[Federal Register Volume 75, Number 65 (Tuesday, April 6, 2010)]
[Rules and Regulations]
[Pages 17313-17315]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-7530]
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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: Final rule.
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SUMMARY: This final rule implements the statutory change to section
404(e) of the Social Security Act as enacted by the American Recovery
and Reinvestment Act of 2009. 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 final rule applies to States, local
governments, and Tribes that administer the TANF program.
DATES: Effective April 6, 2010, the interim final rule amending 45 CFR
part 286 which was published at 74 FR 25161 on May 27, 2009, is adopted
as a final rule without change.
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.
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.
III. Response to Public Comment and Regulatory Provisions
The interim final rule was published May 27, 2009, and provided a
60-day comment period. Only one comment was received from an advocacy
organization that simply expressed
[[Page 17314]]
support for the regulation; thus, no changes have been made to the
provisions of the interim final rule in the final rule. 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 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 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; accordingly, it was 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
[[Page 17315]]
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
Executive Order, we solicited comments from State and local government
officials on the interim final rule.
XI. 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: November 20, 2009.
Carmen R. Nazario,
Assistant Secretary for Children and Families.
Approved: January 19, 2010.
Kathleen Sebelius,
Secretary, Department of Health and Human Services.
PART 286--TRIBAL TANF PROVISIONS
0
Accordingly, the interim final rule amending 45 CFR part 286 which was
published at 74 FR 25161 on May 27, 2009, is adopted as a final rule
without change.
[FR Doc. 2010-7530 Filed 4-5-10; 8:45 am]
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