[Federal Register Volume 73, Number 113 (Wednesday, June 11, 2008)]
[Proposed Rules]
[Pages 33048-33064]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-13042]
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DEPARTMENT OF HEALTH AND HUMAN SERVICES
Office of Child Support Enforcement
45 CFR Parts 309 and 310
RIN 0970-AC32
Computerized Tribal IV-D Systems and Office Automation
AGENCY: Office of Child Support Enforcement (OCSE), Administration for
Children and Families, Department of Health and Human Services (HHS).
ACTION: Notice of proposed rule making (NPRM).
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SUMMARY: This proposed rule would enable Tribes and Tribal
organizations currently operating a comprehensive Tribal Child Support
Enforcement program under Title IV-D of the Social Security Act (the
Act) to apply for and receive direct Federal funding for the costs of
automated data processing. This proposed rule addresses the Secretary's
commitment to provide instructions and guidance to Tribes and Tribal
organizations on requirements for applying for, and upon approval,
securing Federal Financial Participation (FFP) in the costs of
installing, operating, maintaining, and enhancing automated data
processing systems.
DATES: Consideration will be given to written comments received by
August 11, 2008.
ADDRESSES: Written comments should be submitted to the Office of Child
Support Enforcement, Administration for Children and Families,
Department of Health and Human Services, 370 L'Enfant Promenade, SW.,
4th Floor, Washington, DC 20447, Attention: Director, Division of
Policy, Mail Stop: OCSE/DP.
A copy of this regulation may be downloaded from http://www.regulations.gov. You may also transmit written comments
electronically via the Internet. To transmit comments electronically
access https://www.regulations.acf.hhs.gov and follow the instructions
provided. You may also submit comments by telefaxing to (202) 260-5980.
This is not a toll-free number.
Comments will be available for public inspection Monday through
Friday, 8:30 a.m. to 5 p.m. on the 4th floor of the Department's
offices at the above address.
FOR FURTHER INFORMATION CONTACT: Essey Workie, OCSE Division of Policy,
(202) 401-9386. Deaf and hearing impaired individuals may call the
Federal Dual Party Relay Service at 1-800-877-8339 between 8 a.m. and 7
p.m. Eastern Time.
SUPPLEMENTARY INFORMATION:
Statutory Authority
This notice of proposed rulemaking is published under the authority
granted to the Secretary (the Secretary) of the Department of Health
and Human Services (the Department) by section 1102 of the Social
Security Act (the Act), 42 U.S.C. 1302. Section 1102 of the Act
authorizes the Secretary to publish regulations, not inconsistent with
the Act, which may be necessary for the efficient administration of the
Title IV-D program.
This proposed rule also is published in accordance with section
455(f) of the Act. Section 455(f) of the Act requires the Secretary to
issue regulations governing grants to Tribes and Tribal organizations
operating child support enforcement programs.
Background
Prior to enactment of the Personal Responsibility and Work
Opportunity Reconciliation Act of 1996 (PRWORA; Pub. L. 104-193), Title
IV-D of the Act placed authority to administer the delivery of IV-D
services solely with States. PRWORA authorized the Secretary to provide
direct funding to Tribes and Tribal organizations to operate child
support enforcement programs under Title IV-D and to promulgate
implementing regulations.
On August 21, 2000 the Tribal Child Support Enforcement Program
notice of proposed rulemaking (NPRM) was published in the Federal
Register (65 FR 50800). In 1998, the Federal Office of Child Support
Enforcement (the Office) conducted a series of six Nation-to-Nation
consultations with Indian Tribes, Tribal organizations and other
interested parties with the goal of obtaining Tribal input prior to
publishing the NPRM. The consultations were designed to solicit Tribal
input prior to drafting the Federal regulations. The government-to-
government consultations were very useful in identifying key issues and
evaluating policy options. The issues raised most frequently included
Tribal sovereignty, jurisdiction, full faith and credit, access to
automated Federal locate and enforcement processes and
[[Page 33049]]
automated systems, paternity establishment and funding.
While the Office was familiar with the functionality contained in
State systems and the degree of sophistication of those systems, it had
no similar experience with the need for or availability of automation
at the Tribal level. We received numerous comments on the NRPM
indicating that automation was necessary and that without automation,
it would be impossible for Tribes to accurately and efficiently process
child support collections and that the costs for development of
automated programs should be allowable for Federal Financial
Participation (FFP) for Tribal IV-D programs. While we agree that
automated data processing systems are helpful for recordkeeping,
monitoring and high speed processing in child support enforcement
cases, the final rule allows FFP only for limited automated systems and
Office Automation expenditures. See 45 CFR 309.145(h). We stated in our
response to comments to the final rule (65 FR at 16652) that we had
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. A Federal/
Tribal workgroup was convened and considered such automation issues as
compatibility, scale, functionality and costs, with a goal of
developing a Model Tribal System, designed by the Office to allow
comprehensive Tribal IV-D agencies to effectively and efficiently
automate Tribal child support enforcement operations.
This proposed rule sets forth requirements for comprehensive Tribal
IV-D programs that must be met in order for Tribes and Tribal
organizations to receive direct funding under section 455(f) of the Act
for automated data processing systems.
Scope of Rulemaking
Current regulations at 45 CFR part 309 establish the requirements
that Tribes and Tribal organizations must meet to demonstrate the
capacity to operate a child support enforcement program which meets the
objectives of section 455(f) of the Act, including establishment of
paternity, establishment, modification, and enforcement of support
orders, and location of absent parents.
We propose to amend the Federal child support regulations at 45 CFR
Part 310, Comprehensive Tribal Child Support Enforcement (CSE) Programs
which are obsolete, to address Computerized Tribal IV-D Systems and
Office Automation. As proposed, 45 CFR Part 310 would establish a basic
regulatory structure for installation, operation, maintenance, and
enhancement of Computerized Tribal IV-D Systems and Office Automation.
This NPRM also proposes to revise Sec. 309.145(h) which governs
allowable costs for automated data processing computer systems and
Office Automation associated with the Tribal IV-D program. This NPRM
applies only to Tribes and Tribal organizations that operate
comprehensive CSE programs under Sec. 309.65(a); this NPRM does not
apply to Tribal CSE programs that are currently in the start-up phase
of development.
Discussion of Regulatory Provisions
The following is a discussion of all the regulatory provisions
included in this NPRM. The discussion follows the order of regulatory
text, addressing each subpart and section in turn.
Part 309--Tribal Child Support Enforcement (IV-D) Program
Section 309.145 What costs are allowable for Tribal IV-D programs
carried out under Sec. 309.65(a) of this Part?
Currently, Sec. 309.145(h) addresses authorized, limited costs
related to Tribal IV-D programs' automation. We propose to amend Sec.
309.145(h) to expand allowable activities and costs incurred by
comprehensive Tribal IV-D programs to include the installation,
operation, maintenance and enhancement of Model Tribal Systems and
Office Automation.
Proposed paragraph (h)(1) is almost identical to the language in
current paragraph (h)(1) under which Federal funding at the applicable
matching rate under Sec. 309.130(c) is available for the costs of
planning efforts in the identification, evaluation, and selection of an
automated data processing computer system solution meeting the program
requirements defined in a Tribal IV-D plan and the automated systems
requirements in Part 310. The applicable matching rate as defined in
Sec. 309.130(c) would be ninety percent for comprehensive Tribal IV-D
programs that are operating within the first three-year period of
Federal funding; the applicable matching rate for comprehensive Tribal
IV-D programs operating in all periods following the first three-year
period would be eighty percent.) We have only added a reference to the
proposed Part 310 which addresses automated systems requirements.
Paragraph (h)(2) would allow FFP for costs of installation,
operation, maintenance, and enhancement of a Model Tribal System as
defined in and meeting the requirements of Part 310. The Model Tribal
System was developed by the Office in collaboration with comprehensive
Tribal IV-D programs to encompass those aspects of the Tribal child
support program administration and case processing for which automation
is deemed to be essential. Paragraph (h)(2) would authorize FFP for
costs related to Model Systems installed by Tribal IV-D systems.
Current paragraph (h) does not address funding for costs associated
with the Model Tribal System. We discuss the Model Tribal System
concept and requirements in detail under the explanation of Part 310.
The decision to develop a Model Tribal System was based on the need for
a cost-effective, efficient means of delivering automation to greatest
number of Tribal IV-D programs in the most timely manner possible.
Proposed paragraph (h)(3) is identical to current paragraph (h)(3)
under which FFP is available for the costs associated with procurement,
installation, operation and maintenance of essential Office Automation
capability.
Paragraph (h)(4) is almost identical to the current paragraph
(h)(4) except for the addition of reference to Reasonable Costs at the
end of the paragraph. The term Reasonable Cost is addressed later in
this preamble and would mean a cost that, in nature and amount, does
not exceed that which would be incurred by a prudent person under the
circumstances prevailing at the time the decision was made to incur the
cost. Therefore, under proposed paragraph (h)(4), FFP would be
available for costs associated with the establishment of
Intergovernmental Service Agreements with a State and another
comprehensive Tribal IV-D agency for access to the State or other
Tribe's existing automated data processing computer system to support
Tribal IV-D program operations, and Reasonable Costs associated with
use of such a system. The decision provides Tribal IV-D programs
greater flexibility in their acquisition of automation to support their
administrative and case processing requirements.
We have added a new paragraph (h)(5) that would allow FFP in the
costs of operation and maintenance of an existing Tribal automated data
processing system designed, developed, installed or enhanced entirely
with Tribal funds if the software ownership rights and license
requirements in proposed Sec. 310.25(c) are met. As proposed under
Part 310, comprehensive Tribal IV-D programs
[[Page 33050]]
are free to develop automated systems entirely funded by the Tribe.
Under proposed paragraph (h)(5), we would allow FFP for operation and
maintenance costs of such systems under one condition: The Tribe or
Tribal organization must have the software ownership rights and must
meet license requirements in proposed Sec. 310.25(c). This condition
is necessary because proprietary software, when purchased from vendors,
typically remains the sole possession of the vendor. Any modifications
or upgrades that are necessitated by changes in regulation or statute
would require a financial outlay if the program were only leasing the
software. It is important that a Tribal IV-D program be in a position
to make changes to software without the need for going through a
vendor, and that any such software, funded in whole or part with FFP,
be freely available to the Federal government to use and authorize
others to use for government purposes.
Existing paragraph (h)(5) would be renumbered (h)(6) and FFP would
continue to be authorized for the costs of other automation and
automated data processing computer system costs in accordance with
instructions and guidance issued by the Secretary.
Part 310--Computerized Tribal IV-D Systems and Office Automation
The proposed regulation revises Part 310 to address the specific
requirements for comprehensive Tribal IV-D program automated systems.
The Part begins with a Table of Contents and consists of the following
subparts:
Subpart A--General Provisions
Subpart B--Requirements for Computerized Tribal IV-D
Systems and Office Automation
Subpart C--Funding for Computerized Tribal IV-D Systems
and Office Automation
Subpart D--Accountability and Monitoring of Computerized
Tribal IV-D Systems
Subpart A--General Provisions
Section 310.0 What does this Part cover?
This section summarizes the conditions for Federal funding of and
requirements governing Computerized Tribal IV-D Systems and Office
Automation. These include the automated systems options for
comprehensive Tribal IV-D programs; the functional requirements for the
Model Tribal Systems; the security and privacy requirements for
Computerized Tribal IV-D Systems and Office Automation; the conditions
for funding the installation, operation, maintenance, and enhancement
of Computerized Tribal IV-D Systems and Office Automation; the
conditions that apply to acquisitions of Computerized Tribal IV-D
Systems; and the accountability and monitoring of Computerized Tribal
IV-D Systems.
Section 310.1 What definitions apply to this Part?
Paragraph (a) of this section of the proposed rule includes
definitions of terms used in Part 310. In drafting this section, we
have defined those terms used in the proposed rule that must be
understood consistently by all who use these rules.
The first definition in this proposed rule is Automated Data
Processing Services (ADP Services) which means services for
installation, maintenance, operation, and enhancement of ADP equipment
and software performed by a comprehensive Tribal IV-D agency or for
that agency through a Service Agreement or other contractual
relationship with a State, another Tribe or private sector entity. This
definition is derived from 45 CFR 95.605 where requirements for FFP in
the costs of Automatic Data Processing Equipment and services are
addressed. The definition for the term ADP Services is essential to the
proposed Part 310 because it modifies the definition provided in 45 CFR
95.605 to include comprehensive Tribal IV-D programs as eligible to
perform or receive such ADP services.
Comprehensive Tribal IV-D agency is the second definition in the
proposed rule. Comprehensive Tribal IV-D agency means the
organizational unit in the Tribe or Tribal organization that has the
authority for administering or supervising a comprehensive Tribal IV-D
program under section 455(f) of the Act and implementing regulations in
Part 309. This is an agency meeting all requirements of Sec. 309.65(a)
which is not in the start-up phase under Sec. 309.65(b). This
definition is derived from Sec. 309.05 which provides definitions
relating to the Tribal Child Support Enforcement program, such as the
phrase Tribal IV-D agency. The term Comprehensive was added to the
phrase Tribal IV-D agency to further define those Tribal IV-D agencies
that operate a IV-D program that meets all the requirements in Sec.
309.65(a). The development of automated systems is not an authorized
activity for start-up grantees.
Computerized Tribal IV-D System, the third definition in this
proposed rule, means a comprehensive Tribal IV-D program's system of
data processing that is performed by electronic or electrical machines
so interconnected and interacting as to minimize the need for human
assistance or intervention. A Computerized Tribal IV-D System would be:
(i) The Model Tribal System; or
(ii) Access to and use of a State or another comprehensive Tribal
IV-D agency's existing automated data processing computer system
through an Intergovernmental Service Agreement, as allowable under this
proposed rule.
By definition, the term Computerized Tribal IV-D System would be
limited to the above two system designs and would not include any
alternative system of Automatic Data Processing. We determined that the
term Computerized Tribal IV-D System would include only the Model
Tribal System or access to an existing IV-D automated data processing
computer system based on historical experience with the high cost and
complexity of the development of multiple State systems and the
challenges that emerge from operating systems with divergent designs.
The Model Tribal System, defined and discussed later in this
preamble, was designed to meet the expressed needs of comprehensive
Tribal IV-D agencies in the most effective and cost efficient manner.
In developing the Model Tribal System, the Office consulted with
comprehensive Tribal IV-D agencies and other governmental stakeholders
to determine appropriate minimum systems specifications that would
facilitate high-speed automated data processing capabilities in
comprehensive Tribal IV-D operations. The Model Tribal System is the
basis for a computerized Tribal automated data processing system, but
comprehensive Tribal IV-D agencies may enhance the Model Tribal System
to meet program-specific needs. Enhancement of the Model Tribal System
is discussed later in this preamble.
Since some comprehensive Tribal IV-D programs have been
successfully using State systems, the definition of Computerized Tribal
IV-D Systems would include access to an automated data processing
computer system through an Intergovernmental Service Agreement with a
State or another comprehensive Tribal IV-D agency. Comprehensive Tribal
IV-D agencies that have been successfully using a State system may
continue to do so under an Intergovernmental Service Agreement. Tribal
IV-D agencies that have never used another State or comprehensive
Tribal IV-D agency's system may enter into an Intergovernmental Service
Agreement authorizing access to that State or comprehensive Tribal IV-D
[[Page 33051]]
agency's automated data processing system.
The fourth definition in this proposed rule is Installation, which
means the act of putting into service ADP equipment and software,
performing data conversion, conducting training, and turnover to
operation status. This definition is derived from 45 CFR 95.605, which
addresses the requirements for FFP in the costs of Automatic Data
Processing Equipment and services, and has been revised to be
applicable to this proposed rule. This definition of Installation is
relevant because of the need to further clarify those activities, as
described herein, that encompass installation for purposes of this
regulation.
The fifth definition is this proposed rule is Maintenance, which
means the totality of activities required to provide cost-effective
support to an operational ADP system. Maintenance is generally routine
in nature and can include activities such as: Upgrading ADP hardware,
revising/creating new reports, making limited data element/database
changes, minor data presentation changes, and other software
corrections. Because maintenance is an allowable cost, the definition
is necessary. This definition is derived from and is consistent with
policy guidance provided by the Office to States in Action Transmittal
06-03, which is dated August 11, 2006, and entitled Policy
Clarifications Relating to Planning, Design, Development, Installation,
and Operation of Automated Systems in the Title IV-D Child Support
Enforcement Program (available at http://www.acf.hhs.gov/programs/cse/pol/AT/2006/at-06-03.htm).
Model Tribal System, the sixth definition in this proposed rule,
means an ADP system designed and developed by the Office for
comprehensive Tribal IV-D programs, to include system specifications
and requirements as specified in Part 310. The Model Tribal System
effectively and efficiently allows a comprehensive Tribal IV-D agency
to monitor, account for, and control all child support enforcement
services and activities pursuant to Part 309. This definition is
derived from stakeholder input solicited by the Office on the matter of
systems configuration for comprehensive Tribal IV-D programs.
Office Automation, which is the seventh definition in this proposed
rule, means a generic adjunct component of a computer system that
supports the routine administrative functions in an organization (e.g.,
electronic mail, word processing, Internet access), as well as similar
functions performed as part of an automated data processing system.
Office Automation is not specifically designed to meet the programmatic
and business needs of an organization. The term Office Automation is an
industry-standard nomenclature, and though Office Automation is similar
to an automated data processing system, in that it contains multiple
components (e.g., operating system software, hardware, and networking),
it is not an ADP system. This definition of Office Automation is taken
from OCSE Action Transmittal 05-02, Systems and Financial Policy
Questions and Responses to Miscellaneous Issues regarding Provision of
45 CFR Part 309, the Tribal Child Support Enforcement Program Final
Rule (available at http://www.acf.hhs.gov/programs/cse/pol/AT/2005/at-05-02.htm).
Reasonable Cost, the eighth definition in this proposed rule, means
a cost that, in nature and amount, does not exceed that which would be
incurred by a prudent person under the circumstances prevailing at the
time the decision was made to incur the cost. In determining
reasonableness with regard to ADP systems cost, consideration would be
given to:
(i) Whether the cost is of a type generally recognized as ordinary
and necessary for the operation of a comprehensive Tribal IV-D agency;
(ii) The restraints or requirements imposed by such factors as:
sound business practices; arms-length bargaining; Federal and Tribal
laws and regulations; and terms and conditions of any direct federal
funding;
(iii) Whether the individual concerned acted with prudence in the
circumstances considering his or her responsibilities to the
comprehensive Tribal IV-D agency, its employees, the public at large,
and the Federal Government;
(iv) Market prices for comparable goods or services;
(v) Significant deviations from the established practices of the
comprehensive Tribal IV-D agency which may unjustifiably increase the
cost; and
(vi) Whether a project's Total Acquisition Cost as defined in Sec.
95.605 is in excess of the comprehensive Tribal IV-D agency's total
Tribal IV-D program grant award for the year in which the request is
made.
The Office has a fiduciary responsibility to ensure that the costs
associated with Computerized Tribal IV-D Systems are reasonable and
necessary. This definition of Reasonable Cost is derived from OMB
Circular A-87 and the Office's historical analysis and experience with
automation efforts in State IV-D programs. That analysis and experience
recognizes that installation of either of the two options eligible for
FFP that are available to Tribes under these regulations, namely the
use of the Model Tribal System or the use of another State or Tribal
IV-D agency's existing automated data processing computer system
through an Intergovernmental Service Agreement, should not reasonably
exceed a comprehensive Tribal IV-D agency's total Tribal IV-D program
grant award for the year in which the request is made.
The ninth definition of this proposed rule is Service Agreement,
which means a document signed by the Tribe or Tribal organization
operating a comprehensive Tribal IV-D program under Sec. 309.65(a) and
the State or other comprehensive Tribal IV-D program whenever the
latter provides data processing services to the former and identifies
those ADP services that the State or other comprehensive Tribal IV-D
program will provide to the Tribe or Tribal organization. Additionally,
a Service Agreement as defined in this proposed rule would include the
following details:
Schedule of charges for each identified ADP service and a
certification that these charges apply equally to all users;
Description of the method(s) of accounting for the
services rendered under the agreement and computing services charges;
Assurances that services provided will be timely and
satisfactory;
Assurances that information in the computer system as well
as access, use and disposal of ADP data will be safeguarded in
accordance with proposed Sec. 310.15;
Beginning and ending dates of the period of time covered
by the Service Agreement; and
Schedule of expected total charges for the period of the
Service Agreement.
This definition is taken from 45 CFR 95.605 and is revised to
specifically apply to the needs of comprehensive Tribal IV-D programs.
The definition of a Service Agreement is a critical component of this
proposed rule, as it represents one of the two options for a
Computerized Tribal IV-D System.
The tenth definition of this proposed rule is Simplified
Acquisition Threshold, which for ADP systems, equipment, and service
acquisitions means a Tribe or Tribal organization's monetary threshold
for determining whether competitive acquisition rules are required for
a given procurement or $100,000, whichever is less. The term Simplified
Acquisition Threshold is
[[Page 33052]]
used in 45 CFR 92.36(d), which references small purchase procedures as
a procurement method for securing items of cost not exceeding the
Simplified Acquisition Threshold fixed at 41 U.S.C. 403(11) (currently
$100,000). This is appropriately adapted for this rule because of the
need to ensure full and open competition in acquisitions in accordance
with 45 CFR 92.36(c), and to ensure consistency with regulations at 45
CFR 95.611(b) governing State ADP acquisitions funded at enhanced FFP
rates of reimbursement.
Under proposed paragraph (b) of Sec. 310.1, the following terms
apply to Part 310 and are defined in 45 CFR 95.605: Acquisition;
Advanced Planning Document (APD); Automatic Data Processing (ADP);
Design or System Design; Development; Enhancement; Federal Financial
Participation (FFP); Operation; Project; Software; and Total
Acquisition Cost. Not all sections of Part 95 are applicable to Tribal
IV-D programs. These terms are the terms in Part 95 that are
appropriately applicable to Tribal IV-D programs. The above terms are
relevant to the content of this proposed rule because in applying these
definitions from 45 CFR 95.605, a reasonably consistent approach will
be maintained among State, Local and Tribal grantees with regard to ADP
systems acquisitions, while still maintaining flexibility for Tribes
and Tribal organizations to determine their own best solution to
automating their comprehensive Tribal IV-D program. We intend to issue
a technical assistance document that contains all relevant systems
requirements and definitions to ensure Tribal programs have in one
document all relevant definitions.
Paragraph (c) of Sec. 310.1 of the proposed rule cross-references
all definitions of terms that apply to Tribal IV-D programs as detailed
in Sec. 309.05 because these terms are also applicable in Part 310.
These definitions would also be included in our technical assistance
document as mentioned above.
Subpart B--Requirements for Computerized Tribal IV-D Systems and Office
Automation
Section 310.5 What options are available for Computerized Tribal IV-D
Systems and Office Automation?
This section of the proposed rule sets forth options available to
comprehensive Tribal IV-D agencies for the purpose of automating Tribal
IV-D activities. We recognize the importance and benefits of
integrating automation in the daily operations of comprehensive Tribal
IV-D programs. To that end, proposed paragraph (a) of this section
allows a comprehensive Tribal IV-D agency to have in effect an
operational computerized support enforcement system that meets Federal
requirements under Part 310.
Paragraph (b) of this section proposes that a Computerized Tribal
IV-D System must be one of the design options discussed below. Under
paragraph (b)(1), a comprehensive Tribal IV-D program may automate its
case processing and record-keeping processes through installation,
operation, maintenance, or enhancement of the Model Tribal System
designed by the Office to address the program requirements defined in a
Tribal IV-D plan in accordance with Sec. 309.65(a) and the functional
requirements in proposed Sec. 310.10. As discussed earlier in the
preamble, we propose automation of comprehensive Tribal IV-D activities
through the Model Tribal System based on recommendations of a workgroup
consisting of Federal and Tribal program representatives that
considered factors such as scale, functionality, cost, and
compatibility with State systems, in the development of the Model
Tribal System. Participants in the various meetings included
representatives from each of the nine comprehensive Tribal IV-D
agencies. The system specifications and minimum essential functions of
the Model Tribal System correspond with the feedback we received from
comprehensive Tribal IV-D programs and other governmental stakeholders.
Under paragraph (b)(2), we propose that a comprehensive Tribal IV-D
program may elect to automate its case processing and record-keeping
processes through the establishment of Intergovernmental Service
Agreements with a State or another comprehensive Tribal IV-D agency for
access to that agency's existing automated data processing computer
system to support comprehensive Tribal IV-D program operations.
A Computerized Tribal IV-D System implemented under a Service
Agreement as defined in proposed Sec. 310.1 would be in line with the
existing allowable activities permitted in Sec. 309.145(h)(4). We
recognize that some comprehensive Tribal IV-D programs have been
successfully using State systems prior to this proposed rule and we
consider it important to allow continuation of those efforts, as well
as establishment of similar Intergovernmental Service Agreements by
comprehensive Tribal IV-D programs that do not currently access another
State or comprehensive Tribal IV-D agency's existing automated data
processing computer system. In addition, this option of automating
comprehensive Tribal IV-D activities through the establishment of
Intergovernmental agreements provides for the flexibility recommended
by workgroup participants.
In proposed paragraph (c) of this section, a comprehensive Tribal
IV-D agency may opt to conduct automated data processing and
recordkeeping activities through Office Automation. Allowable
activities under this section include procurement, installation,
operation and maintenance of essential Office Automation capability as
defined in Sec. 310.1. We deem it important to offer Office Automation
as an alternative or in addition to Computerized Tribal IV-D Systems,
as defined in paragraph (b) above, to ensure that comprehensive Tribal
IV-D programs have the flexibility to operate at the level of
automation that best suits their particular needs. Office Automation
may include the word processing capabilities needed to produce
summonses and petitions. Office Automation may also describe the
creation of certain reports or accounting spreadsheets that serve to
streamline an otherwise wholly manual business function through the use
of macros to merge data and text into a usable management productivity
tool. Office Automation components may include some or all of the
following elements: Personal computers and workstations; networking and
application servers; telecommunications and network wiring to connect
the computers in a unified network environment; Network Operating
System (NOS) and workstation and personal computer operating system
software, such as Microsoft Windows XP(copyright) or Red Hat
Linux(copyright); office productivity software, such as
Microsoft Office(copyright), Microsoft
Project(copyright) or WordPerfect(copyright); and
electronic mail and Internet access services, such as T-1, DSL, or 56K
dial-up (e.g., AOL(copyright) and
EarthLink(copyright)).
In full recognition of Tribal sovereignty, proposed paragraph (d)
of Sec. 310.5 affirms that a comprehensive Tribal IV-D agency may
design, develop, procure, or enhance an automated data processing
system funded entirely with Tribal funds. An automated data processing
system funded entirely with Tribal funds would not be obligated to meet
the requirements detailed in this proposed rule, although a
comprehensive Tribal IV-D agency may determine to adopt all or some of
the system specifications
[[Page 33053]]
laid-out in this proposed rule in order to facilitate as much
consistency in State and comprehensive Tribal IV-D automated data
processing systems as possible.
Section 310.10 What are the functional requirements for the Model
Tribal IV-D system?
In this proposed section, we identify the minimum functional
requirements which a comprehensive Tribal IV-D agency must meet in the
operation of a Model Tribal IV-D System. Comprehensive Tribal IV-D
agencies that have elected to automate case processing and record-
keeping activities through a manner other than the Model Tribal System,
as defined in Sec. 310.1 of this Part, would not be subject to the
requirements presented in this section of the proposed rule.
The system requirements discussed in this proposed section are
based on the functional requirements for computerized support
enforcement systems regulated in Sec. Sec. 307.10 and 307.11 for State
IV-D programs. Determination of which proposed functional requirements
should be mandatory in a Model Tribal IV-D system is based on careful
examination of State automated systems, Tribal IV-D program
regulations, and cost-effectiveness analyses, as well as strong
consideration of which comprehensive Tribal IV-D activities would
benefit most from automation, given the varying sizes of eligible
Tribes and Tribal organizations. Additionally, the proposed functional
requirements specified in this section reflect deference for Tribal
Sovereignty.
Paragraph (a) of Sec. 310.10 proposes that a Model Tribal IV-D
system must accept, maintain and process the actions in the child
support collection and paternity determination processes under the
Tribal IV-D plan, including the following:
(1) Identifying information such as Social Security
numbers, names, dates of birth, home addresses and mailing addresses
(including postal zip codes) on individuals against whom paternity and
support obligations are sought to be established or enforced and on
individuals to whom support obligations are owed, and other data as
required by the Office;
(2) Verifying information on individuals referred to in
Sec. 310.10(a)(1) with Tribal, Federal, State and local agencies, both
intra-tribal and intergovernmental;
(3) Maintaining information pertaining to applications and
referrals for Tribal IV-D services (including case records, referrals
to the appropriate processing unit such as locate or paternity
establishment units, caseworker notifications, Case Identification
Numbers; and Participant Identification Numbers), delinquency and
enforcement activities, intra-tribal, intergovernmental, and Federal
location of the putative father and noncustodial parents, the
establishment of paternity, the establishment of support obligations,
and the payment and status of current support obligations and arrearage
accounts; and
(4) Maintaining data on case actions administered by both
the initiating and responding jurisdictions in intergovernmental cases.
The actions described above are essential elements of automated
case processing which are necessary to meet the fundamental objectives
of the Tribal Child Support Enforcement program, including establishing
paternity, establishing and enforcing support orders, and collecting
child support payments.
Under paragraph (b), we propose that a Model Tribal IV-D system
must update, maintain and manage all IV-D cases under the Tribal IV-D
plan from initial application or referral through collection and
enforcement including any events, transactions, or actions taken
therein. This requirement is especially critical in relation to
proposed Subpart D, Sec. 310.40 which addresses accountability and
monitoring procedures for Computerized Tribal IV-D Systems.
We propose under paragraph (c) of this section to require a Model
Tribal IV-D system to record and report any fees collected, either
directly or by interfacing with State or Tribal financial management
and expenditure information. The Model Tribal IV-D system, as proposed
in this section, must have the capacity to record and report costs of
any fees collected to help ensure accurate and complete accounting of
expenditures under a Tribal IV-D program that are funded in part with
Federal funds.
Proposed paragraph (d) of this section requires that a Model Tribal
IV-D system must have minimum system specifications which allow for the
distribution of current support and arrearage collections in accordance
with Federal regulations at Sec. 309.115 and Tribal laws. We consider
distribution of collected child support payments to be one of the
comprehensive Tribal IV-D activities that would benefit most from
automation. Automated distribution of collections would ensure families
receive the support owed to them and minimize the need for manual
processing of child support payments, which can be a time-consuming and
burdensome task for comprehensive Tribal IV-D programs. Additionally,
automated distribution of collections would facilitate more efficient
and cost-effective communications in intra-tribal and intergovernmental
case processing.
In paragraph (e)(1) we propose that the Model Tribal IV-D system
must maintain, process and monitor accounts receivable on all amounts
owed, collected, and distributed with regard to detailed payment
histories that include the amount of each payment, date of each
collection, method of payment, distribution of payments and date of
each disbursement. Under proposed paragraph (e)(2), the Model Tribal
IV-D system must have the capacity to perform automated income
withholding activities such as recording and maintaining any date the
noncustodial parent defaults on payment of the support obligation in an
amount equal to the support payable for one month, generating the
Standard Federal Income Withholding Form and allocating amounts
received by income withholding according to Sec. Sec. 309.110 and
309.115, which respectively cover procedures governing income
withholding and distribution of child support collections as specified
in each Tribal IV-D plan. These proposed functional requirements would
provide comprehensive Tribal IV-D agencies with an accurate and
complete record of all accounts receivable and income withholding
activities concerning amounts owed, collected, and distributed in
connection with child support payments.
Proposed paragraph (f) of Sec. 310.10 requires that a Model Tribal
IV-D system maintain and automatically generate data necessary to meet
Federal reporting requirements on a timely basis as prescribed by the
Office. At a minimum this would include (1) yearly notices on support
collected, which are itemized by month of collection and provided to
families receiving services under the comprehensive Tribal IV-D program
as required in Sec. 309.75(c), to all case participants regarding
support collections; and (2) reports submitted to the Office for
program monitoring and program performance as required in Sec.
309.170. Without the proposed Model Tribal IV-D system, comprehensive
Tribal IV-D agencies would rely on manual systems or Office Automation
to manage the Federal reporting requirements and payment records which
require meticulous attention to detail. Reliance on manual accounting
systems risks human error that can harm families and jeopardize Federal
funding. This proposed functional requirement is
[[Page 33054]]
in response to comments reported in the Final Rule of the Tribal Child
Support Enforcement Program published on March 30, 2004 (69 FR 16638),
which indicated that Tribes and Tribal organizations would benefit from
a sophisticated computer system to track individual accounts and
provide required notices of child support collections to families
served by the IV-D program.
Under paragraph (g) of this section, we propose that a Model Tribal
IV-D system be required to provide automated processes to enable the
Office to monitor Tribal IV-D program operations and to assess program
performance through the audit of financial and statistical data
maintained by the system. This requirement is especially critical in
relation to proposed Subpart D, Sec. 310.40 which addresses
accountability and monitoring procedures for Computerized Tribal IV-D
Systems.
In proposed paragraph (h) of this section, the Model Tribal IV-D
system must provide security to prevent unauthorized access to, or use
of, the data in the system as detailed in proposed Sec. 310.15
discussed below. This requirement is necessary because comprehensive
Tribal IV-D agencies may receive sensitive, personal information from
Federal, State, or Tribal locate sources in inter-governmental cases or
from parents seeking the Tribal IV-D program's assistance in securing
support for children. In the current age of identity theft, electronic
record keeping and concerns for personal privacy, Federal, State and
Tribal programs are entrusted with personal information critical to
accomplish the goals of those programs. It is imperative that
governments safeguard personal data to ensure privacy and maintain the
public trust. For the aforementioned reasons, the Model Tribal System
must meet security and privacy requirements set forth in Sec. 310.15.
We also would emphasize that no Federal Tribal IV-D program requirement
obligates comprehensive Tribal IV-D agencies to disclose, or otherwise
make accessible, their Tribal enrollment records for the purposes of
providing child support enforcement services or automating child
support enforcement activities.
Section 310.15 What are the safeguards and processes that comprehensive
Tribal IV-D agencies must have in place to ensure the security and
privacy of Computerized Tribal IV-D Systems and Office Automation?
This proposed section details the safeguarding requirements that a
comprehensive Tribal IV-D agency, which is using a Computerized Tribal
IV-D System or Office Automation, must have in place to ensure the
security and confidentiality of information accessible through Federal,
State, and Tribal sources. This section is taken from Sec. 307.13
which addresses security and confidentiality for State computerized
support enforcement systems and is revised to apply to automation for
comprehensive Tribal IV-D programs.
Under paragraph (a) of this section, the comprehensive Tribal IV-D
agency must safeguard the integrity, accuracy, completeness, access to,
and use of data in the Computerized Tribal IV-D System and Office
Automation. The Tribal IV-D agency should ensure that the Computerized
Tribal IV-D Systems and Office Automation comply with the requirements
of the Federal Information Security Management Act and the Privacy Act.
These safeguards must include written policies and procedures
concerning (1) periodic evaluations of the system for risk of security
and privacy breaches; (2) procedures to allow Tribal IV-D personnel
controlled access and use of IV-D data (including (i) specifying the
data which may be used for particular IV-D program purposes and the
personnel permitted access to such data as well as (ii) permitting
access to and use of data for the purpose of exchanging information
with State and Tribal agencies administering programs under titles IV-
A, IV-E and XIX of the Act to the extent necessary to carry out the
comprehensive Tribal IV-D agency's responsibilities with respect to
such programs); (3) maintenance and control of application software
program data; (4) mechanisms to back-up and otherwise protect hardware,
software, documents, and other communications; and (5) mechanisms to
report (to the Department of Homeland Security) and respond to breaches
of personally identifiable information. We recognize the child support
enforcement community has a duty to protect the information accessible
through IV-D resources. Consequently, we deem the above safeguards to
be invaluable strategies in ensuring the security of Computerized
Tribal IV-D Systems, Office Automation, the IV-D program as a whole and
the personal data concerning the individuals we serve.
Paragraph (b) of this proposed section requires that the
comprehensive Tribal IV-D agency monitor routine access to and use of
the Computerized Tribal IV-D System and Office Automation through
methods such as audit trails and feedback mechanisms to guard against,
and promptly identify unauthorized access or use. This proposed
safeguard is consistent with the security and privacy measures required
in the State computerized support enforcement systems found in Sec.
307.13 and is an appropriate aspect of information security.
We propose in paragraph (c) of this section that the comprehensive
Tribal IV-D agency have procedures to ensure that all personnel,
including Tribal IV-D staff and contractors, who may have access to or
be required to use confidential program data in the Computerized Tribal
IV-D System and Office Automation are adequately trained in security
procedures. This proposed safeguard is consistent with the security and
privacy measures required in the State computerized support enforcement
systems in Sec. 307.13 and is equally critical to Tribal automated
systems. Staff members and contractors of comprehensive Tribal IV-D
agencies using the Computerized Tribal IV-D System or Office Automation
should demonstrate knowledge of strategies that would ensure the
security and privacy of sensitive information to meet their
responsibility to provide services and store information in the
automated systems or Office Automation.
In paragraph (d) of this section, we propose that the comprehensive
Tribal IV-D agency have administrative penalties, including dismissal
from employment, for unauthorized access to, disclosure or use of
confidential information. This aspect of the security and privacy
safeguarding requirements reflects our position that security and
privacy of child support enforcement-related information is paramount
to the integrity of the system and as such must include administrative
sanctions.
Subpart C--Funding for Computerized Tribal IV-D Systems and Office
Automation
Section 310.20 What are the conditions for funding the installation,
operation, maintenance and enhancement of Computerized Tribal IV-D
Systems and Office Automation?
This section of the proposed rule would establish conditions that
must be
[[Page 33055]]
met in order for a comprehensive Tribal IV-D agency to obtain Federal
funding in the costs of installation, operation, maintenance and
enhancement of Computerized Tribal IV-D Systems and Office Automation.
This section is derived from Sec. Sec. 307.15 and 307.20, governing
State automated systems, and is appropriately revised to specifically
apply to the needs of comprehensive Tribal IV-D programs. Sections
307.15 and 307.20, respectively, address conditions for approval of
Advance Planning Documents (APD) and submittal of APDs for State
computerized support enforcement systems. Proposed Sec. 310.20
addresses procedures for submittal of an APD to the Department. The
Office uses the APD process to help meet its fiduciary responsibility
to ensure that the costs associated with all ADP systems acquisitions,
including Computerized Tribal IV-D Systems, are reasonable and
necessary. Just as the Office requires States to request funding in an
APD for acquisition of a computerized child support enforcement system,
documenting such factors as project cost, risk, resources, and
schedule, those same factors equally apply to the Office's review and
approval of the installation, operation, maintenance and enhancement of
Computerized Tribal IV-D Systems. For this reason, the APD process is
incorporated to this proposed rule as applicable and necessary to
acquisitions of such systems in comprehensive Tribal IV-D programs.
The proposed content of paragraph (a) provides instructions for
preparing an APD, streamlines the APD application process, and
distinguishes between activities that require an APD submission and
those that only require submission of annual budgets in accordance with
Sec. 309.15(c). Proposed paragraph (a) lays out conditions that must
be met for FFP in the costs of installation, operation, maintenance,
and enhancement of a Computerized Tribal IV-D System at the applicable
matching rate under Sec. 309.130(c). (The applicable matching rate as
defined in Sec. 309.130(c) refers to the total amount of approved and
allowable expenditures for which a comprehensive Tribal IV-D program
would be eligible to receive Federal grant funds in the costs of
administering the Tribal IV-D program, including Computerized Tribal
IV-D Systems and Office Automation. The applicable matching rate would
be ninety percent for comprehensive Tribal IV-D programs that are
operating within the first three-year period of Federal funding; the
applicable matching rate for comprehensive Tribal IV-D programs
operating in all periods following the first three-year period would be
eighty percent.)
Paragraph (a)(1) would state that a comprehensive Tribal IV-D
agency must have submitted, and the Office must have approved, an APD
for the installation and enhancement of a Computerized Tribal IV-D
System. Under paragraph (a)(2), an APD for installation of a
Computerized Tribal IV-D System must (i) represent the sole systems
effort being undertaken by the comprehensive Tribal IV-D agency under
part 310; (ii) describe the projected resource requirements for staff,
hardware, software, network connections and other needs and the
resources available or expected to be available to meet the
requirements; (iii) contain a proposed schedule of project milestones
with detail sufficient to describe the tasks, activities, and
complexity of the initial implementation project; (iv) contain a
proposed budget including a description of expenditures by category and
amount for items related to installing, operating, maintaining, and
enhancing the Computerized Tribal IV-D System that are eligible for
Federal funding at the applicable matching rate under Sec. 309.130(c);
and (v) contain a statement that the comprehensive Tribal IV-D agency
agrees in writing to use the Computerized Tribal IV-D System for a
minimum period of time. This last requirement, to agree in writing to
use the Computerized Tribal IV-D System for a minimum period of time,
is derived from 45 CFR 95.619. Under Sec. 95.619, ADP systems
designed, developed, or installed with FFP shall be used for a period
of time specified in the advance planning document, unless the
Department determines that a shorter period is justified. The
requirement for the APD to contain an agreement by a Tribal IV-D
program to use the Computerized Tribal IV-D System for a minimum period
of time assures both the Federal and Tribal governments of a reasonable
return on investment relative to the Total Acquisition Cost of the
Computerized Tribal IV-D System.
In addition to the above requirements, proposed paragraph (a)(3)
includes the following conditions which must be met to obtain FFP in
the installation costs of access to a State or another comprehensive
Tribal IV-D program's ADP system established under an Intergovernmental
Service Agreement: The comprehensive Tribal IV-D agency must (i)
maintain a copy of each intergovernmental cooperative agreement and
Service Agreement in its files for Federal review. Under subparagraph
(ii), the comprehensive Tribal IV-D agency must ensure that (A) the
Service Agreement for which FFP is being sought meets the definition of
a Service Agreement as defined in proposed Sec. 310.1; (B) claims for
FFP conform to the timely claim provisions of 45 CFR Part 95, Subpart
A; and (C) the Service Agreement was not previously disapproved by the
Department. In deriving from 45 CFR Part 95 Subpart A the requirements
to be met to obtain FFP in the cost of access to another State or
Tribal IV-D program's ADP system, we are ensuring a common
understanding and consistency of approach to securing, documenting and
maintaining FFP approval of such intergovernmental cooperative
agreements. In addition to the requirements proposed above, under
paragraph (a)(4), the following conditions must be met in order for a
comprehensive Tribal IV-D agency to obtain FFP in the costs of
enhancements to its Computerized Tribal IV-D System: (i) The project's
Total Acquisition Cost cannot exceed the comprehensive Tribal IV-D
agency's total Tribal IV-D program grant award for the year in which
the acquisition request is made; and (ii) the APD budget, schedule and
commitment to use the Computerized Tribal IV-D System for a specified
minimum period of time must be updated to reflect the enhancement
project. These additional APD requirements to obtain FFP in the cost of
enhancements to an existing Computerized Tribal IV-D System reflect the
need to ensure both continued cost reasonableness and ongoing return on
investment given a Computerized Tribal IV-D System's increased Total
Acquisition Cost.
Paragraph (a)(5) of Sec. 310.20 proposes that to receive FFP in
the costs of the operation and maintenance of a Computerized Tribal IV-
D System installed under proposed Sec. 310.20 or developed under
proposed Sec. 309.145(h)(5), which refers to a Tribal automated data
processing system that is funded entirely with Tribal funds, the
comprehensive Tribal IV-D agency must include operation and maintenance
costs in its annual Title IV-D program budget submission in accordance
with Sec. 309.15(c) wherein requirements for annual budget submissions
are detailed.
In addition, paragraph (a)(6) would require that in order to
receive FFP in the costs of the installation, operation, and
maintenance of essential Office Automation capabilities, the
comprehensive Tribal IV-D agency must include such costs in its annual
Title IV-D program budget submission in accordance with Sec.
309.15(c). Currently, States maintaining their computerized
[[Page 33056]]
IV-D systems in an operations and maintenance-only mode may close their
APD and thereafter request FFP for their operation and maintenance
costs through specific line-item submissions in their ``Quarterly
Report of Expenditures and Estimates,'' (OCSE Form 396A). Given the
efficacy of this existing procedure used with States, and the
predictability and general reasonableness of such costs, a similar
process for Tribes to request FFP for operation and maintenance cost
reimbursement is appropriate. Therefore, this rule will allow Tribes to
request FFP in the costs of installation, operation, and maintenance of
essential Office Automation capabilities, an inherently operational
activity, through a comprehensive Tribal IV-D agency's Title IV-D
program budget submission, ``Financial Status Report,'' (OCSE Form
296A) in accordance with requirements listed at Sec. 309.15(c).
The gradated variation in conditions that must be met in order to
obtain FFP in the costs of the activities under this proposed paragraph
(a) are designed to reflect the varying automation levels of
comprehensive Tribal IV-D agencies. For example, the conditions that a
comprehensive Tribal IV-D agency would be required to meet in order to
obtain FFP in the costs of installing Office Automation would be less
involved than the conditions required for a comprehensive Tribal IV-D
agency that is requesting FFP in the installation costs of accessing a
State or another comprehensive Tribal IV-D program's APD system.
Proposed Sec. 310.20 provides comprehensive Tribal IV-D agencies with
the flexibility to determine which automation approaches and
application procedures best suit the program-specific needs of that
Tribe or Tribal organization. The provisions in proposed paragraph (a)
are consistent with Tribal IV-D program staff input to reduce the
burden of the APD application process.
Provisions under Sec. 310.20(b) would describe the required
procedures for submittal of an APD. Proposed paragraph (b) states that
the comprehensive Tribal IV-D agency must submit an APD for a
Computerized Tribal IV-D System to the Commissioner of the Office,
Attention: Division of State and Tribal Systems. The APD submitted by
the comprehensive Tribal IV-D agency must be approved and signed by the
comprehensive Tribal IV-D agency Director and the authorized
representative of the Tribe or Tribal organization prior to submission
to the Office for approval. The above procedures for submitting an APD
would ensure that the proper authorities representing the Tribe or
Tribal organization agree with the details in the APD application
documents and that the Program Director and appropriate Tribal
officials are aware of responsibilities in acquiring automation for the
Tribal IV-D program.
Section 310.25 What conditions apply to acquisitions of Computerized
Tribal IV-D Systems?
This proposed section details specific conditions that must be met
in the acquisition process of Computerized Tribal IV-D Systems.
Comprehensive Tribal IV-D agencies that have elected to automate
program activities through Office Automation or another alternative to
Computerized Tribal IV-D Systems as discussed in proposed Sec. 310.5,
would not be subject to the requirements presented in proposed Sec.
310.25. This section is derived from and comparable to Sec. 307.31 and
45 CFR 95.617 which are respectively entitled FFP at the 80 Percent
Rate for Computerized [State] Support Enforcement Systems and Software
and Ownership Rights.
In proposed paragraph (a) of this section entitled APD Approval, a
comprehensive Tribal IV-D agency must have an approved APD in
accordance with the applicable requirements of proposed Sec. 310.20.
This paragraph (a) would establish protocol for when a comprehensive
Tribal IV-D agency may engage in acquisition procedures in the purchase
of a Computerized Tribal IV-D System. The requirement that a
comprehensive Tribal IV-D agency must have an approved APD prior to
initiating acquisition of a Computerized Tribal IV-D System safeguards
all parties involved by ensuring that authorities from the Tribe or
Tribal organization and the Department are in agreement about the use,
funding, and parameters of each comprehensive Tribal IV-D agency's
specific plan for automating case-processing and record-keeping program
activities.
Under proposed paragraph (b), which is entitled Procurements,
Requests for Proposals (RFP) and similar procurement documents,
contracts, and contract amendments involving costs eligible for FFP,
must be submitted to the Office for approval prior to release of the
procurement document, and prior to the execution of the resultant
contract when a procurement is anticipated to or will exceed the
Simplified Acquisition Threshold. The Simplified Acquisition Threshold
for ADP systems, equipment, and service acquisitions is defined in
proposed Sec. 310.1(a)(10) as a Tribe or Tribal organization's
monetary threshold for determining whether competitive acquisition
rules are required for a given procurement or $100,000, whichever is
less. The Simplified Acquisition Threshold represents the maximum
amount of monies that a comprehensive Tribal IV-D agency may expend
without submitting the subject solicitation document (RFP, etc.) and
resultant contract to the Office for review and written approval prior
to its execution. As previously stated in the proposed rule, this
threshold is derived from 45 CFR 92.36(d)(1), which references small
purchase procedures as a procurement method for securing items of cost
not exceeding the Simplified Acquisition Threshold fixed at 41 U.S.C.
403(11) (currently $100,000). This is appropriately adapted for this
rule because of the need to ensure full and open competition in
acquisitions in accordance with 45 CFR 92.36(c), and to ensure
consistency with regulations at 45 CFR 95.611(b) governing State ADP
acquisitions funded at enhanced FFP rates of reimbursement.
Beyond just ensuring consistency with regulations governing State
acquisitions funded at enhanced FFP rates, in proposing a Simplified
Acquisition Threshold at $100,000 or the threshold set by a Tribe or
Tribal organization, whichever is less, we determined that such monies
would meet the funding needs of the majority of comprehensive Tribal
IV-D agencies which service moderate caseloads. Therefore, under this
proposed paragraph (b), only those comprehensive Tribal IV-D agencies
with significantly larger caseloads would likely be impacted by the
requirement to submit RFP's and contracts to the Office for approval
prior to their respective release or execution if they are anticipated
to exceed the Simplified Acquisition Threshold.
Proposed paragraph (c)(1) is entitled Software and Ownership Rights
and requires that all procurement and contract instruments must include
a clause that provides that the comprehensive Tribal IV-D agency will
have all ownership rights to Computerized Tribal IV-D System software
or enhancements thereof and all associated documentation designed,
developed, or installed with FFP. Intergovernmental Service Agreements
are not subject to this requirement. This exception for
Intergovernmental Service Agreements ensures consistent application of
current policy among all grantees, State and Tribal, and is derived
from current Federal regulations at 45 CFR 95.613(b) that exempt
Service Agreements from the procurement
[[Page 33057]]
standards applicable to State acquisitions of ADP equipment and
services. Additionally, proposed paragraph (c)(2), states that the
Office reserves a royalty-free, nonexclusive, and irrevocable license
to reproduce, publish, or otherwise use and to authorize others to use
for Federal Government purposes, such software, modifications and
documentation developed under this part. Under paragraph (c)(3) FFP
would not be available for the costs of rental or purchase of
proprietary application software developed specifically for a
Computerized Tribal IV-D System. Commercial-off-the-shelf (COTS)
software packages that are sold or leased to the general public at
established catalog or market prices are not subject to the ownership
and license provisions of this requirement. The requirements stated in
this proposed paragraph (c) are not unique to Child Support Enforcement
regulations. Rather, the proposed requirements would be a restatement
of current Departmental regulations that have applied to all automated
systems acquisitions, and not just those in the IV-D program. Federal
policy in this area, as stated in Federal regulations at 45 CFR 92.34
and 95.617, and as restated in child support automation regulations for
State IV-D programs at 45 CFR 307.30 and 45 CFR 307.31, is appropriate
and best protects the Federal interest in IV-D and other Federal
systems development efforts.
In proposed paragraph (d) of this section, a comprehensive Tribal
IV-D agency is not required to submit procurement documents, contracts,
and contract amendments for acquisitions under the Simplified
Acquisition Threshold set by the Tribe or Tribal organization or
$100,000, whichever is less, unless specifically requested to do so in
writing by the Office. The Office believes that procurement activities
which fall under the Simplified Acquisition Threshold amount would not
require submittal of procurement documents, contracts, and contract
amendments because such acquisitions already fall under the existing
procurement regulations of 45 CFR 92.36 (Procurement) and because
applying such a threshold ensures a consistency of approach between
State and Tribal grantees relative to procurements funded at enhanced
rates of FFP.
Section 310.30 Under what circumstances would FFP be suspended or
disallowed in the costs of Computerized Tribal IV-D Systems?
This section of the proposed rule identifies circumstances under
which the Office would suspend or disallow FFP in the costs of
Computerized Tribal IV-D Systems. This section does not apply to Office
Automation enhancements or another alternative to Computerized Tribal
IV-D Systems as discussed in proposed Sec. 310.5. The proposed content
of this section is derived from Sec. 307.40 which is entitled
Suspension of Approval of Advance Planning Documents for Computerized
Support Enforcement Systems and addresses suspension and disallowance
of FFP in the costs of State computerized child support enforcement
systems.
Proposed paragraph (a) of this section entitled Suspension of APD
approval states that the Office will suspend approval of the APD for a
Computerized Tribal IV-D System approved under Part 310 as of the date
that the system ceases to comply substantially with the criteria,
requirements, and other provisions of the APD. The Office will notify a
Tribal IV-D agency in writing of a notice of suspension, with such
suspension effective as of the date on which there is no longer
substantial compliance. The intent of the Office is to minimize the
likelihood of suspension of a comprehensive Tribal IV-D agency's APD by
engaging in supportive efforts such as technical assistance, policy
guidance, and on-going communication and collaboration between the
comprehensive Tribal IV-D agency and the Office. The Office believes
that such preventive efforts would likely facilitate early
identification of difficulties associated with a Computerized Tribal
IV-D System and the corresponding APD and thereby assist the Office and
the comprehensive Tribal IV-D agency in taking appropriate corrective
action, before more punitive measures, such as suspension of funding,
become necessary.
Notwithstanding the above-stated intent, the Office deems it
necessary to include provisions relating to suspension of an APD in
this proposed paragraph (a) in order to clearly establish suspension as
a possible consequence for a computerized Tribal IV-D support
enforcement system that is substantially out of compliance with its
APD.
Proposed paragraph (b) of this section entitled Suspension of FFP
states that if the Office suspends approval of an APD in accordance
with proposed Part 310 during the installation, operation, or
enhancement of a Computerized Tribal IV-D System, FFP will not be
available in any expenditure incurred under the APD after the date of
the suspension until the date the Office determines that the
comprehensive Tribal IV-D agency has taken the actions specified in the
notice of suspension described in paragraph (a). The Office will notify
the comprehensive Tribal IV-D agency in writing upon making such a
determination.
We proposed the above provision in paragraph (b) to ensure that
Federal funding is managed and distributed in the most productive,
efficient and cost-effective manner possible, and to ensure the Office
has the means necessary to enforce its fiduciary responsibilities.
Section 310.35 Under what circumstances would emergency FFP be
available for Computerized Tribal IV-D Systems?
In this section we propose that emergency FFP in the costs of
computerized Tribal IV-D support enforcement systems and Office
Automation would be available for qualifying circumstances. This
proposed section is similar to 45 CFR 95.624, which is entitled
Consideration for FFP in Emergency Situations and which lays out
procedures which must be followed in applying for emergency FFP. This
proposed section has been appropriately revised from Sec. 95.624 and
made applicable to the specific needs of comprehensive Tribal IV-D
programs.
Under proposed paragraph (a) of this section, which is entitled
Conditions that must be met for emergency FFP, the Office will consider
waiving the approval requirements for acquisitions in emergency
situations, such as natural or man-made disasters, upon receipt of a
written request from the comprehensive Tribal IV-D agency. In order for
the Office to consider waiving the approval requirements in proposed
Sec. 310.25 the comprehensive Tribal IV-D agency must submit a written
request to the Office prior to the acquisition of any ADP equipment or
services. The written request must be sent by registered mail and
include: (i) A brief description of the ADP equipment and/or services
to be acquired and an estimate of their costs; (ii) a brief description
of the circumstances which resulted in the comprehensive Tribal IV-D
agency's need to proceed prior to obtaining approval from the Office;
and (iii) a description of the harm that will be caused if the
comprehensive Tribal IV-D agency does not acquire immediately the ADP
equipment and services.
Under proposed paragraph (a)(2), upon receipt of the information,
the Office will, within 14 working days of receipt, take one of the
following actions: (i) Inform the comprehensive Tribal IV-D agency in
writing that the request has been disapproved and the
[[Page 33058]]
reason for disapproval; or (ii) inform the comprehensive Tribal IV-D
agency in writing that the Office recognizes that an emergency exists
and that within 90 calendar days from the date of the initial written
request under paragraph (a)(1) the comprehensive Tribal IV-D agency
must submit a formal request for approval which includes the
information specified at Sec. 310.25 in order for the ADP equipment or
services acquisition to be considered for the Office's approval.
Emergency FFP in the costs of Computerized Tribal IV-D Systems and
Office Automation is included in this proposed rule in recognition of
past natural and man-made disasters such as the 9/11 terrorist attacks
and hurricanes Katrina and Rita, as well as unforeseeable emergency
situations that may significantly impact comprehensive Tribal IV-D
programs in the future. This authority has proven vital in the past,
such as when use of such emergency authority permitted State grantees
to procure necessary computer equipment and software to restore program
services disrupted by hurricanes Katrina and Rita, and do so without
the delay inherent in first submitting the procurement request for
Federal review and prior approval. The proposed procedures which
require a comprehensive Tribal IV-D agency to submit a written request
to the Office and require the Office to take appropriate action within
14 working days ensure speedy and expedient management of child support
resources during times of crisis.
Proposed paragraph (b) of this section states that if the Office
approves the request submitted under paragraph (a)(2), FFP will be
available from the date the comprehensive Tribal IV-D agency acquires
the ADP equipment and services. In this section, proposed paragraph (b)
would equip comprehensive Tribal IV-D agencies to respond to approved
emergency situations with the assurance that the Office would provide
added support to ensure continued operations of comprehensive Tribal
IV-D program functions.
Subpart D--Accountability and Monitoring Computerized Tribal IV-D
Systems
Section 310.40 What requirements apply for accessing systems and
records for monitoring Computerized Tribal IV-D Systems and Office
Automation?
This proposed section identifies requirements that would facilitate
accountability and monitoring procedures of Computerized Tribal IV-D
Systems and Office Automation, including accessing systems and records.
This section of the proposed rule is derived from 45 CFR 95.615 which
is entitled Access to Systems and Records and addresses the
Department's right to access State computerized support enforcement
systems for the purposes of monitoring the conditions for approval, as
well as the efficiency, economy and effectiveness of the State system.
In accordance with 45 CFR Part 95 of this title, under proposed
Sec. 310.40 a comprehensive Tribal IV-D agency must allow the Office
access to the system in all of its aspects, including installation,
operation, and cost records of contractors and subcontractors, and of
Service Agreements at such intervals as are deemed necessary by the
Office to determine whether the conditions for FFP approval are being
met and to determine the efficiency, effectiveness, reasonableness of
the system and its cost. As discussed in the justification for proposed
Sec. 310.30 of this proposed rule, on-going access to Computerized
Tribal IV-D Systems and Office Automation records would enable the
Office to facilitate early identification of difficulties associated
with Tribal IV-D automation and to engage in supportive efforts such as
technical assistance, policy guidance, and on-going communication and
collaboration with comprehensive Tribal IV-D agencies. This technique
of identifying and addressing system challenges early on has proven to
be an effective management tool as evidenced by the Office's experience
in monitoring State computerized support enforcement systems.
Paperwork Reduction Act of 1995
Under the Paperwork Reduction Act of 1995 (Pub. L. 104-13), all
Departments are required to submit to the Office of Management and
Budget (OMB) for review and approval any reporting or recordkeeping
requirements inherent in a proposed or final rule. Interested parties
may comment to OMB on these requirements as described below. This NPRM
contains reporting requirements at proposed 45 CFR Part 310. The
Department has submitted these reporting requirements to OMB for its
review.
Proposed Part 310 contains a regulatory requirement that, in order
to receive funding for a Computerized Tribal IV-D System, a Tribe or
Tribal organization must submit an Advanced Planning Document (APD)
which represents the sole systems effort being undertaken by the
comprehensive IV-D agency; describes the projected resource
requirements for staff, hardware, software, network connections and
other needs and resources available and expected to be available;
contains a proposed schedule of project milestones; contains a proposed
budget; and contains a statement that the Tribal IV-D agency agrees in
writing to use the Computerized Tribal IV-D System for a minimum period
of time. Tribes and Tribal organizations must respond if they wish to
operate a Federally-funded Computerized Tribal IV-D System. The
potential respondents to these information collection requirements are
approximately 40 Federally-recognized Tribes, and Tribal organizations,
during Year 1; 5 additional Federally-recognized Tribes and Tribal
organizations during Year 2; and 5 additional Federally-recognized
Tribes and Tribal organizations during Year 3; for a three-year total
of 50 grantees. This information collection requirement will impose the
estimated total annual burden on the Tribes and Tribal organizations
described in the table below:
----------------------------------------------------------------------------------------------------------------
Average
Information collection Number of Response per burden per Total annual
respondents respondent response burden
----------------------------------------------------------------------------------------------------------------
Year 1
----------------------------------------------------------------------------------------------------------------
APD............................................. 40 2 108 8,640
Acquisitions (RFPs, Contracts, etc.)............ 6 2 24 288
---------------------------------------------------------------
Total....................................... .............. .............. .............. 8,928
----------------------------------------------------------------------------------------------------------------
[[Page 33059]]
Year 2
----------------------------------------------------------------------------------------------------------------
APD............................................. * 11 2 108 2,376
Acquisitions (RFPs, Contracts, etc.)............ 6 2 24 288
---------------------------------------------------------------
Total....................................... .............. .............. .............. 2,664
----------------------------------------------------------------------------------------------------------------
Year 3
----------------------------------------------------------------------------------------------------------------
APD............................................. * 8 2 108 1,728
Acquisitions (RFPs, Contracts, etc.)............ 3 2 24 102
---------------------------------------------------------------
Total....................................... .............. .............. .............. 1,848
----------------------------------------------------------------------------------------------------------------
* Figures reflect APDs from 5 additional Tribes in Year 2 and Year 3 as well as APD Updates from Tribes included
in Year 1 and 2 respectively.
Total Burden for 3 Years: 13,440.
Total Annual Burden Averaged over 3 Years: 4,480 per year.
The Administration for Children and Families will consider comments
by the public on this proposed collection of information in the
following areas:
Evaluating whether the proposed collection is necessary
for the proper performance of the functions of ACF, including whether
the information will have practical utility;
Evaluating the accuracy of ACF's estimate of the burden of
the proposed collection of information, including the validity of the
methodology and assumptions used;
Enhancing the quality, usefulness, and clarity of the
information to be collected; and
Minimizing the burden of the collection of information on
those who are to respond, including through the use of appropriate
automated, electronic, mechanical, or other technology, e.g.,
permitting electronic submission of responses.
OMB is required to make a decision concerning the collection of
information contained in these regulations between 30 and 60 days after
their publication in the Federal Register. Therefore, a comment is best
assured of having its full effect if OMB receives it within 30 days of
publication. This does not affect the deadline for the public to
comment to the Department on the proposed regulations. Written comments
to OMB for the proposed information collection should be sent directly
to the following: Office of Management and Budget, either by fax to
202-395-6974 or by e-mail to [email protected]. Please mark
faxes and e-mails to the attention of the desk officer for ACF.
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. Tribal governments are not considered small entities under
the Act.
Regulatory Impact Analysis
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
proposed rule is consistent with these priorities and principles.
Moreover, we have consulted with the Office of Management and Budget
(OMB) and determined that these rules meet the criteria for a
significant regulatory action under Executive Order 12866. Thus, they
were subject to OMB review.
We have determined that the proposed 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. Therefore, we have
not prepared a budgetary impact statement. We anticipate that the costs
associated with this rule will be: FY 2009--$8m; FY 2010--$4m; FY
2011--$2m; FY 2012--$3m; FY 2013--$3; FY 2013--$3m.
The proposed regulations are authorized by 42 U.S.C. 655(f) and 42
U.S.C. 1302 and represent the proposed regulations governing direct
funding for computerized systems and Office Automation of Tribal CSE
agencies that demonstrate the capacity to operate a child support
enforcement 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. As
described elsewhere in the preamble, ACF consulted with Tribes and
Tribal organizations and their representatives to obtain their views
prior to the publication of this NPRM.
Unfunded Mandates Reform Act of 1995
Section 202 of the Unfunded Mandates Reform Act of 1995, Public Law
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.
As indicated above, we have determined this rule 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.
Congressional Review
This proposed rule is not a major rule as defined in 5 U.S.C.,
Chapter 8.
Assessment of Federal Regulations and Policies on Family Well-Being
We certify that we have made an assessment of this rule's impact on
the well-being of families, as required under Sec. 654 of the Treasury
and General Appropriations Act of 1999. This proposed rule gives
flexibility to Tribes and Tribal organizations to use technological
advancements to meet program objectives that serve this purpose.
Executive Order 13132
Executive Order 13132 prohibits an agency from publishing any rule
that has federalism implications if the rule either imposes substantial
direct compliance costs on State and local
[[Page 33060]]
governments or is not required by statute, or the rule preempts State
law, unless the agency meets the consultation and funding requirements
of section 6 of the Executive Order. We do not believe the regulation
has federalism impact as defined in the Executive order. However,
consistent with Executive Order 13132, the Department specifically
solicits comments from State and local government officials on this
proposed rule.
List of Subjects
45 CFR 309
Child Support, Grant programs--Social programs, Indians, Native
Americans.
45 CFR 310
Child Support, Grant programs--Social programs, Indians, Native
Americans.
>(Catalogue of Federal Domestic Assistance Programs No. 93.563,
Child Support Enforcement Program)
Dated: October 19, 2007.
Daniel C. Schneider
Acting Assistant Secretary for Children and Families.
Approved: March 3, 2008.
Michael O. Leavitt,
Secretary,Department of Health and Human Services.
For the reasons discussed in the preamble, title 45 chapter III of
the Code of Federal Regulations is amended as follows:
PART 309--TRIBAL CHILD SUPPORT ENFORCEMENT (IV-D) PROGRAM
1. The authority citation for part 309 continues to read as
follows:
Authority: 42 U.S.C. 655(f), 1302.
2. In Sec. 309.145, revise paragraph (h) to read as follows:
Sec. 309.145 What costs are allowable for Tribal IV-D programs
carried out under Sec. 309.65(a) of this part?
* * * * *
(h) Automated data processing computer systems, including:
(1) Planning efforts in the identification, evaluation, and
selection of an automated data processing computer system solution
meeting the program requirements defined in a Tribal IV-D plan and the
automated systems requirements in part 310 of this chapter;
(2) Installation, operation, maintenance, and enhancement of a
Model Tribal System as defined in and meeting the requirements of part
310 of this title;
(3) Procurement, installation, operation and maintenance of
essential Office Automation capability;
(4) Establishment of Intergovernmental Service Agreements with a
State and another comprehensive Tribal IV-D agency for access to the
State or other Tribe's existing automated data processing computer
system to support Tribal IV-D program operations, and Reasonable Costs
associated with use of such a system;
(5) Operation and maintenance of a Tribal automated data processing
system funded entirely with Tribal funds if the software ownership
rights and license requirements in Sec. 310.25(c) are met; and
(6) Other automation and automated data processing computer system
costs in accordance with instructions and guidance issued by the
Secretary.
* * * * *
1. Revise part 310 to read as follows:
PART 310--COMPUTERIZED TRIBAL IV-D SYSTEMS AND OFFICE AUTOMATION
Subpart A--General Provisions
Sec.
310.0 What does this part cover?
310.1 What definitions apply to this part?
Subpart B--Requirements for Computerized Tribal IV-D Systems and Office
Automation
310.5 What options are available for Computerized Tribal IV-D
Systems and Office Automation?
310.10 What are the functional requirements for the Model Tribal IV-
D System?
310.15 What are the safeguards and processes that comprehensive
Tribal IV-D agencies must have in place to ensure the security and
privacy of Computerized Tribal IV-D Systems and Office Automation?
Subpart C--Funding for Computerized Tribal IV-D Systems and Office
Automation
310.20 What are the conditions for funding the installation,
operation, maintenance and enhancement of computerized Tribal IV-D
systems and Office Automation?
310.25 What conditions apply to acquisitions of Computerized Tribal
IV-D Systems?
310.30 Under what circumstances would FFP be suspended or disallowed
in the costs of Computerized Tribal IV-D Systems?
310.35 Under what circumstances would emergency FFP be available for
Computerized Tribal IV-D Systems?
Subpart D--Accountability and Monitoring Procedures for Computerized
Tribal IV-D Systems
310.40 What requirements apply for accessing systems and records for
monitoring Computerized Tribal IV-D Systems and Office Automation?
Authority: 42 U.S.C. 655(f) and 1302.
Subpart A--General Provisions
Sec. 310.0 What does this part cover?
This part addresses conditions for funding and requirements
governing Computerized Tribal IV-D Systems and Office Automation
including:
(a) The automated systems options for comprehensive Tribal IV-D
programs in Sec. 310.5 of this part;
(b) The functional requirements for the Model Tribal Systems in
Sec. 310.10 of this part;
(c) The security and privacy requirements for Computerized Tribal
IV-D Systems and office automation in Sec. 310.15 of this part;
(d) The conditions for funding the installation, operation,
maintenance, and enhancement of Computerized Tribal IV-D Systems and
Office Automation in Sec. 310.20 of this part;
(e) The conditions that apply to acquisitions of Computerized
Tribal IV-D Systems in Sec. 310.25 of this part; and
(f) The accountability and monitoring of Computerized Tribal IV-D
Systems in Sec. 310.40 of this part.
Sec. 310.1 What definitions apply to this part?
(a) The following definitions apply to this part:
(1) Automated Data Processing Services (ADP Services) means
services for installation, maintenance, operation, and enhancement of
ADP equipment and software performed by a comprehensive Tribal IV-D
agency or for that agency through a services agreement or other
contractual relationship with a State, another Tribe or private sector
entity.
(2) Comprehensive Tribal IV-D Agency means the organizational unit
in the Tribe or Tribal organization that has the authority for
administering or supervising a comprehensive Tribal IV-D program under
section 455(f) of the Act and implementing regulations in part 309 of
this chapter. This is an agency meeting all requirements of Sec.
309.65(a) of the chapter which is not in the start-up phase under Sec.
309.65(b) of this chapter.
(3) Computerized Tribal IV-D System means a comprehensive Tribal
IV-D program's system of data processing that is performed by
electronic or electrical machines so interconnected and interacting as
to minimize the need for human assistance or intervention. A
Computerized Tribal IV-D System is:
(i) The Model Tribal System; or
(ii) Access to a State or comprehensive Tribal IV-D agency's
existing automated data processing computer system through an
Intergovernmental Service Agreement;
[[Page 33061]]
(4) Installation means the act of installing ADP equipment and
software, performing data conversion, and turnover to operation status.
(5) Maintenance is the totality of activities required to provide
cost-effective support to an operational ADP system. Maintenance is
generally routine in nature and can include activities such as:
Upgrading ADP hardware, and revising/creating new reports, making
limited data element/data base changes, minor data presentation
changes, and other software corrections.
(6) Model Tribal System means an ADP system designed and developed
by the Office for comprehensive Tribal IV-D programs to include system
specifications and requirements as specified in this part. The Model
Tribal System effectively and efficiently allows a comprehensive Tribal
IV-D agency to monitor, account for, and control all child support
enforcement services and activities pursuant to part 309 of this
chapter.
(7) Office Automation means a generic adjunct component of a
computer system that supports the routine administrative functions in
an organization (e.g., electronic mail, word processing, internet
access), as well as similar functions performed as part of an automated
data processing system. Office Automation is not specifically designed
to meet the programmatic and business-centric needs of an organization.
(8) Reasonable Cost means a cost that is determined to be
reasonable if, in its nature and amount, it does not exceed that which
would be incurred by a prudent person under the circumstances
prevailing at the time the decision was made to incur the cost. In
determining reasonableness with regard to ADP systems cost,
consideration shall be given to:
(i) Whether the cost is of a type generally recognized as ordinary
and necessary for the operation of a comprehensive Tribal IV-D agency;
(ii) The restraints or requirements imposed by such factors as:
sound business practices; arms-length bargaining; Federal, Tribal laws
and regulations; and terms and conditions of any direct federal
funding;
(iii) Whether the individual concerned acted with prudence in the
circumstances considering his or her responsibilities to the
comprehensive Tribal IV-D agency, its employees, the public at large,
and the Federal Government;
(iv) Market prices for comparable goods or services;
(v) Significant deviations from the established practices of the
comprehensive Tribal IV-D agency which may unjustifiably increase the
cost; and
(vi) Whether a project's Total Acquisition Cost is in excess of the
comprehensive Tribal IV-D agency's total Tribal IV-D program grant
award for the year in which the request is made.
(9) Service Agreement means a document signed by the Tribe or
Tribal organization operating a comprehensive Tribal IV-D program under
Sec. 309.65(a) and the State or other comprehensive Tribal IV-D
program whenever the latter provides data processing services to the
former and identifies those ADP services that the State or other
comprehensive Tribal IV-D program will provide to the Tribe or Tribal
organization. Additionally, a Service Agreement would include the
following details:
Schedule of charges for each identified ADP service and a
certification that these charges apply equally to all users;
Description of the method(s) of accounting for the
services rendered under the agreement and computing service charges;
Assurances that services provided will be timely and
satisfactory;
Assurances that information in the computer system as well
as access, use and disposal of ADP data will be safeguarded in
accordance with proposed Sec. 310.15;
Beginning and ending dates of the period of time covered
by the Service Agreement; and
Schedule of expected total charges for the period of the
Service Agreement.
(10) Simplified Acquisition Threshold for ADP systems, equipment,
and service acquisitions means a Tribe or Tribal organization's
monetary threshold for determining whether competitive acquisition
rules are required for a given procurement or $100,000, whichever is
less.
(b) The following terms apply to this part and are defined in Sec.
95.605 of this title:
``Acquisition'';
``Advanced Planning Document (APD)'';
``Design or System Design'';
``Development'';
``Enhancement'';
``Federal Financial Participation (FFP)'';
``Operation'';
``Project'';
``Software''; and
``Total Acquisition Cost''.
(c) All of the terms defined in Sec. 309.05 of this chapter apply
to this part.
Subpart B: Requirements for Computerized Tribal IV-D Systems
Sec. 310.5 What options are available for Computerized Tribal IV-D
Systems and office automation?
(a) Allowable computerized support enforcement systems for a
Comprehensive Tribal IV-D agency. A comprehensive Tribal IV-D agency
may have in effect an operational computerized support enforcement
system that meets Federal requirements under this part.
(b) Computerized Tribal IV-D Systems. A Computerized Tribal IV-D
System must be one of the design options listed below. A comprehensive
Tribal IV-D program may automate its case processing and record-keeping
processes through:
(1) Installation, operation, maintenance, or enhancement of the
Model Tribal System designed by the Office to address the program
requirements defined in a Tribal IV-D plan in accordance with Sec.
309.65(a) of this chapter and the functional requirements in Sec.
310.10 of this part;
(2) Establishment of Intergovernmental Service Agreements with a
State or another comprehensive Tribal IV-D agency for access to that
agency's existing automated data processing computer system to support
comprehensive Tribal IV-D program operations.
(c) Office Automation. A comprehensive Tribal IV-D agency may opt
to conduct automated data processing and record-keeping activities
through Office Automation. Allowable activities under this section
include procurement, installation, operation and maintenance of
essential Office Automation capability as defined in Sec. 310.1 of
this part.
(d) Alternative to Computerized Tribal IV-D Systems and Office
Automation. A comprehensive Tribal IV-D agency may design, develop,
procure, or enhance an automated data processing system funded entirely
with Tribal funds.
Sec. 310.10 What are the functional requirements for the Model Tribal
IV-D system?
A Model Tribal IV-D system must:
(a) Accept, maintain and process the actions in the support
collection and paternity determination processes under the Tribal IV-D
plan, including:
(1) Identifying information such as social security numbers, names,
dates of birth, home addresses and mailing addresses (including postal
zip codes) on individuals against whom paternity and support
obligations are sought to be established or enforced and on
[[Page 33062]]
individuals to whom support obligations are owed, and other data as may
be requested by the Office;
(2) Verifying information on individuals referred to in paragraph
(a)(1) of this section with Tribal, Federal, State and local agencies,
both intra-tribal and intergovernmental;
(3) Maintaining information pertaining to:
(i) Applications and referrals for Tribal IV-D services, including:
(A) Case record;
(B) Referral to the appropriate processing unit (i.e., locate or
paternity establishment);
(C) Caseworker notification;
(D) Case Identification Number; and
(E) Participant Identification Number;
(ii) Delinquency and enforcement activities;
(iii) Intra-tribal, intergovernmental, and Federal location of the
putative father and noncustodial parents;
(iv) The establishment of paternity;
(v) The establishment of support obligations;
(vi) The payment and status of current support obligations;
(vii) The payment and status of arrearage accounts;
(4) Maintaining data on case actions administered by both the
initiating and responding jurisdictions in intergovernmental cases;
(b) Update, maintain and manage all IV-D cases under the Tribal IV-
D plan from initial application or referral through collection and
enforcement, including any events, transactions, or actions taken
therein;
(c) Record and report any fees collected, either directly or by
interfacing with State or Tribal financial management and expenditure
information;
(d) Distribute current support and arrearage collections in
accordance with Federal regulations at Sec. 309.115 of this chapter
and Tribal laws;
(e) Maintain, process and monitor accounts receivable on all
amounts owed, collected, and distributed with regard to:
(1) Detailed payment histories that include the following:
(i) Amount of each payment;
(ii) Date of each collection;
(iii) Method of payment;
(iv) Distribution of payments; and
(v) Date of each disbursement;
(2) Automated income withholding activities such as:
(i) Recording and maintaining any date the noncustodial parent
defaults on payment of the support obligation in an amount equal to the
support payable for one month;
(ii) Generating the Standard Federal Income Withholding Form; and
(iii) Allocating amounts received by income withholding according
to Sec. Sec. 309.110 and 309.115 of this chapter.
(f) Maintain and automatically generate data necessary to meet
Federal reporting requirements on a timely basis as prescribed by the
Office. At a minimum this must include:
(1) Yearly notices on support collected, which are itemized by
month of collection and provided to families receiving services under
the comprehensive Tribal IV-D program as required in Sec. 309.75(c) of
this chapter, to all case participants regarding support collections;
and
(2) Reports submitted to the Office for program monitoring and
program performance as required in Sec. 309.170 of this chapter;
(g) Provide automated processes to enable the Office to monitor
Tribal IV-D program operations and to assess program performance
through the audit of financial and statistical data maintained by the
system; and
(h) Provide security to prevent unauthorized access to, or use of,
the data in the system as detailed in Sec. 310.15 of this part.
Sec. 310.15 What are the safeguards and processes that comprehensive
Tribal IV-D agencies must have in place to ensure the security and
privacy of Computerized Tribal IV-D Systems and Office Automation?
(a) Information integrity and security. The comprehensive Tribal
IV-D agency must have safeguards on the integrity, accuracy,
completeness, access to, and use of data in the Computerized Tribal IV-
D System and Office Automation. Computerized Tribal IV-D and Office
Automation Systems should be compliant with the Federal Information
Security Management Act, and the Privacy Act. Some of the required
safeguards must include written policies and procedures concerning the
following:
(1) Periodic evaluations of the system for risk of security and
privacy breaches;
(2) Procedures to allow Tribal IV-D personnel controlled access and
use of IV-D data, including:
(i) Specifying the data which may be used for particular IV-D
program purposes, and the personnel permitted access to such data;
(ii) Permitting access to and use of data for the purpose of
exchanging information with State and Tribal agencies administering
programs under titles IV-A, IV-E and XIX of the Act to the extent
necessary to carry out the comprehensive Tribal IV-D agency's
responsibilities with respect to such programs;
(3) Maintenance and control of application software program data;
(4) Mechanisms to back-up and otherwise protect hardware, software,
documents, and other communications; and
(5) Mechanisms to report breaches of personally identifiable
information to the Department of Homeland Security, and to respond to
those breaches.
(b) Monitoring of access. The comprehensive Tribal IV-D agency must
monitor routine access to and use of the Computerized Tribal IV-D
System and Office Automation through methods such as audit trails and
feedback mechanisms to guard against, and promptly identify,
unauthorized access or use;
(c) Training and information. The comprehensive Tribal IV-D agency
must have procedures to ensure that all personnel, including Tribal IV-
D staff and contractors, who may have access to or be required to use
confidential program data in the Computerized Tribal IV-D System and
Office Automation are adequately trained in security procedures.
(d) Penalties. The comprehensive Tribal IV-D agency must have
administrative penalties, including dismissal from employment, for
unauthorized access to, disclosure or use of confidential information.
Subpart C--Funding for Computerized Tribal IV-D Systems and Office
Automation
Sec. 310.20 What are the conditions for funding the installation,
operation, maintenance and enhancement of Computerized Tribal IV-D
Systems and Office Automation?
(a) Conditions that must be met for FFP at the applicable matching
in Sec. 309.130(c) of this chapter for Computerized Tribal IV-D
Systems. The following conditions must be met to obtain FFP in the
costs of installation, operation, maintenance, and enhancement of a
Computerized Tribal IV-D System at the applicable matching rate under
Sec. 309.130(c) of this chapter:
(1) A comprehensive Tribal IV-D agency must have submitted, and the
Office must have approved, an Advance Planning Document (APD) for the
installation and enhancement of a Computerized Tribal IV-D System;
(2) An APD for installation of a Computerized Tribal IV-D System
must:
(i) Represent the sole systems effort being undertaken by the
comprehensive Tribal IV-D agency under this part;
(ii) Describe the projected resource requirements for staff,
hardware, software, network connections and other needs and the
resources available or expected to be available to meet the
requirements;
[[Page 33063]]
(iii) Contain a proposed schedule of project milestones with detail
sufficient to describe the tasks, activities, and complexity of the
initial implementation project;
(iv) Contain a proposed budget including a description of
expenditures by category and amount for items related to installing,
operating, maintaining, and enhancing the Computerized Tribal IV-D
System that are eligible for Federal funding at the applicable matching
rate under Sec. 309.130(c) of this chapter; and
(v) Contain a statement that the comprehensive Tribal IV-D agency
agrees in writing to use the Computerized Tribal IV-D System for a
minimum period of time;
(3) The following conditions, in addition to those in paragraphs
(a)(1) and (a)(2) of this section, must be met to obtain FFP in the
installation costs of access to a State or another comprehensive Tribal
IV-D program's ADP system established under an Intergovernmental
Service Agreement. The comprehensive Tribal IV-D agency must:
(i) Maintain a copy of each intergovernmental cooperative agreement
and Service Agreement in its files for Federal review; and
(ii) Ensure that the:
(A) Service Agreement for which FFP is being sought, meets the
definition of a Service Agreement as defined in proposed Sec. 310.1 of
this title;
(C) Claims for FFP conform to the timely claim provisions of part
95 subpart A of this title; and
(D) Service Agreement was not previously disapproved by the
Department.
(4) The following conditions, in addition to those in paragraphs
(1) through (3) of this section, must be met in order for a
comprehensive Tribal IV-D agency to obtain FFP in the costs of
enhancements to their Computerized Tribal IV-D System:
(i) The project's Total Acquisition Cost cannot exceed the
comprehensive Tribal IV-D agency's total Tribal IV-D program grant
award for the year in which the acquisition request is made; and
(ii) The APD budget, schedule and commitment to use the
Computerized Tribal IV-D System for a specified minimum period of time
must be updated to reflect the enhancement project.
(5) To receive FFP in the costs of the operation and maintenance of
a Computerized Tribal IV-D System installed under proposed 310.20 or
developed under Sec. 309.145(h)(5), which refers to a Tribal automated
data processing system that is funded entirely with Tribal funds, the
comprehensive Tribal IV-D agency must include operation and maintenance
costs in its annual Title IV-D program budget submission in accordance
with Sec. 309.15(c) of this chapter;
(6) To receive FFP in the costs of the installation, operation, and
maintenance of essential Office Automation capabilities, the
comprehensive Tribal IV-D agency must include such costs in its annual
Title IV-D program budget submission in accordance with Sec. 309.15(c)
of this chapter;
(b) Procedure for APD Submittal. The comprehensive Tribal IV-D
agency must submit an APD for a Computerized Tribal IV-D System to the
Commissioner of OCSE, Attention: Division of State and Tribal Systems.
The APD submitted by the comprehensive Tribal IV-D agency must be
approved and signed by the comprehensive Tribal IV-D agency Director
and the appropriate Tribal officials prior to submission to OCSE for
Office approval.
Sec. 310.25 What conditions apply to acquisitions of Computerized
Tribal IV-D Systems?
(a) APD Approval. A comprehensive Tribal IV-D agency must have an
approved APD in accordance with the applicable requirements of Sec.
310.20 of this part prior to initiating acquisition of a Computerized
Tribal IV-D System.
(b) Procurements. Requests for Proposals (RFP) and similar
procurement documents, contracts, and contract amendments involving
costs eligible for FFP, must be submitted to the Office for approval
prior to release of the procurement document, and prior to the
execution of the resultant contract when a procurement is anticipated
to or will exceed the Simplified Acquisition Threshold.
(c) Software and ownership rights. (1) All procurement and contract
instruments must include a clause that provides that the comprehensive
Tribal IV-D agency will have all ownership rights to Computerized
Tribal IV-D System software or enhancements thereof and all associated
documentation designed, developed or installed with FFP.
Intergovernmental Service Agreements are not subject to this paragraph.
(2) The Office reserves a royalty-free, nonexclusive, and
irrevocable license to reproduce, publish, or otherwise use and to
authorize others to use for Federal Government purposes, such software,
modifications and documentation.
(3) FFP is not available for the costs of rental or purchase of
proprietary application software developed specifically for a
Computerized Tribal IV-D System. Commercial-off-the-shelf (COTS)
software packages that are sold or leased to the general public at
established catalog or market prices are not subject to the ownership
and license provisions of this requirement.
(d) Requirements for acquisitions under the threshold amount. A
comprehensive Tribal IV-D agency is not required to submit procurement
documents, contracts, and contract amendments for acquisitions under
the Simplified Acquisition Threshold unless specifically requested to
do so in writing by the Office.
Sec. 310.30 Under what circumstances would FFP be suspended or
disallowed in the costs of Computerized Tribal IV-D Systems?
(a) Suspension of APD approval. The Office will suspend approval of
the APD for a Computerized Tribal IV-D System approved under this part
as of the date that the system ceases to comply substantially with the
criteria, requirements, and other provisions of the APD. The Office
will notify a Tribal IV-D agency in writing in a notice of suspension,
with such suspension effective as of the date on which there is no
longer substantial compliance.
(b) Suspension of FFP. If the Office suspends approval of an APD in
accordance with this part during the installation, operation, or
enhancement of a Computerized Tribal IV-D System, FFP will not be
available in any expenditure incurred under the APD after the date of
the suspension until the date the Office determines that the
comprehensive Tribal IV-D agency has taken the actions specified in the
notice of suspension described in paragraph (a) of this section. The
Office will notify the comprehensive Tribal IV-D agency in writing upon
making such a determination.
Sec. 310.35 Under what circumstances would emergency FFP be available
for Computerized Tribal IV-D Systems?
(a) Conditions that must be met for emergency FFP. The Office will
consider waiving the approval requirements for acquisitions in
emergency situations, such as natural or man-made disasters, upon
receipt of a written request from the comprehensive Tribal IV-D agency.
In order for the Office to consider waiving the approval requirements
in Sec. 310.25 of this part, the following conditions must be met:
(1) The comprehensive Tribal IV-D agency must submit a written
request to the Office prior to the acquisition of any
[[Page 33064]]
ADP equipment or services. The written request must be sent by
registered mail and include:
(i) A brief description of the ADP equipment and/or services to be
acquired and an estimate of their costs;
(ii) A brief description of the circumstances which resulted in the
comprehensive Tribal IV-D agency's need to proceed prior to obtaining
approval from the Office; and
(iii) A description of the harm that will be caused if the
comprehensive Tribal IV-D agency does not acquire immediately the ADP
equipment and services.
(2) Upon receipt of the information, the Office will, within 14
working days of receipt, take one of the following actions:
(i) Inform the comprehensive Tribal IV-D agency in writing that the
request has been disapproved and the reason for disapproval; or
(ii) Inform the comprehensive Tribal IV-D agency in writing that
the Office recognizes that an emergency exists and that within 90
calendar days from the date of the initial written request under
paragraph (a)(1) of this section the comprehensive Tribal IV-D agency
must submit a formal request for approval which includes the
information specified at Sec. 310.25 of this title in order for the
ADP equipment or services acquisition to be considered for the Office's
approval.
(b) Effective date of emergency FFP. If the Office approves the
request submitted under paragraph (a)(2) of this section, FFP will be
available from the date the comprehensive Tribal IV-D agency acquires
the ADP equipment and services.
Subpart D--Accountability and Monitoring Procedures for
Computerized Tribal IV-D Systems
Sec. 310.40 What requirements apply for accessing systems and records
for monitoring Computerized Tribal IV-D Systems and Office Automation?
In accordance with Part 95 of this title, a comprehensive Tribal
IV-D agency must allow the Office access to the system in all of its
aspects, including installation, operation, and cost records of
contractors and subcontractors, and of Service Agreements at such
intervals as are deemed necessary by the Office to determine whether
the conditions for FFP approval are being met and to determine the
efficiency, effectiveness, reasonableness of the system and its cost.
[FR Doc. E8-13042 Filed 6-10-08; 8:45 am]
BILLING CODE 4120-01-P