[Federal Register Volume 74, Number 100 (Wednesday, May 27, 2009)]
[Rules and Regulations]
[Pages 25161-25163]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-12187]
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DEPARTMENT OF HEALTH AND HUMAN SERVICES
Administration for Children and Families
45 CFR Part 286
RIN 0970-AC40
Temporary Assistance for Needy Families (TANF) Carry-Over Funds
AGENCY: Administration for Children and Families (ACF), Department of
Health and Human Services (HHS).
ACTION: Interim final rule.
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SUMMARY: This rule implements the statutory change to section 404(e) of
the Social Security Act (42 U.S.C. 604(e)) as enacted by the American
Recovery and Reinvestment Act of 2009 (Pub. L. 111-5). This change
allows States, Tribes and Territories to use Temporary Assistance for
Needy Families (TANF) program funds carried over from a prior year for
any allowable TANF benefit, service or activity. Previously these funds
could be used only to provide assistance. This interim final rule
applies to States, local governments, and Tribes that administer the
TANF program.
DATES: Effective Date: May 27, 2009.
Comment Date: Comments are due on or before July 27, 2009.
ADDRESSES: You may mail or hand-deliver comments regarding this interim
rule to the Administration for Children and Families, Office of Family
Assistance, 370 L'Enfant Promenade, SW., 5th floor, Washington, DC
20447. You also may transmit comments electronically via the Internet
at: http://www.regulations.gov. You may download an electronic version
of this rule at: http://www.regulations.gov.
All comments received, including any personal information provided,
will be available for public inspection Monday through Friday, 8:30
a.m. to 5 p.m., at 901 D St., SW., 5th Floor, Washington DC.
FOR FURTHER INFORMATION CONTACT: Robert Shelbourne, Director, Division
of State TANF Policy and Acting Director, Division of Tribal TANF
Management, Office of Family Assistance, ACF, at (202) 401-5150.
SUPPLEMENTARY INFORMATION:
I. Statutory Authority
Section 417 of the Social Security Act (42 U.S.C. 617) limits the
authority of the Federal government to regulate State conduct or
enforce the TANF provisions of the Social Security Act, except as
expressly provided. We have interpreted this provision to allow us to
regulate where Congress has charged HHS with enforcing certain TANF
provisions by assessing penalties. Because the improper use of Federal
TANF carry-over funds can result in a financial penalty pursuant to 42
U.S.C. 609(a)(1), we have the authority to regulate in this instance.
Justification for Interim Final Rule
The Administrative Procedures Act requirements under 5 U.S.C. 553
for notice of proposed rulemaking do not apply to rules when the agency
finds good cause that notice is impracticable, unnecessary, or contrary
to the public interest (5 U.S.C. 553(b)). We find proposed rulemaking
unnecessary because the policy was effective upon enactment and this
regulatory action merely updates program regulations to reflect current
law and avoid any unnecessary confusion on the part of States and
Tribes. The change made to the TANF program by the Recovery Act on the
use of carry-over funds was intended to provide increased flexibility
immediately to States and Tribes to support work and families
especially during this difficult economic period. If this regulation
were delayed, States and Tribes might be hesitant to take advantage of
the flexibility afforded by the statutory change because of the
conflict with the regulation, and any confusion resulting from that
conflict.
For the same reason given above, we also find good cause for
waiving the Administrative Procedures Act requirement under 5 U.S.C.
553(d) which provides that a rule generally may not become effective
less than 30 days after it is published in the Federal Register. Since
the statute was effective upon enactment and because this regulation
merely updates the regulations to reflect the current law, this rule is
effective upon publication.
II. American Recovery and Reinvestment Act of 2009
On February 17, 2009, the President signed the American Recovery
and Reinvestment Act of 2009 (Pub. L. 111-5), which included a
provision to lift the restriction on unspent Federal TANF funds
reserved or ``carried over'' into a succeeding fiscal year. Prior to
Public Law 111-5, carry-over funds could only be used to provide
assistance (i.e., ongoing basic needs payments, and supportive services
such as transportation and child care to families who are not
employed). Section 2103 of Division B of Public Law 111-5 amends
section 404(e) of the Social Security Act (Act) by allowing States,
District of Columbia, the Territories and Tribes to use the carry-over
funds for any allowable TANF benefit, service, or activity (such as job
skills training or re-training activities, employment counseling
services, parental counseling services, teen pregnancy prevention
activities, services for victims of domestic violence, after-school
programs)--and not just assistance.
Thus, the policy reflected in this interim final rule is effective
immediately and applies to all Federal TANF funds carried over into
fiscal year 2009 as well as to all future Federal TANF funds carried
over into a subsequent year.
Herein after and as defined in section 419(5) of the Social
Security Act, we will use ``States'' to mean the 50 States of the
United States, the District of Columbia, the Commonwealth of Puerto
Rico, the United States Virgin Islands, Guam, and American Samoa.
(However, American Samoa has chosen not to participate in the TANF
program.)
III. Regulatory Provisions
As discussed below, section 2103 of Public Law 111-5 requires a
change in the Tribal TANF regulation at 45 CFR 286.60. The TANF
regulations at 45 CFR Part 263, applicable to States and Territories,
require no change.
Part 286--Tribal TANF Provisions
Section 286.60: Must Tribes obligate all Tribal Family Assistance Grant
funds by the end of the fiscal year in which they are awarded?
Under prior law, section 404(e) of the Act, entitled ``Authority to
Reserve Certain Amounts for Assistance,'' allowed States and Indian
Tribes
[[Page 25162]]
operating approved Tribal TANF programs (Tribes) to reserve Federal
TANF funds that they receive ``for any fiscal year for the purpose of
providing, without fiscal year limitation, assistance under the State
or tribal program funded under this part'' (Title IV, Part A of the
Act). Based on the reading of this section, we concluded that States
and Tribes could only use reserve or ``carry-over'' funds to provide
TANF assistance, defined in 45 CFR 260.31 for States and in 45 CFR
286.10 for Tribes, and to pay for the administrative expenses
associated with providing the assistance. The statutory wording also
precluded States from transferring ``carry-over'' funds to either the
Social Services Block Grant Program (SSBG) under title XX of the Act or
the Child Care and Development Block Grant Program (also known as the
Child Care Discretionary Fund within the Child Care and Development
Fund (CCDF)). (The transfer provision in section 404(d) of the Act does
not apply to Tribes.)
Section 2103 of Division B of Public Law 111-5 (American Recovery
and Reinvestment Act of 2009) amended section 404(e) of the Social
Security Act. The amendment allows States and Tribes to use unspent
Federal TANF funds carried over from prior fiscal years ``to provide,
without fiscal year limitation, any benefit or service that may be
provided under the State or tribal program funded under this part.''
Thus, States and Tribes are no longer restricted to using carry-over
TANF funds to provide benefits that specifically meet the definition of
assistance. States and Tribes may expend carry-over funds for any
allowable TANF benefit, service, or activity. Because the amended
section 404(e) continues to specify that carry-over funds may only be
used ``under this part''--i.e., in the TANF program, States may not
transfer any carry-over funds to either CCDF or the SSBG program.
States may only transfer current year Federal TANF funds (up to the
statutory limit) to these programs.
Accordingly, we have amended Sec. 286.60 because the limitation on
the use of carry-over funds explicitly appears in this section. We have
deleted paragraph (b) which previously read, ``A Tribe may expend funds
beyond the fiscal year in which awarded only on benefits that meet the
definition of assistance at Sec. 286.10 or on the administrative costs
directly associated with providing that assistance.'' This sentence is
no longer accurate because the law removes the restriction. We have
revised the remaining language to provide that a Tribe may reserve
amounts awarded to it, without fiscal year limitation, to provide
assistance, benefits, and services in accordance with the requirements
under Sec. 286.35 or Sec. 286.40, if applicable.
No change in the regulations related to the State TANF program is
necessary, as those regulations speak more broadly to improper uses of
TANF funds. Specifically, Sec. 263.11(b) currently states that ``We
will consider use of funds in violation of * * * sections 404 and 408
and other provisions of the Act * * * to be misuse of funds.'' This
statement is not impacted by the change to section 404(e) of the Act.
IV. Paperwork Reduction Act
There are no information collection activities imposed by this
regulation, nor are any existing requirements changed as a result of
their promulgation. Therefore, the requirements of the Paperwork
Reduction Act of 1995 (44 U.S.C. 3507) regarding reporting and
recordkeeping, do not apply.
V. Regulatory Flexibility Analysis
The Regulatory Flexibility Act (5 U.S.C. 605(b)) requires the
Federal government to anticipate and reduce the impact of rules and
paperwork requirements on small businesses and other small entities.
Small entities are defined in this Act to include small businesses as
defined by the Small Business Administration, non-profit organizations
that are not dominant in their markets, and small governmental
jurisdictions. This rule will affect primarily the 50 States, the
District of Columbia, certain Territories, and Indian Tribes operating
approved Tribal TANF programs. Therefore, we certify that this rule
will not have a significant impact on small entities.
VI. Regulatory Impact Analysis
Executive Order 12866 requires the review of regulations to ensure
that they are consistent with the priorities and principles set forth
in the Executive Order. The Department has determined that this interim
final rule is consistent with these priorities and principles. This
regulation implements a statutory change in the use of Federal TANF
block grant funds carried over from a prior fiscal year included in the
American Recovery and Reinvestment Act of 2009 (Pub. L. 111-5).
Further, we certify that this change is not an ``economically
significant regulatory action'' under Section 3(f)(1) of Executive
Order 12866. It will not have an annual effect on the economy of $100
million or more or adversely affect in a material way the economy, a
sector of the economy, productivity, competition, jobs, the
environment, public health or safety, or State, local, or tribal
governments or communities. TANF block grant awards remain the same;
this change in statute simply allows carry-over funds under the TANF
program to be used for broader purposes.
The Department, however, has determined that this rule is
significant for the purposes of review under Section 3(f)(4) of
Executive Order 12866 and therefore has been reviewed by the Office of
Management and Budget (OMB).
VII. Unfunded Mandates Reform Act of 1995
Section 202 of the Unfunded Mandates Reform Act of 1995 requires
that a covered agency prepare a budgetary impact statement before
promulgating a rule that includes any Federal mandate that may result
in the expenditure by State, local, and Tribal governments, in the
aggregate, or by the private sector, of $133 million or more in any one
year. The Department has determined that this rule would not impose a
mandate that will result in the expenditure by State, local, and Tribal
governments, in the aggregate, or by the private sector, of more than
$133 million in any one year.
VIII. Congressional Review
This regulation is not a major rule as defined in 5 U.S.C. Chapter
8.
IX. Assessment of Federal Regulation and Policies on Families
Section 654 of the Treasury and General Government Appropriations
Act of 1999 requires Federal agencies to determine whether a proposed
policy or regulation may negatively affect family well being. If the
agency's determination is affirmative, then the agency must prepare an
impact assessment addressing seven criteria specified in the law.
The Department has determined that this regulation does not
negatively affect family well being. The purpose of the TANF program is
to strengthen the economic and social stability of families. This rule
lifts the restriction on the use of Federal TANF carry-over funds so
that States and Tribes may provide the services that families need to
attain and maintain self-sufficiency.
X. Executive Order 13132
Executive Order 13132, Federalism, requires that Federal agencies
consult with State and local government officials in the development of
regulatory policies with Federalism implications. Consistent with this
[[Page 25163]]
Executive Order, we specifically solicited comments from State and
local government officials on this interim final rule. We will
seriously consider these comments in developing the final rule.
List of Subjects in 45 CFR Part 286
Carry over, Reserve, Prior fiscal years, Federal TANF funds.
(Catalog of Federal Domestic Assistance Program Number 93.558,
Temporary Assistance for Needy Families Program)
Dated: March 30, 2009.
Curtis L. Coy,
Acting Assistant Secretary for Children and Families.
Approved: April 28, 2009.
Charles E. Johnson,
Acting Secretary, Department of Health and Human Services.
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For the reasons stated in the preamble, we are amending 45 CFR chapter
II by amending part 286 as set forth below:
PART 286--TRIBAL TANF PROVISIONS
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1. The authority citation for part 286 is revised to read as follows:
Authority: 42 U.S.C. 601, 604, and 612; Public Law 111-5.
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2. Revise Sec. 286.60 to read as follows:
Sec. 286.60 Must Tribes obligate all Tribal Family Assistance Grant
funds by the end of the fiscal year in which they are awarded?
No. A Tribe may reserve amounts awarded to it, without fiscal year
limitation, to provide assistance, benefits, and services in accordance
with the requirements under Sec. 286.35 or Sec. 286.40, if
applicable.
[FR Doc. E9-12187 Filed 5-26-09; 8:45 am]
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