of-wedlock births in the previous year and
total number of paternities established or acknowledged;
(3) Total number of cases and the total number of cases with a
support order;
(4) Total amount of current support due and collected;
(5) Total amount of past-due support owed and total collected;
(6) A narrative report on activities, accomplishments, and progress
of the program, including success in reaching the performance targets
established by the Tribe or Tribal organization;
(7) Total costs claimed;
(8) Total amount of fees and costs recovered; and
(9) Total amount of laboratory paternity establishment costs.
(c) A Tribe or Tribal organization must submit Tribal IV-D program
statistical and narrative reports required by paragraph (b) of this
section no later than 90 days after the end of each funding period.
PART 310--COMPREHENSIVE TRIBAL CHILD SUPPORT ENFORCEMENT (CSE)
PROGRAMS
0
6. The authority citation for part 310 continues to read as follows:
Authority: 42 U.S.C. 655(f), 1302.
0
7. Amend Sec. 310.1 by adding a new paragraph (c) to read as follows:
Sec. 310.1 What does this part cover?
* * * * *
(c) The regulations in this part apply only to grants for periods
prior to October 1, 2004.
[FR Doc. 04-6457 Filed 3-29-04; 8:45 am]
BILLING CODE 4184-01-P