**Tuesday, March 30, 2004 **

**Part II**

**Department of Health and Human Services **

**Administration for Children and Families **

**45 CFR Parts 286, 302, 309, and 310**\
**Tribal Child Support Enforcement **\
**Programs; Final Rule**

**DEPARTMENT OF HEALTH AND HUMAN SERVICES **

**Administration for Children and Families **

**45 CFR Parts 286, 302, 309 and 310 **

**RIN 0970--AB73 **

**Tribal Child Support Enforcement Programs **

**AGENCY: **Office of Child Support Enforcement (OCSE), Administration
for Children and Families (ACF), Department of Health and Human Services
(HHS).

**ACTION: **Final rule.

**SUMMARY: **ACF is issuing final regulations to implement direct
funding to Indian Tribes and Tribal organizations under section 455(f)
of the Social Security Act (the Act). Section 455(f) of the Act
authorizes direct funding of Tribal Child Support Enforcement (IV--D)
programs meeting requirements contained in the statute and established
by the Secretary of HHS by regulation. These regulations address these
requirements and related provisions, and provide guidance to Tribes and
Tribal organizations on how to apply for and, upon approval, receive
direct funding for the operation of Tribal IV--D programs.

**DATES: **This rule is effective March 30, 2004. For Tribes and Tribal
organizations not operating a Tribal IV-- D program under 45 CFR part
310, these regulations are applicable March 30, 2004. For Tribes
operating a Tribal IV-- D program under the Interim Final Rule, 45 CFR
part 310 will apply until no later than October 1, 2004. Tribes
operating under 45 CFR part 310 must comply with these final regulations
(45 CFR part 309) no later than October 1, 2004.

**FOR FURTHER INFORMATION CONTACT: **

Paige Biava, Policy Specialist, OCSE Division of Policy, (202)
401--5635.

Deaf and hearing-impaired individuals may call the Federal Dual Party
Relay Service at 1--800--877--8339 from Monday through Friday between
the hours of 8 a.m. and 7 p.m., Eastern Time.

**SUPPLEMENTARY INFORMATION: **

**Statutory Authority **

This final regulation implements section 455(f) of the Act, as added by
the Personal Responsibility and Work Opportunity Reconciliation Act of
1996 (PRWORA) and amended by section 5546 of the Balanced Budget Act of
1997 (Pub. L. 105--33). This final regulation is also issued under the
authority granted to the Secretary of HHS (Secretary) by section 1102 of
the Act, 42 U.S.C. 1302. Section 1102 of the Act authorizes the
Secretary to publish regulations that may be necessary for the efficient
administration of the functions for which the Secretary is responsible
under the Act.

Section 455(f) of the Act, as amended, reads as follows: ''The Secretary
may make direct payments under this part to an Indian Tribe or Tribal
organization that demonstrates to the satisfaction of the Secretary that
it has the capacity to operate a child support enforcement program
meeting the objectives of this part, including establishment of
paternity, establishment, modification, and enforcement of support
orders, and location of absent parents. The Secretary shall promulgate
regulations establishing the requirements which must be met by an Indian
Tribe or Tribal organization to be eligible for a grant under this
subsection.''

**Scope of This Rulemaking **

On August 21, 2000, a Notice of Proposed Rulemaking (NPRM) and Interim
Final Rule were published (65 FR 50800 and 65 FR 50786, respectively).
The NPRM set forth the proposed rules for direct funding to Tribal IV--D
agencies. The rulemaking process is ordinarily a lengthy process. A
number of Tribes expressed concern that efforts they had under way would
be unduly delayed or disrupted if the regulatory process had to run its
ordinary course before funds could be made available under section
455(f). The Interim Final Rule allowed Tribes and Tribal organizations
currently operating comprehensive Tribal IV--D programs comprising the
five mandatory elements listed in section 455(f) and meeting the
requirements specified in the interim rule to apply for, and if
approved, receive direct funding to operate a Tribal IV--D program.

This rulemaking is intended to establish the minimum requirements that
must be satisfied by an Indian Tribe or Tribal organization to be
eligible for direct funding under title IV--D of the Social Security
Act. The final regulation establishes application procedures, child
support enforcement plan requirements, funding provisions, and
accountability and reporting requirements. OCSE is planning a series of
conferences across the country to explain, discuss, and respond to
questions on the final regulation. Additional information about these
conferences will be forthcoming.

The national Child Support Enforcement Program was initially established
in 1975 under title IV--D of the Act as a joint Federal/State
partnership. The goal of the Child Support Enforcement Program (also
known as the title IV--D program) is to ensure that all parents
financially support their children. The IV--D program locates
noncustodial parents, establishes paternity, establishes and enforces
support orders, and collects child support payments from parents who are
legally obligated to pay.

We believe the promulgation of these regulations is not only consistent
with the commitment of the Department to the government-to-government
relationship with Indian Tribes, but also with a productive partnership
of the Office of Child Support Enforcement in all dealings with Tribes.

**Tribal Child Support Enforcement **

Prior to enactment of PRWORA, title IV--D of the Act placed authority to
administer the delivery of IV--D services solely with the States.
However, within much of Tribal territory, the authority of State and
local governments is limited or non-existent. The Constitution, numerous
court decisions, and Federal law clearly reserve to Indian Tribes
important powers of self-government, including the authority to make and
enforce laws, to adjudicate civil and criminal disputes including
domestic relations cases, to tax, and to license. Consequently, States
have been limited in their ability to provide IV--D services on Tribal
lands and to establish paternity and establish and enforce child support
orders and Indian families have had difficulty getting IV--D services
from State IV--D programs. Some child support enforcement services have
been provided through cooperative agreements between Tribes and States
and have helped bring child support services to some Indian and Alaska
Native families.

Prior to enactment of PRWORA, Federal funding under title IV--D of the
Act was limited to funding State child support enforcement programs and
there was no direct Federal funding to Tribes for child support
enforcement activities. Federal funding was only available indirectly to
Tribes through States for eligible expenditures of Tribes pursuant to
cooperative agreements with States under which the State delegated
functions of the IV--D program to the Tribal entity. The Tribal entity
was required to comply with all aspects of title IV--D of the Act
applicable to the function or functions delegated to the Tribe. Only
under these circumstances was Federal reimbursement under title IV--D
available to the State for costs incurred by the Tribal entity for
performing IV--D functions.

For the first time in the history of the title IV--D program, PRWORA
authorized direct funding of Tribes and Tribal organizations for
operating child support enforcement programs. The Department recognizes
the unique relationship between the Federal government and
Federally-recognized Indian Tribes and acknowledges this special
government-to-government relationship in the implementation of the
Tribal provisions of PRWORA. The direct Federal funding provisions
provide Tribes with an opportunity to administer their own IV--D
programs to meet the needs of children and their families.

**Principles Governing Regulatory Development **

Essential to the Federal-State-Tribal effort to ensure that noncustodial
parents support their children is coordination and partnership,
especially in the processing of inter-jurisdictional cases. Therefore,
we believe that all IV-- D programs must be administered under a basic
framework to ensure that the objectives of title IV--D are successfully
implemented. This common title IV--D framework does not mean that Indian
Tribes are subject to the same regulations as States are. However, this
regulation sets forth the minimum core requirements that must be met in
order for a Tribe or Tribal organization to receive direct funding for
IV--D programs.

**Regulatory Flexibility Analysis **

The Secretary certifies, under 5 U.S.C. 605(b), the Regulatory
Flexibility Act (Pub. L. 96--354), that these regulations will not
result in a significant impact on a substantial number of small entities
because the primary impact of these regulations is on Tribal
governments, not considered small entities under the Act.

**Executive Order 12866 **

Executive Order 12866 requires that regulations be drafted to ensure
that they are consistent with the priorities and principles set forth in
the Executive Order. The Department has determined that this rule is
consistent with these priorities and principles. The regulations are
required by PRWORA and represent the requirements governing direct
funding to Tribal IV--D agencies that demonstrate the capacity to
operate a IV--D program, including establishment of paternity,
establishment, modification and enforcement of support orders, and
location of noncustodial parents.

The Executive Order encourages agencies, as appropriate, to provide the
public with meaningful participation in the regulatory process. ACF
consulted with Tribes and Tribal organizations and their representatives
to obtain their views prior to the publication of this final rule.
Consultations included a series of six Nation-to-Nation meetings held
across the county. In addition, a toll free ''800'' number was created
to allow for additional comments and input from Tribes and Tribal
organizations and more in-depth individual consultations also occurred.

This rule is considered a ''significant regulatory action'' under 3(f)
of the Executive Order, and therefore has been reviewed by the Office of
Management and Budget.

**Executive Order 13175 **

Executive Order 13175 (65 FR 6724, November 6, 2000) requires us to
develop an accountable process to ensure ''meaningful and timely input
by Tribal officials in the development of regulatory policies that have
Tribal implications.'' The purpose of consultation is to strengthen the
United States government-to-government relationship with Indian Tribes
and to reduce the imposition of unfunded mandates upon Indian Tribes.
ACF consulted with Tribes and Tribal organizations and their
representatives to obtain their views prior to the publication of this
final rule. Consultations included a series of six Nation-to-Nation
meetings in Albuquerque, New Mexico; Portland, Oregon; Nashville,
Tennessee; Fairbanks, Alaska; Washington, DC; and Prior Lake, Minnesota
on the Shakopee Indian Reservation. Each of the consultations lasted for
two and a half days and further follow up was conducted on an individual
level. In addition, a toll free ''800'' number was created to allow for
additional comments and input by Tribes and Tribal organizations. The
consultations were successful in elicting a wide range of questions,
issues, and suggestions.

**Unfunded Mandates **

Section 202 of the Unfunded Mandates Reform Act of 1995, Pub. L. 104--4,
(Unfunded Mandates Act) requires that a covered agency prepare a
budgetary impact statement before promulgating a rule that includes a
Federal mandate that may result in the expenditure by State, local and
Tribal governments, in the aggregate, or by the private sector, of \$100
million or more in any one year. If a covered agency must prepare a
budgetary impact statement, section 205 further requires that it select
the most cost-effective and least burdensome alternative that achieves
the objectives of the rules and is consistent with the statutory
requirements. In addition, section 203 requires a plan for informing and
advising any small government that may be significantly or uniquely
impacted by the rule.

We have determined that the rule is not an economically significant rule
and will not result in the expenditure by State, local, and Tribal
governments, in the aggregate, or by the private sector, of more than
\$100 million in any one year. The following are estimated Federal
annual expenditures under the Tribal IV--D Program: FY 2004---\$18.0
million; FY 2005---\$38.0 million; FY 2006--- \$53.0 million;
FY2007---\$57.4 million. Accordingly, we have not prepared a budgetary
impact statement, specifically addressed the regulatory alternatives
considered, or prepared a plan for informing and advising any
significantly or uniquely impacted small government.

**Congressional Review **

This rule is not a major rule as defined in 5 U.S.C. Chapter 8.

**Assessment of Federal Regulations and Policies on Families **

Section 654 of the Treasury and General Government Appropriations Act of
1999 requires Federal agencies to determine whether a policy or
regulation may affect family well-being. If the agency's conclusion is
affirmative, then the agency must prepare an impact assessment
addressing criteria specified in the law. We have determined that this
regulation may affect family well­being as defined in section 654 of the
law and certify that we have made the required impact assessment. The
purpose of the Tribal Child Support Enforcement Program is to strengthen
the economic and social stability of families. This rule is responsive
to the needs of Tribes and Tribal organizations and provides them the
opportunity to design programs that serve this purpose. The rule will
have a positive effect on family well-being. Implementation of Tribal
IV--D programs will result in increased child support enforcement
services, including increased child support payments, for Tribal service
populations. By helping to ensure that parents support their children,
the rule will strengthen personal responsibility and increase disposable
family income.

**Executive Order 13132 **

Executive Order 13132 on Federalism applies to policies that have
federalism implications, defined as ''regulations, legislative comments
or proposed legislation, and other policy statements or actions that
have substantial direct effects on the States, on the relationship
between the national government and the States, or on the distributions
of power and responsibilities among the various levels of government.''
This rule does not have federalism implications for State or local
governments as defined in the Executive Order.

**Paperwork Reduction Act of 1995 **

This final rule contains reporting requirements as proposed at 45 CFR
part 309. As required by the Paperwork Reduction Act of 1995 (44 U.S.C.
3507(d)), the Administration for Children and Families submitted the
requirements to the Office of Management and Budget (OMB) for its
review.

Part 309 contains a regulatory requirement that, in order to receive
funding for an independent Tribal IV-- D program, a Tribe or Tribal
organization must submit an application containing standard forms 424
and 424A and a plan describing how the Tribe or Tribal organization
meets or plans to meet the objectives of section 455(f) of the Act,
including establishing paternity, establishing, modifying, and enforcing
support orders, and locating noncustodial parents. Tribes and Tribal
organizations must respond if they wish to operate a Federally funded
program. In addition, any Tribe or Tribal organization participating in
the program would be required to submit

  -- ------------- -- -- -- --
                            
                            
     **Year 1 **            
                            
                            
                            
                            
                            
                            
                            
                            
                            
                            
                            
                            
                            
                            
                            
  -- ------------- -- -- -- --

**Year 2 **

**Year 3 **

standard form 269A and form OCSE 34A and to submit statistical and
narrative reports regarding its Tribal IV-- D program. The potential
respondents to these information collection requirements are
approximately 10 Federally recognized Tribes, and Tribal organizations,
during Year 1; 65 additional Federally recognized Tribes and Tribal
organizations during Year 2; and 75 additional Federally recognized
Tribes and Tribal organizations during Year 3; for a three year total of
150 grantees. This information collection requirement will impose the
estimated total annual burden on the Tribes and Tribal organizations
described in the table below:

  --------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- --------------------------------------- --------------------------------------- ------------------------------------------ ------------------------------------ ---------
  SF 424 \...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\.....                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                 10                                      1                                       .75                                                                             7.5
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                
  SF 424A \...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                  10                                      1                                       3                                                                               30
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                
  SF 269A \...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                  10                                      5                                       2                                                                               100
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                
  45 CFR 309---Plan \...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\....                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                               10                                      1                                       480                                                                             4,800
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                
  Form OCSE 34A \...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\.....                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                              10                                      4                                       8                                                                               320
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                
  Statistical Reporting \...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                            10                                      1                                       24                                                                              240
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                
  Total \...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\.....                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                      \...\...\...\...\...\...\...\...\....   \...\...\...\...\...\...\...\...\....   \...\...\...\...\...\...\...\...\...\...                                        5,497.5
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                
  SF 424 \...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\..... SF 424A \...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\... SF 269A \...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\... 45 CFR 309---Plan \...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\.... Form OCSE 34A \...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\..... Statistical Reporting \...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...   75 75 75 65 75 75                       1 1 5 1 4 1                             .75 3 2 480 8 24                           56.25 225 750 31,200 2,400 1,800     
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                
  Total \...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\.....                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                      \...\...\...\...\...\...\...\...\....   \...\...\...\...\...\...\...\...\....   \...\...\...\...\...\...\...\...\...\...   36,431.25                            
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                
  SF 424 \...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\..... SF 424A \...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\... SF 269A \...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\... 45 CFR 309---Plan \...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\.... Form OCSE 34A \...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\..... Statistical Reporting \...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...   150 150 150 75 150 150                  1 1 5 1 4 1                             .75 3 2 480 8 24                           112.5 450 1,500 36,000 4,800 3,600   
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                
  Total \...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\.....                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                      \...\...\...\...\...\...\...\...\....   \...\...\...\...\...\...\...\...\....   \...\...\...\...\...\...\...\...\...\...   46,462.5                             
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                
  --------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- --------------------------------------- --------------------------------------- ------------------------------------------ ------------------------------------ ---------

*Total Burden for 3 Years: *88,391.25.

*Total Annual Burden Averaged Over 3 Years: *29,463.75 per year.

The information collection requirements were approved by OMB under OMB
number 0970--0218.

**Summary Description of Regulatory Provisions **

The following is a summary of the regulatory provisions included in this
final rule. The Notice of Proposed Rulemaking (NPRM) and Interim Final
Rule for Comprehensive Tribal Child Support Enforcement Programs were
published in the **Federal Register **on August 21, 2000 (65 FR 50786).
The NPRM contained part 309, subparts A through F, and the Interim Final
Rule contained part 310, subparts A through

G. Subparts A through F were essentially the same in part 309 and part
310, with one exception. Part 309 included proposed provisions both for
Tribes and Tribal organizations that already are able to operate
comprehensive IV--D programs, and for Tribes and Tribal organizations
that do not already operate comprehensive IV-- D programs and need
program development funding for start-up IV--D programs. Because the
Interim Final Rule, part 310, applied only to Tribes and Tribal
organizations that already operate comprehensive IV--D programs, it did
not include provisions for program development funding for start­up IV--D
programs. Subpart G of the part 310 rule contained additional specific
requirements for interim funding of operational comprehensive Tribal
IV--D programs. On the effective date of these regulations, part 310
will become time-limited. For Tribes operating a Tribal IV--D program
under the Interim Final Rule, 45 CFR part 310 will be applicable to
grants covering the period up to the first day of the quarter beginning
6 months after the date of publication of the final regulations for 45
CFR part 309. Tribes operating under 45 CFR part 310 must make changes
to their current program to comply with this final rule not later than
the first day of the quarter beginning 6 months after the date of
publication of the final rule in order to receive continued IV--D
funding.

Since issuance of the proposed rule, we have also made changes to
Sections 286 and 302. Part 286 was modified to comply with the
distribution requirements found in part 309 of the rule. Changes were
made to part 302 to include cooperation with Tribal IV--D agencies as a
requirement for State IV-- D agencies.

**45 CFR Chapter II **

*Tribal TANF Provisions, Section 286, Subpart C---Tribal TANF Plan
Content and Processing *

Section 286.155 sets out the eligibility provisions for Tribal TANF in
relationship to assignment of child support. This section currently
requires the Tribal TANF agency to have procedures for ensuring that
child support collections in excess of the amount of Tribal TANF
received by the family must be paid to the family. The section was
modified to eliminate references to payments to the family because
distribution of these collections is now addressed in § 309.115 of this
rule.

**45 CFR Chapter III **

*Section 302, State Plan Requirements *

Section 302.36 details the State plan requirement for States to
cooperate with other states in interstate IV--D cases. This section
title and content is modified to include cooperation with all Tribal
IV--D programs. Section 302.36(a)(2) requires States to extend the full
range of services available under its IV--D plan to all Tribal IV--D
programs.

*Part 309---Comprehensive Tribal Child Support Enforcement (CSE)
Programs *

*Subpart A---Tribal Child Support Enforcement Program (IV--D) Program:
General Provisions *

Section 309.01 provides the general provisions. Section 309.05 defines
key terms. We added a number of definitions for clarification and to
make the rule easier to read. Definitions were added for the following
terms: income, non-cash support, notice of disapproval, OCSE, program
development plan, TANF and Tribal custom.

This section establishes definitions for terms used throughout part 309
of this final rule. We also want to make clear that underlying these
regulations is the recognition that many Tribal customs and traditions
have the force and effect of law. We have determined that such Tribal
customs are equivalent to ''common law'' as described by William
Blackstone: ''\[t\]he lex non scripta, or unwritten law, includes not
only general customs, or the common law properly so called; but also the
particular customs of certain parts of the kingdom; and likewise those
particular laws, that are by custom observed only in certain courts and
jurisdictions'' (Blackstone, 1 Commentaries on the Law of England 62).

Section 309.10 outlines who is eligible to apply for Federal funding to
operate a Tribal IV--D program. Proposed § 309.10 required a Tribe or
Tribal organization to have at least 100 children under the age of
majority in the population subject to the jurisdiction of the Tribe in
order to be eligible to receive Federal funding to operate a Tribal
IV--D program. In response to comments, we added a provision at §
309.10(c) that, if a Tribe or Tribal organization can demonstrate to the
satisfaction of the Secretary the capacity to operate a child support
enforcement program and provide justification for operating a cost
effective program with less than the minimum number of children, it may
be considered eligible for direct funding under a waiver. Details on
what information must be included in a waiver request are provided in
the regulation at § 309.10(c)(1) and (2) and the waiver request must be
included in the original application.

*Subpart B---Tribal IV--D Program Application Procedures *

Section 309.15 establishes what must be included in an application for
direct funding. The application must include a Standard Form (SF) 424,
''Application for Federal Assistance,'' SF 424A, ''Budget
Information-Non-Construction Programs'' and a Tribal IV--D plan---a
comprehensive statement that demonstrates the capacity of the Tribe or
Tribal organization to operate a IV-- D program meeting the objectives
of title IV--D. This section also describes annual budget submissions
including a specific mechanism to deal with requests for inclusion of
indirect costs.

The provisions in proposed § 309.15 described what was included in the
initial application, including the SF 424 and 424A, as well as the
Tribal IV--D plan. We expanded this provision to clarify the
requirements. The SF 424A, ''Budget Information---Non-Construction
Programs,'' must be completed and include: A quarter-by-quarter estimate
of expenditures for the funding period; notification of whether the
Tribe or Tribal organization is requesting funds for indirect costs and
if so, an election of a method to calculate estimated indirect costs; a
narrative justification for each cost category on the form; a statement
that the Tribe or Tribal organization has or will have the non-Federal
share of program expenditures available, as required, or a request for a
waiver of the non-Federal share in accordance with § 309.130(e), if
appropriate. These new requirements are based on our experience with the
Tribal IV--D programs currently funded under the Interim Final Rule. We
discovered that our requirements in the interim rule were not explicit
enough to ensure we received the information necessary to make an
informed decision on funding. In our review of the applications, we
found that it was necessary to request the information listed in §
309.15(a)(2)(i)--(iv). These new requirements will save time for the
applicant and OCSE by making immediately available all information
needed for approval and funding decisions.

We added language at § 309.15(a)(3) giving Tribes an option regarding
the inclusion of indirect costs. If a Tribe or Tribal organization's
budget request includes indirect costs as part of its request for
Federal funds, such requests may be submitted in one of two ways. For
applications which include indirect costs, we have determined that an
applicant may, at its option, either calculate the estimated indirect
costs by documenting the dollar amount of indirect costs allocable to
the IV--D program, or submit its current indirect cost rate negotiated
with the Department of the Interior and a dollar amount of indirect
costs based on that rate. If the Tribe elects to submit actual estimated
costs attributable to the Tribal IV--D program, the methodology used to
arrive at the dollar amount must be included in the application.
Whichever option an applicant chooses, the applicants obligations
remains the same: Tribal IV-- D grantees are responsible for ensuring
that actual expenditures of Federal IV-- D funds are directly,
demonstrably attributable to operation of the IV--D program, *i.e.*, all
actual costs claimed under the IV--D grant must be allocable to the
IV--D program. The Federal statute at 42 U.S.C. 651 limits the use of
Federal IV--D funds to the purposes enumerated in that section, whether
such costs are characterized as ''direct'' or ''indirect'' costs.
Grantees are prohibited from shifting costs to IV--D grants which are
not attributable to operation of the IV--D program. Adjustments will be
made for any differences between estimated and actual costs attributable
to the IV--D program.

In the Temporary Assistance for Needy Families (TANF) program, even
though Tribal grantees may use their negotiated indirect cost rate to
calculate indirect costs, total actual costs are limited and may not go
beyond a regulatory cap on administrative expenditures. Similarly, in
the Tribal IV--D program, Tribal grantees may use their negotiated
indirect cost rate to calculate estimated indirect costs, but the
Federal statute limits the total amount of costs that may be claimed to
those that are directly attributable to administration of the IV--D
program.

We also added language at § 309.15(a)(4) that the initial application
must include a comprehensive statement identifying how the Tribe or
Tribal organization is meeting the requirements of subpart C of this
part, and that describes the capacity of the Tribe or Tribal
organization to operate a IV--D program which meets the objectives of
title IV--D of the Act.

Section 309.16 establishes the rules for a Tribe or Tribal organization
to apply for start-up funding authorized under § 309.65(b) if the Tribe
or Tribal organization cannot, at the time of application, meet all the
Tribal IV--D plan requirements in § 309.65(a). In addition to the
application requirements listed in § 309.15 above, a Tribe or Tribal
organization must include a program development plan describing how a
Tribal IV--D agency will meet any Tribal IV--D plan requirements not
currently met within a reasonable, specific period of time, not to
exceed two years. Funding is limited to \$500,000. In extraordinary
circumstances, the Secretary may grant a no-cost extension of time.

The language at proposed § 309.65(b)(1) and (2) contained requirements
for a start-up application and a program development plan. In order to
clarify the rule, we moved that language to § 309.16(a)(4) and (5). We
added language at § 309.16(a)(3) that if a Tribe or Tribal
organization's budget for start-up funding includes a request for
indirect costs, a mechanism parallel to that described at § 309.15(a)(3)
must be used. If a Tribe or Tribal organization receives funding based
on submission and approval of a Tribal IV--D application which includes
a program development plan under § 309.16(a)(5),

a progress report that describes accomplishments in carrying out the
plan, as required by § 309.170(b)(6), must be submitted with the next
annual refunding request.

New language was added at paragraph

\(b\) indicating that the approval and disapproval procedures for
applications for start-up funding are found in §§ 309.35, 309.40, 309.45
and 309.50. We also added language that clarifies that an application
for start-up funding is not subject to administrative appeal.

Paragraph (c) of § 309.16 indicates that start-up funding is limited to
\$500,000 and must be obligated and liquidated within two years from the
first day of the quarter after the start-up application is approved. The
Secretary will consider a request to extend the period of time during
which the start-up funding is available or increase the amount of
funding provided. The language that addressed the no-cost extension or
the additional start-up funding was only found in the preamble
discussion of the NPRM and is now clearly stated in the final rule in
paragraphs (c)(1) and (c)(2).

Proposed §§ 309.20 and 309.30 were consolidated in the final rule as §
309.20 for clarity. Section 309.20 now addresses who submits a Tribal
IV--D application and where it must be submitted. The authorized
representative of a Tribe or Tribal organization must sign and submit
the application. Two copies of an application or plan amendment must be
submitted: the original to the OCSE Central Office, and a copy to the
appropriate regional office.

Proposed §§ 309.25 and 309.35 were consolidated as § 309.35 for clarity.
Section 309.35 now outlines the procedures for review of IV--D program
applications, plans and plan amendments. The Secretary will determine
whether the application, plan or plan amendment meets the requirements
not later than 90 days after receipt. If additional information is
required, the determination will be made within 45 days of receipt of
all necessary information. Determinations as to whether the Tribal IV--D
plan, including plan amendments, meets or continues to meet the
requirements are based on applicable Federal statutes and regulations.
Guidance may be furnished to assist in interpretation. All relevant
changes required by new Federal statutes, rules, regulations and
interpretations are required to be submitted so that OCSE may determine
whether the plan continues to meet Federal requirements. If a Tribe or
Tribal organization intends to make any substantive change to the Tribal
IV--D program, a plan amendment must be submitted at the earliest
reasonable time. The effective date of a plan or plan amendment may not
be earlier than the first day of the fiscal quarter in which a plan or
amendment is approved.

Section 309.40 describes the basis for disapproval of a Tribal IV--D
program application, IV--D plan or plan amendment. An application, plan
or plan amendment will be disapproved if the Secretary determines that:
It fails to meet, or no longer meets one or more of the Federal
requirements; the required Tribal laws, codes or regulations are not in
effect; or the application is not complete (after the Tribe or Tribal
organization has had the opportunity to submit all necessary
information.) A written Notice of Disapproval will be sent to the Tribe
or Tribal organization upon determination that any of the conditions for
disapproval applies. If the application, plan or plan amendment is
incomplete and fails to provide enough information to make a
determination, the Secretary will request the necessary information.

Section 309.45 provides that a Tribe or Tribal organization may request
reconsideration of disapproval of a Tribal IV--D application, plan or
plan amendment and describes the process. The request for
reconsideration must include all documentation that is relevant and
supportive of the application, plan or plan amendment and a written
response to each ground for disapproval. The request for reconsideration
must also include whether the Tribe or Tribal organization requests a
meeting or conference call with the Secretary. The Secretary will have a
60-day period to make a written determination affirming, modifying or
reversing disapproval of the application. Disapproval of start-up
funding or of a request for waiver of the 100-child rule or waiver of
the required Tribal share of expenditures is not subject to
administrative appeal.

If we intend to disapprove an existing IV--D plan, we will send the
Tribe a Notice of Intent to Disapprove the plan. The Tribe may request a
hearing within 60 days of the date of the notice of our intent to
disapprove the plan if the Tribe waives its right to a reconsideration
under § 309.45. Although we received no written comments on this
section, we added the opportunity for a hearing prior to disapproval of
an existing Tribal IV--D plan because of the significant consequences of
Tribal plan disapproval.

Section 309.50 describes the consequences of disapproval of an
application or plan amendment. If an application is disapproved, the
Tribe can receive no direct funding until a new application is submitted
and approved. If a plan amendment is disapproved, there is no funding
for the proposed activity.

A Tribe or Tribal organization may reapply at any time once it has
remedied the circumstances that led to disapproval of the application,
plan or plan amendment.

*Subpart C---Tribal IV--D Plan Requirements *

Section 309.55 states that subpart C of § 309 defines the Tribal IV--D
provisions that are required to demonstrate the Tribe or Tribal
organization has the capacity to operate a child support enforcement
program.

Section 309.60 describes who is responsible for administration of the
Tribal IV--D program under the plan. The Tribe or Tribal organization
must designate an agency to administer the Tribal IV--D plan. The Tribe
or Tribal organization is responsible and accountable for the operation
of the Tribal IV--D program. If a Tribe or Tribal organization delegates
any functions of the Tribal IV--D program to another Tribe, State,
and/or another agency or entity, the Tribe or Tribal organization is
responsible for securing compliance with the requirements of the plan.
The Tribe or Tribal organization is responsible for submitting copies
and appending to the Tribal IV--D plan any agreements, contracts, or
Tribal resolutions between the Tribal IV--D agency and a Tribe, State,
other agency or entity.

Section 309.65(a) describes what a Tribal IV--D plan must include in
order to be approved and receive Federal funds for the operation of the
Tribal IV-- D program. This part outlines the 14 required elements which
include: (1) A description of the population subject to the jurisdiction
of the Tribal court or administrative agency for child support purposes;
(2) evidence that the Tribe has in place procedures for accepting all
applications for IV--D services and providing IV--D services required by
law and regulation; (3) assurance that due process rights are protected;
(4) administrative and management procedures; (5) safeguarding
procedures;

-   \(6\) maintenance of records; (7) copies of applicable Tribal laws
    and regulations

-   \(8\) procedures for the location of noncustodial parents; (9)
    procedures for the establishment of paternity; (10) guidelines for
    the establishment and modification of child support
    obligations; (11) procedures for income withholding; (12) procedures
    for the distribution of child support collections;

\(13\) procedures for intergovernmental case processing; and (14)
Tribally-determined performance targets.

Section 309.65(b) includes a provision for Tribes or Tribal
organizations that can demonstrate the capacity to operate a IV--D
program but that are unable at the time of application to satisfy all of
the requirements of paragraph (a) to request start-up funding. The NPRM
at § 309.65(b) outlined what must be included in a start-up application.
Those provisions are now found at § 309.16. The Tribe or Tribal
organization may demonstrate capacity to operate a Tribal IV--D program
by submission of an application for start-up funding as required by §
309.16. Proposed § 309.65(c) said that the Secretary will cease funding
to a Tribe or Tribal organization's start-up efforts if that Tribe or
Tribal organization fails to demonstrate satisfactory progress pursuant
to §§ 309.15(b)(2) and 309.25(d) toward putting a full program in place.
The language was revised for clarity and now says, ''The Secretary may
cease start-up funding to a Tribe or Tribal organization of that Tribe
or Tribal organization fails to satisfy one or more provisions or
milestones described in its program development plan within the
timeframe specified in such plan.'' This requirement is now found at
309.65(b)(2).

In §§ 309.70 through 309.120, we eliminate duplicative language in the
introduction to each section that read, ''A Tribe or Tribal organization
demonstrates capacity to operate a Tribal CSE program meeting objectives
of title IV--D of this Act.'' The language is unnecessary as approval of
a plan is based on the contents of the plan. the new introductory
language reads: ''A Tribe or Tribal organization must include in its
Tribal IV--D plan a description of. \* \* \*''

Section 309.70 requires that the Tribe or Tribal organization include a
description of the population subject to the jurisdiction of the Tribal
court or administrative agency for child support enforcement purposes
and certify that there are at least 100 children under the age of
majority in the population subject to the Tribe's jurisdiction, in
accordance with § 309.10 of this part and subject to §309.10(c)

Section 309.75 outlines the administrative and management procedures
that must be included in the plan. The plan must include a description
of the agency and the distribution of responsibilities within the
agency. In response to comments, we eliminated as duplicative the
requirement that the plan includes procedures under which applications
are made available to the public upon request and that the plan also
includes procedures under which the agency must promptly open a case
record and determine necessary action. This requirement is found at §
309.65(a)(2).

The plan must include evidence that all Federal funds and amounts
collected by the Tribal IV--D agency are protected against loss. Tribes
and Tribal organizations may comply with this requirement by submitting
documentation that every person who receives, disburses, handles, or has
access to or control over funds collected is covered by a bond or
insurance sufficient to cover all losses. In response to comments we
eliminated as duplicative the language in proposed § 309.75(d)(3) that
specified, ''the requirements of this section do not reduce or limit the
ultimate liability of the Tribe or Tribal organization for losses of
support collections from the Tribal CSE agency's program.''

The plan must include that notices of support collected, itemized by
month of collection, are provided to families receiving services under
the Tribal IV-- D program at least once a year and to either the
custodial or noncustodial parent upon request. The plan must include a
certification that the Tribe or Tribal organization will comply with the
provisions of chapter 75 of title 31 of the U.S.C. (the Single Audit Act
of 1984, Pub. L. 98--502, as amended) and OMB Circular A--133.

We added a new provision at § 309.75(e) that if the Tribal IV--D agency
intends to charge an application fee, the plan must contain provisions
that the fee will be uniformly applied and cannot exceed \$25.00; that
in intergovernmental cases referred for services, the application fee
may only be charged by the jurisdiction where the individual applies for
services; that fees may not be charged to individuals receiving services
under titles IV--A, IV-- E foster care assistance or XIX (Medicaid) of
the Act; and that the Tribal IV--D agency may recover actual costs of
providing services in excess of the application fee. Fees collected and
costs recovered are considered program income and must be used to reduce
the amounts of expenditures for Federal matching. The Tribal IV--D
agency must exclude from its quarterly expenditure claims an amount
equal to all fees which are collected and costs recovered during the
quarter. Assessment of a fee and/or recovery of costs are not mandatory
requirements, but optional provisions that some Tribes may choose to
use.

Section 309.80 outlines what safeguarding procedures a Tribe or Tribal
organization must include in its plan. The plan must include procedures
under which the use or disclosure of personal information received by or
maintained by the Tribal IV--D agency is limited to purposes directly
connected to the administration of the program, or other programs or
purposes prescribed by the Secretary in regulations. The plan must
include procedures for safeguards that are applicable to all
confidential information including safeguards against unauthorized use
or disclosure of information relating to proceedings or actions to
establish paternity, establish, modify or enforce support. Also included
are prohibitions against the release of information on the whereabouts
of one party or the child to another party when a protective order has
been entered, and against the release of information if the Tribe has
reason to believe the release of the information may result in physical
or emotional harm to the party or child, and any other procedures in
accordance with specific safeguarding regulations applicable to Tribal
IV--D programs promulgated by the Secretary. The plan must also contain
sanctions to be imposed for unauthorized disclosure of personal
information.

Although not specified in this final rule, in addition to programs and
purposes prescribed by the Secretary, Tribal IV--D programs are
authorized to disclose information to individuals for purposes
authorized by Federal statute. If a Federal statute requires a Tribal
IV-- D program to share information, the agency must comply.

Section 309.85 was amended to clarify the section's requirements.
Previously, the title of the section was ''What reports and maintenance
of records procedures must a Tribe or Tribal organization include in a
Tribal IV--D plan?'' The emphasis was on procedures. The title now
reads: ''What records must a Tribe or Tribal organization agree to
maintain in a Tribal IV--D plan?'' This more appropriately places the
emphasis on what will be maintained. This section now requires that the
Tribal IV--D plan provide that the Tribal IV--D agency will maintain
records necessary for proper and efficient operation of the program
including: (1) Applications for child support services; (2) efforts to
locate noncustodial parents; (3) actions taken to establish paternity
and obtain and enforce support; (4) amounts owed, arrearages, and
amounts and sources of support collections, and the distribution of such
collections; (5) IV--D program expenditures; (6) any fees charged and
collected, if applicable; and (7) statistical, fiscal and other records
necessary for reporting and accountability. Records must be maintained
in accordance with 45 CFR

74.53. The NRPM noted that records would be maintained in accordance
with 45 CFR 92.42; however, it is more appropriate that they be
maintained in accordance with part 74. Both require three-year records
retention, but title IV--D falls under part 74.

Section 309.90(a) requires the submission of copies of Tribal law, code,
regulations or procedures and other evidence that provides for: (1)
Establishment of paternity for any child up to at least 18 years of age;
(2) establishment and modification of child support obligations; (3)
enforcement of child support obligations including requirements that
Tribal employers comply with income withholding; and

\(4\) location of custodial and noncustodial parents. In the absence of
written laws and regulations, a Tribe or Tribal organization may provide
in its plan detailed descriptions of any Tribal custom or common law
with the force and effect of law which enables the Tribe or Tribal
organization to satisfy the requirements in paragraph (a).

Section 309.95 requires the plan to include provisions governing the
location of custodial and noncustodial parents and their assets. The
Tribal IV-- D agency must attempt to locate custodial and noncustodial
parents or sources of income and/or assets when location is required to
take necessary action in a case, and must use all sources of information
and records reasonably available to locate custodial and noncustodial
parents and their sources of income and/or assets. We added the
reference to custodial parents to ensure that locate sources are used to
find custodial parents for whom support has been collected and whom the
Tribe may be unable to find.

Section 309.100 outlines the paternity establishment procedures that a
Tribe or Tribal organization must include in its plan. The agency must
attempt to establish paternity by the process set out under Tribal law,
code and/or custom and provide the alleged father an opportunity to
voluntarily acknowledge paternity. In a contested paternity case the
child and all other parties must submit to a genetic test (unless
otherwise barred by Tribal law) upon the request of any party if the
request is supported by a sworn statement alleging paternity, and
setting forth facts establishing a reasonable possibility of the
requisite sexual contact between parties; or denying paternity, and
setting forth facts establishing a reasonable possibility of the
nonexistence of sexual contact between the parties. The phrase
'otherwise barred by Tribal law' is intended to cover situations where,
either by action of one or both of the parties or the application of
Tribal law, or both, paternity has already been conclusively determined
and may not be reconsidered. In such cases, genetic testing to challenge
the paternity determination would not be authorized. Examples of such a
paternity determination would include a voluntary admission of paternity
or circumstances under which the Tribe has other means of recognizing
paternity under Tribal law. A Tribe, through its own custom, tradition
or procedure, may recognize a man as the father or may preclude a man
who holds himself out to be the father from challenging paternity.
Similarly, a Tribe may have a conclusive presumption of paternity when a
child is born to married parents or if a noncustodial parent has been
validly served in a paternity proceeding and failed to contest paternity
in such proceeding. A uniquely Tribal means would be acceptable as
precluding the need for genetic tests if Tribal law is used to establish
paternity. In such cases, because paternity has already been determined,
genetic testing would be ''otherwise barred by Tribal law.'' This
language is consistent with the language found at section 466(a)(5)(B)
of the Act, which mandates genetic testing in contested cases to ensure
that the rights of both parties are protected.

In any case involving incest or forcible rape, or in a case in which
legal proceedings for adoption are pending, the agency need not attempt
to establish paternity. The agency must use accredited laboratories,
which perform legally and medically-acceptable genetic tests when
genetic testing is used to establish paternity. Establishment of
paternity under this section has no effect on Tribal enrollment or
membership.

Section 309.105 indicates what procedures governing child support
guidelines must be included in the plan. We changed the title of this
section to better reflect its content. The section requires that a
Tribal IV--D plan establish one set of child support guidelines by law
or by judicial action for setting and modifying child support obligation
amounts; include a copy of the child support guidelines; and indicate
whether non-cash payments of support will be permitted to satisfy the
child support obligation. In response to comments, we added language
that the plan must indicate whether non-cash payments will be permitted
to satisfy support obligations and if so, require that Tribal support
orders allowing non­cash payments also state the specific dollar amount
of the support obligation, and describe the types of non-cash support
that will be permitted to satisfy the underlying specific dollar amount
of the support order. We also added language providing that non-cash
payments may not be used to satisfy assigned support obligations.

The guidelines must be reviewed, and if appropriate, revised at least
every four years and provide a rebuttable presumption that the child
support award based on the guidelines is the correct amount. The plan
must provide for the application of the guidelines unless there is a
written finding or a specific finding on the record of the tribunal that
the application of the guidelines would be unjust or inappropriate in a
particular case. The guidelines must take into account the needs of the
child and the earnings and income of the noncustodial parent and be
based on specific descriptive and numeric criteria.

Section 309.110 outlines the procedures and requirements governing
income withholding. The income withholding requirements are similar to
those requirements governing States' IV--D programs, except that income
is subject to withholding once the noncustodial parent has failed to
make a payment equal to the support payable for one month. In response
to comments from Tribes that income withholding may not be appropriate
in all cases, we added language to § 309.110(h), that income withholding
will not be required in any case where either the custodial or
noncustodial parent demonstrates, and the tribunal enters a finding,
that there is good cause not to require income withholding; or a signed
written agreement is reached between the custodial and noncustodial
parent which provides for an alternate agreement. We added a requirement
at § 309.110(m) indicating that the Tribal IV--D agency must allocate
amounts withheld across multiple withholding orders and that, in no
case, shall the allocation result in a withholding for one of the orders
not being implemented. Section 309.110(n) was amended by adding a
requirement that the Tribal IV--D agency is responsible for receiving
and processing income withholding orders from States or other Tribes and
ensuring orders are promptly served on employers.

Section 309.115 outlines the requirements governing distribution. This
section was rewritten for clarity. A Tribal IV--D plan must outline
procedures for distribution of child support collections. As a general
rule, the Tribal IV--D agency, in a timely manner, must apply
collections first to satisfy current support obligations, and pay all
support collections to the family unless the family is currently
receiving or formerly received assistance from the Tribal TANF program,
or the Tribal IV-- D agency has received a request for assistance in
collecting support on behalf of the family from a State or Tribal IV--D
agency. Such requests for assistance may be to collect support assigned
to the State or Tribe as a condition of receiving assistance or to
provide services on behalf of a family residing in or receiving services
from the referring State or Tribe. When support is owed to both States
and Tribes, the Tribal IV--D agency may either send collections to the
requesting State or Tribe for distribution *or *determine appropriate
distribution by contacting the requesting State or Tribe and distribute
collections accordingly. We added a new requirement that any collections
attributable to the Federal Income Tax Refund Offset must be applied to
satisfy child support arrears. This is consistent with section 464 of
the Act. Finally, we made a conforming change to Tribal TANF regulations
at 45 CFR 286.155 to eliminate reference to payments to the family
because distribution of collections is addressed in § 309.115 of this
rule.

Section 309.120 requires a Tribe or Tribal organization to specify
procedures under which the Tribal IV-- D agency will extend the full
range of services available under its IV--D plan to respond to all
requests from, and cooperate with State and other Tribal IV--D programs.
The Tribe or Tribal organization must also provide assurances that it
will recognize child support orders issued by other Tribes and Tribal
organizations, and by States, in accordance with the requirements under
28 U.S.C. 1738B, the Full Faith and Credit for Child Support Orders Act
(FFCCSOA). ACF is making a parallel change to include cooperation with
Tribal IV--D agencies as a requirement for State IV--D programs at 45
CFR 302.36.

*Subpart D---Tribal IV--D Program Funding *

Section 309.125 provides the basis on which Tribal IV--D program funding
is determined. The funding is based on the Tribal IV--D application,
which includes the proposed budget and a description of the nature and
scope of the Tribal IV-- D program and gives assurance that the program
will be administered in conformity with applicable requirements of title
IV--D of the Act, regulations contained in this part, and other official
issuances of the Department that specifically apply to Tribes and Tribal
organizations.

Section 309.130 outlines the general mechanism for funding Tribal IV--D
programs; financial form submittal requirements; the Federal share of
program expenditures; non-Federal share of program expenditures; waiver
of non-Federal share of program expenditures; an increase in an approved
budget; obtaining Federal funds and grant administration requirements.
The changes in this section are addressed below.

New language was added at § 309.130(a) indicating that the Tribe or
Tribal organization will receive funds in the amount equal to the
percentage specified in paragraph (c) of the total amount of approved
and allowable expenditures. This language was added for clarity. We also
added language explaining that Tribes receiving grants of less than \$1
million per 12-month funding period will receive a single annual award
and those Tribes that receive grants of \$1 million or more per 12-month
funding period will receive four equal quarterly awards. The
Department-wide grant procedures require that grant funds be disbursed
in this manner. The programs administered by the Tribes currently being
funded under the Interim Final Rule received their grant funds in this
fashion. This language was added to the rule to clarify the manner in
which funds are disbursed.

Section 309.130(b) outlines that the financial forms required must be
submitted to ACF. ACF reviews each application for direct funding. The
requirements associated with the submission of the SF 424A, ''Budget
Information---Non-Construction Programs'' form have changed. The rule
now requires a quarter-by-quarter estimate of expenditures for the
fiscal year; notification of whether the Tribe or Tribal organization is
requesting funds for indirect costs; a narrative justification for each
cost category on the form for funding under § 309.65(a); and either: a
statement certifying that the Tribe or Tribal organization has or will
have the non-Federal share of program expenditures available, as
required; or a request for a waiver of the non-Federal share in
accordance with paragraph (e). As mentioned earlier in the preamble, we
discovered that our requirements in the Interim Final Rule were not
explicit enough to get the information necessary to make an informed
decision on funding. In our review of applications from Tribes being
funded under the Interim Final Rule, we found it necessary to request
the information listed above. Requiring the information from the onset
will result in a timesaving for the applicant and for OCSE, as we will
have the necessary information earlier in the process and the approval
and funding, if appropriate, will not be unduly delayed.

The requirement in proposed § 309.140 that the Tribe or Tribal
organization must submit a Financial Status Report, SF 269, was moved to
§ 309.130(b)(3). We eliminated proposed § 309.140. The final rule
requires that the SF 269A Financial Status Report (short form) be
submitted quarterly. We decided to substitute the short form for the
form previously required. The short form is more appropriate for Tribes
and Tribal organizations and requires less information than the proposed
form. The requirements for reporting on the OCSE 34A, ''Quarterly Report
of Collections,'' previously found in proposed § 309.140 were also moved
to this section of the final rule. As noted in the preamble to the NPRM,
we revised the instructions for reporting on this form. We will modify
the form to apply to Tribes and Tribal organizations operating IV--D
programs through direct funding.

Section 309.130(c) outlines the Federal share of program expenditures.
During the period of start-up funding, a Tribe or Tribal organization
will receive Federal funds equal to 100 percent of the approved and
allowable expenditures made during that period. It is important to note
that this is a change from the NPRM. Previously, a non-Federal match was
required for Tribes applying for start-up funding. In recognition of the
fact that Tribes just beginning title IV--D child support enforcement
funding may have very limited funds for this activity, we have
eliminated the requirement for non-Federal match for start-up tribes.
During the initial three years of full program operation, a Tribe or
Tribal organization will receive 90 percent Federal funding and 80
percent thereafter.

Section 309.130(d) outlines the non-Federal share of program
expenditures. This subsection states that the non-Federal share of
program expenditures must be provided either with cash or with in-kind
contributions and must meet the requirements found in 45 CFR

74.23. This is a change from the NPRM, which stated that 45 CFR part 92
was applicable to the administration of Tribal IV--D programs. We have
amended the rule and changed each reference from 45 CFR part 92 to 45
CFR part 74, because the language in 45 CFR part 92 clearly states that
title IV--D programs are not required to comply with part 92.

Based on comments and experience with currently operating Tribal IV--D
programs, we revised the section on waiver provisions at § 309.130(e).
Under certain circumstances, the Secretary may grant a temporary waiver
of the non-Federal share of expenditures. If a Tribe or Tribal
organization anticipates that it will temporarily be unable to
contribute part or all of the non-Federal share of funding, it must
submit a written request that this requirement be temporarily waived. A
request for waiver must be sent to ACF, and included with the submission
of SF 424A, no later than 60 days prior to the start of the funding
period. If, after the start of a funding period, an emergency situation
occurs that necessitates the grantee to request a waiver of the
non-Federal costs, it may do so as soon as the adverse affect of the
emergency situation giving rise to the request is known. The request
must include a statement of the amount the Tribe is requesting be
waived; a narrative statement describing the circumstances and
justification for the waiver; portions of the Tribal budget to
demonstrate that any funding shortfall is not limited to the Tribal
IV--D program and any uncommitted funds are insufficient to meet the
non-Federal funding requirement; copies of any additional financial
documents in support of the request; a detailed description of the
attempts made to secure the necessary funding from other sources; and
any other documents the Secretary may request to make this
determination.

In its request for a temporary waiver of the non-Federal share of
expenditures, the Tribe or Tribal organization must demonstrate to the
satisfaction of the Secretary that it lacks sufficient resources to
provide the required non-Federal share of costs; has made reasonable,
but unsuccessful, efforts to obtain non-Federal share contributions; and
has provided all required information requested by the Secretary. All
statements must be supported by evidence including a description of how
the Tribe or Tribal organization has the capacity to provide child
support enforcement services even though it lacks the financial
resources to provide its required non-Federal share of program costs.
The following statements are insufficient to merit a waiver without
documentary evidence satisfactory to the Secretary: funds committed to
other budget items; a high rate of unemployment; a generally poor
economic condition; a lack of or a decline in revenue from gaming,
fishing, timber, mineral rights and other similar revenue sources; a
small or declining tax base; little or no economic development.

A Tribe or Tribal organization may consider requesting a waiver if, for
example, it has experienced a natural disaster, extreme weather
conditions, or other calamities (*e.g., *hurricanes, earthquakes, and
fire) whose disruptive impact is so significant and unpredictable that
the applicant is temporarily unable to satisfy the non-Federal share
requirement; or isolated, unanticipated economic hardship, beyond the
control of the applicant, which makes it temporarily impossible for the
applicant to satisfy the non-Federal share requirement. The authorized
representative of the Tribe or Tribal organization must sign and submit
the Tribal IV--D waiver request. Applications must be submitted to the
Office of Child Support Enforcement, Attention: Tribal Child Support
Enforcement Program, 370 L'Enfant Promenade, SW., Washington, DC 20447,
with a copy to the appropriate regional office and must be submitted as
soon as the adverse effect of the emergency situation giving rise to the
request is known to the grantee.

We added language that the temporary waiver will expire on the last day
of the funding period for which the waiver was approved. If the Tribe is
unable to meet the non-Federal share in subsequent years, the Tribe must
submit a new request with its next budget submission. It should also be
noted that if a request for a waiver is denied, the denial is not
subject to administrative appeal.

Section 309.130(f) addresses increases in an approved budget, which may
be requested by submitting a revised copy of the SF 424A with an
explanation of why additional funds are needed. Any approved increase in
the Tribal IV--D budget will include a requirement for a proportional
increase in the non-Federal share. Tribes and Tribal organizations will
obtain Federal funds on a draw­down basis from the Department's Payment
Management System.

Section 309.135 specifies the requirements that apply to funding,
obligating and liquidating IV--D grant funds. This section outlines the
funding period, obligation period, liquidation period, funding
reductions and extension requests. This section was broken into
subsections for ease of understanding.

Proposed § 309.140 required Tribes to submit a Financial Status Report,
SF 269, quarterly. Tribes must also submit the Child Support Enforcement
Program: Quarterly Report of Collections (Form OCSE 34A) on a quarterly
basis. A report on the liquidation of obligations must be submitted
using the SF 269A. While these requirements must still be met, they have
been moved to § 309.130(b)(3) and (4), as we felt these requirements
made more sense in the funding portion of the rule.

Section 309.145 outlines the allowable costs for Tribal IV--D programs
carried out under § 309.65(a). This list is similar to the list of
allowable costs in the State IV--D program.

Section 309.150 outlines costs that are allowable for start-up programs
carried out under § 309.65(b). Federal funds are available for the costs
of developing a Tribal IV--D program meeting Federal requirements,
provided that such costs are reasonable, necessary and allocable to the
program. Federal funding for program development generally may not
exceed a total of \$500,000 except in very unusual or extraordinary
circumstances. Allowable start-up costs and activities include: planning
for the initial development and implementation of a program; developing
Tribal IV--D laws, codes, guidelines, systems and procedures;
recruiting, hiring, and training Tribal IV--D program staff; and any
other reasonable, necessary and allocable costs with a direct
correlation to the development of a Tribal IV--D program, consistent
with the cost principles of OMB Circular A--87, and approved by the
Secretary.

Section 309.155 outlines costs that are not allowable, which are
basically the same as those costs that are not allowable under the State
IV--D program. Funds may not be used for activities related to
administering other programs including those under the Social Security
Act; construction or major renovations; expenditures that have been
reimbursed by fees collected, including any fee collected from a State;
jailing of parents in Tribal IV--D cases; the cost of legal counsel for
indigent defendants in Tribal IV--D actions; the cost of guardians ad
litem or any other costs that are not reasonable, necessary and
allocable to the Tribal IV--D program.

*Subpart E---Accountability and Monitoring *

Section 309.160 indicates that OCSE will rely on audits required by OMB
Circular A--133, ''Audits of States, Local Governments, and Non-Profit
Organizations,'' and 45 CFR part 74. The Tribal IV--D program will be
audited as a major program in accordance with section 215(c) of the
circular. The Department may supplement the required audits through
reviews or audits conducted by its own staff.

Section 309.165 provides that the recourse for a Tribe or Tribal
organization to dispute a determination to disallow program expenditures
is governed by the procedures in 45 CFR part 16.

*Subpart F---Statistical and Narrative Reporting Requirements *

Section 309.170 requires Tribes to submit information and statistics for
program activities and caseload for each funding period. The required
information includes: (1) Total number of cases, and of those, the
number that are State or Tribal TANF and non-TANF; (2) total number of
out-of-wedlock births in the previous year and total number of
paternities established or acknowledged; (3) total number of cases and
the total number of cases with an order; (4) total amount of current
support due and collected; (5) total amount of past-due support owed and
total collected; (6) a narrative report on activities, accomplishments,
and progress of the program; (7) total costs claimed; (8) total amount
of fees and costs recovered; and (9) total amount of laboratory
paternity establishment costs.

The requirements found in proposed § 309.175 were moved to § 309.170 for
clarity.

*Part 310---Comprehensive Tribal Child Support Enforcement (CSE)
Programs *

Part 310 establishes provisions, procedures, funding, monitoring and
reporting for Tribes currently operating a Tribal IV--D system under the
Interim Final Rule. Section 310.1(c) is added indicating that on the
effective date of these regulations, part 310 will become time-limited
for Tribes operating a Tribal IV--D program under the Interim Final
Rule. For Tribes operating under the Interim Final Rule, 45 CFR part 310
will be applicable to grants covering the period up to the first day of
the quarter beginning six months after the date of publication of this
final rule. In order to continue to receive funding, Tribes currently
operating under 45 CFR part 310 must make changes to their current
program to comply with this final rule not later than the first day of
the quarter beginning six months after the date of publication of this
final rule.

**Discussion of Regulatory Provisions and Response to Comments **

The following is a discussion of the regulatory provisions included in
this final rule. The discussion follows the order of regulatory text,
describes each subpart and section and addresses all relevant comments.

Comments were received from 14 Tribes and Tribal organizations, 15 State
IV--D agencies and 10 other interested parties. A discussion of the
comments received and our responses follows:

*Subpart A---Tribal Child Support Enforcement (IV--D) Program: General
Provisions *

Section 309.01 describes the general parameters of the final regulation,
§ 309.05 defines key terms, and § 309.10 establishes threshold
eligibility criteria.

*Section 309.01---What Does This Part Cover? *

-   1\. *Comment: *Two Tribal commenters suggested a provision be added
    allowing the Secretary to waive any conditions of these regulations
    as long as the statutory requirements are met, and good cause is
    shown by the Tribe or Tribal organization.

-   *Response: *The statute directs the Secretary to establish
    requirements necessary to operate a Tribal child support enforcement
    program capable of meeting the program objectives of title IV--D.
    The final rule establishes the minimum elements, which we have
    determined to be critical to the basic framework for operation of
    Tribal IV--D programs meeting the objectives of title IV--D. After
    consideration of comments received on regulatory waivers, we are
    persuaded to permit limited waivers. We believe that Tribes should
    be given an opportunity to request a waiver of certain specific
    requirements in this regulation. However, we believe that the care
    taken to limit Federal regulatory requirements and to recognize
    Tribal sovereignty has resulted in regulations that are essential to
    a successful Federally-funded Tribal IV--D program. We have
    established criteria under which we will consider requests for
    waiver of the following regulatory requirements: § 309.10(a)
    (100-child minimum) and § 309.130(d) (non-Federal share of program
    expenditures). Waivers of any other regulatory requirements are not
    included because we have determined that these are essential to the
    administration of successful Tribal child support enforcement
    programs.

1.  2\. *Comment: *We received positive comments from States, Tribes,
    and national organizations affirming that the best way for Tribal
    IV--D programs to be administered is through a direct
    government-to-government relationship and direct funding. One State
    commented that it supported limiting the direct funding of Tribal
    IV--D programs to *current *Federally-recognized Tribes, and a
    Tribal organization affirmed its view that the basic eligibility for
    funds under section 455(f) of the Act was limited to

Federally-recognized Tribes, as published in the **Federal Register
**pursuant to 25 U.S.C. 479a--1.

*Response: *Consistent with the government-to-government relationship
between the Federal government and Indian Tribes, eligibility for direct
IV--D funding of Tribal IV--D programs is extended to all
Federally-recognized Indian Tribes. The list of such Tribes is found in
the annual list of Federally-recognized Indian Tribes, which the
Secretary of the Interior publishes in the **Federal Register **pursuant
to 25 U.S.C. 479a--1. Any Tribe that successfully completes the Federal
recognition process is eligible to apply for direct funding, regardless
of its status at the time of publication of this final rule. If a Tribe
is not Federally-recognized at the time of the publication of the final
rule, but is subsequently recognized, we will consider such Tribe
eligible to apply for direct funding.

3\. *Comment: *Two Tribal commenters criticized the proposed regulations
as significantly different from the document drafted by the joint
Tribal/ Federal workgroup.

*Response: *We worked in close consultation with Tribes prior to
publication of the NPRM. The proposed regulation was the result of a
significant amount of effort which included not only input from the
joint Tribal/Federal workgroup, but also consultation from other
stakeholders (including Tribes) and from within the Department. While
the draft document submitted by the Tribal/Federal workgroup was
significant to the development of the proposed regulation, the
Department's obligation to fulfill its statutory mandate to efficiently
administer the IV--D program necessarily required broader consultation.
The NPRM published in August 2000 reflected wide consultation and
collaboration. This final regulation reflects that input as well as
careful consideration of all relevant comments received in response to
the proposed rule. The end result reflects the Federal government's
determination of the minimum requirements necessary for the successful
administration of child support programs capable of meeting the
objectives of title IV--D.

*Section 309.05---What Definitions Apply to This Part? *

1\. *Comment: *One State commented that IV--D services as defined by the
NPRM do not include services that a program may provide in addition to
those listed in the definition. The State also stated that the
definition does not include services that may be prohibited.

*Response: *It is not the intention of this final regulation to set
forth an exhaustive list of specific services that may be provided under
the IV--D program; thus, we do not list in the regulation every service
that may be provided and attributed to child support enforcement.
However, §§ 309.145, 309.150, and 309.155 establish parameters for
allowable costs that may be submitted for funding at the established
rate. We believe the regulations establish an appropriate framework for
Tribal child support enforcement services that may be provided under
title IV--D.

-   2\. *Comment: *One State commenter noted that ''competent
    jurisdiction'' is used in the definition of ''child support order''
    and ''child support obligation'' but is not defined.

-   *Response: *As used in the definition, competent jurisdiction is
    used in its common legal sense and refers to the legal authority to
    take actions in child support matters.

-   3\. *Comment: *One State commenter suggested that because the
    definition of ''location'' refers to ''other sources of income and
    assets,'' a definition of ''assets'' should be added to indicate
    assets would include ''in-kind'' child support.

-   *Response: *We believe the definition of ''location'' appropriately
    describes the term as it is used in the context of child support
    enforcement and that the word ''assets'' does not require additional
    elaboration. In-kind support is not within the meaning of assets.

-   4\. *Comment: *One State commented that the definition of child
    support order and child support obligation is incorrect when it says
    it includes ''\* \* \* a judgment \* \* \* for the support and
    maintenance of a child \* \* \* or of the parent with whom the child
    is living.'' The commenter noted that the definition would conform
    to the Full Faith and Credit for Child Support Orders Act (FFCCSOA)
    by deleting ''of the parent with whom the child is living.''

-   *Response: *We disagree that the regulatory definitions are
    incorrect. The proposed definitions track the definition of support
    found in 45 CFR part 301 governing State IV--D plans and do not
    conflict with any provision of FFCCSOA. We have therefore retained
    such definitions in the final regulation.

1.  5\. *Comment: *One Tribe thought the definition of ''Indian'' found
    in the Indian Civil Rights Act would alleviate confusion that
    enrollment might be required. Another thought the Pub. L. 93--638
    definition of Indian Tribes and Tribal organizations should be used.

*Response: *This final Tribal child support enforcement regulation does
not in any way link the definition of ''Indian'' to any Federal standard
or rule governing Tribal enrollment. The regulatory definition of
''Indian'' is not intended to affect a Tribe's inherent ability to
determine enrollment standards or to affect the ability of any other
Federal agency to appropriately exercise authority in this area. We
agree that enrollment and membership are internal Tribal matters and not
the concern of the Federal Office of Child Support Enforcement. The
final rule defines ''Indian'' as a person who is a member of an Indian
Tribe. ''Indian Tribe'' and ''Tribe'' mean any Indian or Alaska Native
Tribe, band, nation, pueblo, village, or community that the Secretary of
the Interior acknowledges to exist as an Indian Tribe and includes in
the list of Federally-recognized Indian Tribal governments as published
in the **Federal Register **pursuant to 25

U.S.C. 479a--1.We have determined that this definition of ''Indian'' is
sufficient and reference to the Indian Civil Rights Act is not
necessary.

Eligibility for direct IV--D funding under section 455(f) of the Act is
limited to Federally-recognized Indian Tribal governments because child
support enforcement necessarily requires at least delegated governmental
authority. Because the definition of ''Indian Tribe'' in Pub. L. 93--638
includes some entities that are not Tribal governments, to avoid
confusion we have not adopted that definition of ''Indian Tribe.''

-   6\. *Comment: *One State commenter thought the definition of Tribe
    was insufficient in defining persons and circumstances that fall
    under the jurisdiction of Tribes.

-   *Response: *We disagree. For purposes of these final regulations, we
    have determined that it is not appropriate or necessary to define
    ''Tribe'' in terms of the limits of Tribal jurisdiction. The
    regulatory definition of ''Tribe'' is appropriately related to
    Federal recognition of governmental entities eligible for Federal
    funds. Such definition is not intended to have any effect on the
    exercise of Tribal or State jurisdiction.

1.  7\. *Comment: *One State commenter suggested that definitions for
    ''Tribal resident,'' ''reservation'' and ''Indian Country'' be
    added. A Tribal commenter suggested that the regulations overlooked
    the special circumstances of Alaska's Tribes when employing the term
    ''Indian Country.''

*Response: *We have determined that it is not appropriate or necessary
in this regulation to define the territorial limits of a Tribe's
authority by defining ''Tribal resident'' or ''reservation.'' The
parameters of ''Tribal resident'' and ''reservation'' are more
appropriately determined by Tribal law, the jurisdiction of the Tribe's
courts or administrative process and by applicable Federal law, not by
child support enforcement regulations.

We are aware of the special circumstances in Alaska related to the term
''Indian country'' as a consequence of the Supreme Court's decision in
*Alaska *v. *Native Village of Venetie Tribal Government, *522 U.S. 520
(1998). For clarification, except where specifically noted, throughout
the preamble ''Indian country'' is replaced with the term ''Tribal
territory'' in consideration of the special circumstances in Alaska. The
final regulatory definition of ''Indian Tribe and Tribe'' encompasses
all Indian Tribes and Alaska Native entities enumerated in the
Department of the Interior's listing of Federally-recognized entities
such that each is eligible to apply for direct IV--D funding.

8\. *Comment: *One Tribal commenter suggested that the term ''agency''
is likely to be misunderstood because ''agency'' refers to a
geographical entity delineated by a Department of the Interior
Administration area.

*Response: *We believe the context of these regulations make the
definition of Tribal IV--D agency clearly distinguishable from any other
type of agency and will not result in confusion.

*Section 309.10---Who Is Eligible To Apply for Federal Funding To
Operate a Tribal IV--D Program? *

1\. *Comment: *Twenty-nine Tribal and State commenters opposed the
requirement that a Tribe have at least 100 children under the age of
majority as defined by Tribal law or code, in the population subject to
the jurisdiction of the Tribe to be eligible to apply for direct
funding.

*Response: *The main purpose of establishing the 100-child minimum is to
assure that Tribal IV--D programs will be cost effective. We also
believe this threshold eligibility requirement is a reasonable
indication of necessary IV--D program infrastructure. Any Tribe that has
at least 100 children subject to its jurisdiction clearly meets this
requirement. However, in response to comments received, we have amended
the final rule to permit waiver of the requirement that a Tribe has at
least 100 children under the age of majority subject to its jurisdiction
to be eligible for direct funding. Section 309.10(c) has been added and
specifies that a Tribe or Tribal organization with less than 100
children subject to its jurisdiction may apply for direct funding
provided it can make the required showing. The new subsection requires
justification for waiver of the § 309.10(a) requirement to ensure that a
Tribe or Tribal organization has the required administrative capacity to
undertake a child support enforcement program.

**Subpart B---Tribal IV--D Program Application Procedures **

Section 309.15 describes what must be included in a Tribal IV--D
application; §§ 309.20--309.30 establish procedures for submitting an
application for funding; § 309.35 describes procedures for approval of
applications and Tribal IV--D plan amendments; and §§ 309.40--309.50
describe procedures related to disapproval actions.

1\. *Comment: *We received comments from two Tribal entities suggesting
that provision be made in the regulation for voluntary retrocession of a
IV--D program similar to the retrocession provisions in the Tribal TANF
and Indian Self-Determination and Education Assistance Act (ISDEA)
regulations.

*Response: *The concept of ''retrocession'' relates to transferring
authority from one governmental authority to another and is not
appropriate for these Tribal child support enforcement program
regulations. In the case of both the Tribal TANF program and contracts
under the ISDEA, retrocession describes the process under which a Tribe
voluntarily terminates its administration of a program and cedes back
(or returns) the program to the State or Federal government. If a Tribe
or Tribal organization administering a Tribal IV-- D program decides not
to continue to operate a child support enforcement program, it may not
cede back the program to either a State or to the Federal government.
Therefore we have determined that retrocession provisions are
incompatible with the Tribal child support enforcement program. If a
Tribe or Tribal organization decides not to continue administration of a
Tribal IV-- D program, it is not required to do so. Under the statute,
administration of Tribal IV--D programs is undertaken voluntarily by
Tribes and Tribal organizations. Should they decide to do so, applicants
on Tribal lands can apply for IV--D services from the State as they
always could.

*Section 309.15---What Is a Tribal IV--D Program Application? *

1\. *Comment: *One commenter stated that the use of existing forms SF
424 and SF 424 A was helpful as Tribes are already familiar with those
forms.

*Response: *We appreciate that comment. We have attempted to use
existing procedures to ease the application process and alleviate undue
administrative burden.

*Section 309.20---Who Submits a Tribal IV--D Program Application and
Where? *

We received no comments on this section.

*Section 309.25---When Must a Tribe or Tribal Organization Submit a
Tribal IV-- D Application? *

We received no comments on this section. The requirements in this
section were moved to § 309.16, ''What rules apply to start-up
funding?''

*Section 309.30---Where Does the Tribe or Tribal Organization Submit the
Application? *

We received no comments on this section. This section was combined with
§ 309.20.

*Section 309.35---What Are the Procedures for Review of a Tribal IV--D
Program Application, Plan and Plan Amendment? *

-   1\. *Comment: *One Tribal commenter stated that the application
    process and requirements should be the same as those outlined in the
    Indian Self-Determination and Education Assistance Act (ISDEA),
    (Pub. L. 93-- 638).

-   *Response: *The differences between programs eligible for
    contracting under Pub. L. 93--638 and child support enforcement
    programs funded under title IV--D are so significant that we have
    determined it would be inappropriate to adopt similar substantive
    requirements. Programs are eligible for contracting under Pub. L.
    93--638 because they are programs, services, or functions otherwise
    provided by the Federal government under Federal statute. The ISDEA
    is fundamentally different from Tribal IV--D programs which are
    operated by Tribal governmental entities under section 455(f) of the
    Social Security Act. In addition, we have determined that an
    effective program that efficiently delivers needed child support
    services to all families, including the effective processing of
    inter-jurisdictional cases, must be governed by the requirements and
    objectives of the IV--D program rather than those of Indian-related
    programs.

1.  2\. *Comment: *One Tribal commenter objected to § 309.35(a), stating
    that allowing the Secretary or designee to ''determine whether the
    Tribal IV--D program application or plan amendment conforms to the
    requirements of approval'' subjects the applications to arbitrary
    standards.

*Response: *We disagree that Tribal IV-- D applications or plan
amendments are subject to arbitrary standards by requiring such
applications and plan amendments to conform to section 455(f) and final
Tribal child support enforcement regulations. We believe we have
established in these regulations appropriate and balanced standards for
the administration and operation of Tribal child support enforcement
programs that are responsive to the needs of Tribes and Tribal
organizations. The statute states clearly that the Secretary must
''promulgate regulations establishing the requirements which must be met
by an Indian Tribe or Tribal organization'' to be eligible for a direct
grant under title IV--D. These final regulations establish such
requirements and are the standards against which all applications will
be considered. The rule is also issued under the authority granted to
the Secretary by section 1102 of the Act authorizing the Secretary to
publish regulations that may be necessary for the efficient
administration of the functions for which the Secretary is responsible
under the Act. The Tribal child support enforcement regulations are the
product of a deliberative and collaborative process under which all
relevant input was fully considered. The result is a final regulation
that we believe is necessary for the efficient administration of the
national child support enforcement program; one which balances the needs
of Tribes and Tribal organizations with the need for a predictable
administrative framework.

3\. *Comment: *Four Tribal respondents stated that the regulations
should provide a 45-day approval time rather than the 90-day timeframe.
One Tribal respondent stated that the Federal timeframe for response to
Tribal IV--D plans is appropriate.

*Response: *We have decided to retain the 90-day deadline for review of
applications, plans and plan amendments with an additional 45 days to
consider all additional necessary information requested from the
applicant. We have reviewed Tribal IV-- D applications under 45 CFR part
310 and have determined, based on this experience, that the 90-day
deadline assures that due consideration is given to every Tribal IV--D
application. Our experience in reviewing Tribal IV--D applications under
the Interim Final regulations demonstrated that the complexity of the
documents, the technical assistance that was required, the coordination
of requests for additional information, and the consideration of such
information required a realistic timeframe. Every Tribal IV--D
application submitted to the Department under 45 CFR part 310 was unique
and many raised complex issues requiring consideration. For these
reasons, we decided that 90 days was a realistic timeframe to complete
application and plan amendment review with an additional 45 days to
consider all necessary information requested from the applicant.

4\. *Comment: *One State suggested that copies of approved Tribal IV--D
plans be provided to the State. Another State commenter suggested that
States be notified of Tribal IV--D plan approval where the Tribe may be
using a State's automated system to provide services.

*Response: *While we will not routinely provide copies of approved
Tribal IV--D plans to States or Tribes, we will notify IV--D Directors
of newly approved Tribal IV--D programs in the form of a Dear Colleague
Letter. We encourage Tribes and States to stay in communication with one
another because such communication is essential to the successful
delivery of IV--D services to children and families. In support of that
goal, we are available to provide technical assistance.

*Section 309.40---What Is the Basis for Disapproval of a Tribal IV--D
Program Application, Plan or Plan Amendment? *

-   1\. *Comment: *One Tribal commenter criticized the proposed rule as
    not providing specific grounds for plan disapproval.

-   *Response: *We have revised § 309.40 to clarify the specific grounds
    upon which Tribal IV--D plans will be disapproved. We believe the
    final regulation adequately specifies requirements which will ensure
    that the objectives of title IV--D are met. These regulations
    balance the needs of Tribes and Tribal organizations with the need
    for a predictable administrative framework so that Tribal child
    support programs successfully accomplish the outcomes specified in
    the statute. Section 309.40 makes clear that Tribal IV--D
    applications, IV--D plans, and plan amendments will be disapproved
    if applicable statutory and regulatory requirements are not met,
    required procedures are not in place, or the plan amendment is
    incomplete.

1.  2\. *Comment: *Five Tribal commenters stated that the proposed rule
    imposes requirements not included in section 455(f) of the Act. The
    added elements are not required by statute and should be deleted.

*Response: *Section 455(f) of the Act authorizes direct funding for
Tribal IV-- D programs which have the capacity to ''operate a child
support enforcement program meeting the objectives of this part.''
''\[T\]his part'' refers to part D of title IV of the Social Security
Act. The statute specifies the mandatory objectives of title IV--D
programs: establishment of paternity, establishment, modification and
enforcement of support orders, and location of noncustodial parents.
While the statute specifies mandatory objectives, it is left to the
Secretary to promulgate Tribal regulations necessary to accomplish these
objectives. We have determined that these final regulations fulfill the
statutory mandate to ''promulgate regulations establishing the
requirements which must be met by an Indian Tribe or Tribal organization
to be eligible'' for direct IV--D funding. After consideration of all
issues raised in comments, we have established the minimum requirements
which we have determined are necessary to reasonably support the
statutory objectives of Tribal child support enforcement programs.

-   3\. *Comment: *Eleven Tribal commenters stated that § 309.40(a)(2)
    goes beyond the statute by specifying that the Secretary review the
    Tribe's laws, code, regulations and procedures. Some also stated
    that although a Tribe may be required to submit a copy of its laws,
    approval of a Tribal IV--D plan or plan amendment should not be
    based on the Secretary's approval of such laws.

-   *Response: *In response to Tribes' requests for clarification, we
    have revised § 309.40(a)(2) to more clearly reflect that Tribal
    IV--D plans and plan amendments may be disapproved if required laws,
    code, regulations, and procedures are not in effect. While it is
    necessary to ensure that the appropriate statutes and laws are in
    place, we do not intend to ratify or otherwise approve Tribal law.
    While the Secretary is not approving the Tribal laws, Tribal IV--D
    plans must contain enough information so that the Secretary can
    determine that relevant required Tribal law, regulations and
    procedures are in place to operate a IV--D program.

1.  4\. *Comment: *Four Tribal commenters stated the proposed
    regulations provide that an application *will *be disapproved under
    certain circumstances. The section should provide flexibility by
    replacing ''will'' with ''may.''

*Response: *Section 309.40 establishes the bases for disapproval of an
application. We have not adopted the suggestion to replace ''will'' with
''may.'' As a practical matter, deficiencies in Tribal IV--D plans do
not inevitably lead to formal Tribal IV--D plan disapproval under these
regulations. An incomplete plan, for example, is not automatically
disapproved. Instead, we will communicate with Tribal applicants and
request needed information. We added § 309.40(c) to clarify that if the
application or plan amendment is incomplete and does not provide
sufficient information for HHS to make a determination to approve or
disapprove, HHS will request additional information. However, at some
point, final action must be taken on a Tribal IV--D plan or plan
amendment and § 309.40 specifies the circumstances under which an
application, plan or plan amendment will be disapproved.

*Section 309.45---When and How May a Tribe or Tribal Organization
Request Reconsideration of a Disapproval Action? *

1\. *Comment: *Two Tribal commenters recommended that the Tribe, not the
Secretary, should have the option to request a meeting. One commenter
stated that conference calls and face-to-face meetings provide a
critical forum for interaction, communication and dialogue and another
endorsed the reconsideration process.

*Response: *Tribes have the option to request a meeting. However, we
have amended the language at § 309.45(c) by deleting ''at the
Department's discretion,'' to eliminate any confusion.

*Section 309.50---What Are the Consequences of Disapproval of a Tribal
IV--D Program Application, Plan or Plan Amendment? *

We received no comments on this section.

**Subpart C---Tribal IV--D Plan Requirements **

*Section 309.55---What Does This Subpart Cover? *

1\. *Comment: *One Tribal commenter stated that the Tribal IV--D plan
requirements go beyond the specific requirements in the statute and that
they are overly burdensome to Tribal governments.

*Response: *Section 455(f) of the Act requires the Secretary to
determine the minimum requirements necessary for the administration of
Tribal child support programs capable of meeting the objectives of title
IV--D. The objectives of title IV--D include the establishment of
paternity, establishment, modification, and enforcement of support
orders, and location of absent parents. We have promulgated regulations
that we believe contain the minimum procedures and processes necessary
for successful administration of IV--D programs, which are capable of
establishing paternity, establishing, modifying, and enforcing support
orders, and locating noncustodial parents.

We recognize that Tribal IV--D programs are in the early stages of
development. In Subpart C we have established requirements for Tribal
IV-- D programs which accommodate the unique characteristics and
circumstances of Tribes. At the same time these regulations incorporate
a framework which has proven effective in delivering needed child
support services to families.

2\. *Comment: *Five State commenters stated that the proposed
regulations did not sufficiently address issues of standardization and
coordination between Tribes and States. They suggested that the lack of
comparability among Tribal and State IV--D programs could limit the
ability of these programs to effectively and efficiently provide IV-- D
services to families.

*Response: *We address these comments more fully in the discussion of §
309.120, which deals with intergovernmental coordination and
cooperation. We recognize that Tribal and State child support programs
necessarily will interact with one another and may do so through a
variety of mechanisms. Subpart C is intended to establish Tribal IV--D
program requirements, which will enhance these interactions and
inter-jurisdictional effectiveness. While Tribal IV--D programs are not
required to meet all requirements that apply to State IV--D programs,
nothing precludes them from adopting any and all of the techniques
proven successful for States. In fact, we encourage them to do so, but
remain convinced that additional mandates at this time are
inappropriate.

*Section 309.60---Who Is Responsible for Administration of the Tribal
IV--D Program Under the Tribal IV--D Plan? *

1\. *Comment: *Several State commenters suggested that the regulation
clarify a State's responsibility in complying with the provisions of
approved Tribal IV--D plans under agreements where a State is providing
services under an approved Tribal IV-- D plan.

*Response: *Both §§ 309.60(c) and 309.145((a)(3) authorize Tribal IV--D
programs to enter into cooperative arrangements with States. Under these
provisions, child support enforcement services must be provided in
accordance with the approved Tribal IV--D plan in order for Tribes to be
eligible for Federal reimbursement. Rules governing the negotiation of
agreements between Tribes and States and other entities are not the
subject of this regulation. However, § 309.60(c) makes clear that
Tribes, not States, will be held accountable for the proper operation of
Tribal IV--D programs, including all actions undertaken on behalf of
such programs. The language at § 309.60(c) clearly states that if the
Tribe or Tribal organization delegates any of the functions of operating
a program to another Tribe, State or any other agency, the Tribe is
responsible for compliance with the approved Tribal IV--D plan.

2\. *Comment: *One commenter stated that contracting with the State
would be viable for many individual Alaska Tribes, rather than
delegating functions to a regional consortium.

*Response: *The unique circumstances and challenges faced by child
support enforcement programs in the State of Alaska require recognition
and accommodation so that arrangements may be made for the provision of
needed services. Alaska and Alaska Native Tribal entities are encouraged
to find local solutions to meet the challenges they face. Contracting
with the State or with other Native entities is one mechanism for
delivery of IV--D services on terms that are in accordance with title
IV--D requirements and which will enable families to receive needed
support.

*Section 309.65---What Must a Tribe or Tribal Organization Include in a
Tribal IV--D Plan in Order To Demonstrate Capacity To Operate a Tribal
IV--D Program? *

Section 309.65(a) establishes requirements under which a Tribe or Tribal
organization may receive direct funding by submitting a Tribal IV--D
plan which meets specified criteria. We received many comments from
Tribes and States---some of them general and some specific---on this
provision which raised many complex and cross-cutting issues.

-   1\. *Comment: *Tribal and State commenters provided positive
    comments on this portion of the rule establishing Tribal IV--D plan
    requirements. They stated that the rule clearly allows for Tribal
    values, customs and traditions. Two Tribal commenters stated that
    the rule is simple and provides needed flexibility.

-   *Response: *We appreciate the acknowledgment of the responsiveness
    to the needs of Tribes and Tribal organizations in these first
    regulations for Tribal IV--D programs and are encouraged by the
    positive response to our efforts to accommodate the unique
    circumstances of Indian Tribes.

1.  2\. *Comment: *One Tribal commenter stated that during the early
    years of the IV--D program, the specifications for State programs
    were recommendations, not requirements and it should be the same for
    new Tribal IV--D programs. The

commenter suggested this rule is much more prescriptive than those
initially promulgated for States.

*Response: *We disagree. The final rule implementing the initial Child
Support Enforcement program established by Part B of Pub. L. 93--647 was
published in the **Federal Register **on June 26, 1975. This publication
added 45 CFR Parts 301 (State Plan Approval and Grant Procedures), 302
(State Plan Requirements), 303 (Standards for an Effective Program) and
304 (Federal Financial Participation). These are not recommendations.
States are required to operate child support enforcement programs under
a specific statutory and regulatory framework. As State programs
evolved, requirements were expanded. With this rule we have set forth
minimum requirements for Tribes to ensure effective Tribal IV--D
programs that are capable of delivering child support enforcement
services to families.

-   3\. *Comment: *One Tribal commenter stated that OCSE must encourage
    Tribes to develop their own policies to achieve program directives,
    defer to Tribes to establish standards and limit the imposition of
    Federal standards in deference to Tribal authority.

-   *Response: *We believe these initial regulations implementing the
    Tribal IV-- D program provide the appropriate recognition of Tribal
    sovereignty and culture. Tribes may develop culturally-appropriate
    policies to conform to the requirements of these regulations and are
    encouraged to do so. We have established a minimum administrative
    framework for all Tribal IV--D programs. We recognize that
    individual Tribes may establish IV--D programs within this framework
    through various means.

1.  4\. *Comment: *One State commenter stated that it is not reasonable
    to expect Tribes to be immediately accountable for the many
    requirements that have evolved over 25 years for State IV--D
    programs, but that it is reasonable to expect that State and Tribal
    IV--D programs will move in the same direction.

*Response: *We agree that State and Tribal IV--D programs should move in
the same direction. As stated earlier, title IV--D has been amended over
the years to mandate specific case processing actions and timeframes for
State action as the program has evolved and become more automated. We
have determined that it is premature to consider such specific
requirements with respect to Tribal IV--D programs. Like States, Tribes
need adequate time to develop their programs and determine appropriate
approaches, levels of automation, and processes for delivering services
before it would be appropriate to consider the need for more specific
requirements. Tribes need to have sufficient time to operate and
automate programs and we need to understand how much time it takes
Tribal IV--D programs to carry out various functions before we can
consider specific actions, timeframes and processing standards or
whether such standards are necessary. These regulations strike a balance
between including requirements for specific, proven, and critical
components and aspects of a child support program, while leaving
implementation details up to the Tribes.

5\. *Comment: *One State commenter stated that each Tribe should be
required to have a Central Registry and use CSENet (an automated system
for interstate case processing), or as an alternative, be required to
adopt the Uniform Interstate Family Support Act (UIFSA). Another State
commenter appreciated the efforts to allow Tribes flexibility to develop
and administer programs consistent with Tribal laws and traditions, but
thinks that the lack of comparability among Tribal and State programs
will limit efficiency and effectiveness.

*Response: *The specific State requirements raised by the commenter
related to the Central Registry and CSENet evolved over time and were
not among the initial set of State IV--D regulatory requirements. This
Tribal regulation will allow Tribes to begin planning for building
appropriate automated data processing systems and procedures over time
and does not mandate links to systems to which Tribes do not presently
have access.

As previously stated, we have begun consideration of appropriate minimum
Tribal systems automation specifications with stakeholders.

Where needed for effective and efficient programs, we have established
Tribal IV--D requirements that are comparable with State IV--D
requirements while bearing in mind that the statutory provision
authorizing direct funding to Indian Tribes was enacted to provide
much-needed services where, historically, no services were available. As
to the suggestion that Tribes be required to adopt UIFSA, we address
this issue in the discussion of §309.120.

6\. *Comment: *Twenty-three Tribal commenters objected to this section
stating that the regulations do not match the statute and impose
unnecessary burdens. They stated that the 14 elements in § 309.65(a) far
exceed the five core functions listed in the statute at section 455(f)
and that Tribes should not have to include procedures for each of the 14
criteria.

*Response: *We agree with the commenters that section 455(f) of the Act
specifies five core program objectives. However, we disagree that the
elements enumerated in § 309.65(a) go beyond these objectives. The
statute specifies functions which must be performed and explicitly
delegates to the Secretary of HHS the authority to promulgate
regulations ''establishing the requirements which must be met by an
Indian Tribe or Tribal organization to be eligible'' for funding under
title IV--D. While, as a matter of law, the Secretary is not limited in
the number of requirements which may be promulgated, these regulations
in fact establish only the minimum requirements we have determined
necessary for the operation of Tribal child support enforcement programs
meeting the objectives of title IV--D. Every element specified at §
309.65(a) was determined to be necessary to the operation of Tribal
IV--D programs capable of meeting the specific program objectives
enumerated in the statute. This determination was made after careful and
deliberate consideration of comments received on the proposed regulation
as well as experience administering Tribal IV--D programs under the
interim final regulation.

-   7\. *Comment: *One Tribal commenter stated that the regulations will
    not facilitate establishment and collection of support for Native
    American children because they are too process-oriented and
    prescriptive for Tribal entities to achieve over the short term.

-   *Response: *These regulations establish only the minimum
    requirements we have determined necessary for the operation of
    Tribal child support enforcement programs meeting the mandatory
    objectives of title IV--D: establishing paternity, establishing,
    modifying and enforcing support orders, and locating noncustodial
    parents. Every requirement established by this rule as a condition
    for Federal funding is intended to ensure that Tribal IV--D programs
    meet the objectives of title IV-- D while at the same time
    recognizing the unique status and circumstances of Indian Tribes.

1.  8\. *Comment: *Five Tribal commenters stated that there are too many
    requirements in the rule and these prevent Tribes from designing
    programs to meet their needs. The design and implementation of
    Indian programs by Indian Tribes has proven that the most effective
    way to deliver services is with programs designed by the Tribes
    themselves.

*Response: *While this regulation is responsive to the needs of Tribes
and Tribal organizations, the statute itself limits the scope of this
flexibility. The authorization for direct Federal IV--D funding of
Indian Tribes requires that Tribes demonstrate to the satisfaction of
the Secretary a capacity for accomplishing specific IV--D program
objectives. As we have stated in response to other comments, every
element specified at § 309.65(a) was determined to be necessary to the
operation of Tribal IV--D programs capable of meeting the program
objectives enumerated in the statute. In this rule we have worked hard
to ensure flexibility and recognize the status of Indian Tribes and
accommodate the operational realities faced by Tribes. We agree that
section 455(f) of the Act allows for flexibility, but such flexibility
must be exercised within the parameters established in the statute.
Under this regulation we are confident that Tribes will be able to
design and implement Tribal IV--D programs that meet local needs.

9\. *Comment: *Nine Tribal commenters stated that, while IV--D
regulations should have some areas of commonality, respect for Tribal
sovereignty and recognition of the unique aspects of Indian Tribes
require accommodation for such characteristics and appropriate
flexibility in Federal regulations. These commenters suggested that
forcing Tribal IV--D programs into the existing State model violates the
law recognizing the unique legal status of Indian Tribes and generally
stated that Tribes were not States and should not be forced to function
as States.

*Response: *We agree that the final regulation should accommodate the
unique status of Indian Tribes and incorporate as much flexibility as
possible while ensuring effective and efficient Tribal IV--D programs.
In particular, we emphasize that one of the key underlying principles of
these final Tribal IV--D regulations is recognition of and respect for
Tribal sovereignty and the unique government-to-government relationship
between Indian Tribes and the Federal government. We have determined
that the statute does not mandate that requirements imposed on Tribal
IV--D programs be the same as those imposed on State IV--D programs as
prerequisites for funding. Moreover, there is nothing to suggest either
in the original authorization for Tribal IV--D programs or in a
subsequent amendment, that Congress intended to limit the Secretary's
rulemaking discretion to the rules already established for State IV--D
programs. While Tribal IV--D programs must assure that assistance in
obtaining child support is available to all who request services or are
referred to the Tribal IV-- D program, the rules for such programs must
also take into account the unique legal status of such Tribes. We
believe that these final Tribal IV--D regulations strike the appropriate
balance.

-   10\. *Comment: *One State commenter stated that current IV--D
    regulations do not allow States to refuse services to particular
    applicants, no matter where they reside. If the State where the
    request for services is made had no jurisdiction, the State can
    refer the applicant to an agency in the appropriate jurisdiction.
    The same commenter suggested that a referral process be specified in
    Federal regulation for case referral among Tribes and between States
    and Tribes.

-   *Response: *Under these regulations, Tribes are not permitted to
    refuse services to any applicant. Tribal IV--D programs must take
    all applications and open a case for each application. We know there
    may be circumstances under which the only appropriate service will
    be to request assistance from another Tribal or State IV--D program
    with the legal authority to take actions on the case. We address
    these comments more fully in the discussion of § 309.120, which
    deals with intergovernmental coordination and cooperation.

1.  11\. *Comment: *One commenter stated that Tribes should be permitted
    to develop their own program operation criteria and service areas.

*Response: *As stated above, the statute authorizing direct IV--D
funding for Tribal programs limits the flexibility that can be
established to permit Tribes to individually create program
requirements. The authorization for direct Federal IV--D funding of
Indian Tribes requires that Tribes demonstrate to the satisfaction of
the Secretary a capacity for accomplishing specific IV-- D objectives.
We have determined that every element specified at § 309.65(a) is
necessary to the operation of Tribal IV-- D programs capable of meeting
the objectives enumerated in the statute.

Section 309.65(a)(2) requires evidence that a Tribe or Tribal
organization has in place procedures for accepting all applications for
IV--D services and providing IV--D services as required by law and
regulation. A Tribe, when describing the population subject to its laws,
may include geographical descriptions of the area over which such
authority is exercised. However, as noted above, Tribal IV--D programs
must take all applications and open cases for each application, and
there may be instances in which the appropriate services will be to
request assistance from another Tribal or State IV--D program. Since
these regulations provide for reimbursement of all allowable costs of
administering a Tribal IV--D program at the appropriate match rate, it
is expected that a Tribe will exercise authority over Tribal members and
others on Tribal lands to the maximum extent legally permitted and that
Tribes will also provide services to all applicants.

-   12\. *Comment: *One Tribal commenter stated that Tribes are not
    public agencies and access to Tribal IV--D services should be
    limited to reservation residents and Tribal members.

-   *Response: *As stated earlier in the preamble, these final
    regulations require that Tribal child support agencies accept all
    applications for services and require that the child support agency
    provide all appropriate services. This is to ensure that IV--D
    services are available to all who need them.

1.  13\. *Comment: *One Tribal commenter suggested that the wording in §
    309.65(a)(2) be changed to allow Tribal IV--D agencies to refer
    customers without having to go through the application process. Two
    other Tribal commenters stated that ensuring access to services is
    not a requirement of the statute and should be removed from the
    regulation.

*Response: *As a practical matter, we think the instances in which a
Tribal IV--D agency has no authority to take action in a particular case
will be few, but in those instances the Tribal IV--D agency will refer
the case to the appropriate IV--D agency. There will be instances in
which States and Tribes must work together to ensure families receive
the support they deserve. Under these regulations Tribes are not
permitted to refuse services to any applicant. Taking all applications,
determining what services are needed or may be provided and providing
those services either directly or through another IV--D agency are
activities that are included in categories of costs eligible for Federal
reimbursement at the appropriate funding rate. We require that all IV--D
programs accept all applications so that families receive assistance in
reaching the appropriate IV--D program and no family is denied services
which are legally available.

Tribes may not merely refer someone to another IV--D agency without
accepting an application because everyone needs to be served. However,
we recognize that as Tribal IV--D programs begin to operate, States and
Tribes may need to work out cooperative agreements to deal with cases in
specific instances, *e.g.*, a Tribe has authority to provide certain
services while only a State IV--D agency may provide others. We will
provide guidance governing referral of cases in specific instances, as
needed.

-   14\. *Comment: *One State commenter recommended that we provide
    Federal guidance to ensure that an individual does not apply for
    IV--D services at both the local State IV--D program office and the
    Tribal IV--D program office. The commenter suggested that this
    portion of the rule be rewritten to clarify that services by a
    Tribal IV--D program can only be provided to an individual who is
    not receiving services from a State IV-- D program.

-   *Response: *There is nothing to preclude an individual from applying
    for and receiving services from more than one IV--D agency. The fact
    that a custodial parent and child may reside within a Tribe's
    jurisdiction while the noncustodial parent may reside or work within
    a State's jurisdiction highlights the importance of Tribal-State
    communication and coordination. We encourage States and Tribes to
    work together to provide needed services and coordinate those
    services.

-   15\. *Comment: *One State commenter asked if the Tribal IV--D
    program must charge an application fee as is required of State
    programs.

-   *Response: *Application fees are not required of Tribal IV--D
    programs at this time. However, Tribes may, at their option, provide
    that an application fee will be charged to individuals who apply for
    services under the Tribal IV-- D plan (with stated exceptions). We
    have added paragraph (e) to § 309.75, governing administrative and
    management procedures, which reflects this option and which provides
    that any application fee charged must be uniformly applied, be a
    flat amount not to exceed \$25.00, or be an amount based on a fee
    schedule not to exceed \$25.00. This is the same cap placed on State
    IV-- D programs.

1.  16\. *Comment: *One Tribal commenter stated that it was unclear what
    ''due process'' means in § 309.65(a)(3). This language offended
    another Tribal commenter who stated that Tribes provide due process.
    Two other Tribal commenters stated that assuring due process is not
    a requirement of the statute and should be removed.

*Response: *The term ''due process'' in the context of § 309.65(a)(3)
refers to legal proceedings according to rules and principles which have
been established by the Tribe or Tribal organization for the protection
and enforcement of individual rights. The required statement of
assurance is intended to ensure that the procedural and substantive
protections of individuals are in place and is not meant to suggest that
Tribes do not provide due process. Requiring this assurance is not
indicative of a judgment as to whether a Tribe's due process is
adequate. While we do not define for Tribes what due process is, we have
determined that all IV--D programs should have due process protections
in place and we require an assurance to that effect.

-   17\. *Comment: *Three Tribal commenters stated that because the
    statute does not require it, OCSE may only suggest that a Tribe
    include performance targets in its plan. Another Tribal commenter
    stated that some Tribes do not utilize standard performance
    measurements and that measuring success by numerical or monetary
    targets does not allow for intangible successes to be taken into
    account (such as family reconciliation.)

-   *Response: *The Federal statute specifically authorizes the
    Secretary to establish requirements which must be met in order to be
    eligible for funding under title IV--D. We have determined that in
    order to fulfill our responsibility to ensure the effective and
    efficient administration of Federally-assisted Tribal child support
    enforcement programs, it is essential that Tribes and Tribal
    organizations consider and articulate performance targets or goals
    for their programs. In response to comments, we have revised §
    309.65(a)(14) to clearly reflect that the performance targets should
    be based on the particular needs and circumstances of Tribal IV--D
    programs. In addition to submission of targets for paternity and
    support order establishments, targets on total amount of current
    collections, and targets on total amount of past due collections, we
    encourage Tribes and Tribal organizations to include
    Tribally-defined measures of success that go beyond numerical or
    monetary description. These optional measures could include, for
    example, family reconciliation or other indications of improved
    quality of life for Indian families. We believe that performance
    targets are essential for ensuring that Tribes focus on maintaining
    efficient and effective child support services because such targets
    assist us and Tribes in ensuring that Tribal IV--D programs can
    increase their efficiency and effectiveness over time.

1.  18\. *Comment: *One Tribal commenter objected to the imposition of a
    performance-based incentive and penalty system for Tribal grantees.
    Another asked if we were proposing to withhold sanctions from Tribal
    and State programs while performance standards are sorted out and
    one commenter said that heavy penalties for

failure to meet program requirements will drive away a lot of Tribes.

*Response: *The proposed rule did not impose a performance-based
incentive or penalty system for Tribal IV--D grantees and we have not
imposed such systems in this final regulation. Tribal IV--D plans must
include performance targets, but funding is not contingent upon the
targets being met. In the statistical and narrative reports required
under § 309.170, grantees must report on their success in reaching their
performance targets. We are not setting performance targets because we
believe that Tribes are in the best position to set performance targets
in the initial years of the Tribal IV--D program and to estimate the
targets that they can reasonably attain. Tribal IV--D performance
targets have no effect on State IV--D programs.

*Sections 309.16 and § 309.65(b)---Start-Up Funding *

1\. *Comment: *Thirteen Tribal commenters stated that a two-year start­up
time frame is not sufficient. Some suggested that extensions be
permitted.

*Response: *We were persuaded by commenters to re-evaluate the
regulatory framework for start-up funding and have added a new § 309.16
to reflect provisions related to applications and approval of start-up
funding. Section 309.16(a) lays out the requirements for an application
for start­up funding including the standard application forms SF 424,
''Application for Federal Assistance'', and SF 424A, ''Budget
Information---Non-Construction Programs'', a quarter-by-quarter estimate
of expenditures for the start-up period, notification of whether the
Tribe or Tribal organization is requesting funds for indirect costs and
an election of a method to calculate estimated indirect costs, and a
narrative justification for each cost category on the form. If the Tribe
or Tribal organization requests funding for indirect costs as part of
the application for start-up funds, estimated costs may be submitted
either by a documentation of the dollar amount of indirect costs
allocable to the IV--D program, including the methodology used to arrive
at the amounts, or submission of the current indirect costs rate
negotiated with the Department of the Interior and a dollar amount of
estimated indirect costs. The amount of indirect costs must be included
within the \$500,000 limit for start-up funds. The Tribe or Tribal
organization must also submit a description of the requirements a Tribe
currently meets and, if the Tribe does not currently meet the
requirements in § 309.65(a), a program development plan detailing
actions to be taken to meet the Tribal plan requirements. Section
309.16(c) describes under what circumstances the Secretary may consider
extending the period of time during which start-up funding will be
available or increasing the amount of start-up funding provided. An
unfavorable decision to extend the period of time during which start-up
funding is available or to increase the amount of start-up funding
provided is not subject to an administrative appeal.

Based on the experience of Tribes of varying sizes and circumstances
that are currently operating IV--D programs, we believe that the amount
of time specified at § 309.16(a)(5) will provide Tribes and Tribal
organizations with reasonable and necessary support to complete the
start-up phase necessary for comprehensive child support enforcement
programs. However, in extraordinary circumstances, we will consider
extending the period of time during which start-up funding will be
available to a Tribe or Tribal organization or increasing the amount of
start-up funding provided.

2\. *Comment: *One commenter stated that ''demonstrate satisfactory
progress'' towards a fully operational Tribal IV--D program in proposed
§ 309.65(c) is vague and suggested that it be more clearly defined.

*Response: *The language at proposed § 309.65(c) has been reworded and
moved to 309.16(a)(5) for clarity. Under § 309.16(a)(5), Tribes must
develop a program development plan which demonstrates to the
satisfaction of the Secretary that the Tribe or Tribal organization will
have a IV--D program meeting the requirements of § 309.65(a) within a
specific period of time, not to exceed two years. In order to
demonstrate satisfactory progress toward a fully-operational Tribal
IV--D program, a Tribe would have to show it is meeting specific goals
established in the program development plan within the timeframes
established in the plan. In response to comments, we have revised §
309.65(b) to make clear that the Secretary may terminate start-up
funding if the Tribe or Tribal organization fails to satisfy any
provision or milestone described in its program development plan within
the timeframe specified in the plan. A decision to terminate start-up
funding is not subject to administrative appeal.

*Section 309.65(d)---Delayed Program Requirements *

1\. *Comment: *Thirty-nine Tribal and State comments were received on
this section that outlined future requirements for Tribal IV--D
programs.

While a few of the commenters thought that the requirements for
enforcement services should be the same for Tribes as for States, the
majority of the commenters recommended eliminating § 309.65(d). Most
expressed concern about how Tribes will access the Federal automated
systems. They also stated that if Tribes are mandated to enter into
cooperative agreements with States to access these systems, it would
infringe on Tribal sovereignty.

*Response: *Based on comments, we are persuaded that it is not
appropriate at this time to impose future requirements for additional
procedures which Tribes and Tribal organizations must implement within
two years after the Secretary issues guidelines for these requirements.
These requirements were removed from the final rule. If, after
experience and consultation, additional regulations become necessary, we
will propose rules at that time. Some of the advanced child support
enforcement techniques require a minimal level of automation, and it
would not be appropriate to mandate the phase-in of such techniques in
advance of understanding more clearly the issues related to Tribal IV--D
automation. We have begun consideration of appropriate minimum Tribal
systems automation specifications with stakeholders.

*Section 309.65(e)---Certification of Compliance With the 100-Child
Minimum Requirement *

1\. *Comment: *One commenter suggested the requirement to certify
compliance with the 100-child minimum be deleted except for initial
applications or when a member Tribe drops out of a consortium.

*Response: *One of the basic eligibility requirements---that a Tribe is
eligible to apply for funding if it has at least 100 children under the
age of majority in the population subject to its jurisdiction is found
at § 309.10(a). This requirement may be subject to a waiver under §
309.10(c). We deleted the language from proposed § 309.65(e) and moved
it to § 309.70. The Tribe must certify that there are at least 100
children under the age of majority in the population subject to its
jurisdiction. The requirement that a consortium demonstrate
authorization of two or more Indian Tribes with at least 100 children
under the age of majority subject to its jurisdiction remains applicable
even if a member of the consortium drops out. If, during the funding
cycle, a member of a consortium drops out, the assurance that the
consortium will continue to serve at least 100 children must be resolved
by the beginning of the next funding cycle.

*Section 309.70---What Provisions Governing Jurisdiction Must a Tribe or
Tribal Organization Include in a Tribal IV--D Plan? *

1\. *Comment: *Seven Tribal commenters supported the fact that the
regulation did not address jurisdiction. Several State commenters stated
that jurisdiction is not adequately addressed in the regulation and that
guidance is needed.

*Response: *Jurisdiction is the legal authority which a court or
administrative agency has over particular persons and over certain types
of cases. Issues related to jurisdiction are central to
intergovernmental cooperation for the provision of child support
enforcement services to families. Without proper jurisdiction, a
tribunal cannot proceed to establish, enforce, or modify a support order
or determine paternity. The legal authority to undertake these functions
is essential to the ability of both State and Tribal child support
enforcement programs to meet the statutory objectives of title IV--D of
the Social Security Act. Lack of jurisdiction does not excuse a Tribal
IV--D program from the responsibility of providing services when asked,
including seeking assistance from another IV--D program.

*Section 309.75---What Administrative and Management Procedures Must a
Tribe or Tribal Organization Include in a Tribal IV--D Plan? *

1\. *Comment: *One commenter suggested that the word ''promptly'' should
be replaced with a 20-calendar day time frame for opening a case as
required for State IV--D agencies by 45 CFR 303.2(b).

*Response: *We disagree that it is necessary at this time to require a
specific time frame for opening a Tribal IV--D case. We are satisfied
that § 309.65(a)(2) is sufficient to ensure that all applications for
IV--D services are accepted and acted upon. We expect that all
applications for Tribal IV--D services will be acted upon in a prompt
and efficient manner. A Tribal IV--D agency must open a case for each
application. In some of these cases, the proper action will be to refer
the case for enforcement by a State or another Tribe with access to
enforcement tools the Tribe may not access directly, *e.g. *State income
tax refund offset; in others it will be to refer the case to a State or
another Tribe because the Tribe has no jurisdiction over the parties. We
have eliminated the language originally proposed in § 309.75(c) related
to opening IV--D cases since it was duplicative of language in §
309.65(a)(2).

-   2\. *Comment: *One Tribal commenter suggested deleting the
    requirement for bonding in paragraph (d), as most Tribes are not
    able to afford bonding. Nine other Tribal commenters suggested
    eliminating the language at paragraph (d)(3) under which the
    requirements of this section do not reduce or limit the ultimate
    liability of the Tribe or Tribal organization for losses of support
    collections from the Tribal IV--D agency's program because it
    implies the Tribe has liability and it could be construed as a
    waiver of Tribal sovereignty.

-   *Response: *We reviewed the proposed requirement for the bonding of
    employees in light of Tribal comments that such a requirement would
    cause financial hardship. In response to the concerns raised, we
    have revised § 309.75(b) so that taking out a bond is not the only
    means of satisfying the requirement for protection against loss.
    Under the revised provision, Tribal IV-- D programs must submit
    documentation that establishes that every person who receives,
    disburses, handles, or has access or control over funds collected
    under the Tribal IV--D program is covered by either a bond or
    insurance sufficient to cover all losses. Because the bond or
    insurance will cover all losses, it is not necessary to address
    liability. In addition, we have eliminated as unnecessary the
    language in former § 309.75(d)(3) related to the ultimate liability
    of Tribes.

1.  3\. *Comment: *One Tribal commenter objected to the requirement at
    proposed paragraph (e) to provide notice of all support collections
    to families and noted that States only have to provide notice of
    assigned support. The proposed requirement is more stringent.
    Another Tribal commenter stated that until a Tribe has a
    sophisticated computer system to track individual accounts,
    providing a notice will be time-consuming and the agency should
    provide such information only on request.

*Response: *As indicated earlier in this preamble, we have determined
that all regulations applicable to State IV--D programs need not apply
to Tribal IV-- D programs. State IV--D programs are required to provide
monthly notice of support payments for each month to individuals who
have assigned their rights of support to the IV--A agency. However, we
believe that notices of support collections should be provided to all
families receiving services from the program. In order to recognize the
level of automation currently available to Tribal IV--D programs, we
have revised § 309.75(c) to require that notice of collections be
provided to families receiving services under the Tribal IV-- D program
at least once a year. This is less cumbersome than a requirement to
provide notices on a monthly basis. In addition to the annual notice, a
notice must be provided at any time to either the custodial or
noncustodial parent upon request. In this way families will receive
regular notices of collections made on their behalf.

4\. *Comment: *One commenter recommended that we require that for each
of the first three program years, the Tribe should obtain an evaluation
every six months as well as a yearly external evaluation.

*Response: *We have not imposed these additional evaluation requirements
on Tribes in these final regulations. We have determined that the
required audits under § 309.75(d) and the authority to conduct Federal
audits as the need arises are sufficient to ensure accountability and
additional evaluations are not necessary.

*Section 309.80---What Safeguarding Procedures Must a Tribe or Tribal
Organization Include in a Tribal IV--D Plan? *

-   1\. *Comment: *One Tribal commenter stated that because the statute
    does not require it, OCSE may only suggest that the Tribal IV--D
    plan include safeguarding information in its plan. Another commenter
    stated that it is critical for Tribal grantees to describe
    safeguarding procedures.

-   *Response: *We disagree that because the statute does not explicitly
    direct the Secretary to establish safeguarding regulations, that the
    Secretary may not do so. As we noted above, the statute explicitly
    delegates to the Secretary the authority to promulgate regulations
    ''establishing the requirements which must be met by an Indian Tribe
    or Tribal organization to be eligible'' for funding under title
    IV--D. We have determined that safeguarding confidential information
    is critical to individual rights to privacy as well as to effective
    Tribal child support programs, and that implementation of
    safeguarding procedures is necessary to meet IV--D program
    objectives and to ensure that data and information received from
    State IV--D programs are safeguarded in accordance with statutory
    and regulatory requirements. Therefore, we require minimum but
    critical safeguarding procedures at § 309.80 to ensure that
    confidential information is protected from improper disclosure.

1.  2\. *Comment: *Two Tribal commenters indicated concern about
    confidential information on Tribal members going into a national
    database system that will be shared with States. Tribes do not

want to make their enrollment records accessible. Another Tribal
commenter did not like the proposed requirement in § 309.65(d) and
related safeguarding requirements in § 309.80(b) that the Tribal IV--D
agency will have to report new hires to States, which in turn would
report them to the National Directory of New Hires (NDNH).

*Response: *These final regulations do not require Tribes to submit any
information to a national or State database and there is nothing in this
final rule that requires Tribes to provide enrollment records to any
entity. The requirement at § 309.80(b) is necessary because Tribes may
receive information from Federal sources including the NDNH from States
as well as information about state cases and must meet Federal statutory
and regulatory confidentiality requirements. In response to comments,
the requirements at proposed § 309.65(d) were eliminated.

-   3\. *Comment: *One State commenter stated that Tribes have no
    authority to access the FPLS or other Federal databases to locate
    individuals for IV--D purposes. Another State commenter stated that
    if Tribes have direct access to statewide systems, confidentiality
    would be a concern.

-   *Response: *Tribes are legally precluded from direct access to the
    FPLS. However, they could receive FPLS data from a State in an
    intergovernmental case. The technical requirements for access to the
    FPLS will be the subject of future guidelines and program
    instructions. All IV--D case record information is confidential,
    whether a State or Tribal IV--D program maintains it and both
    entities are required to treat the information as confidential and
    are bound by safeguarding requirements. State and Tribal
    safeguarding requirements are not in conflict. If Tribes and States
    enter into agreements for reciprocal access to each other's
    databases for location or other child support purposes, such
    agreements must not conflict with Federal safeguarding and other
    regulations and must comply with the Internal Revenue Service (IRS)
    rules governing the disclosure of tax return information.

1.  4\. *Comment: *One commenter asked who would be prosecuted if a
    State contracts with a Tribe and a violation of confidentiality of
    IRS material occurs. The commenter suggested that States have hold
    harmless regulations regarding release from liability of
    prosecution.

*Response: *Current Federal law does not allow a State to release tax
information to a Tribal IV--D agency.

When an entity directly receives tax return information from the IRS, it
has the legal responsibility to safeguard such information. Any
agreement negotiated between a Tribe and a State must address
safeguarding and comply with all applicable Federal law and regulations.

*Section 309.85---What Records Must a Tribe or Tribal Organization Agree
To Maintain in a Tribal IV--D Plan? *

-   1\. *Comment: *One State commenter stated that the regulations do
    not address reporting of collections made by States on behalf of
    families who are receiving Tribal IV--A assistance.

-   *Response: *State reporting requirements are not addressed in this
    regulation. Information about any collection received by a Tribal
    IV--D program from a State IV--D program must be included in the
    Tribal IV--D program's records under § 309.85(a)(4) and must be
    reported under § 309.170.

1.  2\. *Comment: *We received five State comments suggesting that
    Tribal IV--D programs use all the standard Federal forms that State
    IV--D programs use.

*Response: *State IV--D programs have been in operation for almost 30
years and are required to use a variety of standard Federal forms. The
requirements related to these standard forms have evolved over time and
some of them were developed or amended recently. At this initial stage
in the development of Tribal IV--D programs, we have determined that it
is not reasonable to mandate that Tribes use all the same forms as
States. Whether or not a particular standard Federal form should be
required of Tribal IV--D programs depends on whether the use of such
form is essential to the effective and efficient administration of
Tribal child support enforcement programs. We disagree that Tribes
should be required to use every standard Federal form that States
currently use, especially since many of the forms were designed for
automated case processing. Section 309.110 requires that Tribes use the
standard income withholding notice, because we have determined that the
standard use of this form by all IV-- D programs is necessary for the
effective and efficient enforcement of support orders.

*Section 309.90---What Governing Tribal Law or Regulations Must a Tribe
or Tribal Organization Include in a Tribal IV--D Plan? *

1\. *Comment: *One State commenter noted that Tribal laws should be used
in administering Tribal programs, but States should approve the Tribal
laws. Three Tribal commenters responded favorably to the provision
allowing Tribes to use their own laws, traditions and customs.

*Response: *There is no legal authority to impose a requirement that
States approve Tribal laws. This would be a clear infringement on Tribal
sovereignty.

-   2\. *Comment: *One Tribal commenter noted that not all Tribal codes
    are written and it would be difficult to submit that kind of code or
    law. Another commenter appreciated the fact that the rule recognized
    that not all Tribes have written codes.

-   *Response: *Should a Tribe with unwritten codes and laws apply for
    direct funding, these final regulations require a detailed
    description of such codes and laws in its application. We recognize
    in this regulation that one of the unique characteristics of Indian
    Tribes is that some do not have written laws and codes, even though
    they have long-standing and rich legal traditions. We have added a
    definition of ''Tribal custom'' at § 309.05 to make clear that this
    term is not open-ended, but means unwritten law that has the force
    and effect of law. Section 309.90(b) permits Tribes without written
    laws to submit detailed descriptions of Tribal common law as
    evidence that procedures required by § 309.90(a) are in place. Even
    though Tribal custom is unwritten, it is nonetheless capable of
    being known and may be shown in several ways: it may be shown
    through recorded opinions and decisions of Tribal courts; it may be
    judicially noticed; or it may be established by testimony of expert
    witnesses who have substantial knowledge of Tribal common law in an
    area relevant to the issue before the Tribe.

1.  3\. *Comment: *One State commenter suggested that the language at §
    309.90 be amended to require Tribal employers to comply with an
    income withholding order of another Tribe or State.

*Response: *We have not amended § 309.90 as suggested because Tribes are
not required to adopt the Uniform Interstate Family Support Act (UIFSA)
as all States were required to do. UIFSA compels a State employer to
honor a withholding order sent directly from another State or Indian
Tribe. However, the Full Faith and Credit for Child Support Orders Act
(FFCCSOA) requires both Tribes and States to enforce valid child support
orders. Where State or Tribal orders referred to a Tribal IV--D program
include provision for income withholding, such orders must be enforced
by Tribal IV--D agencies as required by FFCCSOA. Please note that §
309.110 provides that Tribal IV--D agencies are responsible for ensuring
that valid withholding orders are promptly served.

*Section 309.95---What Procedures Governing the Location of Noncustodial
Parents Must a Tribe or Tribal Organization Include in a Tribal IV--D
Plan? *

We received no comments on this section.

*Section 309.100---What Procedures for the Establishment of Paternity
Must a Tribe or Tribal Organization Include in a Tribal IV--D Plan? *

-   1\. *Comment: *Eight Tribal commenters raised concerns about the
    effect of paternity establishment on Tribal enrollment and
    membership. Seven of these commented that OCSE should not interfere
    with the authority of Tribal governments, Tribal enrollment
    committees and Tribal religious leaders in establishing paternity.
    They stated that determining paternity through foreign regulations
    would totally disrupt the way they deal with issues and they want to
    incorporate traditional lifestyle into child support enforcement
    programs through Tribal courts. Four commenters supported the
    provisions allowing Tribal discretion in how paternity is
    established.

-   *Response: *In response to concerns raised by commenters we have
    added § 309.100(d) to make clear that establishment of paternity
    under this regulation does not affect Tribal enrollment or
    membership. Section 309.100(a)(1) provides for paternity to be
    established in accordance with Tribal law, code, or custom. These
    regulations are not intended to override established Tribal
    authority.

-   2\. *Comment: *One Tribal commenter suggested that States be
    required to give full faith and credit to any legal determination of
    paternity considered final by a Tribal court.

-   *Response: *Under the State-enacted UIFSA statutes and FFCCSOA,
    States are required to honor Tribal paternity orders when they are
    the basis for child support orders pursuant to Tribal law, in the
    same manner that a Tribe is compelled to honor States' paternity
    orders when they are the basis for child support orders. We have
    determined that it is not necessary to further regulate in this
    area.

1.  3\. *Comment: *One State commenter suggested that parents should
    have the option to request genetic testing.

*Response: *We are persuaded that genetic testing should be provided
upon request and have added § 309.100(a)(3) to require the Tribal IV--D
plan to provide procedures under which the Tribal IV--D agency is
required, in a contested paternity case (unless otherwise barred by
Tribal law), to require the child and all other parties to submit to
genetic tests upon the request of any such party, if the request is
supported by a sworn statement by the party alleging paternity, and
setting forth facts establishing a reasonable possibility of the
requisite sexual contact between parties; or denying paternity, and
setting forth facts establishing a reasonable possibility of the
nonexistence of sexual contact between the parties. As stated in an
earlier section of the preamble, the phrase ''otherwise barred by Tribal
law'' is intended to cover situations where, either by action of one or
both of the parties or the application of Tribal law, or both, paternity
has already been conclusively determined and may not be reconsidered. In
such cases, genetic testing to challenge the paternity determination
would not be authorized. Examples of such a paternity determination
would include a voluntary admission of paternity or circumstances under
which the Tribe has other means of recognizing paternity under Tribal
law. A Tribe, through its own custom, tradition or procedure, may
recognize a man as the father or may preclude a man who holds himself
out to be the father from challenging paternity. Similarly, a Tribe may
have a conclusive presumption of paternity when a child is born to
married parents or if a noncustodial parent has been validly served in a
paternity proceeding and failed to contest paternity in such proceeding.
A uniquely Tribal means under Tribal law that was used to establish
paternity would be acceptable as precluding the need for genetic tests.
In such cases, because paternity had already been determined, genetic
testing would be ''otherwise barred by Tribal law''. This language is
consistent with the language found at section 466(a)(5)(B) of the Act,
which mandates genetic testing in contested cases to ensure that the
rights of both parties are protected.

4\. *Comment: *One commenter stated that the due process rights of
individuals must be protected. States should give full faith and credit
to paternity determinations made by Tribal law/ordinance but not to
processes that result in a person with whom the mother has had no
relation (either sexual or marriage) being established as the legal
father.

*Response: *The regulations at § 309.65(a)(3) require due process
assurances and § 309.100(a)(1) makes clear that such assurances
encompass paternity establishment. In light of these requirements, we
have determined that it is not necessary to mandate further paternity
establishment procedures. States and Tribes are required to recognize
and honor valid determinations of paternity.

-   5\. *Comment: *One commenter said that the voluntary paternity
    requirement does not go far enough. Voluntary paternity
    acknowledgement services should operate in all birthing hospitals
    located under the Tribe's jurisdiction.

-   *Response: *This rule is flexible enough to allow voluntary
    acknowledgement of paternity at birthing hospitals as determined
    appropriate by Tribes. This practice has proven to be highly
    effective for States and has resulted in a record number of
    paternity acknowledgements.

1.  6\. *Comment: *Four commenters said that the requirement at §
    309.100(b) should be omitted, and Tribes should determine the
    exceptions to require paternity establishment actions and the
    appropriate entity to make exceptions.

*Response: *We believe the language at § 309.100(b) accommodates the
needs of Tribes to determine exceptions to paternity establishment and
allows Tribes to establish the appropriate entity to make those
determinations.

*Section 309.105---What Procedures Governing Child Support Guidelines
Must a Tribe or Tribal Organization Include in a Tribal IV--D Plan? *

1\. *Comment: *Three Tribal commenters suggested that child support
guidelines are not required. One also suggested that the requirements go
beyond what Congress intended and interfere with Tribal sovereignty.

*Response: *We disagree that because the statute does not explicitly
direct the Secretary to establish specific minimum requirements for
support guidelines, that the Secretary may not do so. As we note above,
the statute explicitly delegates to the Secretary the authority to
promulgate regulations ''establishing the requirements which must be met
by an Indian Tribe or Tribal organization to be eligible'' for funding
under title IV--

D. Although guidelines are not specifically addressed in the statute,
establishment of support orders is one of the mandatory program
objectives, and we have determined that § 309.105 requirements are
critical to establishing fair and consistent support orders.
Implementation of the requirements specified at § 309.105 is necessary
to satisfy the statutory IV--D program objective of establishing child
support orders, and we believe such requirements respect Tribal
sovereignty.

2\. *Comment: *One State commenter stated that because there is no
requirement to enact UIFSA, a Tribal child support guideline could allow
the Tribal court to change or ignore a State's order, and competing
orders could result. The need for UIFSA is apparent.

*Response: *The commenter fails to take into account that Federal law
requires all tribunals to give full faith and credit to valid child
support orders. FFCCSOA requires tribunals of all United States
territories, States and Tribes to give full faith and credit to a child
support order issued by another State or Tribe that properly exercised
jurisdiction over the parties and the subject matter. A Tribe may not
modify an order valid under FFCCSOA except in certain circumstances, nor
may valid orders be modified under these regulations in any manner that
is inconsistent with that Federal law. The grounds for modification
under FFCCSOA are consistent with UIFSA.

-   3\. *Comment: *One State commenter suggested we include requirements
    regarding modifications, since States have very specific
    requirements relating to review and adjustment, and periodic
    modification ensures child support obligation amounts are
    appropriate over time.

-   *Response: *These regulations specify that guidelines apply to both
    setting and modifying orders. We believe that § 309.105(a)(4)
    sufficiently addresses the commenter's concerns that periodic
    modification ensures child support obligation amounts are
    appropriate over time and do not believe that additional regulation
    is called for at this time.

1.  4\. *Comment: *Numerous State commenters stated that they did not
    have a clear understanding of the in-kind concept as it related to
    support obligations, while numerous Tribal commenters responded
    positively to the recognition that Tribal support orders could be
    satisfied with cash and non­cash resources.

*Response: *We were urged by Tribes to accommodate the reality of Tribal
economies by recognizing that noncustodial parents could satisfy support
obligations with non-cash (in-kind) support in addition to cash
payments. Many reservations and Indian communities are located in remote
areas with little or no industry or business; thus, there are limited
opportunities for cash employment. We were persuaded by Tribes to
accommodate the long-standing recognition among Indian Tribes that all
resources that contribute to the support of children should be
recognized and valued by IV--D programs.

In-kind (non-cash) support is support provided to a family in the nature
of goods and/or services rather than in cash, but which nonetheless has
a certain and specific dollar value. Non­cash support for purposes of
this regulation is support that directly contributes to the needs of a
child. Non­cash support may include services such as making repairs to
automobiles or a home, the clearing or upkeep of property, providing a
means for travel, or providing needed resources for a child's
participation in Tribal customs and practices.

In § 309.105(a)(3), we allow Tribal child support guidelines to permit
support obligations to be satisfied with both cash and non-cash
payments. The regulations at § 309.105(a)(3) require that a support
order which permits satisfaction with non-cash resources must include,
in the order itself, a specific dollar amount reflecting the amount of
the support obligation. The regulation allows individual Tribes to make
the determination of whether non­cash as well as cash payments can be
accepted to satisfy the support order.

Since all Tribal support orders will include a specific dollar amount
reflecting the support obligation, a specific monetary amount of a child
support obligation is clear in every order. In this way Tribal orders
contain the same information as State orders do. The only difference is
that some Tribal orders may allow the support obligation to be satisfied
with non-cash resources. Thus, States should be able to process support
payments through their automated systems and account for support
payments made under Tribal orders. Other Tribes that receive requests
for enforcement assistance where there is a support order which can be
satisfied with non-cash resources should similarly be able to process
such support payments.

5\. *Comment: *Five State commenters suggested that the specific dollar
amount for non-cash support must be a part of the Tribal court order.
One of these suggested that satisfaction of support obligations with
non-cash payments should be limited to current support only.

*Response: *We agree that support orders must include specific dollar
amounts and that these amounts must be expressly reflected in the Tribal
order. Non-cash support merely recognizes that an obligation for a
specific dollar amount of child support may be satisfied with non-cash
resources. We are persuaded that this is a critical accommodation for
Tribal subsistence economies. We have added language in § 309.105(a)(3)
to ensure that Tribal support orders include specific dollar amounts. If
non-cash payments are permitted to satisfy Tribal support orders, the
support order must include both the specific dollar amount of the
obligation and the types of non­cash support which may be provided to
meet the obligation.

We are not persuaded that the accommodation of non-cash resources should
be limited to current support obligations only. Arrears, like current
support, are specific dollar amounts. Since each non-cash payment will
have an associated dollar value attached to it, it can be credited
toward arrears as well as current support obligations. However, non-cash
support cannot be used to satisfy assigned support (including arrears).
This is consistent with the language added to § 309.105(a)(3)(iii).

6\. *Comment: *We received nine positive comments from Tribes on the
provision allowing non-cash (in-kind) support payments. One State
commenter stated that determining the amount of non-cash contributions
that have been made on a newly opened enforcement case would be
cumbersome and require intensive labor on the part of the State.

*Response: *Permitting Tribal courts to establish support orders which
can be satisfied with non-cash payments is an essential accommodation
made to recognize Tribal custom and circumstances. If a Tribal IV--D
agency refers a case to a State IV--D agency for enforcement, the Tribal
IV--D agency must provide information necessary to work the case, which
would include the payment record under the order. Therefore, State IV--D
agencies would not be required to determine non-cash contributions made
by the obligor. Non­cash payments are merely one means by which Tribal
support orders may be satisfied. For example, a Tribal support order
could provide that an obligor owes \$200 a month in current support and
\$100 a month for arrears which may be satisfied with the provision of
firewood suitable for home heating and cooking to the custodial parent
and child. The order could provide that a cord of firewood has a
specific dollar value of \$100 based on the prevailing market. In this
case, the obligor would satisfy his support obligation by providing two
cords of firewood every month plus \$100. Such ''payments'' would be
credited as \$300 paid every month. Whenever non-cash payments are
permitted, the specific dollar amount will always be known (and be
reflected in the order) and can be credited and tracked. The language at
§ 309.105(a)(3) has been amended to indicate that should the Tribe
decide that an non-cash order is acceptable, a specific dollar amount
must be set in the order.

Permitting Tribal support orders to specify that support obligations may
be satisfied with non-cash resources is an important recognition of the
economic conditions of Indian Tribes and of the subsistence economies
prevalent throughout much of Tribal territory. In addition, it
recognizes that noncustodial parents without significant cash resources
may nonetheless satisfy support obligations and make productive
contributions to their children's lives.

-   7\. *Comment: *One State commenter stated that in-kind orders are
    not compatible with States' automated systems.

-   *Response: *Tribal IV--D programs are required under § 309.105(a)(3)
    to include a specific dollar amount if obligors are permitted to
    satisfy their support obligations with non-cash payments. Since
    every non-cash payment will have an associated monetary value, each
    payment will be reducible to a specific dollar amount, which every
    automated system should be able to handle just like any other
    payment.

-   8\. *Comment: *One Tribal commenter stated that there are many
    problems associated with valuing in-kind payments which Tribes
    themselves should address; OCSE officials should not propose
    regulations in areas where they do not have a good understanding.

-   *Response: *Section 309.105(a)(3) requires Tribal support orders
    which permit non-cash payments to establish a specific dollar amount
    in the order itself. We agree that the valuation of non-cash
    resources is the responsibility of Tribes themselves. The Tribe must
    establish standards for valuation of non­cash resources, should it
    choose to permit non-cash payments to be used to satisfy support
    obligations.

1.  9\. *Comment: *Two State commenters suggested that we clarify how
    assignments to offset public assistance to a State will be handled
    when the noncustodial parent is making in-kind payments and
    suggested that where assignments are made to a State the obligor
    must pay a cash equivalent specified within the Tribal order.

*Response: *Where non-cash payments are permitted to satisfy support
obligations, they are required to be represented as a specific dollar
amount which can be credited just like any other child support payment.
Where assignments of support rights are made to the State as a condition
of receipt of public assistance, any non-cash payment made by the
noncustodial parent can be credited to the family as a cash payment
would be. As specified in § 309.105(a)(3)(iii), if there is an
assignment to the State or another Tribe, the specific dollar amount
must be paid.

-   10\. *Comment: *One commenter said that the term ''cash
    equivalents'' has subsistence and public assistance implications and
    may make the term unworkable in Alaska. The term ''cash
    alternatives'' would be more acceptable.

-   *Response: *We have revised the regulation at § 309.105(a)(3) to
    eliminate the phrase ''cash equivalents'' to clarify the meaning of
    terms and to eliminate confusion.

-   11\. *Comment: *Two State commenters suggested that the obligee be
    required to provide a written receipt to the obligor acknowledging a
    non-cash payment.

-   *Response: *If the Tribal IV--D program decides to permit non-cash
    resources to be used to satisfy a support order, the Tribe is
    responsible for recording payments to ensure obligors receive credit
    for meeting their child support obligations. At this time, we do not
    believe the alternatives suggested by the commenters are necessary.

-   12\. *Comment: *One State commenter suggested that we establish
    numeric and descriptive guidelines for in-kind payments. If there is
    a deviation due to in-kind support, the tribunal should make a
    specific finding justifying departure from cash support and
    establishing that such departure is in the best interest of the
    child. The Tribal IV--D plan should specify how the noncustodial
    parent receives credit for in-kind payment.

-   *Response: *We have determined that § 309.105 adequately provides
    for consistent and predictable support guidelines which take into
    account the needs of the child and are not persuaded that the
    suggestions of the commenter are necessary.

1.  13\. *Comment: *One State commenter stated that if a Tribe's
    guidelines allow in-kind credits, then it should be the burden of
    the obligor to raise the issue and prove the entitlement to such
    credits. The in-kind support must directly benefit the child. This
    same commenter stated that there is an issue of equal protection.

*Response: *As explained above, allowing Tribal orders to specify both a
specific dollar amount of support due and an equivalent non-cash
resource that can be used to satisfy the obligation is an important
accommodation for Indian Tribes. Such an accommodation permits
noncustodial parents who can provide non-cash resources which are needed
by families to meet their child support obligations even when they do
not have cash available to make cash payments. Section 309.105(b)
requires Tribal child support guidelines to take the needs of the child
into account, and we do not believe it is necessary to require any
additional finding in order to allow non-cash resources to be used to
satisfy a Tribal support order. As long as the Tribal support order
indicates the specific dollar amount of the support obligation and the
dollar amount of the non-cash resource, the support can be collected
whether or not it is made in cash or non-cash resources. Allowing
non-cash support in Tribal IV--D programs recognizes Tribal tradition
and custom appropriate to Tribal IV--D programs and consistent with
Tribal sovereignty.

We do not believe there is any equal protection risk associated with
final regulations permitting Tribal support orders to be satisfied with
non-cash resources consistent with Tribal law and Tribal economies.
Singling out Indian Tribes for different regulations from States is
constitutionally sound. The United States Supreme Court has, on numerous
occasions, upheld legislation and regulations that single out Indians
for particular and different treatment.

-   14\. *Comment: *Two Tribal commenters said that basing support
    orders on the noncustodial parent's ability to pay is not a
    requirement of the statute. If a parent cannot provide non-cash
    support because he/she no longer has access to the resource, the
    parents should return to Tribal court to request that the order be
    modified.

-   *Response: *We have determined that support guidelines that take
    into account the earnings and income of the noncustodial parent are
    essential to effective IV--D programs. Where a noncustodial parent
    is no longer able to provide non-cash support nor able to satisfy
    the support obligation with cash payments, the Tribe's procedures
    for modification of support orders may be applicable on a
    case-by-case basis. Non­cash support is not a substitute for support;
    it is a means of providing support. If there is a change in
    circumstances such that the noncustodial parent may, under Tribal
    law, seek modification of the support order, the fact that non-cash
    support is reflected in the order should not contribute to any delay
    or pose any particular problem.

1.  15\. *Comment: *One State commenter said that Federal child benefit
    programs such as Social Security Retirement or Social Security
    Disability provide for a benefit to be paid directly to the child or
    guardian and that the regulations should address how these benefits
    will affect the obligation of the noncustodial parent.

*Response: *We believe that § 309.105 adequately ensures that the needs
of the child are taken into consideration while providing that the
support order is appropriate and just given the particular circumstances
of the case. If a particular child is receiving direct payments, such
payments may be taken into consideration under these regulations.

-   16\. *Comment: *One commenter suggested that OCSE examine whether
    there is a need to address Tribal responsibility when a child
    support order contains provisions for health care coverage.

-   *Response: *There is no requirement at this time for Tribal support
    orders to include medical support. However, nothing in this
    regulation precludes a Tribal order of support from including
    separate provisions for medical support and we encourage Tribes to
    make sure children have access to medical care through IHS or
    otherwise. To the extent that a Tribe is enforcing an order
    containing provisions for health care coverage, such an order is
    entitled to full faith and credit provided the underlying order is
    valid. Just like any other valid order, Tribal and State support
    orders containing provisions for health care coverage are
    enforceable under FFCCSOA.

-   17\. *Comment: *We received comments from six Tribal respondents
    suggesting that Tribes be required to review their guidelines every
    four, rather than three years.

-   *Response: *We agree with the commenters. The language at §
    309.105(a)(4) has been changed to require review of support
    guidelines at least once every four years.

1.  18\. *Comment: *One Tribal commenter disagreed that the standard of
    ''best interest of the child'' be imposed. Requiring the tribunal to
    make ''a finding'' why the application of the ''guidelines'' is
    unjust is more than sufficient.

*Response: *Proposed § 309.105(b)(1) and (e) used the term ''needs of
the child'' and ''best interest of the child'' to reflect the
requirement that the particular needs of the child be taken into
consideration when support orders are established. We have maintained
this language in final regulation as recodified. In order to ensure that
support orders in Tribal IV--D programs are just and appropriate, we
require there be a rebuttable presumption that application of a Tribe's
support guidelines will result in a support order that is correct. In
recognition of the possibility that particular circumstances may make
application of the guidelines unjust or inappropriate, we provide for
variance from such guidelines on a case-by-case basis as long as the
needs of the child are taken into consideration.

*Section 309.110---What Procedures Governing Income Withholding Must a
Tribe or Tribal Organization Include in a Tribal IV--D Plan? *

1\. *Comment: *Eight Tribal commenters suggested that the requirement
for income withholding be eliminated because the statute does not
require income withholding. Two of these commenters stated that Tribes
need to determine if income withholding is appropriate for their
populations.

*Response: *Although income withholding requirements are not
specifically addressed in the statute, enforcement of support orders is
specifically required and we have determined that regulations governing
income withholding are necessary to address this important IV--D program
objective.

Income withholding has been one of the most effective means of
collecting child support from parents who receive regular income and is
especially important to ensure that the noncustodial parent does not
fall into arrears. As important as income withholding is to enforcement
of child support orders, we have tried to accommodate the needs of
Tribes and Tribal organizations in how income withholding procedures are
implemented by Tribal IV--D programs.

2\. *Comment: *One State commenter said that Tribes should count
allotment payments (payments made to individuals from either the Tribe
or the Bureau of Indian Affairs \[BIA\]) or winnings from gaming as
income. Two State commenters suggested that Tribes should withhold
Tribal benefits (casino profits, oil and mineral rights) of all obligors
and allow other entities to participate in this intercept program. A
Tribal commenter suggested that the regulation should not interfere with
Indian Tribal per capita payments, Individual Indian Monies (IIM), trust
income or Social Security benefits. The commenter also suggested that
Tribes should also have the discretion to set lower income withholding
limits than the Consumer Credit Protection Act (CCPA) allows.

*Response: *The extent to which trust distributions, including per
capita payments, may be garnished by a Tribe to satisfy its own order of
support is strictly a matter of Tribal law. Garnishment of Indian trust
distributions by States is prohibited under 25 U.S.C. 410. This statute
states that any money accruing from any lease or sale of lands held in
trust is not liable for the payment of any debt without the approval of
the Secretary of the Interior. For purposes of this regulation, we have
defined income at § 309.05, to mean any periodic form of payment due to
an individual regardless of source, except that the exclusion of per
capita, trust or Individual Indian Money (IIM) payments must be
expressly decided by a Tribe. This allows Tribes the flexibility to
exclude specific categories of payments from this definition, including
per capita payments, trust income, and gaming profit distributions. We
have not required Tribes to withhold the Tribal benefits (casino
profits, oil and mineral rights) of obligors. We refer here to the
businesses owned by the Tribe and the profits thereof. In respect for
Tribal sovereignty, we have determined that it is not appropriate in
this regulation to directly affect Tribal management of Tribes' own
resources.

With respect to concerns about the CCPA limits, Tribes have the
discretion to set lower income withholding limits than the CCPA. These
rules only preclude income withholding beyond the upper limits set forth
in the CCPA.

3\. *Comment: *One Tribal commenter noted that in his village, over half
of the people with child support orders lose over 50 percent of their
paychecks to income withholding. The individual's only means of getting
by is by receiving general assistance. Most, therefore, choose not to
work.

*Response: *The withholding limits set by a Tribe or Tribal organization
may be lower than the maximum CCPA limits, so that income withholding
itself does not create a disincentive to remain employed. The limit set
by a Tribe or Tribal organization may be lower, but may not be higher
than those set forth in the CCPA. There is nothing to prevent a Tribe
from setting the upper limit for income withholding at any amount deemed
appropriate, as long as such limit does not exceed CCPA limits. The
limits set forth in the CCPA are the highest percentages allowed under
Federal law and apply to Tribal income withholding orders under these
Tribal IV--D regulations. However, the actual income withholding limit
is set by Tribes and may be lower than the maximum established in the
CCPA.

When a noncustodial parent's financial circumstances change, or a
default order is entered because income was not known, the noncustodial
parent should go back to the appropriate tribunal to seek a modification
of the order.

4\. *Comment: *One Tribal commenter stated that until Tribes demonstrate
substantial enforcement difficulties that can directly benefit from
income withholding, this section should be eliminated. This commenter
suggested that if the section is not eliminated, the requirement should
be made flexible, so that Tribes may adapt income withholding to their
needs. Two other Tribal commenters stated that Tribes need to determine
if income withholding is appropriate for their populations.

*Response: *In response to the concerns raised by commenters, we are
persuaded that income withholding may not be appropriate in every
circumstance. Many of the comments we received from Tribes indicated
that other methods of collecting support owed are more effective than
income withholding. In some instances, the noncustodial parent is
brought before Tribal elders and asked to explain why child support
payments are not being made. This may be enough to get the noncustodial
parent to make payments. Therefore, we added language to § 309.110
providing flexibility in this area. Section 309.110(h) allows for
exceptions to income withholding on a case-by-case basis if: (1) Either
the custodial or noncustodial parent demonstrates, and the tribunal
finds good cause not to require the income withholding; or (2) a signed
written agreement is reached between the custodial and noncustodial
parent which provides for an alternative arrangement and is reviewed and
entered into the record by the tribunal.

-   5\. *Comment: *One State commenter suggested that § 309.110
    incorporate UIFSA requirements.

-   *Response: *We disagree that it is appropriate to incorporate
    specific UIFSA procedures in these regulations. Section 309.110
    assures that valid income withholding orders will be honored. We
    have incorporated procedures at § 309.110(n) which require the
    Tribal IV--D agency to receive and process income withholding orders
    issued by States, other Tribes, and other entities and promptly
    serve such orders on employers within the Tribe's jurisdiction.

1.  6\. *Comment: *One State commenter noted that the section is silent
    concerning penalties against employers to enforce compliance with
    income withholding orders and allocation of income withholding when
    there are multiple orders.

*Response: *Section 309.110(g) requires that Tribes have procedures
under which employers are liable for the accumulated amount the employer
should have withheld from the noncustodial parent's income. Section
309.110(k) requires that Tribal law must provide that the employer is
subject to a fine for discharging a noncustodial parent from employment,
refusing to employ or taking disciplinary action against any
noncustodial parent because of income withholding. Section 309.110(n)
income withholding requires the Tribal IV--D agency be responsible for
receiving and processing income withholding orders from States, Tribes
and other entities, and ensuring orders are properly and promptly served
on employers within the Tribe's jurisdiction. Language concerning the
treatment of multiple orders has been added at § 309.110(m) to provide
that income that is withheld be allocated across all valid orders. We do
not believe that additional regulation is required at this time.

-   7\. *Comment: *One State commenter stated that allowing direct
    income withholding from another State or Tribe under UIFSA would
    save work for the Tribal IV--D program and that since States are
    already required to extend this privilege to Tribes the
    responsibility should be reciprocal.

-   *Response: *We have not adopted this suggestion. As noted earlier,
    Tribes are not required to adopt UIFSA. Tribes may choose to allow
    direct income withholding but it is their choice.

-   8\. *Comment: *One Tribal commenter said that requiring that income
    withholding include amounts ''to be applied toward liquidation of
    any overdue support'' may affect a parent's willingness to pay.

-   *Response: *Payment of overdue support remains the responsibility of
    obligors. Nothing in this regulation precludes an obligor from
    seeking an acceptable agreement for repayment of arrearages or, in
    certain specific and appropriate instances, and with the agreement
    of the State, a compromise of arrearages owed to a State pursuant to
    the law which established the support obligation in the first
    instance. We previously issued two Policy Interpretation Questions
    (PIQs) on this subject. PIQ--99--03 and PIQ--00--03 provide general
    information concerning compromise of child support arrears. This,
    and other policy issued by OCSE, [may be found at:
    ](https://www.acf.dhhs.gov/programs/cse/poldoc.htm)*[https://
    www.acf.dhhs.gov/programs/cse/ poldoc.htm.
    ](https://www.acf.dhhs.gov/programs/cse/poldoc.htm)*

1.  9\. *Comment: *Two Tribal commenters noted that including
    instructions for completing the standard Federal income withholding
    form in the rule is duplicative and perhaps conflicting with
    regulatory income withholding provisions.

*Response: *In light of the requirement that the standard Federal income
withholding form be used whenever income is to be withheld, we agree
with the commenter and have eliminated language in proposed § 309.110(b)

which merely duplicates language and conditions specified in the
instructions to the form itself.

10\. *Comment: *One State commenter stated that the difference in
withholding requirements for Indian and non-Indian citizens creates
operational issues, including the fact that States' automated systems
are not equipped to handle the different timeframes. A Tribal commenter
stated that Tribes should be exempt from the immediate income
withholding.

*Response: *We believe that the income withholding provisions in §
309.110 are sufficiently consistent with State rules and provide the
minimum requirements necessary to ensure successful withholding among
IV--D programs when there are valid income withholding orders in place.
Use of the standard Federal income withholding form by both State and
Tribal IV--D programs will ensure responsiveness of employers. All
employers must recognize this form and respond immediately to this
important enforcement tool. The flexibility allowed under § 309.110(h)
to provide an alternative arrangement to income withholding is
substantially parallel to 45 CFR 303.100(b) and we do not believe that
implementation of § 309.110 by Tribes will lead to operational problems
for States.

These regulations do not require immediate income withholding, although
Tribal IV--D programs may choose to impose withholding immediately to
avoid any possibility for default by obligors who are employed. Under §
309.110(i), the income of noncustodial parents is subject to income
withholding on the date on which the payments the noncustodial parent
has failed to make are at least equal to the support payable for one
month unless a determination is made to exempt the obligor from income
withholding under § 309.110(h).

*Section 309.115---What Procedures Governing the Distribution of Child
Support Must a Tribe or Tribal Organization Include in a Tribal IV--D
Plan? *

1\. *Comment: *Five Tribal commenters stated objections to having OCSE
impose a State-based distribution scheme. Instead, they suggested that
the regulations permit Tribes to merely describe how they will
distribute support collections.

*Response: *Section 457 of the Act imposes requirements which govern
distribution of support collections in a IV--D case (related custodial
parent, noncustodial parent and child(ren)) whenever a State IV--D
program is providing services under title IV--D of the Act. In
recognition of this statutory mandate, the Tribal IV--D distribution
requirements must provide for distribution in accordance with section
457 rules when a Tribe receives a request for assistance in collecting
support from a State IV--D agency.

Therefore, section 457 of the Act does not apply to collections under
the Tribal IV--D program unless a State IV--D agency requests assistance
in collecting support from a Tribal IV--D agency. Tribal IV--D programs
are not required to distribute support collections using the complex
section 457 distribution requirements under this final rule. Rather, we
have required Tribal IV--D agencies, upon receipt of a request from a
State IV--D agency for assistance in collecting support under § 309.120,
which specifies required intergovernmental procedures for Tribal IV--D
programs, to either: (1) Forward collections to the State IV--D agency
for distribution using the section 457 requirements, or (2) contact the
State IV--D agency to determine appropriate distribution under section
457 and distribute the collections accordingly. The latter option would
be appropriate, for example, if the Tribal IV--D agency is providing
IV--D services to the family and subsequently receives a request for
assistance from a State in collecting assigned support from a prior
period of receipt of State TANF.

Similarly, we have required that, if a Tribal IV--D agency receives a
request for assistance in a Tribal IV--D case under § 309.120 from
another Tribal IV-- D agency, collections must be either: (1) Forwarded
to the requesting Tribal IV-- D agency for distribution in accordance
with § 309.115; or (2) distributed in accordance with instructions
requested of, and provided by, the other Tribal IV-- D agency.

2\. *Comment: *One State commenter said that automation is a requirement
for distribution and that the regulations must be the same for States
and Tribes.

*Response: *Title IV--D of the Act imposes explicit distribution and
automation requirements upon State IV-- D agencies but does not impose
such requirements on Tribal IV--D programs. As discussed above, we have
revised the final rule to ensure that, when appropriate, Tribal IV--D
agencies send support collections to State IV--D programs for
distribution in accordance with section 457, or contact State IV--D
agencies to determine the appropriate distribution, without requiring
Tribal IV--D programs to adopt the complex statutory distribution
requirements that apply to State IV--D programs.

We understand the importance of minimum automation standards for Tribal
IV--D programs to ensure program efficiency and effectiveness. To that
end, we expect to promulgate regulations establishing such minimum
standards for automated systems (beyond planning provisions articulated
under this rule) in the future after consultation with all stakeholders.

We also recognize that some Tribal IV--D programs do, and may continue
to, contract with State IV--D programs to use the State's automation
system to calculate appropriate distribution of collections. In these
instances, forwarding collections to the State, or contacting the State
to determine appropriate distribution would be unnecessary.

-   3\. *Comment: *One State commenter indicated that distribution would
    require another programming change for State systems if collected
    support had to be distributed to Tribal child support enforcement
    programs.

-   *Response: *The impact of State IV--D program cooperation with
    Tribal IV--D programs and distribution by States of collections sent
    to or received from Tribal IV--D programs will depend on each
    State's automated system. Federal funding is available for 66
    percent of all appropriate and allowable costs associated with any
    needed programming changes to State automated systems.

-   4\. *Comment: *One Tribal commenter said that because Tribes do not
    have the same economic base as State governments, Tribes should not
    be required to reimburse the Federal government from IV--D
    collections.

-   *Response: *This final rule does not require Tribal IV--D agencies
    to reimburse the Federal government using retained Tribal IV--D
    collections in Tribal TANF cases, or otherwise share a portion of
    retained Tribal IV--D collections with the Federal government. The
    Federal government by statute is entitled to a share of collections
    assigned to a State by a family as a condition of receipt of
    assistance under titles IV--A, IV--E, or XIX of the Act. No parallel
    requirement applies to Tribes.

1.  5\. *Comment: *One Tribal commenter said that part of child support
    enforcement has to do with helping children and their families,
    while the other has to do with retrieving funds that have been paid
    out in public assistance. This commenter stated that the latter
    function has a very negative impact on some Tribal children because
    so many Tribal members have been on public assistance.

*Response: *These final regulations must be consistent with existing
Federal statutory law governing assignment of rights to support to
States as a condition of receipt of certain State assistance, and
distribution of support collections assigned to States. There are no
corresponding Federal assignment requirements as a condition of receipt
of assistance under Tribal assistance programs, although some Tribal
TANF programs have adopted a requirement for assignment of support as a
condition of receipt of Tribal TANF. To the extent that Federal law
requires States to retain assigned support collections as reimbursement
for receipt of State public assistance, these regulations cannot
undermine that requirement. Any changes to or simplification of the
distribution process in State IV--D programs must come about as a result
of statutory changes. The Administration has urged the Congress to adopt
simplified distribution requirements for State IV--D programs that would
ensure more support is paid to families to help them attain or maintain
their self-sufficiency.

6\. *Comment: *One State commenter said that the regulations should
address offset of previously provided TANF benefits and priority of
distribution, especially when a family may have received State and
Tribal benefits in varying sequences throughout a significant period of
time. Another State commenter said that a hierarchy for collection and
distribution is necessary.

*Response: *We have revised and clarified § 309.115 governing
distribution of collections in a Tribal IV--D case by Tribal IV--D
programs in response to this comment and concerns that Tribal IV--D
programs not be responsible for complex distribution requirements that
apply to State IV--D programs. Section 309.115 specifies distribution
requirements in a Tribal IV--D case based on specific circumstances that
may exist for each case. The regulation requires a Tribal IV-D agency to
distribute collections in a timely manner and to apply collections first
to satisfy current support.

The Tribal IV--D agency must pay all support to the family when the
family receiving Tribal IV--D services has never received Tribal TANF
and the Tribal IV­D agency has not received a request for assistance in
collecting support for the family from a State IV--D agency or another
Tribal IV--D agency under § 309.120. A Tribal IV--D agency may receive a
request for assistance in securing support from a State if the custodial
parent resides in that State and has applied for or been referred to the
State IV--D agency for IV--D services. Or a State may refer a case to
the Tribal IV--D agency for assistance in collecting support assigned to
the State for some prior period of receipt of assistance from the State.

Section 309.115 then addresses distribution requirements if a family
receiving Tribal IV--D services is currently receiving or formerly
received Tribal TANF and there is an assignment of support rights to the
Tribe.

A further distinction is made with respect to families who have assigned
support rights as a condition of receipt of Tribal TANF from another
Tribe. The Tribal IV--D agency may have received a request for
assistance in collecting support from a State or another Tribal IV--D
agency. If the family is currently receiving Tribal TANF, there is an
assignment to the Tribe, and the Tribal IV--D agency has received from a
State or another Tribal IV--D agency a request for assistance in
collecting support previously assigned to that State or Tribe, the
regulation allows the Tribal IV--D agency to retain assigned support up
to the amount of Tribal TANF paid to the family. The Tribal IV--D agency
must then send any remaining collections to the requesting State or
Tribal IV--D agency for distribution, as appropriate, or contact the
State or other Tribe to determine accurate distribution and distribute
the amount of the collection in excess of the Tribal TANF reimbursement
accordingly. The hierarchy for distribution in different case
circumstances is illustrated in a chart that appears later in the
discussion.

If the family formerly received Tribal TANF from another Tribe, there is
an assignment of support to that Tribe, and the Tribal IV--D agency has
received a request for assistance on behalf of the family from a State
or that other Tribal IV--D agency, the regulation requires the Tribal
IV--D agency to send all collections to the State or other Tribal IV--D
agency for distribution. The requesting State or Tribal IV--D agency, as
appropriate, is then responsible for distribution in accordance with
State IV--D program requirements at section 457 of the Act or 45 CFR
302.51 or 302.52, or in accordance with these Tribal distribution
requirements in § 309.115. Alternatively, the Tribal IV-- D agency may
contact the State or other Tribal agency to determine appropriate
distribution of the collection as explained above.

The requirement to send all collections to a State or other Tribal IV--
D program that has requested assistance on behalf of a family under
certain circumstances addresses a number of possible scenarios. For
example, the family may have applied for IV--D services from a State or
another Tribal IV--D agency and not directly with the Tribal IV--D
agency making the collection. Or the family may be receiving or may have
formerly received TANF or other public assistance from the requesting
State or Tribal IV--D agency. As long as the family is not currently
receiving Tribal TANF from the same Tribe as the Tribal IV--D agency
making the collection, under a program that requires an assignment of
support rights, we believe the only entity in a position to determine
appropriate distribution is the requesting State or Tribal IV--D agency.
We have, however, included an option that allows Tribal IV--D agencies
to determine appropriate distribution by contacting the requesting State
or Tribe and to then distribute the collections as directed. State and
Tribal IV--D program requirements for timely distribution and
disbursement of collections will ensure collections owed to families
reach them in a timely manner.

The rules for distribution in cases involving each of these
circumstances are included in § 309.115, as well as clarification that
any collection as a result of Federal income tax refund offset that is
distributed by a Tribal IV-- D agency must be applied to satisfy
arrearages. The following chart should be of assistance to Tribal and
State IV-- D agencies.

  ------------------------------------------------------------------------------------------ -------------------- -------------------- -------------------- -------------------- -------------------- -------------------- -------------------- -------------------- --------------------
  Tribal IV--D case type                                                                     Case 1               Case 2               Case 3               Case 4               Case 5               Case 6               Case 7               Case 8               Case 9
                                                                                                                                                                                                                                                                     
  Current Tribal TANF case w/assignment \...\....                                            \...\...\...\.....   \...\...\...\.....   \...\...\...\.....   X                    X                    \...\...\...\.....   \...\...\...\.....   \...\...\...\.....   \...\...\...\.....
                                                                                                                                                                                                                                                                     
  Current Tribal TANF case w/o assignment \...                                               \...\...\...\.....   X                    \...\...\...\.....   \...\...\...\.....   \...\...\...\.....   \...\...\...\.....   \...\...\...\.....   X                    \...\...\...\.....
                                                                                                                                                                                                                                                                     
  Never Tribal TANF case \...\...\...\...\...\...\...\...\...\.....                          X                    \...\...\...\.....   X                    \...\...\...\.....   \...\...\...\.....   X                    \...\...\...\.....   \...\...\...\.....   \...\...\...\.....
                                                                                                                                                                                                                                                                     
  Former Tribal TANF w/assignment \...\...\...\...\....                                      \...\...\...\.....   \...\...\...\.....   \...\...\...\.....   \...\...\...\.....   \...\...\...\.....   \...\...\...\.....   X                    \...\...\...\.....   X
                                                                                                                                                                                                                                                                     
  Request for services from State IV--D agen­                                                                                                                                                                                                                         
                                                                                                                                                                                                                                                                     
  cy \...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\....   \...\...\...\.....   \...\...\...\.....   X                    \...\...\...\.....   X                    \...\...\...\.....   \...\...\...\.....   X                    X
                                                                                                                                                                                                                                                                     
  No request for services from State IV--D                                                                                                                                                                                                                           
                                                                                                                                                                                                                                                                     
  agency \...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\.....          X                    X                    \...\...\...\.....   X                    \...\...\...\.....   X                    X                    \...\...\...\.....   \...\...\...\.....
                                                                                                                                                                                                                                                                     
  Request for services from another Tribal IV--                                                                                                                                                                                                                      
                                                                                                                                                                                                                                                                     
  D agency \...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\....             \...\...\...\.....   \...\...\...\.....   \...\...\...\.....   \...\...\...\.....   \...\...\...\.....   X                    \...\...\...\.....   \...\...\...\.....   \...\...\...\.....
                                                                                                                                                                                                                                                                     
  No request for services from another Tribal                                                                                                                                                                                                                        
                                                                                                                                                                                                                                                                     
  IV--D agency \...\...\...\...\...\...\...\...\...\...\...\...\...\...\.....                X                    X                    X                    X                    X                    \...\...\...\.....   X                    X                    X
                                                                                                                                                                                                                                                                     
  ------------------------------------------------------------------------------------------ -------------------- -------------------- -------------------- -------------------- -------------------- -------------------- -------------------- -------------------- --------------------

Distribution: The Tribal IV--D agency:

Cases 1 and 2: Must send all collections to the family.

Case 3: Must send all collections to the State IV--D agency for
distribution under section 457 of the Act.\*

Case 4: May retain collections up to the total amount of Tribal TANF
paid to the family, then must send excess collections to the family.

Case 5: May retain collections up to the total amount of Tribal TANF
paid to the family, then must send excess collections to the State IV--D
agency for distribution under section 457 of the Act.\*

Case 6: Must send all collections to the other Tribal IV--D agency for
distribution under § 309.115.

Case 7: Must pay current support to the family, may retain excess
collections up to the total amount of Tribal TANF paid to the family and
pay excess collections to the family.

Case 8: Must send all collections to the State IV--D agency for
distribution under section 457 of the Act.^\*\ ^

Case 9: Must send all collections to the State IV--D agency for
distribution under section 457 of the Act.^\*\ ^

\*For cases 3, 5, 8 & 9: The Tribal IV--D agency may, rather than send
collections to the State IV--D agency for distribution, contact the
State

IV--D agency to determine appropriate distribution, and distribute the
collections as directed.

These regulations attempt to address the many possible combinations of
Tribal IV--D case circumstances involving assignment of support rights
to State and Tribal public assistance programs, and intergovernmental
requests for assistance in collecting support. We encourage State and
Tribal IV--D programs to work together to maximize the amount of support
that is paid to families and ensure support obligations are set in an
amount that is based on the obligor's ability to pay. This will reduce
circumstances under which large arrearages are assigned to a State based
on default support orders set without knowledge of an obligor's ability
to pay. If complex distribution requirements that apply to State IV--D
programs are simplified in the future to ensure more support is paid to
families, State and Tribal IV--D programs, as well as the families
themselves, will benefit from the changes in statute.

7\. *Comment: *One State commenter said that there is no legal basis
upon which a Tribe can distribute collections differently from States.

*Response: *By its terms, section 457 of the Act does not address
distribution rules applicable to Indian Tribes or support collected by
Tribal IV--D programs. However, the revised § 309.115 ensures that
support collected by Tribal IV--D programs on behalf of State IV--D
programs that have requested assistance under § 309.120 from the Tribal
IV--D program is sent to the State IV--D program for distribution in
accordance with section 457 of the Act, or the Tribe must contact the
State to determine appropriate distribution and distribute the support
as directed.

8\. *Comment: *One State commenter said that the regulations should
provide that the Tribes seek retroactive support to assist a State that
has previously provided State TANF.

*Response: *Retroactive support is support for a prior period that is
established based on an obligor's ability to pay. For example, a Tribal
court may establish a support order in June for a six-month-old child
going back to the date of the child's birth. The amount from January to
June is considered retroactive support. While these rules do not require
Tribal IV--D agencies to establish retroactive support, Tribal IV-- D
agencies may choose to do so. If a State IV--D agency has requested
assistance from a Tribal IV--D agency, the Tribe must provide all
appropriate services under its Tribal IV--D plan and forward any
collections, in accordance with § 309.115, to the requesting State for
distribution in accordance with section 457 of the Act and 45 CFR 302.51
and 302.52.

9\. *Comment: *One Tribal commenter suggested that we continue the
practice under which child support assigned to a Tribe may be retained
by the Tribe up to the amount of Tribal TANF assistance received by a
family and the amount in excess of the total TANF assistance must be
paid to the family.

*Response: *Underlying the distribution regulations at § 309.115 is the
concept that all support collections must be paid to the family unless
there is an assignment of support rights to a State or Tribe as a
condition of receipt of assistance. Whether or not a Tribe conditions
receipt of TANF assistance on assignment of support to the Tribe is not
mandated by Federal statute or regulation, but is an option that Indian
Tribes may exercise at their discretion. We have made a conforming
change to the Tribal TANF regulations at 45 CFR 286.155(b)(1) to remove
the requirement under which amounts in excess of the total amount of
TANF assistance be paid to the family. Section 286.155(b)(1) continues
to require that in no case may a Tribe retain assigned collections in
excess of the amount of Tribal TANF paid to the family. Distribution of
support beyond the total amount of Tribal TANF assistance paid to the
family is now addressed exclusively in Tribal IV--D regulations at §
309.115.

*Section 309.120---What Intergovernmental Procedures Must a Tribe or
Tribal Organization Include in a Tribal IV--D Plan? *

1\. *Comment: *Eight State commenters suggested that States would need
additional resources and one stated that States will have to consider
their own program needs as a priority when responding to requests for
services from Tribal IV--D programs. Another State commenter said that
there should be a Federal directive outlining State duties, which
indicates how States will be reimbursed whenever they respond to a
Tribal request for assistance. One State suggested that reimbursement be
at 90 percent of the costs incurred.

*Response: *State IV--D programs may receive FFP at the 66 percent rate
for expenditures in providing services in response to a request from a
Tribal IV-- D agency. Section 309.65(a)(2) requires Tribal IV--D
programs to provide IV--D services required by law and regulation,
including referral of cases to appropriate State IV--D agencies or to
other Tribal IV--D agencies and § 309.120(a) requires Tribal IV--D
programs to extend the full range of services available under their
approved IV--D plans to all other IV--D programs. In addition, we have
included a parallel requirement in 45 CFR 302.36(a)(2), which requires
each State to extend the full range of services available under its
IV--D plan to all Tribal IV--D programs, including promptly opening a
case where appropriate. We encourage States and Tribes to work together
to design intergovernmental procedures and look to established, proven
interstate procedures that apply to State IV--D programs as a guide.

Even though State and Tribal IV--D agencies must respond to each other's
requests for assistance, we recognize that Tribal and State programs are
at different stages of development. We encourage, and allow time for
Tribes and States to put mutually agreeable procedures in place to
facilitate coordination between IV--D programs. We are committed to
providing Tribes and States an opportunity to work out specific
processes for cooperation without imposing more specific regulatory
mandates at this time.

The characteristics of cases requiring services, the quality of the
information received from the initiating agency, the amount of staff and
other resources available to the responding agency, and the development
of new or expanded working relationships between Tribes and States are
all factors which bear on Tribal/State cooperative relationships. We are
committed to fostering cooperative Tribal/State relationships. If it
becomes necessary to promulgate specific regulations applicable to all
IV-- D programs to clarify the respective roles in an intergovernmental
relationship, we will do so in partnership with Tribes and States.

State and Tribal IV--D agencies may claim Federal Financial
Participation (FFP) at the applicable rate otherwise provided under
applicable regulations: 66 percent of expenditures when the State
responds to a Tribal request for interjurisdictional services and 90
percent of expenditures for the first three years of a fully operational
Tribal program and 80 percent thereafter when the Tribe responds to a
State's request for interjurisdictional services. When a case is
referred for services, the responding State or Tribe must open its own
case and provide the necessary services.

-   2\. *Comment: *One State commenter noted that use of tax offset and
    locate functions must be done through the States because Tribes do
    not have direct access to necessary tools.

-   *Response: *These regulations do not require the use of tools by
    Tribal IV--D agencies for which there is no statutory authority. The
    Tribe and States may enter into agreement to refer cases to the
    State for submittal for Federal tax refund offset and any such
    access would currently require request for services from the State.
    It is premature to regulate specific procedures governing requests
    for services which Tribes are legally unable to perform directly at
    this time. At some future date, if it becomes necessary to establish
    specific new procedures, we will consider such rules after
    consultation with stakeholders.

1.  3\. *Comment: *One State commenter suggested that where a State
    enters into an agreement to provide services to a Tribal court, the
    Tribe should reimburse the State, but that a State should never be
    compelled to appear in a Tribal court.

*Response: *When a State and Tribe enter into an agreement, the
agreement should be mutually agreeable to both parties.

-   4\. *Comment: *One State commenter suggested the Federal government
    should reach agreements with Tribes on issues that affect all
    States; otherwise, uniformity will be sacrificed. Another State
    suggested that we should establish basic rules on negotiation
    procedures between States and Tribes.

-   *Response: *We are committed to working with Tribes and States to
    ensure cooperation and assistance between them as necessary to
    ensure children receive needed support. We believe that issues
    raised by cooperation and coordination between States and Indian
    Tribes require local solutions if they are to be successful. Still,
    we intend to work closely with State and Tribes, issue guidance and
    share best practices and, if regulations are necessary to ensure
    cooperation, we will work with our State and Tribal partners to
    develop rules that appropriately balance the impact on both Tribes
    and States.

-   5\. *Comment: *One Tribal commenter stated the regulations should
    clarify that States will not monitor or oversee Tribes.

-   *Response: *There is nothing in this final regulation which
    authorizes or requires States to monitor Tribal IV--D programs.

-   6\. *Comment: *One Alaska Native commenter stated that the
    regulations assume there is a geographical component to the Tribes'
    jurisdiction and that Tribal court jurisdiction does not mesh with
    UIFSA or FFCCSOA. This commenter asked how controlling orders or
    continuing exclusive jurisdiction determinations can be made by
    Tribal courts, if there is no geographic region from which to
    determine whether the parent or child resides ''in the State'' for
    purpose of those determinations.

-   *Response: *As noted earlier in the preamble, the lack of ''Indian
    country'' in Alaska does not prevent Alaska Native villages from
    applying for direct funding or from exercising jurisdiction over
    their members. FFCCSOA does not limit the exercise of jurisdiction
    to a geographical area. FFCCSOA only requires a court exercising
    jurisdiction to have the authority to do so. UIFSA is not applicable
    to Tribes and is not a factor when Tribes are making jurisdictional
    determinations in relation to Tribal members.

1.  7\. *Comment: *One commenter observed that States recoup past
    assigned child support payments as a punitive measure and that a
    Tribal IV--

D program, in complying with § 309.120(a) requiring intergovernmental
cooperation, may create a disincentive to Tribal members in remote areas
from obtaining/keeping employment.

*Response: *The recoupment of past assigned support is not punitive, but
is required by Federal law. Section 309.120(a) requires Tribal IV--D
agencies to extend the full range of services available under their
IV--D plans upon request from a State or another Tribal IV--D program.
However, the requesting agency may not dictate the actions taken by the
responding jurisdiction. The responding agency must take enforcement
actions as required by Federal regulations and its own laws and
procedures. We recommend that IV--D programs contact each other to
determine how to most efficiently and effectively coordinate IV--D
services at the local level.

We are particularly aware of Tribal concerns about support orders
entered against Tribal members by default, resulting in large arrearages
owed to a State that an obligor is unable to pay and which may
discourage compliance. We strongly urge States and Tribes to work
together in these instances to reach agreement on steps to take that
will result in ongoing support payments to families, including the
possibility of compromising arrearages permanently assigned to the State
and/or entering into repayment agreements.

8\. *Comment: *Two commenters suggested that the reporting requirements
must be clarified and that States will not know how to report
State/Tribal cases for purposes of completing the OCSE--157 reports.

*Response: *State IV--D agencies are required to submit the OCSE--157,
the Support Enforcement Annual Data Report, which is to be used to
report program status and accomplishments under title IV--D of the
Social Security Act. There are two specific parts of the OCSE--157 which
accommodate Tribal IV--D cases. At Line 1: Cases Open and the End of the
Fiscal Year, ''\[i\]nclude cases open at end of the fiscal year as a
result of requests for assistance received from other States, as well as
cases open in your State that you have referred to another State. Do not
include on this line Native American and international cases over which
the State has no jurisdiction. These cases should be reported separately
on line 3.'' Line 3 of the OCSE--157 is provided to report on Cases Open
for Which the State has No Jurisdiction. See OCSE--AT--01--09 for
additional information.

We are working with States on revisions to the OCSE--157 form to more
accurately reflect how Tribal IV--D cases referred to the State IV--D
programs should be reported. Please note that Tribes are not required to
complete the OCSE--157 reports.

9\. *Comment: *One State commenter stated that Tribal IV--D plans should
include assurances that the Tribe will cooperate with requests for
assistance with service of process. This commenter said that Tribes
should establish a central registry for receipt of incoming interstate
and a Tribal information agency that maintains a list of tribunal
addresses.

*Response: *Tribes are required to provide the full range of Tribal
IV--D services upon request of another State or Tribal IV--D program. As
noted above, § 309.120 requires Tribal IV--D agencies to extend the full
range of services available under their IV--D plans to all IV--D
programs upon request and to cooperate with States and other Tribal
IV--D agencies to provide services required by law and regulation. This
could include assisting with service of process or, in the alternative,
bringing enforcement action in a Tribal tribunal. We have determined
that additional regulation is not necessary at this time.

As to the suggestion that Tribes be mandated to establish an interstate
registry, while we have not mandated such a registry, Tribal IV--D
programs may determine such a registry is helpful for management
purposes. Insofar as a State requires the address of a Tribal tribunal,
States should request the address from the Tribal IV--D agency.

10\. *Comment: *Seven Tribal and State commenters expressed concern that
States did not have reciprocal obligations to cooperate with Tribal IV--
D programs and observed that cooperation was key to the success of all
IV--D programs.

*Response: *As stated in our earlier discussion of § 309.120, both
Tribes and States are required to extend the full range of services
available under a IV-- D plan and respond to all requests received from
other IV--D programs. We made a conforming change to include a parallel
requirement in 45 CFR 302.36(a)(2), which requires each State to extend
the full range of services available under its IV--D plan to all Tribal
IV--D programs. Without more experience with cooperation between these
entities, we do not believe that it is appropriate to promulgate uniform
regulations governing the cooperation process. At this initial stage in
the development of Tribal IV--D programs, we want to allow States and
Tribes time and maximum flexibility to establish local procedures for
coordination and cooperation. We are committed to assisting in those
efforts, providing written guidance and sharing best practices as needed
and requested. If we determine that additional regulations mandating
cooperation requirements are necessary for the effective and efficient
operation of IV--D programs, we will promulgate them at a later date.

-   11\. *Comment: *One commenter asked if cooperative arrangements with
    States are going to be absolutely necessary for Tribes.

-   *Response: *Whether Tribes enter into cooperative arrangements with
    States or other entities, as well as the nature of such
    arrangements, is entirely at their discretion. Nothing in this
    regulation mandates such arrangements as a condition of receipt of
    IV--D funds. Service agreements, contracts, and other types of
    formal agreements between Tribes and States may facilitate the
    effective and efficient delivery of IV--D services, and we encourage
    them when deemed appropriate by the parties.

-   12\. *Comment: *One State commenter asked how programming costs
    would be paid if Tribes enter into agreements with States to have
    the States' automated systems process child support monies.

-   *Response: *We expect that processing of child support monies
    collected by Tribal IV--D programs will be accomplished under the
    same framework as processing by State A of support collected by
    State B. Federal reimbursement is available to States at the usual
    match rate. The Tribe may claim allowable contract costs and the
    State must account for any payments under the contract as program
    income. At this time we are not persuaded that additional regulation
    is necessary.

1.  13\. *Comment: *Eight Tribal commenters criticized the requirement
    that Tribes recognize default paternity orders and default orders
    based on imputed income as a matter of course when the courts that
    issued such orders did not have jurisdiction in the first instance.

*Response: *While FFCCSOA requires orders to receive full faith and
credit, nothing in that statute nor in this regulation requires that
invalid orders be accorded full faith and credit. If invalid default
orders are entered, they are subject to challenge under ordinary rules
of State or Tribal law. See OCSE-- AT--02--03 on the applicability of
FFCCSOA to States and Tribes. However, when valid default orders based
on imputed income create hardship on obligors because they are not based
on the ability of the obligor to pay support, we urge States to modify
those orders and consider compromising arrearages owed to the State,
when appropriate. As discussed earlier, we urge State and Tribal IV--D
programs to work together to remove impediments to timely and consistent
payment of support.

-   14\. *Comment: *One State commenter stated that FFCCSOA applies to
    Tribes and that § 309.120 should require Tribes to comply with the
    Act in its entirety, not just the enforcement section. This
    commenter suggested that the word ''assurance'' was not strong
    enough. To address current enforcement problems the section should
    require Tribes to ''recognize child support orders, including income
    withholding orders, issued by other Tribes and Tribal organizations
    and by States.''

-   *Response: *All the requirements of FFCCSOA (28 U.S.C. 1738B) are
    applicable to States and Tribes. We are not persuaded that any
    change to § 309.120 as suggested by the commenter is necessary to
    impose this requirement. To the extent that a valid order includes
    provisions for income withholding, FFCCSOA applies.

1.  15\. *Comment: *Numerous commenters suggested that Tribes should be
    required to implement UIFSA to promote uniformity and to alleviate
    jurisdictional, as well as operational problems. Several Tribal
    commenters stated that it was inappropriate to require Tribes to
    adopt UIFSA.

*Response: *As discussed previously, States are required to adopt UIFSA
as the result of an express statutory mandate. We have determined that
requiring Tribes to adopt UIFSA is neither necessary nor appropriate.

**Subpart D---Tribal IV--D Program Funding **

*Section 309.125---On What Basis Is Federal Funding of Tribal IV--D
Programs Determined? *

No comments were received on this section. Changes were made to the
regulation, however, to specify more directly what information must be
provided in order for a Tribe to receive Federal funding. We also
clarified that official issuances of the Department refers only to those
that specifically indicate applicability to Tribal IV--D programs. The
title of the section was also modified slightly in the final rule by
changing ''funding in'' to ''funding of'' for clarity.

*Section 309.130---How Will Tribal IV--D Programs Be Funded and What
Forms Are Required? *

1\. *Comment: *Several Tribal commenters stated that Tribal IV--D
programs should be funded in the same manner as State IV--D programs,
*i.e.*, as entitlement programs. They suggested that Tribal IV--D
programs be funded continuously, with quarterly grant amounts
determined, in part, by the Tribe's own quarterly estimates. The
estimates would be subject to review and approval and the Tribes may be
requested to submit additional supporting documentation as necessary.

*Response: *The Tribal IV--D program is an entitlement program. The
difference between Tribal IV--D grants and State IV--D payments is that
Tribal IV--D programs are funded for expenditures under an approved
IV--D plan based on budget requests for a 12-month funding period. We
have revised § 309.130 to provide that Tribal IV--D programs eligible
for grants of less than \$1 million per 12-month funding period will
receive a single annual award of the total amount and Tribal IV--D
programs with funding of \$1 million or more per 12-month funding period
will receive quarterly awards similar to State IV--D programs.

-   2\. *Comment: *One commenter suggested clarification is required
    concerning whether Tribal IV--D funds will come from a different
    funding stream than State funds.

-   *Response: *As stated in the preamble to the NPRM, the funding for
    Tribal IV-- D activities is completely separate from funding for
    State programs. A Tribe's decision to run its own IV--D program does
    not impact a State's IV--D program funds. Tribal IV--D funding is
    not apportioned from a State's IV--D funding. However, funds for the
    Tribal IV--D programs come from the same appropriation as the State
    IV--D program.

-   3\. *Comment: *One commenter said that if Tribes are required to
    provide a 10 or 20 percent match, then they should be able to
    receive an incentive back into their programs.

-   *Response: *States receive incentive funds under section 458 of the
    Act, which does not extend to Indian Tribes. There is no statutory
    authority that provides for Tribal IV--D program incentives.

1.  4\. *Comment: *Four Tribal commenters suggested that funding should
    be allocated based on population, geographical area, service area,
    land base, isolation factors and local/national scale of economy.
    Funding should be put under a ''special'' category similar to the
    category used for Tribal Program Allocation law enforcement.

*Response: *Funding for Tribal IV--D programs is authorized by section
455(f) of the Social Security Act, which does not provide for allocation
of funds on the basis described. Under title IV--D of the Act and §
309.130, Tribal IV--D funding is based upon documentation submitted by
Tribes including the SF 424 and 424A and is awarded based on reasonable,
necessary, and allocable expenditures of approved Tribal IV--D programs.
We are not persuaded that the factors suggested by the commenters are
appropriate for the IV--D program. However, in their budget requests,
there is nothing to preclude Tribes from taking service area and
population into account.

-   5\. *Comment: *Numerous Tribal commenters suggested that the
    regulations should not require a non-Federal share and that Tribes
    should receive 100 percent Federal funding. Some of these commenters
    said that requiring a non-Federal share would penalize, rather than
    support, family programs. Others indicated that most Tribes do not
    have sufficient resources to cover the non-Federal share.

-   *Response: *Unlike other Tribal grant programs, the funding for
    Tribal IV--D programs are not sum certain grants. The Tribal IV--D
    program provides for 90 percent Federal funding for all reasonable,
    necessary and allocable cost associated with the administration of a
    IV--D program during the first three years of operation of a
    program, and 80 percent thereafter. The provision of Federal funding
    at 90 percent of program expenditures, with a concomitant
    non-Federal share of 10 percent, reflects our understanding of the
    unique and generally unfavorable fiscal circumstances that Tribes
    face. We have determined that a non-Federal share in expenditures is
    necessary, based on the principle that better programs and better
    management result when local resources are invested. We acknowledge
    that Tribes may have to split limited resources between programs and
    make difficult decisions concerning allocation of funds among
    important Tribal programs. However, we are also aware that some
    Tribes may face unexpected and uniquely adverse conditions that make
    them temporarily unable to provide the non-Federal share in a
    particular program year. To address these limited circumstances, we
    have incorporated a waiver provision at § 309.130, which allows a
    Tribe in this situation to request a temporary waiver of its
    non-Federal share, based on requirements described in paragraph (e),
    as discussed earlier in this preamble.

1.  6\. *Comment: *One Tribal commenter stated that the 90 percent
    Federal share rate is fair and adequate. This same commenter
    suggested that the Tribal non-Federal share requirement be fulfilled
    through in-kind contributions. Three other Tribal commenters

suggested the non-Federal share be in cash or in-kind.

*Response: *The regulation permits Tribes to satisfy their non-Federal
share requirements with whatever resources may be available; *e.g.*,
cash, non-cash resources provided by the Tribe, or in-kind third-party
contributions, as long as the requirements of 45 CFR 74.23 and OMB
Circular A--87 are satisfied. Regardless of how a Tribe chooses to
satisfy the non-Federal share of program expenditures, the Federal share
remains limited to the applicable rates provided in § 309.130(c), absent
a waiver.

-   7\. *Comment: *One Tribal commenter stated the assumption that
    certain collections a Tribal IV--D program makes will lose their
    identity and be able to be counted as matching. Where a Tribe has
    both a TANF and IV--D program, collected funds could be allowed for
    use as matching dollars for its IV--D program.

-   *Response: *If a Tribe has a TANF program that requires an
    assignment of support rights as a condition of receipt of Tribal
    TANF, and assigned support collections are retained by the Tribe,
    the TANF regulation at 45 CFR 286.155(b) applies. Section
    286.155(b)(2) requires that retained collections under TANF
    assignments to the Tribe must be used ''to further the Tribe's TANF
    program.'' This disqualifies such collections from also being used
    as the Tribe's IV--D non-Federal share.

1.  8\. *Comment: *One commenter asked what criteria are used to
    determine whether a Tribe has sufficient resources to provide the
    required non-Federal match. How will a Tribe's revenue from gaming
    be considered?

*Response: *We have substantially revised the non-Federal waiver
provisions at § 309.130 to clarify that waivers of the non-Federal share
will be limited to certain temporary circumstances. In the NPRM and the
interim final regulation we intended the waiver provisions to apply to
atypical situations in a particular program year that make it impossible
for a Tribe to cover its share of program expenditures. Such situations
were expected to represent difficulties over and above the generally
poor economic conditions faced by most Tribes (*e.g.*, high unemployment
rate, lack of economic development) which we already have taken into
account by providing for Federal funding for up to 90 percent of program
expenditures in the first three years of full funding. The final rule
governing waiver requests makes more explicit the limited availability
of waivers of the non-Federal share and the general agreement and
understanding that a Tribe or Tribal organization receiving funds under
this part is expected to share in the financial costs of the program.

In addition, the regulation makes clear that the Secretary must make
specific findings in order to grant a waiver request. The availability
of gaming or other Tribal resources is a legitimate factor that the
Secretary may consider under § 309.130 in granting a waiver, but the
absence of gaming or similar revenue does not necessarily entitle a
Tribe to a waiver. Finally, § 309.130 states that Tribes and Tribal
organizations are responsible for the non-Federal share unless notified
in writing that the Secretary has approved a request for waiver. There
should be no uncertainty as to liability for the non-Federal share; a
Tribe or Tribal organization is liable for the non-Federal share unless
it has received a written approval of a waiver request.

-   9\. *Comment: *One Tribal commenter suggested that we allow Tribes
    to request a budget increase by submitting SF 424 and/or SF 424A
    with an explanation 60 days before the funds are needed. Another
    three commenters indicated that the provision for Tribes to request
    a mid-year increase in their approved budgets is a positive feature.

-   *Response: *Regulations at § 309.130(f) permit Tribes and Tribal
    organizations to request budget adjustments by submitting the SF 424
    and/or SF 424A forms with an explanation of why an adjustment is
    necessary. We also revised this subsection to make clear that
    increases in a Tribal IV--D budget will result in a proportional
    increase in a Tribe's non-Federal share.

1.  10\. *Comment: *One Tribal commenter opposed the application of 45
    CFR part 95 to Tribal IV--D programs, saying that such regulation
    was not appropriate for Tribes. As Tribes begin to operate IV--D
    programs, the Department will gain knowledge and experience with
    Tribal system development. Tribes will be able to provide technical
    assistance to one another on the processes and models that they have
    developed.

*Response: *In the proposed regulation, we solicited comment on
investments in Tribal IV--D automation and specifically asked for
consideration of 45 CFR part 95 as a model. We are not regulating Tribal
IV--D automation at this time beyond allowable expenditures for office
automation and planning under § 309.145, but will take the suggestions
into consideration as we deliberate in this area for the future. Of
course, no final automation requirements will be imposed on Tribal IV--D
programs without feedback from all stakeholders.

*Section 309.135---What Requirements Apply to Funding, Obligating and
Liquidating Federal Title IV--D Grant Funds? *

1\. *Comment: *We received five positive Tribal comments on the time
allotted for obligating and spending IV-- D grant funds. One commenter
criticized requiring Tribes to revise their financial systems.

*Response: *There are no provisions in § 309.135 that require Tribes to
revise their financial systems. The requirements in § 309.135 are
consistent with requirements in other Federal programs. To be as clear
as possible about the provisions of this section, however, we have
broken up the two long paragraphs in the proposed rule into three
shorter paragraphs and added topic headings. In addition, to smooth the
transition from start-up grant to initial IV--D program funding grants,
we have added new paragraphs (a) and (b) to this section. Paragraph (a)
specifies that IV--D program grant awards will be made for 12-month
periods that coincide with the Federal fiscal year (October 1 to
September 30). Paragraph

\(b\) provides for an initial IV--D program funding period of 6 to 17
months, in order to bring the funding cycle in line with the Federal
fiscal year. This is necessary for an efficient grant process and does
not affect the Tribal financial system or processes.

2\. *Comment: *Two commenters suggested that the rule allow carry­forward
of funding to the following fiscal year.

*Response: *Since quarterly adjustments can be made to the Tribal IV--D
grants based on actual expenditures, carry-forward of grant funds is not
necessary. However, in the interest of providing Tribes with the maximum
flexibility, under our program regulations at § 309.135, we allow Tribes
to liquidate obligations no later than the last day of the 12-month
period following the funding period for which the funds were awarded.

*Proposed Section 309.140---What Are the Financial Reporting
Requirements? *

We eliminated § 309.140 and moved all financial reporting requirements
to § 309.130, which already contained some of the same material and is
discussed earlier in this preamble. This places all financial reporting
requirements in one place in the regulations and should make the
regulations easier to use.

1\. *Comment: *Two Tribal commenters were concerned that heavy penalties
for failure to meet program deadlines will drive away a lot of Tribes.

*Response: *Financial Status Reports are required on a quarterly basis
and are essential to the on-going Tribal IV--D funding process. They are
required under the terms and conditions of annual IV--D grant awards.
However, to lessen the burden on Tribes, we have determined that they
may report on the SF 269A (Short Form) to provide the minimum necessary
information.

Financial Status Reports are due not later than 30 days following the
end of each of the first three quarters and no later than 90 days
following the end of the fourth quarter of each annual funding period
and of the subsequent 12-month liquidation period. Failure to meet these
deadlines will result in possible delays in Federal Tribal IV--D
funding. If Tribes require technical or other assistance to meet the
Financial Status Report deadlines, we encourage them to contact us
immediately to avoid any undue delay in Federal IV--D funding.

2\. *Comment: *Five Tribal commenters supported less frequent financial
reporting for Tribal IV--D agencies that meet requirements.

*Response: *Because the information provided on the quarterly Financial
Status Reports is so essential to the Tribal IV--D funding mechanism,
especially adjustment for the prior quarter's actual obligations, less
frequent reporting is not feasible. However, we have lessened the
reporting burden to the minimum required by the SF 269A (Short Form),
rather than the SF 269 (Long Form) that was proposed. If any aspect of
financial reporting raises a concern for a Tribe, we encourage that
Tribe to contact us immediately.

*Section 309.145---What Costs Are Allowable for Tribal IV--D Programs
Carried Out Under § 309.65(a) of This Part? *

1\. *Comment: *We received numerous comments on automation in Tribal
IV-- D programs. A majority of the comments indicated that automation
was necessary and that without the automation, it would be impossible
for Tribes to accurately and efficiently process child support
collections. Many commenters said that States would not be able to bear
the burden of manual processing, and that the regulations should require
that Tribal automated systems be compatible with State systems. Other
commenters suggested that OCSE develop a skeletal automation system for
Tribal IV--D programs, and some stated that it was inappropriate to
require a specific level of program automation. One commenter stated
that Tribes need to be wary of vendors and should evaluate vendors for
reliability.

*Response: *Under § 309.145, Federal funds are available for costs of
operating a Tribal IV--D program carried out under § 309.65(a), provided
that such costs are determined by the Secretary to be reasonable,
necessary, and allocable to the program. While we agree that automated
data processing systems are helpful for record keeping, monitoring and
high speed processing in child support enforcement cases, such automated
systems are not presently required for Tribal IV--D programs and
therefore are not necessary to operation of such programs. As stated
earlier in this preamble, we have begun consideration with stakeholders
of appropriate minimum Tribal systems automation specifications in
anticipation of Tribal IV--D programs moving toward high-speed automated
data processing by convening a workgroup. Factors such as compatibility,
scale, functionality and cost, among others, are issues being considered
by this workgroup.

Section 309.145(h) states that among those Tribal IV--D costs that are
allowable are costs for ''planning efforts in the identification,
evaluation, and selection of a new or replacement automated data
processing computer system solution,'' for the ''operation and
maintenance of existing Tribal automated data processing computer
systems,'' as well as for ''essential office automation capability,''
and the ''\[e\]stablishment of intergovernmental agreements with States
and Tribes for use of an existing automated computer data processing
system.'' We have determined that these categories of costs, in lieu of
guidance regarding the need for or scope of Tribal IV--D automation, are
reasonable at this time. Since high-speed automated data processing
systems are not currently required under these regulations, the costs of
designing, developing and implementing such systems are not allowable at
this time.

2\. *Comment: *Ten Tribal commenters supported the extensive list of
allowable costs. One commenter indicated that this gives the Tribes the
opportunity to continue to develop the necessary infrastructures. One
commenter suggested that in determining whether costs are reasonable,
the Secretary must realize that costs vary by geographic area.

*Response: *Section 309.145 makes Federal IV--D funds available for
costs of operating a Tribal IV--D program provided such costs are
determined by the Secretary to be reasonable, necessary, and allocable
to the program.

Determinations as to whether or not costs are reasonable are governed by
OMB Circular A--87 and will take all relevant factors into
consideration.

-   3\. *Comment: *One Tribal commenter indicated that it is unclear
    whether Tribes are eligible for Federal assistance for the costs of
    bad debts. Another commenter noted that bad debts are unallowable
    costs for States and asked if they will be allowed for Tribes.

-   *Response: *OMB Circular A--87, Attachment B, establishes principles
    to be applied in establishing the allowability or unallowability of
    certain items of cost. With regard to ''bad debts,'' it states that
    ''\[a\]ny losses arising from uncollectible accounts and other
    claims, and related costs are unallowable unless provided for in
    Federal program award regulations.'' We encourage States and Tribes
    who have questions about allowable IV--D costs to contact us with
    specific information. These final regulations make no provision for
    the costs of bad debts as allowable expenditures.

1.  4\. *Comment: *Ten Tribal commenters requested clarification on how
    indirect cost rates would be treated.

*Response: *Section 309.145 provides that Federal IV--D funds are
available ''for the costs of operating a Tribal IV-- D program under an
approved Tribal IV--D application.'' The use of a negotiated indirect
cost rate could result in recovery of costs unrelated to the IV-- D
program, which is prohibited by Section 451 of the Act that expressly
limits the Congressional appropriation for the IV--D program funds. OCSE
is allowing Tribes and Tribal organizations the option to use the
negotiated indirect cost rate as a mechanism for the recovery of
allowable indirect costs. However, use of this method does not guarantee
allowability of costs, which must still be attributable to the IV--D
program. Because the title IV--D program is an uncapped entitlement
program, the funds allocated are closely scrutinized. Actual indirect
costs---just like actual direct costs---must be demonstrably
attributable to operation of the IV--D program. This means that Tribal
grantees must be able to demonstrate that whatever costs are claimed
under the IV--D grant are reasonable, necessary, and allocable to the
IV--D program.

As stated earlier in the preamble, if a Tribe or Tribal organization's
budget request includes indirect costs as part of its request for
Federal funds, such requests may be submitted in one of two ways. For
applications which include indirect costs, we have determined that an
applicant may, at its option, submit either documentation of the dollar
amount of indirect costs allocable to the IV--D program, or submit its
current indirect cost rate negotiated with the Department of the
Interior and a dollar amount of indirect costs based on that rate.
Whichever option an applicant chooses, the applicant's obligation
remains the same: Tribal IV--D grantees are responsible for ensuring
that actual expenditures of Federal IV--D funds are directly,
demonstrably attributable to operation of the IV--D program, *i.e.*, all
actual costs claimed under the IV--D grant must be allocable to the
IV--D program. The Federal statute at 42

U.S.C. 651 limits the use of Federal IV-- D funds to the purposes
enumerated in that section, whether such costs are characterized as
''direct'' or ''indirect'' costs.

If a Tribe's application includes a budget request for indirect costs as
well as direct costs, such request must either calculate the estimated
indirect cost by documenting the dollar amount of indirect costs
allocable to the IV--D program, or include the indirect cost rate and
the estimated indirect costs using the negotiated indirect cost rate. If
the Tribe elects to submit the actual estimated costs attributable to
the Tribal IV--D program, the methodology used to arrive at the dollar
amount must be included with the application.

Whichever option a Tribe choose, the Tribe's obligation is the same:
Tribal IV-- D grantees are responsible for ensuring that expenditures of
Federal IV--D funds are directly, demonstrably attributable to operation
of the IV--D program, *i.e., *all costs claimed under the IV--D grant
must be allocable to the IV--D program. Tribal IV--D grant funds may be
used for both direct and indirect costs. However, only such actual costs
that are directly, demonstrably attributable to operation of the IV--D
program are allowable under the Federal statute.

We remind Tribal grantees that even if the Tribe has an approved
indirect cost rate agreement, any indirect costs must be allowable under
the program statute, regulations, OMB circulars and Federal
appropriations law. Any unallowable costs that are recovered under any
agreement are also unallowable and subject to disallowance. The indirect
costs must be reasonable, necessary, allocable and in compliance with
statute, rules, regulations and OMB circulars.

In addition, under § 309.160 of this final regulation, Tribal IV--D
programs will be audited as a major program in accordance with section
215 (c) of OMB Circular A--133. The annual A--133 audits will be used to
reconcile the grant award. Adjustments will be made for any differences
between estimated and actual costs attributable to the program. The
Department may supplement these required audits through reviews or
audits conducted by its own staff.

We caution Tribes that there is some risk involved in using the
negotiated indirect cost rate agreement. As stated earlier, the Federal
statute at 42 U.S.C. 651 limits the use of Federal IV--D funds to the
purposes enumerated in that section, whether such costs are
characterized as ''direct'' or ''indirect'' costs. Tribes will want to
be careful with charges to the indirect cost rate so as not to build up
a large audit exception or debt. A Tribe that initially chooses to use
the negotiated indirect cost rate to get its program operational, may at
a later date choose to document program specific indirect costs in
subsequent years to avoid a large pay­back to the Federal government,
disrupting program services to families in need.

-   5\. *Comment: *One commenter stated that it is not equitable that
    the salaries of chief executives are allowable costs for Tribes.

-   *Response: *OMB Circular A--87, Attachment B, Section 23.b, states,
    ''For Federally-recognized Indian Tribal governments and Councils Of
    Governments (COGs), the portion of salaries and expenses directly
    attributable to managing and operating Federal programs by the chief
    executive and his staff is allowable. ''Following this guidance, we
    have determined that Federal IV--D funds may be used for that
    portion of the salaries and expenses of a Tribe's chief executive
    and staff which are directly attributable to managing and operating
    the Tribal IV--D program.

1.  6\. *Comment: *Five Tribal commenters supported the provision that
    the portion of salaries and expenses of Tribal judges and staff that
    is directly related to Tribal IV--D case program activities is an
    allowable cost because Tribal IV--D programs create additional and
    unprecedented workload increases for Indian tribunals. Six State
    commenters stated that it is not equitable to fund Tribal court
    costs but not those of State courts.

*Response: *We have revised § 309.145(k) to permit Federal IV--D funds
to be used for the portion of salaries and expenses of tribunals and
staff directly related to required Tribal IV--D program activities. We
recognize that, at this initial stage of Tribal IV--D programs,
operation of programs and associated program requirements will result in
increased workloads for some Indian tribunals. Unlike States, Tribes may
not have a tax base or the resources to enable them to fund these
activities of the Tribal court. Child support may not be a normal
function that the court would perform. Therefore, as provided in OMB
Circular A--87, Attachment B, section 23.a.(5), we have determined that
the costs associated with such circumstances are allowable.

-   7\. *Comment: *One State commenter suggested that States receive
    direct Federal funds to cover costs associated with providing
    technical assistance to Tribes. Another commenter suggested that the
    expenses for technical assistance should be borne by the funding
    agency and that the costs should not be part of the funds awarded to
    a Tribe.

-   *Response: *If a State enters into an agreement to provide services
    which are not part of the operation of its IV--D plan, the State may
    bill the Tribe or Tribal organization at rates negotiated between
    the two parties. If the services provided under such purchase of
    service agreements are reasonable, necessary, and allocable to the
    Tribal IV--D program, the Tribe could claim the associated costs it
    has incurred in obtaining the services and would be required to
    participate in those costs, consistent with the required Tribal IV--
    D share.

1.  8\. *Comment: *Several Tribal commenters said that unless funds
    awarded to States under section 469B of the Act, which addresses
    grants to States for access and visitation programs, are opened up
    to Tribal child support grantees, access and visitation activities
    should be identified as allowable fundable activities.

*Response: *Grants under section 469B of the Act are limited by the
terms of the statute to States. We do not consider access and visitation
activities to be allowable child support activities and therefore,
expenditures related to access and visitation are not eligible for IV--D
funding under § 309.145.

*Section 309.150---What Start-Up Costs Are Allowable for Tribal IV--D
Programs Carried Out Under § 309.65(b) of This Part? *

1\. *Comment: *Seven Tribal commenters said that a ceiling should not be
placed on start-up expenses and that in some instances the limit will be
inadequate. One commenter suggested that exceptions to this limit be
allowed if a Tribe can prove reasonable need.

*Response: *Based on the experiences of currently operating Tribal IV--D
programs, we continue to believe that a Tribe or Tribal organization
that receives start-up funding can generally be expected to be ready to
operate a full Tribal IV--D program within two years and that the
Federal share of start-up costs should generally not exceed \$500,000.
However, to accommodate extraordinary and limited circumstances we have
provided, at § 309.16(c), an opportunity for Tribes and Tribal
organizations to request additional time and/or funding for start-up
Tribal IV--D programs.

-   2\. *Comment: *Three Tribal commenters suggested that the \$500,000
    limit should be exclusive of indirect costs.

-   *Response: *We have determined that the \$500,000 limit for start-up
    funding is not exclusive of indirect costs. Section 309.150(d)
    provides that Federal funds are available for reasonable, necessary,
    and allocable costs with a direct correlation to the initial
    development of a Tribal IV--D program, consistent with the cost
    principles in OMB Circular A--87, and approved by the Secretary. As
    stated earlier in the preamble, if a Tribe or Tribal organization's
    budget for start-up funding includes a request for indirect costs, a
    mechanism parallel to that described at § 309.15(a)(3) must be used.
    Applicants for start-up funding should submit such estimates of
    indirect costs as either a product of documentation showing the
    dollar amount of indirect costs specifically allocable to the IV--D
    program or as a product of their current negotiated indirect cost
    rate. The methodology used to arrive at these amounts must be
    included with the application.

-   3\. *Comment: *One commenter asked if ''start-up'' monies are an
    ''add-on'' to the amount a Tribal IV--D program will receive in
    direct funding or if they are stand-alone funds for the first two
    years.

-   *Response: *Sections 309.16, 309.65(b) and 309.145 address funding
    available for initial Tribal IV--D program development. Tribes that
    are operating comprehensive child support enforcement programs under
    § 309.65(a) have moved beyond the initial start-up stage and are not
    eligible for start-up funds. The fact that a Tribe may have received
    start-up funding under § 309.65(b) has no bearing on any subsequent
    application for funding under § 309.65(a) for the operation of a
    comprehensive IV--D program. Thus, start-up funds are stand-alone
    funds.

1.  4\. *Comment: *One commenter suggested that the requirement for a
    match should be waived during the start-up phase.

*Response: *The final regulation does not require a non-Federal share
for Tribal IV--D start-up grants under §§ 309.16 and 309.65(b). These
grants are for the initial development of Tribal IV--D programs. Because
the purpose of the start-up grants is to assist Tribes in the
development of programs that will eventually satisfy the requirements of
§ 309.65(a), we have determined that requiring a non-Federal share would
not be productive.

**Subpart E---Accountability and Monitoring **

*Section 309.155---What Uses of Tribal IV--D Program Funds Are Not
Allowable? *

1\. *Comment: *Three Tribal commenters said that Tribes should be
allowed to use IV--D funds to build offices for their programs where
none are available. One of those commenters said a certain percentage
should be allowed for major renovation.

*Response: *Grant funds can be used for construction and major
renovations only if Congress specifically authorizes such use. The child
support statute does not provide for this use.

Although we don't believe it is necessary to include the definition of
construction in the regulation we thought it may be useful to provide
the definition here. It has been our experience that current grantees
sometimes include unallowable construction costs in budget requests. The
following definitions should be helpful.

*Construction *means the construction of new buildings or the
modernization of, or completion of shell space in existing buildings
(including the installation of fixed equipment, but excluding the cost
of land acquisition and off-site improvements). A trailer or modular
unit is considered construction or real property when the unit and its
installation are designed or planned to be installed permanently at a
given location so as to seem fixed to the land as a permanent structure
or appurtenance thereto.

*Real property *means land, including land improvements, structures and
appurtenances thereto, but excludes movable machinery and equipment.

-   2\. *Comment: *One Tribal commenter said that the Tribes need
    financial supplements for the cost of jailing noncustodial parents.

-   *Response: *If jail is the penalty for violations of Tribal law,
    associated expenses are considered general Tribal expenses for which
    Federal IV--D funding is not available. Establishment and operation
    of penalties for violations of Tribal law is solely the
    responsibility of Tribal governments. These are governmental costs
    incurred as part of administering a Tribal government and are not
    appropriately borne by the Federal IV--D funds.

1.  3\. *Comment: *One commenter said that is it critical that Tribes
    are able to cover

legal counsel for indigent defendants and guardian ad litem costs with
IV--D program funding.

*Response: *To the extent that parties to IV--D cases incur legal costs,
such costs are personal and not reasonable, necessary, or allocable to
the IV--D program itself. Similarly, costs associated with *guardian ad
litem *are not reasonable, necessary or allocable IV--D program costs,
but are costs appropriately absorbed by the Tribal government or the
individuals involved.

**Subpart F---Statistical and Narrative Reporting Requirements **

*Section 309.170---What Statistical and Narrative Reporting Requirements
Apply to Tribal IV--D Programs? *

1\. *Comment: *Two Tribal commenters pointed out that statistical and
narrative reporting is not required by statute.

*Response: *Although statistical and narrative reporting is not
expressly mandated in section 455(f) of the Act, we have determined that
the requirements in § 309.170 are essential to ensuring that Tribes and
Tribal organizations operate IV--D programs that meet the mandated
program objectives specified in the statute, *i.e., *establishment of
paternity, establishment, modification, and enforcement of support
orders, and location of noncustodial parents. Efforts were made to
minimize the reporting requirements to those considered critical for
program tracking, evaluation and monitoring.

**List of Subjects **

*45 CFR Part 286 *

Administrative practice and procedure, Day Care, Employment, Grant
programs---social programs, Indian Tribes, Loan programs---social
programs, Manpower training programs, Penalties, Public Assistance
programs, Reporting and recordkeeping requirements, Vocational
education.

*45 CFR Part 302 *

Child Support, grant program---social programs. Reporting and
recordkeeping requirements.

*45 CFR Part 309 *

Child support, grant program---social programs, Indians, Native
Americans.

*45 CFR Part 310 *

Child support, grant program---social programs, Indians, Native
Americans.

(Catalog of Federal Domestic Assistance Programs No: 93.558 TANF
Programs---Tribal Family Assistance Grants; 93.563 Child Support
Enforcement Program) Dated: August 29, 2003.

**Wade F. Horn, **

*Assistant Secretary for Children and Families. *

Approved December 19, 2003.

**Tommy G. Thompson, **

*Secretary, Department of Health and Human Services. *

■ For the reasons discussed in the preamble, title 45 chapters II and
III of the Code of Federal Regulations are amended as follows:

**PART 286---TRIBAL TANF PROVISIONS **

■ 1. The authority citation for part 286 continues to read as follows:

**Authority: **42 U.S.C. 612.

■ 2. In § 286.155, paragraph (b)(1) is revised to read as follows:

**§ 286.155 May a Tribe condition eligibility for Tribal TANF assistance
on assignment of child support to the Tribe? **

\* \* \* \* \*

\(b\) \*\* \*

\(1\) Procedures for ensuring that assigned child support collections in
excess of the amount of Tribal TANF assistance received by the family
will not be retained by the Tribe; and

\* \* \* \* \*

**PART 302---STATE PLAN REQUIREMENTS **

■ 3. The authority citation for part 302 continues to read as follows:

**Authority: **42 U.S.C. 651 through 658, 660, 664, 666, 667, 1302,
1396a(a)(25), 1396b(d)(2), 1396b(o), 1396b(p), 1396(k).

■ 4. The heading and paragraph (a) of § 302.36 are revised to read as
follows:

**§ 302.36 Provision of services in interstate and intergovernmental
IV--D cases. **

\(a\) The State plan shall provide that:

-   \(1\) The State will extend the full range of services available
    under its IV-- D plan to any other State in accordance with the
    requirements set forth in § 303.7 of this chapter; and

-   \(2\) The State will extend the full range of services available
    under its IV-- D plan to all Tribal IV--D programs, including
    promptly opening a case where appropriate.

\* \* \* \* \*

■ 5. A new part 309 is added:

**PART 309---TRIBAL CHILD SUPPORT ENFORCEMENT (IV--D) PROGRAM **

**Subpart A---Tribal IV--D Program: General Provisions **

Sec.\
309.01 What does this part cover?\
309.05 What definitions apply to this part?

309.10 Who is eligible to apply for and receive Federal funding to
operate a Tribal IV--D program?

**Subpart B---Tribal IV--D Program Application Procedures **

309.15 What is a Tribal IV--D program application?

309.16 What rules apply to start-up funding?

309.20 Who submits a Tribal IV--D program application and where?

309.35 What are the procedures for review of a Tribal IV--D program
application, plan or plan amendment?

309.40 What is the basis for disapproval of a Tribal IV--D program
application, plan or plan amendment?

309.45 When and how may a Tribe or Tribal organization request
reconsideration of a disapproval action?

309.50 What are the consequences of disapproval of a Tribal IV--D
program application, plan or plan amendment?

**Subpart C---Tribal IV--D Plan Requirements **

309.55 What does this subpart cover?

309.60 Who is responsible for administration of the Tribal IV--D program
under the Tribal IV--D plan?

309.65 What must a Tribe or Tribal organization include in a Tribal
IV--D plan in order to demonstrate capacity to operate a Tribal IV--D
program?

309.70 What provisions governing jurisdiction must a Tribe or Tribal
organization include in a Tribal IV--D plan?

309.75 What administrative and management procedures must a Tribe or
Tribal organization include in a Tribal IV--D plan?

309.80 What safeguarding procedures must a Tribe or Tribal organization
include in a Tribal IV--D plan?

309.85 What records must a Tribe or Tribal organization agree to
maintain in a Tribal IV--D plan?

309.90 What governing Tribal law or regulations must a Tribe or Tribal
organization include in a Tribal IV--D plan?

309.95 What procedures governing the location of custodial and
noncustodial parents must a Tribe or Tribal organization include in a
Tribal IV--D plan?

309.100 What procedures for the establishment of paternity must a Tribe
or Tribal organization include in a Tribal IV--D plan?

309.105 What procedures governing child support guidelines must a Tribe
or Tribal organization include in a Tribal IV--D plan?

309.110 What procedures governing income withholding must a Tribe or
Tribal organization include in a Tribal IV--D plan?

309.115 What procedures governing the distribution of child support must
a Tribe or Tribal organization include in a Tribal IV--D plan?

309.120 What intergovernmental procedures must a Tribe or Tribal
organization include in a Tribal IV--D plan?

**Subpart D---Tribal IV--D Program Funding **

309.125 On what basis is Federal funding of Tribal IV--D programs
determined? 309.130 How will Tribal IV--D programs be funded and what
forms are required?

309.135 What requirements apply to funding, obligating and liquidating
Federal title IV--D grant funds?

309.145 What costs are allowable for Tribal IV--D programs carried out
under § 309.65(a) of this part?

309.150 What start-up costs are allowable for Tribal IV--D programs?
309.155 What uses of Tribal IV--D program funds are not allowable?

**Subpart E---Accountability and Monitoring **

309.160 How will OCSE determine if Tribal IV--D program funds are
appropriately expended?

309.165 What recourse does a Tribe or Tribal organization have to
dispute a determination to disallow Tribal IV--D program expenditures?

**Subpart F---Statistical and Narrative Reporting Requirements **

309.170 What statistical and narrative reporting requirements apply to
Tribal IV--D programs?

**Authority: **42 U.S.C. 655(f), 1302.

**Subpart A---Tribal IV--D Program: General Provisions **

**§ 309.01 What does this part cover? **

-   \(a\) The regulations in this part prescribe the rules for
    implementing section 455(f) of the Social Security Act. Section
    455(f) of the Act authorizes direct grants to Indian Tribes and
    Tribal organizations to operate child support enforcement programs.

-   \(b\) These regulations establish the requirements that must be met
    by Indian Tribes and Tribal organizations to be eligible for grants
    under section 455(f) of the Act. They establish requirements for:
    Tribal IV--D plan and application content, submission, approval, and
    amendment; program funding; program operation; uses of funds;
    accountability; reporting; and other program requirements and
    procedures.

**§ 309.05 What definitions apply to this part? **

The following definitions apply to this part:

*IV--D services *are the services that are authorized or required for
the establishment of paternity, establishment, modification, and
enforcement of support orders, and location of noncustodial parents
under title IV--D of the Act, this rule, the Tribal IV--D plan and
program instructions issued by the Department.

*ACF *means the Administration for Children and Families, U.S.
Department of Health and Human Services.

*Act *means the Social Security Act, unless otherwise specified.

*Assistant Secretary *means the Assistant Secretary for Children and
Families, Department of Health and Human Services.

*Central office *means the Office of Child Support Enforcement.

*Child support order *and *child support obligation *mean a judgment,
decree, or order, whether temporary, final or subject to modification,
issued by a court of competent jurisdiction, tribunal or an
administrative agency for the support and maintenance of a child,
including a child who has attained the age of majority under the law of
the issuing jurisdiction, or of the parent with whom the child is
living, which provides for monetary support, health care, arrearages, or
reimbursement, and which may include related costs and fees, interest
and penalties, income withholding, attorneys' fees, and other relief.

The *Department *means the U.S. Department of Health and Human Services.

*Income *means any periodic form of payment due to an individual
regardless of source, except that a Tribe may expressly decide to
exclude per capita, trust, or Individual Indian Money (IIM) payments.

*Indian *means a person who is a member of an Indian Tribe.

*Indian Tribe *and *Tribe *mean any Indian or Alaska Native Tribe, band,
nation, pueblo, village, or community that the Secretary of the Interior
acknowledges to exist as an Indian Tribe and includes in the list of
Federally-recognized Indian Tribal governments as published in the
**Federal Register **pursuant to 25 U.S.C. 479a--1.

*Location *means information concerning the physical whereabouts of the
noncustodial parent, or the noncustodial parent's employer(s), and other
sources of income or assets, as appropriate, which is sufficient and
necessary to take the next appropriate action in a case.

*Non-cash support *is support provided to a family in the nature of
goods and/ or services, rather than in cash, but which, nonetheless, has
a certain and specific dollar value.

*Notice of Disapproval *refers to the written notification from the
Department that the Tribal IV--D application, IV--D plan, or plan
amendment fails to meet the requirements for approval under applicable
Federal statutes and regulations.

*OCSE *refers to the Federal Office of Child Support Enforcement.

*Program development plan *means a document detailing the specific steps
a Tribe or Tribal organization will take to come into compliance with
the requirements of § 309.65(a), and the timeframe associated with each
step.

*Regional office *refers to one of the regional offices of the
Administration for Children and Families.

*Secretary *means the Secretary of the Department of Health and Human
Services or designee.

*TANF *means the Temporary Assistance for Needy Families program as
found at section 401 *et seq. *of the Social Security Act (42 U.S.C. 601
*et seq.*).

*Title IV--D *refers to the title of the Social Security Act that
authorizes the Child Support Enforcement Program, including the Tribal
Child Support Enforcement Program.

*Tribal IV--D agency *means the organizational unit in the Tribe or
Tribal organization that has the authority for administering or
supervising the Tribal IV--D program under section 455(f) of the Act.

*Tribal custom *means unwritten law having the force and effect of law
within a particular Tribe.

*Tribal organization *means any legally established organization of
Indian Tribes which is sanctioned or chartered as a single governing
body representing two or more Indian Tribes.

**§ 309.10 Who is eligible to apply for and receive Federal funding to
operate a Tribal IV--D program? **

The following Tribes or Tribal organizations are eligible to apply to
receive Federal funding to operate a Tribal IV--D program meeting the
requirements of this part:

-   \(a\) An Indian Tribe with at least 100 children under the age of
    majority as defined by Tribal law or code, in the population subject
    to the jurisdiction of the Tribal court or administrative agency.

-   \(b\) A Tribal organization that has been designated by two or more
    Indian Tribes to operate a Tribal IV--D program on their behalf,
    with a total of at least 100 children under the age of majority as
    defined by Tribal laws or codes, in the population of the Tribes
    subject to the jurisdiction of the Tribal court (or courts) or
    administrative agency (or agencies).

-   \(c\) A Tribe or Tribal organization that can demonstrate to the
    satisfaction of the Secretary the capacity to operate a child
    support enforcement program and provide justification for operating
    a program with less than the minimum number of children may be
    granted a waiver of paragraph (a) or (b) of this section as
    appropriate.

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-   \(1\) A Tribe or Tribal organization's request for waiver of
    paragraph (a) or (b) of this section must include documentation
    sufficient to demonstrate that meeting the requirement is not
    necessary. Such documentation must state:

-   \(i\) That the Tribe or Tribal organization otherwise complies with
    the requirements established in subpart C of these regulations;

-   \(ii\) That the Tribe or Tribal organization has the administrative
    capacity to support operation of a child support program under the
    requirements of this part;

\(iii\) That the Tribal IV--D program will be cost effective; and

-   \(iv\) The number of children under the jurisdiction of the Tribe or
    Tribal organization.

-   \(2\) A Tribe or Tribal organization's request for a waiver may be
    approved if the Tribe or Tribal organization demonstrates to the
    satisfaction of the Secretary that it can provide the services
    required under 45 CFR part 309 in a cost effective manner even
    though the population subject to Tribal jurisdiction includes fewer
    than 100 children.

**Subpart B---Tribal IV--D Program Application Procedures **

**§ 309.15 What is a Tribal IV--D program application? **

-   \(a\) *Initial application. *The initial application for funding
    under § 309.65(a) may be submitted at any time. The initial
    application must include:

-   \(1\) Standard Form (SF) 424, ''Application for Federal
    Assistance;''

-   \(2\) SF 424A, ''Budget Information--- Non-Construction Programs,''
    including the following information:

-   \(i\) A quarter-by-quarter estimate of expenditures for the funding
    period; and

-   \(ii\) Notification of whether the Tribe or Tribal organization is
    requesting funds for indirect costs and if so, an election of a
    method under paragraph (a)(3) of this section to calculate estimated
    indirect costs; and

\(iii\) A narrative justification for each cost category on the form;
and either:

-   \(iv\) A statement that the Tribe or Tribal organization has or will
    have the non-Federal share of program expenditures available, as
    required; or

-   \(v\) A request for a waiver of the non-Federal share in accordance
    with § 309.130(e), if appropriate.

-   \(3\) If the Tribe or Tribal organization requests funding for
    indirect costs, estimated indirect costs may be submitted either by:

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-   \(i\) Including documentation of the dollar amount of indirect costs
    allocable to the IV--D program; or

-   \(ii\) Submission of its current indirect cost rate negotiated with
    the Department of Interior and the estimated amount of indirect
    costs calculated using the negotiated cost rate.

-   \(4\) The Tribal IV--D plan. The initial application must include a
    comprehensive statement identifying how the Tribe or Tribal
    organization is meeting the requirements of subpart C of this part
    and that describes the capacity of the Tribe or Tribal organization
    to operate a IV--D program which meets the objectives of title IV--
    D of the Act, including establishment of paternity, establishment,
    modification, and enforcement of support orders, and location of
    noncustodial parents.

-   \(b\) *Additional application requirement for Tribal organizations.
    *

The initial and subsequent annual budget submissions of a Tribal
organization must document that each participating Tribe authorizes the
Tribal organization to operate a Tribal IV--D program on its behalf.

-   \(c\) *Annual budget submission. *Following the initial funding
    period, the Tribe or Tribal organization operating a IV--D program
    must submit annually Form SF 424A, including all the necessary
    accompanying information and documentation described in paragraphs
    (a)(2) and (a)(3) of this section.

-   \(d\) *Plan Amendments. *Plan amendments must be submitted in
    accordance with the requirements of §309.35(e).

**§ 309.16 What rules apply to start-up funding? **

-   \(a\) The application for start-up funding under § 309.65(b) must
    include:

-   \(1\) Standard Form (SF) 424, ''Application for Federal Assistance';

-   \(2\) SF 424A, ''Budget Information--- Non-Construction Programs,''
    including the following information:

-   \(i\) A quarter-by-quarter estimate of expenditures for the start-up
    period;

-   \(ii\) Notification of whether the Tribe or Tribal organization is
    requesting funds for indirect costs and, if so, an election of a
    method to calculate estimated indirect costs under paragraph (a)(3)
    of this section; and

\(iii\) A narrative justification for each cost category on the form;

-   \(3\) If the Tribe or Tribal organization requests funding for
    indirect costs as part of its application for Federal start­up funds,
    estimated indirect costs may be submitted either by:

-   \(i\) Including documentation of the dollar amount of indirect costs
    allocable

to the IV--D program including the methodology used to arrive at these
amounts; or

\(ii\) Submission of its current indirect cost rate negotiated with the
Department of Interior and the amount of estimated indirect costs using
that rate.

\(iii\) The amount of indirect costs must be included within the limit
of \$500,000 specified in paragraph (c) of this section.

-   \(4\) With respect to each requirement in § 309.65(a) that the Tribe
    or Tribal organization currently meets, a description of how the
    Tribe or Tribal organization satisfies the requirement; and

-   \(5\) With respect to each requirement in § 309.65(a) that the Tribe
    or Tribal organization does not currently meet, a program
    development plan which demonstrates to the satisfaction of the
    Secretary that the Tribe or Tribal organization has the capacity and
    will have in place a Tribal IV--D program that will meet the
    requirements outlined in § 309.65(a), within a reasonable, specific
    period of time, not to exceed two years. The Secretary must approve
    the program development plan. Disapproval of a program development
    plan is not subject to administrative appeal.

-   \(b\) The process for approval and disapproval of applications for
    start-up funding under this section is found in §§ 309.35, 309.40,
    309.45, and 309.50. A disapproval of an application for start­up
    funding is not subject to administrative appeal.

-   \(c\) Federal funding for start-up costs is limited to \$500,000,
    which must be obligated and liquidated within two years after the
    first day of the quarter after the start-up application was
    approved. In extraordinary circumstances, the Secretary will
    consider a request to extend the period of time during which
    start-up funding will be available and/or to increase the amount of
    start-up funding provided. Denial of a request to extend the time
    during which start-up funding will be available or for an increase
    in the amount of start-up funding is not subject to administrative
    appeal.

-   \(1\) The Secretary may grant a no-cost extension of time if the
    Tribe or Tribal organization demonstrates to the satisfaction of the
    Secretary that the extension will result in satisfaction of each
    requirement established in § 309.65(a) by the grantee and completion
    of the program development plan required under § 309.65(b)(2).

-   \(2\) The Secretary may grant an increase in the amount of Federal
    start­up funding provided beyond the limit

specified at paragraph (c) of this section and § 309.150 if---

-   \(i\) The Tribe or Tribal organization demonstrates to the
    satisfaction of the Secretary that a specific amount of additional
    funds for a specific purpose or purposes will result in satisfaction
    of the requirements specified in § 309.65(a) which the Tribe or
    Tribal organization otherwise will be unable to meet; and

-   \(ii\) The Tribe or Tribal organization demonstrates to the
    satisfaction of the Secretary that it has satisfied every applicable
    reporting requirement.

-   \(d\) If a Tribe or Tribal organization receives start-up funding
    based on submission and approval of a Tribal IV-- D application
    which includes a program development plan under § 309.65(b), a
    progress report that describes accomplishments to date in carrying
    out the plan must be submitted with the next annual refunding
    request.

**§ 309.20 Who submits a Tribal IV--D program application and where? **

-   \(a\) The authorized representative of the Tribe or Tribal
    organization must sign and submit the Tribal IV--D program
    application.

-   \(b\) Applications must be submitted to the Office of Child Support
    Enforcement, Attention: Tribal Child Support Enforcement Program,
    370 L'Enfant Promenade, SW., Washington, DC 20447, with a copy to
    the appropriate regional office.

**§ 309.35 What are the procedures for review of a Tribal IV--D program
application, plan or plan amendment? **

-   \(a\) The Secretary will promptly review a Tribal IV--D program
    application, plan or plan amendment to determine whether it conforms
    to the requirements of the Act and these regulations. Not later than
    the 90th day following the date on which the Tribal IV--D
    application, plan or plan amendment is received by the Secretary,
    action will be taken unless additional information is needed. If
    additional information is needed from the Tribe or Tribal
    organization, the Secretary will promptly notify the Tribe or Tribal
    organization.

-   \(b\) The Secretary will take action on the application, plan or
    plan amendment within 45 days of receipt of any additional
    information requested from the Tribe or Tribal organization.

-   \(c\) Determinations as to whether the Tribal IV--D plan, including
    plan amendments, originally meets or continues to meet the
    requirements for approval are based on applicable Federal statutes,
    regulations and instructions applicable to Tribal IV--D programs.
    Guidance may be furnished to

assist in the interpretation of the regulations.

-   \(d\) After approval of the original Tribal IV--D program
    application, all relevant changes required by new Federal statutes,
    rules, regulations, and Department interpretations are required to
    be submitted so that the Secretary may determine whether the plan
    continues to meet Federal requirements and policies.

-   \(e\) If a Tribe or Tribal organization intends to make any
    substantial or material change in any aspect of the Tribal IV--D
    program, a Tribal IV--D plan amendment must be submitted at the
    earliest reasonable time for approval under this section. The plan
    amendment must describe and, as appropriate, document the changes
    the Tribe or Tribal organization proposes to make to its IV--D plan,
    consistent with the requirements of applicable statutes and
    regulations.

-   \(f\) The effective date of a plan or plan amendment may not be
    earlier than the first day of the fiscal quarter in which an
    approvable plan or plan amendment is submitted.

**§ 309.40 What is the basis for disapproval of a Tribal IV--D program
application, plan or plan amendment? **

-   \(a\) A IV--D application, plan, or plan amendment will be
    disapproved if:

-   \(1\) The Secretary determines that the application, plan, or plan
    amendment fails to meet or no longer meets one or more of the
    requirements set forth in this part or any other applicable Federal
    regulations, statutes and implementing instructions;

-   \(2\) The Secretary determines that required Tribal laws, code,
    regulations, and procedures are not in effect; and/or

    -   \(3\) The Secretary determines that the application, plan, or
        plan amendment is not complete, after the Tribe or Tribal
        organization has had the opportunity to submit the necessary
        information.

    -   (b)(1) Except as provided in paragraph (b)(2) of this section
        and § 309.45(h) of this part, a written Notice of Disapproval of
        the Tribal IV--D program application, plan, or plan amendment,
        as applicable, will be sent to the Tribe or Tribal organization
        upon the determination that any of the conditions of
        paragraph (a) of this section apply. The Notice of Disapproval
        will include the specific reason(s) for disapproval.

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-   \(2\) Where the Secretary believes an approved Tribal IV--D plan
    should be disapproved, he will notify the Tribe of his intent to
    disapprove the plan.

-   \(c\) If the application, plan or plan amendment is incomplete and
    fails to provide enough information to make a determination to
    approve or disapprove,

the Secretary will request the necessary information.

**§ 309.45 When and how may a Tribe or Tribal organization request
reconsideration of a disapproval action? **

-   \(a\) Except as specified under paragraphs (g) and (h) of this
    section, a Tribe or Tribal organization may request reconsideration
    of the disapproval of a Tribal IV--D application, plan or plan
    amendment by filing a written Request for Reconsideration to the
    Secretary within 60 days of the date of the Notice of Disapproval.

-   \(b\) The Request for Reconsideration must include:

-   \(1\) All documentation that the Tribe or Tribal organization
    believes is relevant and supportive of its application, plan or plan
    amendment; and

-   \(2\) A written response to each ground for disapproval identified
    in the Notice of Disapproval, indicating why the Tribe or Tribal
    organization believes its application, plan or plan amendment
    conforms to the requirements for approval specified in applicable
    Federal statutes, regulations and office issuances; and

-   \(3\) Whether or not the Tribe or Tribal organization requests a
    meeting or conference call with the Secretary.

-   \(c\) After receiving a Request for Reconsideration that includes a
    request for a conference call or meeting, OCSE will determine
    whether to hold a conference call or a meeting with the Tribe or
    Tribal organization to discuss the reasons for disapproval of the
    application, plan, or plan amendment as well as the Tribe or Tribal
    organization's response. The Secretary will notify the Tribe or
    Tribal organization of the date and time of the conference call or
    meeting.

-   \(d\) A conference call or meeting under § 309.45(c) shall be held
    not less than 30 days nor more than 60 days after the date the
    notice of such call or meeting is furnished to the Tribe or Tribal
    organization, unless both parties agree in writing to another time.

-   \(e\) The Secretary will make a written determination affirming,
    modifying, or reversing disapproval of a Tribal IV--D program
    application, plan, or plan amendment within 60 days after the
    conference call or meeting is held, or within 60 days after the
    request for reconsideration that does not include a request for a
    meeting. This determination shall be the final decision of the
    Secretary.

-   \(f\) The Secretary's determination that a Tribal IV--D application,
    new plan or plan amendment is not approvable

remains in effect pending the reconsideration under this part.

-   \(g\) Disapproval of start-up funding, a request for waiver of the
    100-child rule, and a request for waiver of the non-Federal Tribal
    share is not subject to administrative appeal.

-   \(h\) Where the Secretary believes an approved Tribal IV--D plan
    should be disapproved, he will notify the Tribe of his intent to
    disapprove the plan. If the Tribe waives its right to
    reconsideration under this section, the Tribe may request a
    pre-decision hearing with 60 days of the date of the Notice of
    Intent to Disapprove the plan. The hearing will utilize the
    procedures at 45 CFR part 213.

**§ 309.50 What are the consequences of disapproval of a Tribal IV--D
program application, plan or plan amendment? **

-   \(a\) If an application or plan submitted pursuant to § 309.15 is
    disapproved, the Tribe or Tribal organization will receive no
    funding under § 309.65(a) or this part until a new application or
    plan is submitted and approved.

-   \(b\) If a IV--D plan amendment is disapproved, there is no funding
    for the activity proposed in the plan amendment.

-   \(c\) A Tribe or Tribal organization whose application, plan or plan
    amendment has been disapproved may reapply at any time.

**Subpart C---Tribal IV--D Plan Requirements **

**§ 309.55 What does this subpart cover? **

This subpart defines the Tribal IV--D plan provisions that are required
to demonstrate that a Tribe or Tribal organization has the capacity to
operate a child support enforcement program meeting the objectives of
title IV--D of the Act and these regulations, including establishment of
paternity, establishment, modification, and enforcement of support
orders, and location of noncustodial parents.

**§ 309.60 Who is responsible for administration of the Tribal IV--D
program under the Tribal IV--D plan? **

-   \(a\) Under the Tribal IV--D plan, the Tribe or Tribal organization
    shall establish or designate an agency to administer the Tribal
    IV--D plan. That agency shall be referred to as the Tribal IV--D
    agency.

-   \(b\) The Tribe or Tribal organization is responsible and
    accountable for the operation of the Tribal IV--D program. Except
    where otherwise provided in this part, the Tribal IV--D agency need
    not perform all the functions of the Tribal IV--D program, so long
    as the Tribe or Tribal organization ensures that all

approved functions are carried out properly, efficiently and
effectively.

\(c\) If the Tribe or Tribal organization delegates any of the functions
of the Tribal IV--D program to another Tribe, a State, and/or another
agency or entity pursuant to a cooperative arrangement, contract, or
Tribal resolution, the Tribe or Tribal organization is responsible for
securing compliance with the requirements of the Tribal IV--D plan by
such Tribe, State, agency or entity. The Tribe or Tribal organization is
responsible for submitting copies and appending to the Tribal IV--D plan
any agreements, contracts, or Tribal resolutions between the Tribal
IV--D agency and a Tribe, State, other agency or entity.

**§ 309.65 What must a Tribe or Tribal organization include in a Tribal
IV--D plan in order to demonstrate capacity to operate a Tribal IV--D
program? **

-   \(a\) A Tribe or Tribal organization demonstrates capacity to
    operate a Tribal IV--D program meeting the objectives of title IV--D
    of the Act and these regulations by submission of a Tribal IV--D
    plan which contains the required elements listed in paragraphs
    (a)(1) through (14) of this section:

-   \(1\) A description of the population subject to the jurisdiction of
    the Tribal court or administrative agency for child support purposes
    as specified under §309.70;

-   \(2\) Evidence that the Tribe or Tribal organization has in place
    procedures for accepting all applications for IV--D services and
    promptly providing IV--D services required by law and regulation;

-   \(3\) Assurance that the due process rights of the individuals
    involved will be protected in all activities of the Tribal IV--D
    program, including establishment of paternity, and establishment,
    modification, and enforcement of support orders;

-   \(4\) Administrative and management procedures as specified under §
    309.75;

-   \(5\) Safeguarding procedures as specified under § 309.80;

-   \(6\) Assurance that the Tribe or Tribal organization will maintain
    records as specified under § 309.85;

-   \(7\) Copies of all applicable Tribal laws and regulations as
    specified under §309.90;

-   \(8\) Procedures for the location of noncustodial parents as
    specified under §309.95;

-   \(9\) Procedures for the establishment of paternity as specified
    under §309.100;

-   \(10\) Guidelines for the establishment and modification of child
    support obligations as specified under § 309.105;

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-   \(11\) Procedures for income withholding as specified under
    §309.110;

-   \(12\) Procedures for the distribution of child support collections
    as specified under § 309.115;

-   \(13\) Procedures for intergovernmental case processing as specified
    under § 309.120; and

-   \(14\) Tribally-determined performance targets for paternity
    establishment, support order establishment, amount of current
    support to be collected, amount of past due support to be collected,
    and any other performance measures a Tribe or Tribal organization
    may want to submit.

-   \(b\) If a Tribe or Tribal organization currently is unable to
    satisfy any or all of the requirements specified in paragraph (a) of
    this section:

-   \(1\) It may demonstrate capacity to operate a Tribal IV--D program
    meeting the objectives of title IV--D of the Act and these
    regulations by submission of an application for start-up funding as
    required by § 309.16(a) of this part.

-   \(2\) The Secretary may cease start-up funding to a Tribe or Tribal
    organization if that Tribe or Tribal organization fails to satisfy
    one or more provisions or milestones described in its program
    development plan within the timeframe specified in such plan.

**§ 309.70 What provisions governing jurisdiction must a Tribe or Tribal
organization include in a Tribal IV--D plan? **

A Tribe or Tribal organization must include in its Tribal IV--D plan a
description of the population subject to the jurisdiction of the Tribal
court or administrative agency for child support enforcement purposes
and certify that there are at least 100 children under the age of
majority in the population subject to the jurisdiction of the Tribe in
accordance with § 309.10 of this part and subject to § 309.10(c).

**§ 309.75 What administrative and management procedures must a Tribe or
Tribal organization include in a Tribal IV--D plan? **

A Tribe or Tribal organization must include in its Tribal IV--D plan the
administrative and management provisions contained in this section:

-   \(a\) A description of the structure of the IV--D agency and the
    distribution of responsibilities within the agency.

-   \(b\) Evidence that all Federal funds and amounts collected by the
    Tribal IV-- D agency are protected against loss. Tribes and Tribal
    organizations may comply with this paragraph by submitting
    documentation that establishes that every person who receives,
    disburses, handles, or has access to or control over funds collected

under the Tribal IV--D program is covered by a bond or insurance
sufficient to cover all losses.

-   \(c\) Procedures under which notices of support collected, itemized
    by month of collection, are provided to families receiving services
    under the Tribal IV-- D program at least once a year. In addition, a
    notice must be provided at any time to either the custodial or
    noncustodial parent upon request.

-   \(d\) A certification that for each year during which the Tribe or
    Tribal organization receives or expends funds pursuant to section
    455(f) of the Act and this part, it shall comply with the provisions
    of chapter 75 of Title 31 of the United States Code (the Single
    Audit Act of 1984, Pub. L. 98--502, as amended) and OMB Circular
    A--133.

-   \(e\) If the Tribe or Tribal organization intends to charge an
    application fee or recover costs in excess of the fee, the Tribal
    IV--D plan must provide that:

-   \(1\) The application fee must be uniformly applied by the Tribe or
    Tribal organization and must be:

-   \(i\) A flat amount not to exceed \$25.00; or

-   \(ii\) An amount based on a fee schedule not to exceed \$25.00.

-   \(2\) The Tribal IV--D agency may not charge an application fee in
    an intergovernmental case referred to the Tribal IV--D agency for
    services under §309.120.

-   \(3\) No application fee may be charged to an individual receiving
    services under titles IV--A, IV--E foster care maintenance
    assistance, or XIX (Medicaid) of the Act.

-   \(4\) The Tribal IV--D agency must exclude from its quarterly
    expenditure claims an amount equal to all fees which are collected
    and costs recovered during the quarter.

**§ 309.80 What safeguarding procedures must a Tribe or Tribal
organization include in a Tribal IV--D plan? **

A Tribe or Tribal organization must include in its Tribal IV--D plan
safeguarding provisions in accordance with this section:

-   \(a\) Procedures under which the use or disclosure of personal
    information received by or maintained by the Tribal IV--D agency is
    limited to purposes directly connected with the administration of
    the Tribal IV--D program, or titles IV--A and XIX with the
    administration of other programs or purposes prescribed by the
    Secretary in regulations.

-   \(b\) Procedures for safeguards that are applicable to all
    confidential information handled by the Tribal IV--D agency and that
    are designed to protect the privacy rights of the parties,
    including:

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-   \(1\) Safeguards against unauthorized use or disclosure of
    information relating to proceedings or actions to establish
    paternity, or to establish, modify or enforce support;

-   \(2\) Prohibitions against the release of information on the
    whereabouts of one party or the child to another party against whom
    a protective order with respect to the former party or the child has
    been entered;

-   \(3\) Prohibitions against the release of information on the
    whereabouts of one party or the child to another person if the Tribe
    has reason to believe that the release of the information to that
    person may result in physical or emotional harm to the party or
    child; and

-   \(4\) Procedures in accordance with any specific safeguarding
    regulations applicable to Tribal IV--D programs promulgated by the
    Secretary.

-   \(c\) Procedures under which sanctions must be imposed for the
    unauthorized use or disclosure of information covered by
    paragraphs (a) and (b) of this section.

**§ 309.85 What records must a Tribe or Tribal organization agree to
maintain in a Tribal IV--D plan? **

A Tribal IV--D plan must provide that:

-   \(a\) The Tribal IV--D agency will maintain records necessary for
    the proper and efficient operation of the program, including records
    regarding:

-   \(1\) Applications for child support services;

-   \(2\) Efforts to locate noncustodial parents;

-   \(3\) Actions taken to establish paternity and obtain and enforce
    support;

    -   \(4\) Amounts owed, arrearages, amounts and sources of support
        collections, and the distribution of such collections;

    -   \(5\) IV--D program expenditures;

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-   \(6\) Any fees charged and collected, if applicable; and

-   \(7\) Statistical, fiscal, and other records necessary for reporting
    and accountability required by the Secretary.

-   \(b\) The Tribal IV--D agency will comply with the retention and
    access requirements at 45 CFR 74.53, including the requirement that
    records be retained for at least three years.

**§ 309.90 What governing Tribal law or regulations must a Tribe or
Tribal organization include in a Tribal IV--D plan? **

-   \(a\) A Tribe or Tribal organization must include in its Tribal
    IV--D plan Tribal law, code, regulations, and/or other evidence that
    provides for:

-   \(1\) Establishment of paternity for any child up to and including
    at least 18 years of age;

-   \(2\) Establishment and modification of child support obligations;

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-   \(3\) Enforcement of child support obligations, including
    requirements that Tribal employers comply with income withholding as
    required under § 309.110; and

-   \(4\) Location of custodial and noncustodial parents.

-   \(b\) In the absence of written laws and regulations, a Tribe or
    Tribal organization may provide in its plan detailed descriptions of
    any Tribal custom or common law with the force and effect of law
    which enables the Tribe or Tribal organization to satisfy the
    requirements in paragraph (a) of this section.

**§ 309.95 What procedures governing the location of custodial and
noncustodial parents must a Tribe or Tribal organization include in a
Tribal IV--D plan? **

A Tribe or Tribal organization must include in its Tribal IV--D plan the
provisions governing the location of custodial and noncustodial parents
and their assets set forth in this section.

-   \(a\) The Tribal IV--D agency must attempt to locate custodial or
    noncustodial parents or sources of income and/or assets when
    location is required to take necessary action in a case; and

-   \(b\) The Tribal IV--D agency must use all sources of information
    and records reasonably available to the Tribe or Tribal organization
    to locate custodial or noncustodial parents and their sources of
    income and assets.

**§ 309.100 What procedures for the establishment of paternity must a
Tribe or Tribal organization include in a Tribal IV--D plan? **

-   \(a\) A Tribe or Tribal organization must include in its Tribal
    IV--D plan the procedures for the establishment of paternity
    included in this section. The Tribe must include in its Tribal IV--D
    plan procedures under which the Tribal IV--D agency will:

-   \(1\) Attempt to establish paternity by the process established
    under Tribal law, code, and/or custom in accordance with this
    section;

-   \(2\) Provide an alleged father the opportunity to voluntarily
    acknowledge paternity; and

-   \(3\) In a contested paternity case (unless otherwise barred by
    Tribal law) require the child and all other parties to submit to
    genetic tests upon the request of any such party, if the request is
    supported by a sworn statement by the party---

-   \(i\) Alleging paternity, and setting forth facts establishing a
    reasonable possibility of the requisite sexual contact between
    parties; or

-   \(ii\) Denying paternity, and setting forth facts establishing a
    reasonable

possibility of the nonexistence of sexual contact between the parties.

-   \(b\) The Tribal IV--D agency need not attempt to establish
    paternity in any case involving incest or forcible rape, or in any
    case in which legal proceedings for adoption are pending, if, in the
    opinion of the Tribal IV--D agency, it would not be in the best
    interests of the child to establish paternity.

-   \(c\) When genetic testing is used to establish paternity, the
    Tribal IV--D agency must identify and use accredited laboratories
    which perform, at reasonable cost, legally and medically-acceptable
    genetic tests which intend to identify the father or exclude the
    alleged father.

-   \(d\) Establishment of paternity under this section has no effect on
    Tribal enrollment or membership.

**§ 309.105 What procedures governing child support guidelines must a
Tribe or Tribal organization include in a Tribal IV--D plan? **

-   \(a\) A Tribal IV--D plan must: (1) Establish one set of child
    support guidelines by law or action of the tribunal for setting and
    modifying child support obligation amounts;

-   \(2\) Include a copy of child support guidelines governing the
    establishment and modification of child support obligations;

-   \(3\) Indicate whether non-cash payments will be permitted to
    satisfy support obligations, and if so;

-   \(i\) Require that Tribal support orders allowing non-cash payments
    also state the specific dollar amount of the support obligation; and

-   \(ii\) Describe the type(s) of non-cash support that will be
    permitted to satisfy the underlying specific dollar amount of the
    support order; and

\(iii\) Provide that non-cash payments will not be permitted to satisfy
assigned support obligations;

-   \(4\) Indicate that child support guidelines will be reviewed and
    revised, if appropriate, at least once every four years;

-   \(5\) Provide that there shall be a rebuttable presumption, in any
    proceeding for the award of child support, that the amount of the
    award that would result from the application of the guidelines
    established consistent with this section is the correct amount of
    child support to be awarded; and

-   \(6\) Provide for the application of the guidelines unless there is
    a written finding or a specific finding on the record of the
    tribunal that the application of the guidelines would be unjust or
    inappropriate in a particular case in accordance with criteria
    established by the Tribe or Tribal

organization. Such criteria must take into consideration the needs of
the child. Findings that rebut the guidelines must state the amount of
support that would have been required under the guidelines and include a
justification of why the order varies from the guidelines.

-   \(b\) The guidelines established under paragraph (a) of this section
    must at a minimum:

-   \(1\) Take into account the needs of the child and the earnings and
    income of the noncustodial parent; and

-   \(2\) Be based on specific descriptive and numeric criteria and
    result in a computation of the support obligation.

**§ 309.110 What procedures governing income withholding must a Tribe or
Tribal organization include in a Tribal IV--D plan? **

A Tribe or Tribal organization must include in its Tribal IV--D plan
copies of Tribal laws providing for income withholding in accordance
with this section.

-   \(a\) In the case of each noncustodial parent against whom a support
    order is or has been issued or modified under the Tribal IV--D plan,
    or is being enforced under such plan, so much of his or her income,
    as defined in § 309.05, must be withheld as is necessary to comply
    with the order.

-   \(b\) In addition to the amount to be withheld to pay the current
    month's obligation, the amount withheld must include an amount to be
    applied toward liquidation of any overdue support.

-   \(c\) The total amount to be withheld under paragraphs (a) and (b)
    of this section may not exceed the maximum amount permitted under
    section 303(b) of the Consumer Credit Protection Act (15 U.S.C.
    1673(b)), but may be set at a lower amount.

-   \(d\) Income withholding must be carried out in compliance with the
    procedural due process requirements established by the Tribe or
    Tribal organization.

-   \(e\) The Tribal IV--D agency will promptly refund amounts which
    have been improperly withheld.

-   \(f\) The Tribal IV--D agency will promptly terminate income
    withholding in cases where there is no longer a current order for
    support and all arrearages have been satisfied.

-   \(g\) If the employer fails to withhold income in accordance with
    the provision of the income withholding order, the employer will be
    liable for the accumulated amount the employer should have withheld
    from the noncustodial parent's income.

-   \(h\) Income shall not be subject to withholding in any case where:

-   \(1\) Either the custodial or noncustodial parent demonstrates, and

the tribunal enters a finding, that there is good cause not to require
income withholding; or

-   \(2\) A signed written agreement is reached between the noncustodial
    and custodial parent, which provides for an alternative arrangement,
    and is reviewed and entered into the record by the tribunal.

-   \(i\) Where immediate income withholding is not in place, the income
    of the noncustodial parent shall become subject to withholding, at
    the earliest, on the date on which the payments which the
    noncustodial parent has failed to make under a Tribal support order
    are at least equal to the support payable for one month.

-   \(j\) The only basis for contesting a withholding is a mistake of
    fact, which for purposes of this paragraph, means an error in the
    amount of current or overdue support or in the identity of the
    alleged noncustodial parent.

-   \(k\) Tribal law must provide that the employer is subject to a fine
    to be determined under Tribal law for discharging a noncustodial
    parent from employment, refusing to employ, or taking disciplinary
    action against any noncustodial parent because of the withholding.

-   \(l\) To initiate income withholding, the Tribal IV--D agency must
    send the noncustodial parent's employer a notice using the standard
    Federal income withholding form.

-   \(m\) The Tribal IV--D agency must allocate withheld amounts across
    multiple withholding orders to ensure that in no case shall
    allocation result in a withholding for one of the support
    obligations not being implemented.

-   \(n\) The Tribal IV--D agency is responsible for receiving and
    processing income withholding orders from States, Tribes, and other
    entities, and ensuring orders are properly and promptly served on
    employers within the Tribe's jurisdiction.

**§ 309.115 What procedures governing the distribution of child support
must a Tribe or Tribal organization include in a Tribal IV--D plan? **

A Tribe or Tribal organization must specify in its Tribal IV--D plan
procedures for the distribution of child support collections in each
Tribal IV--D case, in accordance with this section.

-   \(a\) *General Rule: *The Tribal IV--D agency must, in a timely
    manner:

-   \(1\) Apply collections first to satisfy current support
    obligations, except as provided in paragraph (e) of this section;
    and

-   \(2\) Pay all support collections to the family unless the family is
    currently receiving or formerly received

assistance from the Tribal TANF program and there is an assignment of
support rights to the Tribe's TANF agency, or the Tribal IV--D agency
has received a request for assistance in collecting support on behalf of
the family from a State or Tribal IV--D agency.

-   \(b\) *Current Receipt of Tribal TANF: *If the family is currently
    receiving assistance from the Tribal TANF program and has assigned
    support rights to the Tribe and:

-   \(1\) There is no request for assistance in collecting support on
    behalf of the family from a State or Tribal IV--D agency under §
    309.120 of this part, the Tribal IV--D agency may retain collections
    on behalf of the family, not to exceed the total amount of Tribal
    TANF paid to the family. Any remaining collections must be paid to
    the family.

-   \(2\) There is a request for assistance in collecting support on
    behalf of the family from a State or Tribal IV--D agency under §
    9.120 of this part, the Tribal IV--D agency may retain collections,
    not to exceed the total amount of Tribal TANF paid to the family.
    Except as provided in paragraph

-   \(f\) of this section, the Tribal IV--D agency must send any
    remaining collections, as appropriate, to the requesting State IV--D
    agency for distribution under section 457 of the Act and 45 CFR
    302.51 or 302.52, or to the requesting Tribal IV--D agency for
    distribution in accordance with this section.

-   \(c\) *Former Receipt of Tribal TANF: *If the family formerly
    received assistance from the Tribal TANF program and there is an
    assignment of support rights to the Tribe and:

-   \(1\) There is no request for assistance in collecting support from
    a State or Tribal IV--D agency under § 309.120 of this part, the
    Tribal IV--D agency must pay current support and any arrearages owed
    to the family to the family and may then retain any excess
    collections, not to exceed the total amount of Tribal TANF paid to
    the family. Any remaining collections must be paid to the family.

-   \(2\) There is a request for assistance in collecting support from a
    State or Tribal IV--D agency under § 309.120 of this part, the
    Tribal IV--D agency must send all support collected, as appropriate,
    to the requesting State IV--D agency for distribution under section
    457 of the Act or 45 CFR 302.51 or 303.52, or to the requesting
    Tribal IV--D agency for distribution under this section, except as
    provided in paragraph (f) of this section.

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-   \(d\) *Requests for Assistance from State or Tribal IV--D Agency:
    *If there is no assignment of support rights to the Tribe as a
    condition of receipt of Tribal TANF and the Tribal IV--D agency has
    received a request for assistance in collecting support on behalf of
    the family from a State or another Tribal IV--D agency under §
    309.120 of this part, the Tribal IV--D agency must send all support
    collected to either the State IV--D agency for distribution in
    accordance with section 457 of the Act and 45 CFR 302.51 and 302.52,
    or to the Tribal IV-- D agency for distribution under this section,
    as appropriate, except as provided in paragraph (f) of this section.

-   \(e\) *Federal Income Tax Refund Offset Collections: *Any
    collections received based on Federal income tax refund offset under
    section 464 of the Act and distributed by the Tribal IV--D agency
    must be applied to satisfy child support arrearages.

-   \(f\) *Option to Contact Requesting Agency for Appropriate
    Distribution: *

Rather than send collections to a State or another Tribal IV--D agency
for distribution as required under § 309.115 (b)(2), (c)(2) and (d), a
Tribal IV--D agency may contact the requesting State IV--D agency to
determine appropriate distribution under section 457 of the Act, or the
other Tribal IV--D agency to determine appropriate distribution under
this section, and distribute collections as directed by the other
agency.

**§ 309.120 What intergovernmental procedures must a Tribe or Tribal
organization include in a Tribal IV--D plan? **

A Tribe or Tribal organization must specify in its Tribal IV--D plan:

-   \(a\) That the Tribal IV--D agency will extend the full range of
    services available under its IV--D plan to respond to all requests
    from, and cooperate with, State and other Tribal IV--D agencies; and

-   \(b\) That the Tribe or Tribal organization will recognize child
    support orders issued by other Tribes and Tribal organizations, and
    by States, in accordance with the requirements under the Full Faith
    and Credit for Child Support Orders Act, 28 U.S.C. 1738B.

**Subpart D---Tribal IV--D Program Funding **

**§ 309.125 On what basis is Federal funding of Tribal IV--D programs
determined? **

Federal funding of Tribal IV--D programs is based on information
contained in the Tribal IV--D application. The application must include
a proposed budget and a description of the nature and scope of the
Tribal IV--D program and must give assurance that the program will be
administered in conformity with applicable requirements of title IV--D
of the Act, regulations contained in this part, and other official
issuances of the Department that specifically state applicability to
Tribal IV--D programs.

**§ 309.130 How will Tribal IV--D programs be funded and what forms are
required? **

-   \(a\) *General mechanism. *(1) Tribes and Tribal organizations with
    approved Tribal plans under title IV--D will receive Federal grant
    funds in an amount equal to the percentage specified in
    paragraph (c) of this section of the total amount of approved and
    allowable expenditures under the plan for the administration of the
    Tribal child support enforcement program.

-   \(2\) Tribes and Tribal organizations eligible for grants of less
    than \$1 million per 12-month funding period will receive a single
    annual award. Tribes and Tribal organizations eligible for grants of
    \$1 million or more per 12­month funding period will receive four
    equal quarterly awards.

-   \(b\) *Financial Form Submittal Requirements. *Tribes and Tribal
    organizations receiving Federal funding under this part are required
    to submit the following financial forms, and such other forms as the
    Secretary may designate, to OCSE:

-   \(1\) Standard Form (SF) 424, ''Application for Federal
    Assistance,'' to be submitted with the initial grant application for
    funding under § 309.65(a) and (b) (60 days prior to the start of the
    funding period);

-   \(2\) SF 424A, ''Budget Information--- Non-Construction Programs,''
    to be submitted annually, no later than August 1 (60 days prior to
    the start of the funding period) in accordance with § 309.15(a)(2)
    of this part. With each submission, the following information must
    be included:

-   \(i\) A quarter-by-quarter estimate of expenditures for the funding
    period; and

-   \(ii\) Notification of whether the Tribe or Tribal organization is
    requesting funds for indirect costs and an election of a method to
    calculate estimated indirect costs; and

\(iii\) A narrative justification for each cost category on the form;
and for funding under § 309.65(a) either:

-   \(iv\) A statement certifying that the Tribe or Tribal organization
    has or will have the non-Federal share of program expenditures
    available, as required, or

-   \(v\) A request for a waiver of the non-Federal share in accordance
    with paragraph (e) of this section;

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-   \(3\) SF 269A, ''Financial Status Report (Short Form),'' to be
    submitted quarterly within 30 days after the end of each of the
    first three quarters of the funding period and within 30 days after
    the end of each of the first three quarters of the liquidation
    period. The final report for each period is due within 90 days after
    the end the fourth quarter of both the funding and the liquidation
    period; and

-   \(4\) Form OCSE--34A, ''Quarterly Report of Collections'' to be
    submitted within 30 days after the end of the first three quarters
    and 90 days after the end of the fourth quarter.

-   \(c\) *Federal share of program expenditures. *(1) During the period
    of start-up funding specified in § 309.16, a Tribe or Tribal
    organization will receive Federal grant funds equal to 100 percent
    of approved and allowable expenditures made during that period.
    Federal start­up funds are limited to a total of \$500,000.

-   \(2\) During a 3-year period, beginning with the first day of the
    first quarter of the funding grant specified under § 309.135(a)(2),
    a Tribe or Tribal organization will receive Federal grant funds
    equal to 90 percent of the total amount of approved and allowable
    expenditures made during that period for the administration of the
    Tribal child support enforcement program.

-   \(3\) For all periods following the 3-year period specified in
    paragraph (c)(2) of this section, a Tribe or Tribal organization
    will receive Federal grant funds equal to 80 percent of the total
    amount of approved and allowable expenditures made for the
    administration of the Tribal child support enforcement program.

-   \(d\) *Non-Federal share of program expenditures. *Each Tribe or
    Tribal organization that operates a child support enforcement
    program under title IV--D and § 309.65(a), unless the Secretary has
    granted a waiver pursuant to § 309.130(e), must provide the
    non-Federal share of funding, equal to:

-   \(1\) 10 percent of approved and allowable expenditures during the
    3­year period specified in paragraph (c)(2) of this section or;

-   \(2\) 20 percent of approved and allowable expenditures during the
    subsequent periods specified in paragraph (c)(3) of this section.

-   \(3\) The non-Federal share of program expenditures must be provided
    either with cash or with in-kind contributions and must meet the
    requirements found in 45 CFR 74.23.

-   \(e\) *Waiver of non-Federal share of program expenditures. *(1)
    Under certain circumstances, the Secretary may grant a temporary
    waiver of part or all of the non-Federal share of expenditures.

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-   \(i\) If a Tribe or Tribal organization anticipates that it will be
    temporarily unable to contribute part or all of the non-Federal
    share of funding under paragraph (d) of this section, it must submit
    a written request that this requirement be temporarily waived. A
    request for a waiver of part or all of the non-Federal share must be
    sent to ACF, included with the submission of SF 424A, no later than
    60 days prior to the start of the funding period for which the
    waiver is being requested, except as provided in paragraph
    (e)(1)(ii) of this section. An untimely or incomplete request will
    not be considered.

-   \(ii\) If, after the start of the funding period, an emergency
    situation such as a hurricane or flood occurs such that the grantee
    would need to request a waiver of the non-Federal costs, it may do
    so. The request for a waiver must be submitted in accordance with
    the procedures specified in paragraphs (e)(2), (3) and (4) of this
    section. Any waiver request other than one submitted with the
    initial application must be submitted as soon as the adverse effect
    of the emergency situation giving rise to the request is known to
    the grantee.

-   \(2\) A request for a waiver of part or all of the non-Federal share
    must include the following:

-   \(i\) A statement of the amount of the non-Federal share that the
    Tribe is requesting be waived;

-   \(ii\) A narrative statement describing the circumstances and
    justification for the waiver request;

\(iii\) Portions of the Tribal budget for the funding period sufficient
to demonstrate that any funding shortfall is not limited to the Tribal
IV--D program and that any uncommitted Tribal reserve funds are
insufficient to meet the non-Federal funding requirement;

-   \(iv\) Copies of any additional financial documents in support of
    the request;

-   \(v\) A detailed description of the attempts made to secure the
    necessary funds and in-kind contributions from other sources and the
    results of those attempts, including copies of all relevant
    correspondence; and

-   \(vi\) Any other documentation or other information that the
    Secretary may require to make this determination.

-   \(3\) The Tribe or Tribal organization must demonstrate to the
    satisfaction of the Secretary that it temporarily lacks resources to
    provide the non-Federal share. In its request for a temporary
    waiver, the Tribe or Tribal organization must be able to demonstrate
    that it:

-   \(i\) Lacks sufficient resources to provide the required non-Federal
    share of costs;

\(ii\) Has made reasonable, but unsuccessful, efforts to obtain
non-Federal share contributions; and

\(iii\) Has provided all required information requested by the
Secretary.

-   \(4\) All statements in support of a waiver request must be
    supported by evidence including, but not limited to, a description
    of how the Tribe or Tribal organization's circumstances relate to
    its capacity to provide child support enforcement services. The
    following statements will be considered insufficient to merit a
    waiver under this section without documentary evidence satisfactory
    to the Secretary:

-   \(i\) Funds have been committed to other budget items;

\(ii\) A high rate of unemployment;

\(iii\) A generally poor economic condition;

-   \(iv\) A lack of or a decline in revenue from gaming, fishing,
    timber, mineral rights and other similar revenue sources;

-   \(v\) A small or declining tax base; and

-   \(vi\) Little or no economic development.

-   (5)(i) If approved, a temporary waiver submitted under either
    paragraph (e)(1)(i) or (ii) of this section will expire on the last
    day of the funding period for which it was approved and is subject
    to review at any time during the funding period and may be revoked,
    if changing circumstances warrant.

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-   \(ii\) Unless the Tribe receives a written approval of its waiver
    request, the funding requirements stated in paragraph (d) of this
    section remain in effect.

\(iii\) If the request for a waiver is denied, the denial is not subject
to administrative appeal.

-   \(f\) *Increase in approved budget. *(1) A Tribe or Tribal
    organization may request an increase in the approved amount of its
    current budget by submitting a revised SF 424A to ACF and explaining
    why it needs the additional funds. The Tribe or Tribal organization
    should submit this request at least 60 days before additional funds
    are needed, to allow the Secretary adequate time to review the
    estimates and issue a revised grant award, if appropriate.

-   \(2\) If the change in Tribal IV--D budget estimate results from a
    change in the Tribal IV--D plan, the Tribe or Tribal organization
    must submit a plan amendment in accordance with § 309.35(e) of this
    part, a revised SF 424 and a revised SF 424A with its request for
    additional funding. The effective date of a plan amendment may not
    be earlier than the first day of the fiscal quarter in which an
    approvable plan is submitted in accordance with § 309.35(f) of this
    part. The Secretary

must approve the plan amendment before approving any additional funding.

-   \(3\) Any approved increase in the Tribal IV--D budget will
    necessarily result in a proportional increase in the non-Federal
    share, unless a waiver of the non-Federal share has been granted.

-   \(g\) *Obtaining Federal funds. *Tribes and Tribal organizations
    will obtain Federal funds on a draw down basis from the Department's
    Payment Management System on a letter of credit system for payment
    of advances of Federal funds.

-   \(h\) *Grant administration requirements. *The provisions of part 74
    of this title, establishing uniform administrative requirements and
    cost principles, shall apply to all grants made to Tribes and Tribal
    organizations under this part.

**§ 309.135 What requirements apply to funding, obligating and
liquidating Federal title IV--D grant funds? **

-   \(a\) *Funding period. *(1) *Ongoing funding. *Federal title IV--D
    grant funds will be awarded to Tribes and Tribal organizations for
    use during a 12-month period equivalent to the Federal fiscal year
    of October 1 through September 30.

-   \(2\) *Initial grant. *A Tribe or Tribal organization may request
    that its initial IV--D grant be awarded for a funding period of less
    than one year (but at least six months) or more than one year (but
    not to exceed 17 months) to enable its program funding cycle to
    coincide with the funding period specified in paragraph (a)(1) of
    this section.

-   \(b\) *Obligation period. *A Tribe or Tribal organization must
    obligate its Federal title IV--D grant funds no later than the last
    day of the funding period for which they were awarded. Any of these
    funds remaining unobligated after that date must be returned to the
    Department.

-   \(c\) *Liquidation period. *A Tribe or Tribal organization must
    liquidate the Federal title IV--D grant funds obligated during the
    obligation period specified in paragraph (b) of this section no
    later than the last day of the 12-month period immediately following
    the obligation period. Any of these funds remaining unliquidated
    after that date must be returned to the Department.

-   \(d\) *Funding reductions. *As required under § 309.130(b)(3), a
    Tribe or Tribal organization will report quarterly on Form SF 269A
    the amount of Federal title IV--D grant funds that have been
    obligated and liquidated and the amounts that remain unobligated and
    unliquidated at the end of each fiscal quarter during the obligation
    and liquidation periods. The Department

will reduce the amount of the Tribe or Tribal organization's Federal
title IV--D grant funds for the funding period by any amount reported as
remaining unobligated on the report following the last day of the
obligation period. The Department will further reduce the amount of the
Tribe or Tribal organization's Federal title IV--D grant funds for the
funding period by any amount reported as remaining unliquidated on the
report following the last day of the liquidation period.

\(e\) *Extension requests. *A Tribe or Tribal organization may submit a
written request for an extension of the deadline for liquidating Federal
title IV-- D grant funds. Such a request must be sent to ACF, to the
attention of the Federal grants officer named on the most recent grant
award. The request must be submitted as soon as it is clear that such an
extension will be needed; any request received after the end of the
liquidation period will not be considered. The request must include a
detailed explanation of the extenuating circumstances or other reasons
for the request and must state the date by which the Tribe anticipates
all obligated funds will be liquidated. Unless the Tribe receives a
written approval of its request, the deadline stated in paragraph (c) of
this section remains in effect.

**§ 309.145 What costs are allowable for Tribal IV--D programs carried
out under § 309.65(a) of this part? **

Federal funds are available for costs of operating a Tribal IV--D
program under an approved Tribal IV--D application carried out under §
309.65(a) of this part, provided that such costs are determined by the
Secretary to be reasonable, necessary, and allocable to the program.
Allowable activities and costs include:

-   \(a\) Administration of the Tribal IV--D program, including but not
    limited to the following:

-   \(1\) Establishment and administration of the Tribal IV--D plan;

-   \(2\) Monitoring the progress of program development and operations,
    and evaluating the quality, efficiency, effectiveness, and scope of
    available support enforcement services;

-   \(3\) Establishment of all necessary agreements with other Tribal,
    State, and local agencies or private providers for the provision of
    child support enforcement services in accordance with Procurement
    Standards found in 45 CFR part 74. These agreements may include:

-   \(i\) Necessary administrative agreements for support services;

\(ii\) Use of Tribal, Federal, State, and local information resources;

\(iii\) Cooperation with courts and law enforcement officials;

-   \(iv\) Securing compliance with the requirements of the Tribal IV--D
    program plan in operations under any agreements;

-   \(v\) Development and maintenance of systems for fiscal and program
    records and reports required to be made to OCSE based on these
    records; and

-   \(vi\) Development of cost allocation systems.

-   \(b\) Establishment of paternity, including:

-   \(1\) Establishment of paternity in accordance with Tribal law
    codes, and/ or custom in accordance with § 309.100 of this part, as
    outlined in the approved Tribal IV--D plan;

    -   \(2\) Reasonable attempts to determine the identity of a child's
        father, such as:

    -   \(i\) Investigation;

    -   \(ii\) Development of evidence, including the use of genetic
        testing performed by accredited laboratories; and

    -   \(iii\) Pre-trial discovery;

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-   \(3\) Actions taken by a tribunal to establish paternity pursuant to
    procedures established by Tribal law, and/or codes or custom in
    accordance with § 309.100 of this part;

-   \(4\) Identifying accredited laboratories that perform genetic tests
    (as appropriate); and

-   \(5\) Referrals of cases to another Tribal IV--D agency or to a
    State to establish paternity when appropriate.

-   \(c\) Establishment, modification, and enforcement of support
    obligations, including:

-   \(1\) Investigation, development of evidence and, when appropriate,
    court or administrative actions;

-   \(2\) Determination of the amount of the support obligation
    (including determination of income and allowable non-cash support
    under Tribal IV--D guidelines, if appropriate);

-   \(3\) Enforcement of a support obligation, including those
    activities associated with collections and the enforcement of court
    orders, administrative orders, warrants, income withholding,
    criminal proceedings, and prosecution of fraud related to child
    support; and

-   \(4\) Investigation and prosecution of fraud related to child and
    spousal support cases receiving services under the IV--D plan.

-   \(d\) Collection and disbursement of support payments, including:

-   \(1\) Establishment and operation of an effective system for making
    collections and identifying delinquent cases and collecting from
    them;

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-   \(2\) Referral or transfer of cases to another Tribal IV--D agency
    or to a State IV--D program when appropriate; and

-   \(3\) Services provided for another Tribal IV--D program or for a
    State IV-- D program.

-   \(e\) Establishment and operation of a Tribal Parent Locator Service
    (TPLS) or agreements for referral of cases to a State PLS, another
    Tribal PLS, or the Federal PLS for location purposes.

-   \(f\) Activities related to requests to State IV--D programs for
    enforcement services for the Federal Income Tax Refund Offset.

-   \(g\) Establishing and maintaining case records.

-   \(h\) Automated data processing computer systems for:

-   \(1\) Planning efforts in the identification, evaluation, and
    selection of a new or replacement automated data processing computer
    system solution addressing the program requirements defined in a
    Tribal plan;

-   \(2\) Operation and maintenance of existing Tribal automated data
    processing computer systems;

-   \(3\) Procurement, installation, operation and maintenance of
    essential office automation capability;

-   \(4\) Establishment of intergovernmental agreements with States and
    Tribes for use of an existing automated data processing computer
    system necessary to support Tribal IV-- D program operations; and

-   \(5\) Other automation and automated data processing computer system
    costs in accordance with instructions and guidance issued by the
    Secretary.

-   \(i\) Staffing and equipment that are directly related to operating
    a Tribal IV-- D program.

-   \(j\) The portion of salaries and expenses of a Tribe's chief
    executive and staff that is directly attributable to managing and
    operating a Tribal IV--D program.

    -   \(k\) The portion of salaries and expenses of tribunals and
        staff that is directly related to required Tribal IV--D program
        activities.

    -   \(l\) Service of process.

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-   \(m\) Training on a short-term basis that is directly related to
    operating a Tribal IV--D program.

-   \(n\) Costs associated with obtaining technical assistance that are
    directly related to operating a IV--D program, from non-Federal
    third-party sources, including other Tribes, Tribal organizations,
    State agencies, and private organizations, and costs associated with
    providing such technical assistance to public entities.

-   \(o\) Any other costs that are determined to be reasonable,
    necessary, and allocable to the Tribal IV--D

program in accordance with the cost principles in OMB Circular A--87.
The total amount that may be claimed under the Tribal IV--D grant are
allowable direct costs, plus the allocable portion of allowable indirect
costs, minus any applicable credits.

-   \(1\) All claimed costs must be adequately documented; and

-   \(2\) A cost is allocable if the goods or services involved are
    assignable to the grant according to the relative benefit received.
    Any cost that is allocable to one Federal award may not be charged
    to other Federal awards to overcome funding deficiencies, or for any
    other reason.

**§ 309.150 What start-up costs are allowable for Tribal IV--D programs
carried out under § 309.65(b) of this part? **

Federal funds are available for costs of developing a Tribal IV--D
program, provided that such costs are reasonable, necessary, and
allocable to the program. Federal funding for Tribal IV--D program
development under § 309.65(b) may not exceed a total of \$500,000,
unless additional funding is provided pursuant to § 309.16(c). Allowable
start-up costs and activities include:

-   \(a\) Planning for the initial development and implementation of a
    Tribal IV--D program;

-   \(b\) Developing Tribal IV--D laws, codes, guidelines, systems, and
    procedures;

-   \(c\) Recruiting, hiring, and training Tribal IV--D program staff;
    and

-   \(d\) Any other reasonable, necessary, and allocable costs with a
    direct correlation to the initial development of a Tribal IV--D
    program, consistent with the cost principles in OMB Circular A-- 87,
    and approved by the Secretary.

**§ 309.155 What uses of Tribal IV--D program funds are not allowable?
**

Federal IV--D funds may not be used for:

-   \(a\) Activities related to administering other programs, including
    those under the Social Security Act;

-   \(b\) Construction and major renovations;

-   \(c\) Any expenditures that have been reimbursed by fees or costs
    collected, including any fee collected from a State;

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-   \(d\) Expenditures for jailing of parents in Tribal IV--D cases;

-   \(e\) The cost of legal counsel for indigent defendants in Tribal
    IV--D program actions;

-   \(f\) The cost of guardians ad litem in Tribal IV--D cases; and

-   \(g\) All other costs that are not reasonable, necessary, and
    allocable to Tribal IV--D programs, under the costs principles in
    OMB Circular A--87.

**Subpart E---Accountability and Monitoring **

**§ 309.160 How will OCSE determine if Tribal IV--D program funds are
appropriately expended? **

OCSE will rely on audits required by OMB Circular A--133, ''Audits of
States, Local Governments, and Non-Profit Organizations'' and 45 CFR
part 74. The Department has determined that this program is to be
audited as a major program in accordance with section 215(c) of the
circular. The Department may supplement the required audits through
reviews or audits conducted by its own staff.

**§ 309.165 What recourse does a Tribe or Tribal organization have to
dispute a determination to disallow Tribal IV--D program expenditures?
**

If a Tribe or Tribal organization disputes a decision to disallow Tribal
IV--D program expenditures, the grant appeals procedures outlined in 45
CFR part 16 are applicable.

**Subpart F---Statistical and Narrative Reporting Requirements **

**§ 309.170 What statistical and narrative reporting requirements apply
to Tribal IV--D programs? **

\(a\) Tribes and Tribal organizations operating a Tribal IV--D program
must submit to OCSE the *Child Support Enforcement Program: Quarterly
Report of Collections *(Form OCSE--34A). The reports for each of the
first three quarters of the funding period are due 30 days after the end
of each quarterly reporting period. The report for the fourth quarter is
due 90 days after the end of the fourth quarter of each funding period.

-   \(b\) Tribes and Tribal organizations must submit the following
    information and statistics for Tribal IV--D program activity and
    caseload for each annual funding period:

-   \(1\) Total number of cases and, of the total number of cases, the
    number that are State or Tribal TANF cases and the number that are
    non-TANF cases;

-   \(2\) Total number of out-of-wedlock births in the previous year and
    total number of paternities established or acknowledged;

-   \(3\) Total number of cases and the total number of cases with a
    support order;

-   \(4\) Total amount of current support due and collected;

-   \(5\) Total amount of past-due support owed and total collected;

    -   \(6\) A narrative report on activities, accomplishments, and
        progress of the program, including success in reaching the
        performance targets established by the Tribe or Tribal
        organization;

    -   \(7\) Total costs claimed;

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-   \(8\) Total amount of fees and costs recovered; and

-   \(9\) Total amount of laboratory paternity establishment costs.

-   \(c\) A Tribe or Tribal organization must submit Tribal IV--D
    program statistical and narrative reports required by paragraph (b)
    of this section no later than 90 days after the end of each funding
    period.

**PART 310---COMPREHENSIVE TRIBAL CHILD SUPPORT ENFORCEMENT (CSE)
PROGRAMS **

■ 6. The authority citation for part 310 continues to read as follows:

**Authority: **42 U.S.C. 655(f), 1302.

■ 7. Amend § 310.1 by adding a new paragraph (c) to read as follows:

**§ 310.1 What does this part cover? **

\* \* \* \* \*

\(c\) The regulations in this part apply only to grants for periods
prior to October 1, 2004.

\[FR Doc. 04--6457 Filed 3--29--04; 8:45 am\]

**BILLING CODE 4184--01--P **