8508 Federal Register / Vol. 75, No. 37 / Thursday, February 25, 2010 / Rules and Regulations 

DEPARTMENT OF HEALTH AND 

HUMAN SERVICES 

Administration for Children and 

Families 

45 CFR Parts 309 and 310 

RIN 0970–AC32 

Computerized Tribal IV–D Systems and 

Office Automation 

AGENCY: Office of Child Support 

Enforcement, Administration for 

Children and Families, Department of 

Health and Human Services (HHS). 

ACTION: Final rule. 

SUMMARY: This rule enables Tribes and 

Tribal organizations currently operating 

comprehensive Tribal Child Support 

Enforcement programs under Title IV–D 

of the Social Security Act (the Act) to 

apply for and receive direct Federal 

funding for the costs of automated data 

processing. This rule addresses the 

Secretary’s commitment to provide 

instructions and guidance to Tribes and 

Tribal organizations on requirements for 

applying for, and upon approval, 

securing Federal Financial Participation 

(FFP) in the costs of installing, 

operating, maintaining, and enhancing 

automated data processing systems. 

DATES: Effective Date: This rule is 

effective February 25, 2010. 

FOR FURTHER INFORMATION CONTACT: 

Paige Hausburg, 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 between 8 a.m. and 

7 p.m. Eastern Time. 

SUPPLEMENTARY INFORMATION: 

Statutory Authority 

This final regulation is published 

under the authority granted to the 

Secretary (the Secretary) of the 

Department of Health and Human 

Services (the Department) by section 

1102 of the Social Security Act (the 

Act), 42 U.S.C. 1302. Section 1102 of the 

Act authorizes the Secretary to publish 

regulations, not inconsistent with the 

Act, which may be necessary for the 

efficient administration of the Title IV– 

D program. 

This rule also is published in 

accordance with section 455(f) of the 

Act (42 U.S.C. 655(f)). Section 455(f) of 

the Act authorizes the Secretary to issue 

regulations governing grants to Tribes 

and Tribal organizations operating child 

support enforcement programs. 

Background 

On March 30, 2004 the Tribal Child 

Support Enforcement Program final rule 

was published in the Federal Register 

(69 FR 16638). We stated in our 

response to comments to the final rule 

(69 FR at 16652) that we had begun 

consideration with stakeholders of 

appropriate minimum Tribal systems 

automation specifications in 

anticipation of Tribal IV–D programs 

moving toward high-speed automated 

data processing. A Federal/Tribal 

workgroup was convened and 

considered such automation issues as 

compatibility, scale, functionality and 

costs, with a goal of developing a Model 

Tribal IV–D System, designed by the 

Office of Child Support Enforcement 

(OCSE) to allow comprehensive Tribal 

IV–D agencies to effectively and 

efficiently automate Tribal child 

support enforcement operations. 

This regulation sets forth 

requirements for comprehensive Tribal 

IV–D programs that must be met in 

order for Tribes and Tribal organizations 

to receive direct funding under section 

455(f) of the Act for automated data 

processing systems. This final 

regulation responds to public comments 

on the Notice of Proposed Rulemaking 

(NPRM) issued on June 11, 2008 (73 FR 

33048). 

Consultations/Public Comment Period 

on the Regulation 

To facilitate the communication and 

consultation process between the 

Federal government and Tribal 

governments, OCSE held one public 

informational meeting and three 

consultation sessions regarding the 

proposed rule on Computerized Tribal 

IV–D Systems and Office Automation. 

The informational meeting was held on 

June 11, 2008, when the NRPM was 

published, and the consultation sessions 

were held on June 27, July 8, and July 

9 of 2008. OCSE provided notice of 

open consultation regarding the 

proposed rule on Computerized Tribal 

IV–D Systems and Office Automation 

through informal and formal means. 

These included sending letters such as 

a Tribal Dear Colleague Letter (TDCL– 

08–01: http://www.acf.hhs.gov/ 

programs/cse/pol/TDCL/2008/tdcl-08- 

01.htm) to all Tribal IV–D Directors 

dated May 7, 2008, and a second letter 

addressing all Tribal leaders dated June 

4, 2008 as well as publication of a notice 

of open consultation in the Federal 

Register on June 10, 2008 (73 FR 32668). 

The informational meeting and 

consultations were successful in 

eliciting questions and concerns. 

The government-to-government 

consultations were very useful in 

identifying key issues of Tribal concern 

including the Tribal consultation 

process, piloting the Model Tribal IV–D 

System, access to Federal resources for 

support enforcement, increased Federal 

funding of Tribal automation and 

Federal access to Tribal systems. These 

issues are discussed in the Response to 

Comments section of this rule. 

Changes Made in Response to 

Comments 

We received 14 letters from 13 Tribal 

programs and one State, in addition to 

12 comments from the participants in 

the three Tribal consultations on the 

NPRM. We made the following changes 

to the proposed regulation in response. 

We agreed with commenters’ suggestion 

to increase FFP in the costs of installing 

the Model Tribal IV–D System to 90 

percent matching of the pre-approved 

cost of installation by revising 

§ 309.130(c)(3). We also agreed with 

commenters that a Tribal IV–D agency 

seeking FFP in the operation and 

maintenance costs of a Tribally-funded 

system as described in § 309.145(h)(5) 

should not be subject to all the license 

requirements in § 310.25(c). 

Accordingly, we revised § 309.145(h)(5) 

by narrowing the Software and 

Ownership Rights reference from 

§ 310.25(c) as stated in the NPRM to 

§ 310.25(c)(1) in this final rule. Under 

§ 310.25(c)(1), a Tribal IV–D agency 

seeking FFP in operation and 

maintenance costs must ensure that all 

procurement and contract instruments 

include a clause that provides that the 

comprehensive Tribal IV–D agency will 

have all ownership rights to the 

Computerized Tribal IV–D System 

software or enhancements. The final 

rule does not require a Tribal IV–D 

agency to follow the licensing 

requirements in § 310.25(c)(2) as a 

condition of receiving FFP in the costs 

of operation and maintenance of a 

Tribally-funded system. In addition, a 

technical change was made to 

§ 310.15(a) to clarify which safeguarding 

requirements a Tribal IV–D agency must 

include in written policies and 

procedures. These changes are 

discussed in more detail under the 

Response to Comments section of this 

preamble. 

Provisions of the Regulation 

Part 309—Tribal Child Support 

Enforcement (IV–D) Program 

Section 309.130 How will Tribal IV–D 

programs be funded and what forms are 

required? 

This regulation revises paragraph (c) 

of § 309.130 by referencing the Federal 

share of pre-approved installation costs 

for the Model Tribal IV–D System. As 

indicated earlier, in response to 

comments suggesting that FFP in the 


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costs of Tribal automation be increased 

from the applicable matching rate as 

defined in § 309.130(c), we have added 

subparagraphs (i) and (ii) to 

§ 309.130(c)(3) of the final rule. Section 

309.130(c)(3)(i) provides that for all 

periods following the three-year period 

(a timeframe under which a Tribal IV– 

D agency may receive 90 percent 

Federal funding as specified in 

paragraph (c)(2)), 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, except as 

provided in paragraph (ii). Under 

§ 309.130(c)(3)(ii), a Tribe or Tribal 

organization will receive Federal grant 

funds equal to 90 percent of preapproved costs of installing the Model 

Tribal IV–D System. The comments 

requesting increased Federal funding for 

Tribal automation and changes to the 

applicable matching rate are discussed 

in more detail in the Response to 

Comments section. 

Section 309.145 What costs are 

allowable for Tribal IV–D programs 

carried out under § 309.65(a) of this 

part? 

Under § 309.145, Federal funds are 

available for the costs of operating a 

Tribal IV–D program under an approved 

Tribal IV–D application carried out 

under § 309.65(a), provided that such 

costs are determined by the Secretary to 

be reasonable, necessary, and allocable 

to the program. Allowable activities and 

costs for Tribal automated data 

processing computer systems, addressed 

in paragraph (h) of this section, include 

planning efforts in the identification, 

evaluation, and selection of an 

automated data processing computer 

system solution meeting the program 

requirements defined in a Tribal IV–D 

plan and the automated systems 

requirements in part 310; installation, 

operation, maintenance and 

enhancement of a Model Tribal IV–D 

System as defined in and meeting the 

requirements of part 310; procurement, 

installation, operation and maintenance 

of essential Office Automation 

capability; establishment of 

Intergovernmental Service Agreements 

with a State and another comprehensive 

Tribal IV–D agency for access to the 

State or other Tribe’s existing automated 

data processing computer system to 

support Tribal IV–D program 

operations, and reasonable costs 

associated with use of such a system; 

operation and maintenance of a Tribal 

automated data processing system 

funded entirely with Tribal funds if the 

software ownership rights and license 

requirements in § 310.25(c)(1) are met; 

and other automation and automated 

data processing computer system costs 

in accordance with instructions and 

guidance issued by the Secretary. 

Part 310—Computerized Tribal IV–D 

Systems and Office Automation 

Section 310.0 What does this part 

cover? 

This section addresses the conditions 

for Federal funding and requirements 

governing Computerized Tribal IV–D 

Systems and Office Automation. These 

include the automated systems options 

for comprehensive Tribal IV–D 

programs; the functional requirements 

for the Model Tribal IV–D System; the 

security and privacy requirements for 

Computerized Tribal IV–D Systems and 

Office Automation; the conditions for 

funding the installation, operation, 

maintenance, and enhancement of 

Computerized Tribal IV–D Systems and 

Office Automation; the conditions that 

apply to acquisitions of Computerized 

Tribal IV–D Systems; and the 

accountability and monitoring of 

Computerized Tribal IV–D Systems. 

Section 310.1 What definitions apply 

to this part? 

Section 310.1(a) defines the following 

terms used in Part 310: Automated Data 

Processing Services (ADP Services); 

Comprehensive Tribal IV–D Agency; 

Computerized Tribal IV–D System; 

Installation; Maintenance; Model Tribal 

IV–D System; Office Automation; 

Reasonable Cost; Service Agreement; 

and Simplified Acquisition Threshold. 

Section 310.1(b) references the 

following terms defined in 45 CFR 

95.605, General Administration—Grant 

Programs, and applies these terms to 

Part 310: Acquisition; Advance 

Planning Document (APD); Automated 

Data Processing (ADP); Design or 

System Design; Development; 

Enhancement; Federal Financial 

Participation (FFP); Operation; Project; 

Software; and Total Acquisition Cost. 

These terms are the terms in Part 95 that 

are appropriately applicable to Tribal 

IV–D programs and will ensure that a 

reasonably consistent approach will be 

maintained among State, Local and 

Tribal grantees with regard to ADP 

systems acquisitions, while still 

maintaining flexibility for Tribes and 

Tribal organizations to determine their 

own best solution to automating their 

comprehensive Tribal IV–D programs. 

Section § 310.1(c) cross-references all 

definitions of terms that apply to Tribal 

IV–D programs in § 309.05 because 

these terms are also applicable in Part 

310. Similarly, the definitions in this 

rule should apply to Part 309. 

Subpart B—Requirements for 

Computerized Tribal IV–D Systems 

Section 310.5 What options are 

available for Computerized Tribal IV–D 

Systems and Office Automation? 

This section of the rule sets forth 

options available to comprehensive 

Tribal IV–D agencies for the purpose of 

automating Tribal IV–D activities. We 

recognize the importance and benefits of 

integrating automation in the daily 

operations of comprehensive Tribal IV– 

D programs. To that end, § 310.5(a) 

allows a comprehensive Tribal IV–D 

agency to have in effect an operational 

computerized support enforcement 

system that meets Federal requirements 

under Part 310. 

Section 310.5(b) requires that a 

Computerized Tribal IV–D System must 

be one of the design options discussed 

in paragraphs (b)(1) and (b)(2). This 

provision would not preclude a Tribe 

from proposing a hybrid solution as 

long as the functional components are 

not duplicative or unreasonable in cost. 

In addition, OCSE recognizes that there 

may be situations wherein multiple 

systems may be in use during a 

reasonable transition period from one 

automated system to another. Under 

paragraph (b)(1), a comprehensive 

Tribal IV–D program may automate its 

case processing and record-keeping 

processes through installation, 

operation, maintenance, or 

enhancement of the Model Tribal IV–D 

System designed by OCSE to address 

the program requirements defined in a 

Tribal IV–D plan in accordance with 

§ 309.65(a) and the functional 

requirements in proposed § 310.10. 

Under § 310.5(b)(2), a comprehensive 

Tribal IV–D program may elect to 

automate its case processing and recordkeeping processes through the 

establishment of Intergovernmental 

Service Agreements with a State or 

another comprehensive Tribal IV–D 

agency for access to that agency’s 

existing automated data processing 

computer system to support 

comprehensive Tribal IV–D program 

operations. 

In § 310.5(c), a comprehensive Tribal 

IV–D agency may opt to conduct 

automated data processing and recordkeeping activities through Office 

Automation. Allowable activities under 

this paragraph include procurement, 

installation, operation and maintenance 

of essential Office Automation 

capability as defined in § 310.1. 

In full recognition of Tribal 

sovereignty, § 310.5(d) affirms that a 


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comprehensive Tribal IV–D agency may 

design, develop, procure, or enhance an 

automated data processing system 

funded entirely with Tribal funds. An 

automated data processing system 

funded entirely with Tribal funds would 

not be obligated to meet the 

requirements detailed in this rule, 

although a comprehensive Tribal IV–D 

agency may adopt all or some of the 

system specifications laid-out in this 

rule in order to facilitate as much 

consistency in State and comprehensive 

Tribal IV–D automated data processing 

systems as possible. 

Section 310.10 What are the functional 

requirements for the Model Tribal IV–D 

System? 

Section 310.10 identifies the 

minimum functional requirements 

which a comprehensive Tribal IV–D 

agency must meet in the operation of a 

Model Tribal IV–D System. 

Comprehensive Tribal IV–D agencies 

that have elected to automate case 

processing and recordkeeping activities 

through a manner other than the Model 

Tribal IV–D System, as defined in 

§ 310.1, will not be subject to the 

requirements presented in this section 

of the rule. All comprehensive Tribal 

IV–D agencies, regardless of automation 

choice, will continue to be responsible 

for meeting the programmatic 

requirements found in Part 309 titled 

Tribal Child Support Enforcement (IV– 

D) Program. 

The system requirements discussed in 

this section are based on the functional 

requirements for computerized support 

enforcement systems regulated in 

§§ 307.10 and 307.11 for State IV–D 

programs. Determination of which 

functional requirements are mandatory 

in a Model Tribal IV–D System was 

based on careful examination of State 

automated systems, Tribal IV–D 

program regulations, and costeffectiveness analyses, as well as strong 

consideration of which comprehensive 

Tribal IV–D activities would benefit 

most from automation, given the varying 

sizes of eligible Tribes and Tribal 

organizations. 

Under § 310.10(a), a Model Tribal IV– 

D System must accept, maintain and 

process the actions in the child support 

collection and paternity determination 

processes under the Tribal IV–D plan, 

including identifying information; 

verifying information; maintaining 

information; and maintaining data. 

These are essential elements of 

automated case processing which are 

necessary to meet the fundamental 

objectives of the Tribal Child Support 

Enforcement program, including 

establishing paternity, establishing and 

enforcing support orders, and collecting 

child support payments. 

Under paragraph (b), a Model Tribal 

IV–D System must update, maintain and 

manage all IV–D cases under the Tribal 

IV–D plan from initial application or 

referral through collection and 

enforcement including any events, 

transactions, or actions taken therein. 

This requirement is especially critical in 

relation to Subpart D, § 310.40 which 

addresses accountability and monitoring 

procedures for Computerized Tribal IV– 

D Systems. 

Section 310.10(c) requires a Model 

Tribal IV–D System to record and report 

any fees collected, either directly or by 

interfacing with State or Tribal financial 

management and expenditure 

information. The Model Tribal IV–D 

System must have the capacity to record 

and report costs of any fees collected to 

help ensure accurate and complete 

accounting of expenditures under a 

Tribal IV–D program that are funded in 

part with Federal funds. 

Paragraph (d) requires that a Model 

Tribal IV–D System must have 

minimum system specifications which 

allow for the distribution of current 

support and arrearage collections in 

accordance with Federal regulations at 

§ 309.115 and Tribal laws. We consider 

distribution of collected child support 

payments to be one of the 

comprehensive Tribal IV–D activities 

that would benefit most from 

automation. Automated distribution of 

collections would ensure families 

receive the support owed to them and 

minimize the need for manual 

processing of child support payments, 

which can be a time-consuming and 

burdensome task for comprehensive 

Tribal IV–D programs. Additionally, 

automated distribution of collections 

would facilitate more efficient and costeffective communications in intra-tribal 

and intergovernmental case processing. 

Under paragraph (e)(1), the Model 

Tribal IV–D System must maintain, 

process and monitor accounts receivable 

on all amounts owed, collected, and 

distributed with regard to detailed 

payment histories that include the 

amount of each payment, date of each 

collection, method of payment, 

distribution of payments and date of 

each disbursement. Under paragraph 

(e)(2), the Model Tribal IV–D System 

must have the capacity to perform 

automated income withholding 

activities including recording and 

maintaining information on payment 

default, generating the Standard Federal 

Income Withholding Form and 

allocating amounts received by income 

withholding according to §§ 309.110 

and 309.115, which respectively cover 

procedures governing income 

withholding and distribution of child 

support collections as specified in each 

Tribal IV–D plan. 

Section § 310.10(f) requires that a 

Model Tribal IV–D System maintain and 

automatically generate data necessary to 

meet Federal reporting requirements on 

a timely basis as prescribed by OCSE. At 

a minimum this includes (1) yearly 

notices on support collected, which are 

itemized by month of collection and 

provided to families receiving services 

under the comprehensive Tribal IV–D 

program as required in § 309.75(c), to all 

case participants regarding support 

collections; and (2) reports submitted to 

OCSE for program monitoring and 

program performance as required in 

§ 309.170. Without the proposed Model 

Tribal IV–D System, comprehensive 

Tribal IV–D agencies would rely on 

manual systems or Office Automation to 

manage the Federal reporting 

requirements and payment records 

which require meticulous attention to 

detail. 

Under paragraph (g), a Model Tribal 

IV–D System will be required to provide 

automated processes to enable OCSE to 

monitor Tribal IV–D program operations 

and to assess program performance 

through the audit of financial and 

statistical data maintained by the 

system. This requirement is especially 

critical in relation to Subpart D, § 310.40 

which addresses accountability and 

monitoring procedures for 

Computerized Tribal IV–D Systems. 

In paragraph (h), the Model Tribal IV– 

D System must provide security to 

prevent unauthorized access to, or use 

of, the data in the system as detailed in 

§ 310.15 discussed below. This 

requirement is necessary because 

comprehensive Tribal IV–D agencies 

may receive sensitive, personal 

information from Federal, State, or 

Tribal locate sources in intergovernmental cases or from parents 

seeking the Tribal IV–D program’s 

assistance in securing support for 

children. This requirement compliments 

existing safeguarding requirements in 

§ 309.80, What safeguarding procedures 

must a Tribe or Tribal organization 

include in a Tribal IV–D plan? which 

applies to all comprehensive Tribal IV– 

D agencies. Federal, State and Tribal 

programs are entrusted with personal 

information critical to accomplish 

program goals and it is imperative that 

personal data be safeguarded to ensure 

privacy and maintain the public trust. 

We also would emphasize that no 

Federal Tribal IV–D program 

requirement obligates comprehensive 

Tribal IV–D agencies to disclose, or 

otherwise make accessible, their Tribal 


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enrollment records for the purposes of 

providing child support enforcement 

services or automating child support 

enforcement activities. 

Section 310.15 What are the 

safeguards and processes that 

comprehensive Tribal IV–D agencies 

must have in place to ensure the 

security and privacy of Computerized 

Tribal IV–D Systems and Office 

Automation? 

This section details the safeguarding 

requirements that a comprehensive 

Tribal IV–D agency, which is using a 

Computerized Tribal IV–D System or 

Office Automation, must have in place 

to ensure the security and 

confidentiality of information accessible 

through Federal, State, and Tribal 

sources. This section is taken from 

§ 307.13 which addresses security and 

confidentiality for State computerized 

support enforcement systems and is 

revised to apply to automation for 

comprehensive Tribal IV–D programs. A 

comprehensive Tribal IV–D agency must 

also follow the safeguarding 

requirements under the Tribal Child 

Support Enforcement (IV–D) program 

rule found in § 309.80. 

Under paragraph (a) of this section, 

the comprehensive Tribal IV–D agency 

must safeguard the integrity, accuracy, 

completeness, access to, and use of data 

in the Computerized Tribal IV–D 

System and Office Automation. The 

Tribal IV–D agency should ensure that 

the Computerized Tribal IV–D Systems 

and Office Automation comply with the 

requirements of the Federal Information 

Security Management Act and the 

Privacy Act. These safeguards must 

include written policies and procedures 

concerning: (1) Periodic evaluations of 

the system for risk of security and 

privacy breaches; (2) procedures to 

allow Tribal IV–D personnel controlled 

access and use of IV–D data including 

(i) specifying the data which may be 

used for particular IV–D program 

purposes and the personnel permitted 

access to such data and (ii) permitting 

access to and use of data for the purpose 

of exchanging information with State 

and Tribal agencies administering 

programs under titles IV–A, IV–E and 

XIX of the Act to the extent necessary 

to carry out the comprehensive Tribal 

IV–D agency’s responsibilities with 

respect to such programs; (3) 

maintenance and control of application 

software program data; (4) mechanisms 

to back-up and otherwise protect 

hardware, software, documents, and 

other communications; and (5) 

mechanisms to report breaches or 

suspected breaches of personally 

identifiable information to the 

Department of Homeland Security and 

respond. We added the phrase ‘‘or 

suspected breaches’’ to the regulatory 

language in paragraph (a)(5) of this 

section for clarification and consistency 

with the preamble language. We also 

note that in response to comments that 

the introductory language in § 310.15(a) 

needed clarification as to which 

safeguarding requirements must be 

included in written policies and 

procedures, we replaced ‘some of the 

required safeguards’ with ‘the required 

safeguards’ for clarity. 

Paragraph (b) requires that the 

comprehensive Tribal IV–D agency 

monitor routine access to and use of the 

Computerized Tribal IV–D System and 

Office Automation through methods 

such as audit trails and feedback 

mechanisms to guard against, and 

promptly identify, unauthorized access 

or use. This safeguard is consistent with 

the security and privacy measures 

required in the State computerized 

support enforcement systems found in 

§ 307.13 and is an appropriate aspect of 

information security. 

Section 310.15(c) requires a 

comprehensive Tribal IV–D agency to 

have procedures to ensure that all 

personnel, including Tribal IV–D staff 

and contractors, who may have access to 

or be required to use confidential 

program data in the Computerized 

Tribal IV–D System and Office 

Automation are adequately trained in 

security procedures. This safeguarding 

requirement is consistent with the 

security and privacy measures required 

in the State computerized support 

enforcement systems in § 307.13 and is 

equally critical to Tribal automated 

systems. Staff members and contractors 

of comprehensive Tribal IV–D agencies 

using the Computerized Tribal IV–D 

System or Office Automation should 

demonstrate knowledge of strategies 

that would ensure the security and 

privacy of sensitive information. 

In paragraph (d) of this section, the 

comprehensive Tribal IV–D agency must 

have administrative penalties, including 

dismissal from employment, for 

unauthorized access to, disclosure or 

use of confidential information. This 

aspect of the security and privacy 

safeguarding requirements reflects our 

position that security and privacy of 

child support enforcement-related 

information is paramount to the 

integrity of the system. 

Subpart C—Funding for Computerized 

Tribal IV–D Systems and Office 

Automation 

Section 310.20 What are the 

conditions for funding the installation, 

operation, maintenance and 

enhancement of Computerized Tribal 

IV–D Systems and Office Automation? 

This section of the rule establishes 

conditions that must be met in order for 

a comprehensive Tribal IV–D agency to 

obtain Federal funding in the costs of 

installation, operation, maintenance and 

enhancement of Computerized Tribal 

IV–D Systems and Office Automation. 

This section is derived from §§ 307.15 

and 307.20, governing State automated 

systems, and is appropriately revised to 

specifically apply to the needs of 

comprehensive Tribal IV–D programs. 

Sections 307.15 and 307.20, 

respectively, address conditions for 

approval of Advance Planning 

Documents (APD) and submittal of 

APDs for State computerized support 

enforcement systems. Section 310.20 

addresses procedures for submittal of an 

APD to the Department. OCSE uses the 

APD process to help meet its fiduciary 

responsibility to ensure that the costs 

associated with all automated data 

processing systems acquisitions, 

including Computerized Tribal IV–D 

Systems, are reasonable and necessary. 

Just as OCSE requires States to request 

funding in an APD for acquisition of a 

computerized child support 

enforcement system, documenting such 

factors as project cost, risk, resources, 

and schedule, those same factors 

equally apply to OCSE’s review and 

approval of the installation, operation, 

maintenance and enhancement of 

Computerized Tribal IV–D Systems. For 

this reason, the APD process is 

incorporated into this rule as applicable 

and necessary to acquisitions of such 

systems in comprehensive Tribal IV–D 

programs. 

Section 310.20(a) lays out conditions 

that must be met for 90 percent FFP in 

the costs of installation of the Model 

Tribal IV–D System and 80 or 90 

percent FFP (referred to as the 

applicable matching rate), as 

appropriate, in the costs of operation, 

maintenance, and enhancement of a 

Computerized Tribal IV–D System. The 

applicable matching rate as defined in 

§ 309.130(c) refers to the total amount of 

approved and allowable expenditures 

for which a comprehensive Tribal IV–D 

program would be eligible to receive 

Federal grant funds in the costs of 

administering the Tribal IV–D program, 

including Computerized Tribal IV–D 

Systems and Office Automation. Except 

for the costs of installation of the Model 


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Tribal IV–D System described below, 

the applicable matching rate would be 

90 percent for comprehensive Tribal IV– 

D programs that are operating within the 

first three-year period of Federal 

funding, and the applicable matching 

rate would be 80 percent for 

comprehensive Tribal IV–D programs 

operating in all periods following the 

first three-year period. As previously 

mentioned, paragraph § 310.20(a) was 

revised in response to comments to 

reference 90 percent FFP for the preapproved costs of installation of the 

Model Tribal IV–D System under 

§ 309.130(c). This change is discussed in 

more detail under the Response to 

Comments section of the preamble. 

Paragraph (a)(1) states that a 

comprehensive Tribal IV–D agency must 

have submitted, and OCSE must have 

approved, an APD for the installation 

and enhancement of a Computerized 

Tribal IV–D System. Under paragraph 

(a)(2), an APD for installation of a 

Computerized Tribal IV–D System must: 

(i) Represent the sole systems effort 

being undertaken by the comprehensive 

Tribal IV–D agency under part 310; (ii) 

describe the projected resource 

requirements for staff, hardware, 

software, network connections and 

other needs and the resources available 

or expected to be available to meet the 

requirements; (iii) contain a proposed 

schedule of project milestones with 

detail sufficient to describe the tasks, 

activities, and complexity of the initial 

implementation project; (iv) contain a 

proposed budget including a description 

of expenditures by category and amount 

for items related to installing, operating, 

maintaining, and enhancing the 

Computerized Tribal IV–D System; and 

(v) contain a statement that the 

comprehensive Tribal IV–D agency 

agrees in writing to use the 

Computerized Tribal IV–D System for a 

minimum period of time. This last 

requirement, to agree in writing to use 

the Computerized Tribal IV–D System 

for a minimum period of time, is 

derived from 45 CFR 95.619. Under 

§ 95.619, automated data processing 

systems designed, developed, or 

installed with FFP shall be used for a 

period of time specified in the APD, 

unless the Department determines that a 

shorter period is justified. The 

requirement for the APD to contain an 

agreement by a Tribal IV–D program to 

use the Computerized Tribal IV–D 

System for a minimum period of time 

assures both the Federal and Tribal 

governments of a reasonable return on 

investment relative to the Total 

Acquisition Cost of the Computerized 

Tribal IV–D System. 

In addition to the above requirements, 

paragraph (a)(3) includes the following 

conditions which must be met to obtain 

FFP in the installation costs of access to 

a State or another comprehensive Tribal 

IV–D program’s ADP system established 

under an Intergovernmental Service 

Agreement. The comprehensive Tribal 

IV–D agency must, under paragraph (i), 

maintain a copy of each 

intergovernmental cooperative 

agreement and Service Agreement in its 

files for Federal review. Under 

paragraph (ii), the comprehensive Tribal 

IV–D agency must ensure that: (A) The 

Service Agreement for which FFP is 

being sought meets the definition of a 

Service Agreement as defined in § 310.1; 

(B) claims for FFP conform to the timely 

claim provisions of 45 CFR Part 95, 

Subpart A; and (C) the Service 

Agreement was not previously 

disapproved by the Department. In 

deriving from 45 CFR Part 95, Subpart 

A, the requirements to be met to obtain 

FFP in the cost of access to another 

State or Tribal IV–D program’s ADP 

system, we are ensuring a common 

understanding and consistency of 

approach to securing, documenting and 

maintaining FFP approval of such 

intergovernmental cooperative 

agreements. 

Under paragraph (a)(4), the following 

conditions must be met in order for a 

comprehensive Tribal IV–D agency to 

obtain FFP in the costs of enhancements 

to its Computerized Tribal IV–D System: 

(i) the project’s Total Acquisition Cost 

cannot exceed the comprehensive Tribal 

IV–D agency’s total Tribal IV–D program 

grant award for the year in which the 

acquisition request is made; and (ii) the 

APD budget, schedule and commitment 

to use the Computerized Tribal IV–D 

System for a specified minimum period 

of time must be updated to reflect the 

enhancement project. These additional 

APD requirements to obtain FFP in the 

cost of enhancements to an existing 

Computerized Tribal IV–D System 

reflect the need to ensure both 

continued cost reasonableness and 

ongoing return on investment given a 

Computerized Tribal IV–D System’s 

increased Total Acquisition Cost. 

Paragraph (a)(5) requires that to 

receive FFP in the costs of the operation 

and maintenance of a Computerized 

Tribal IV–D System installed under 

§ 310.20 or developed under 

§ 309.145(h)(5), which refers to a Tribal 

automated data processing system that 

is funded entirely with Tribal funds, the 

comprehensive Tribal IV–D agency must 

include operation and maintenance 

costs in its annual Title IV–D program 

budget submission in accordance with 

§ 309.15(c) wherein requirements for 

annual budget submissions are detailed. 

In addition, paragraph (a)(6) requires 

that in order to receive FFP in the costs 

of the installation, operation, and 

maintenance of essential Office 

Automation capabilities, the 

comprehensive Tribal IV–D agency must 

include such costs in its annual Title 

IV–D program budget submission in 

accordance with § 309.15(c). Currently, 

States maintaining their computerized 

IV–D systems in an operation and 

maintenance-only mode may close their 

APD and thereafter request FFP for their 

operation and maintenance costs 

through specific line-item submissions 

in their ‘‘Quarterly Report of 

Expenditures and Estimates,’’ (OCSE 

Form 396A). Given the efficacy of this 

existing procedure used with States, and 

the predictability and general 

reasonableness of such costs, a similar 

process for Tribes to request FFP for 

operation and maintenance cost 

reimbursement is appropriate. 

Therefore, this rule allows Tribes to 

request FFP in the costs of installation, 

operation, and maintenance of essential 

Office Automation capabilities, an 

inherently operational activity, through 

a comprehensive Tribal IV–D agency’s 

Title IV–D program budget submission, 

‘‘Budget Information—Non-Construction 

Programs,’’ (OCSE Form SF 424A) in 

accordance with requirements listed at 

§ 309.15(c). 

The gradated variation in conditions 

that must be met in order to obtain FFP 

in the costs of the activities under 

paragraph (a) are designed to reflect the 

varying automation levels of 

comprehensive Tribal IV–D agencies. 

For example, the conditions that a 

comprehensive Tribal IV–D agency will 

be required to meet in order to obtain 

FFP in the costs of installing Office 

Automation would be less involved 

than the conditions required for a 

comprehensive Tribal IV–D agency that 

is requesting FFP in the installation 

costs of accessing a State or another 

comprehensive Tribal IV–D program’s 

ADP system. Section § 310.20 provides 

comprehensive Tribal IV–D agencies 

with the flexibility to determine which 

automation approaches and application 

procedures best suit the programspecific needs of that Tribe or Tribal 

organization. The provisions in § 310.20 

are consistent with Tribal IV–D program 

staff input to reduce the burden of the 

APD application process. 

Provisions under § 310.20(b) describe 

the required procedures for submittal of 

an APD. Paragraph (b) states that the 

comprehensive Tribal IV–D agency must 

submit an APD for a Computerized 

Tribal IV–D System to the 


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Commissioner of OCSE, Attention: 

Division of State and Tribal Systems. 

The APD submitted by the 

comprehensive Tribal IV–D agency must 

be approved and signed by the 

comprehensive Tribal IV–D agency 

Director and the appropriate Tribal 

officials prior to submission to OCSE for 

approval. The above procedures for 

submitting an APD would ensure that 

the proper authorities representing the 

Tribe or Tribal organization agree with 

the details in the APD application 

documents and that the Program 

Director and appropriate Tribal officials 

are aware of the responsibilities in 

acquiring automation for the Tribal IV– 

D program. 

Section 310.25 What conditions apply 

to acquisitions of Computerized Tribal 

IV–D Systems? 

This section details specific 

conditions that must be met in the 

acquisition process of Computerized 

Tribal IV–D Systems. This section is 

derived from and comparable to 

§ 307.31 and 45 CFR 95.617 which are 

respectively titled FFP at the 80 Percent 

Rate for Computerized [State] Support 

Enforcement Systems and Software and 

Ownership Rights. This section applies 

to Comprehensive Tribal IV–D agencies 

that have elected to automate program 

activities through the Model Tribal IV– 

D System or Intergovernmental Service 

Agreements. It does not apply to 

Comprehensive Tribal IV–D agencies 

that have elected to automate program 

activities through Office Automation or 

another alternative to Computerized 

Tribal IV–D Systems as discussed in 

§ 310.5. 

In paragraph (a), APD Approval, a 

comprehensive Tribal IV–D agency must 

have an approved APD in accordance 

with the applicable requirements of 

§ 310.20 prior to initiating acquisition of 

a Computerized Tribal IV–D System. 

This requirement safeguards all parties 

involved by ensuring that authorities 

from the Tribe or Tribal organization 

and the Department are in agreement 

about the use, funding, and parameters 

of each comprehensive Tribal IV–D 

agency’s specific plan for automating 

case-processing and record-keeping 

program activities. 

Under § 310.25(b), Procurements, 

Requests for Proposals (RFP) and similar 

procurement documents, contracts, and 

contract amendments involving costs 

eligible for FFP, must be submitted to 

OCSE for approval prior to release of the 

procurement document, and prior to the 

execution of the resultant contract when 

a procurement is anticipated to or will 

exceed the Simplified Acquisition 

Threshold. The Simplified Acquisition 

Threshold for ADP systems, equipment, 

and service acquisitions is defined in 

§ 310.1(a)(10) as a Tribe or Tribal 

organization’s monetary threshold for 

determining whether competitive 

acquisition rules are required for a given 

procurement or $100,000, whichever is 

less. The Simplified Acquisition 

Threshold represents the maximum 

amount of monies that a comprehensive 

Tribal IV–D agency may expend without 

submitting the subject solicitation 

document (RFP, etc.) and resultant 

contract to OCSE for review and written 

approval prior to its execution. As 

previously stated in this rule, the 

Simplified Acquisition Threshold is 

derived from 45 CFR 92.36(d)(1), which 

references small purchase procedures as 

a procurement method for securing 

items of cost not exceeding the 

Simplified Acquisition Threshold fixed 

at 41 U.S.C. 403(11) (currently 

$100,000). This is appropriately adapted 

for this rule because of the need to 

ensure full and open competition in 

acquisitions in accordance with 45 CFR 

92.36(c), and to ensure consistency with 

regulations at 45 CFR 95.611(b) 

governing State ADP acquisitions 

funded at enhanced FFP rates of 

reimbursement. 

Section 310.25(c) is titled Software 

and Ownership Rights. Under paragraph 

(c)(1) all procurement and contract 

instruments must include a clause that 

provides that the comprehensive Tribal 

IV–D agency will have all ownership 

rights to Computerized Tribal IV–D 

System software or enhancements 

thereof and all associated 

documentation designed, developed, or 

installed with FFP. Intergovernmental 

Service Agreements are not subject to 

this requirement. The exception for 

Intergovernmental Service Agreements 

ensures consistent application of 

current policy among all grantees, State 

and Tribal, and is derived from current 

Federal regulations at 45 CFR 95.613(b) 

that exempt Service Agreements from 

the procurement standards applicable to 

State acquisitions of ADP equipment 

and services. Paragraph (c)(2) states that 

OCSE reserves a royalty-free, 

nonexclusive, and irrevocable license to 

reproduce, publish, or otherwise use 

and to authorize others to use for 

Federal Government purposes, such 

software, modifications and 

documentation developed under this 

part. Under paragraph (c)(3) FFP is not 

available for the costs of rental or 

purchase of proprietary application 

software developed specifically for a 

Computerized Tribal IV–D System. 

Commercial-off-the-shelf (COTS) 

software packages that are sold or leased 

to the general public at established 

catalog or market prices are not subject 

to the ownership and license provisions 

of this requirement. These requirements 

are not unique to Child Support 

Enforcement regulations. Rather, these 

requirements are a restatement of 

current Departmental regulations that 

apply to all automated systems 

acquisitions. Federal policy in this area, 

as stated in Federal regulations at 45 

CFR 92.34 and 95.617, and as restated 

in child support automation regulations 

for State IV–D programs at 45 CFR 

307.30 and 45 CFR 307.31, best protects 

Federal interest in IV–D and other 

Federal systems development efforts. 

Under paragraph (d) of this section, 

Requirements for acquisitions under the 

threshold amount, a comprehensive 

Tribal IV–D agency is not required to 

submit procurement documents, 

contracts, and contract amendments for 

acquisitions under the Simplified 

Acquisition Threshold, unless 

specifically requested to do so in 

writing by OCSE. 

Section 310.30 Under what 

circumstances would FFP be suspended 

or disallowed in the costs of 

Computerized Tribal IV–D Systems? 

This section of the rule identifies 

circumstances under which OCSE 

would suspend or disallow FFP in the 

costs of Computerized Tribal IV–D 

Systems. The content of this section is 

derived from § 307.40, which is titled 

Suspension of Approval of Advance 

Planning Documents for Computerized 

Support Enforcement Systems, and 

addresses suspension and disallowance 

of FFP in the costs of State 

computerized child support 

enforcement systems. This section 

applies to comprehensive Tribal IV–D 

agencies that have elected to automate 

program activities through the Model 

Tribal IV–D System or 

Intergovernmental Service Agreements. 

It does not apply to Office Automation 

enhancements or another alternative to 

Computerized Tribal IV–D Systems as 

discussed in § 310.5. 

Paragraph (a) of this section, 

Suspension of APD approval, states that 

OCSE will suspend approval of the APD 

for a Computerized Tribal IV–D System 

approved under Part 310 as of the date 

that the system ceases to comply 

substantially with the criteria, 

requirements, and other provisions of 

the APD. OCSE will notify a Tribal IV– 

D agency in writing of a notice of 

suspension, with such suspension 

effective as of the date on which there 

is no longer substantial compliance. The 

intent of OCSE is to minimize the 

likelihood of suspension of a 


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comprehensive Tribal IV–D agency’s 

APD by engaging in supportive efforts 

such as technical assistance, policy 

guidance, and on-going communication 

and collaboration between the 

comprehensive Tribal IV–D agency and 

OCSE. Such preventive efforts will 

likely facilitate early identification of 

difficulties associated with a 

Computerized Tribal IV–D System and 

the corresponding APD and thereby 

assist OCSE and the comprehensive 

Tribal IV–D agency in taking 

appropriate corrective action, before 

more serious measures, such as 

suspension of funding, become 

necessary. 

Paragraph (b), Suspension of FFP, 

states that if OCSE suspends approval of 

an APD in accordance with Part 310 

during the installation, operation, or 

enhancement of a Computerized Tribal 

IV–D System, FFP will not be available 

in any expenditure incurred under the 

APD after the date of the suspension 

until the date OCSE determines that the 

comprehensive Tribal IV–D agency has 

taken the actions specified in the notice 

of suspension described in paragraph 

(a). OCSE will notify the comprehensive 

Tribal IV–D agency in writing upon 

making such a determination. This 

provision ensures that Federal funding 

is managed and distributed in the most 

productive, efficient and cost-effective 

manner possible, and that OCSE has the 

means necessary to enforce its fiduciary 

responsibilities. 

Section 310.35 Under what 

circumstances would emergency FFP be 

available for Computerized Tribal IV–D 

Systems? 

Under this section, emergency FFP in 

the costs of Computerized Tribal IV–D 

Systems and Office Automation would 

be available for qualifying 

circumstances. This section is similar to 

45 CFR 95.624, which is titled 

Consideration for FFP in Emergency 

Situations and which lays out 

procedures that must be followed in 

applying for emergency FFP. 

Under § 310.35(a), Conditions that 

must be met for emergency FFP, OCSE 

will consider waiving the approval 

requirements for acquisitions in 

emergency situations, such as natural or 

man-made disasters, upon receipt of a 

written request from the comprehensive 

Tribal IV–D agency. In order for OCSE 

to consider waiving the approval 

requirements in § 310.25 the 

comprehensive Tribal IV–D agency must 

submit a written request to OCSE prior 

to the acquisition of any ADP 

equipment or services. The written 

request must be sent by registered mail 

and include: (i) A brief description of 

the ADP equipment and/or services to 

be acquired and an estimate of their 

costs; (ii) a brief description of the 

circumstances which resulted in the 

comprehensive Tribal IV–D agency’s 

need to proceed prior to obtaining 

approval from OCSE; and (iii) a 

description of the harm that will be 

caused if the comprehensive Tribal IV– 

D agency does not acquire immediately 

the ADP equipment and services. 

Under paragraph (a)(2), upon receipt 

of the information, OCSE will, within 14 

working days of receipt, take one of the 

following actions: (i) Inform the 

comprehensive Tribal IV–D agency in 

writing that the request has been 

disapproved and the reason for 

disapproval; or (ii) inform the 

comprehensive Tribal IV–D agency in 

writing that OCSE recognizes that an 

emergency exists and that within 90 

calendar days from the date of the initial 

written request under paragraph (a)(1) 

the comprehensive Tribal IV–D agency 

must submit a formal request for 

approval which includes the 

information specified at § 310.25 in 

order for the ADP equipment or services 

acquisition to be considered for OCSE’s 

approval. 

Paragraph (b) of this section, Effective 

date of emergency FFP, states that if 

OCSE approves the request submitted 

under paragraph (a)(2), FFP will be 

available from the date the 

comprehensive Tribal IV–D agency 

acquires the ADP equipment and 

services. 

Subpart D—Accountability and 

Monitoring Procedures for 

Computerized Tribal IV–D Systems 

Section 310.40 What requirements 

apply for accessing systems and records 

for monitoring Computerized Tribal IV– 

D Systems and Office Automation? 

Section 310.40 identifies 

requirements that would facilitate 

accountability and monitoring 

procedures of Computerized Tribal IV– 

D Systems and Office Automation, 

including accessing systems and 

records. This section of the rule is 

derived from 45 CFR 95.615, Access to 

Systems and Records, and addresses the 

Department’s right to access State 

computerized support enforcement 

systems for the purposes of monitoring 

the conditions for approval, as well as 

the efficiency, economy and 

effectiveness of the State’s automated 

system. 

Under § 310.40 a comprehensive 

Tribal IV–D agency must allow OCSE 

access to the system in all of its aspects, 

including installation, operation, and 

cost records of contractors and 

subcontractors, and of Service 

Agreements at such intervals as are 

deemed necessary by OCSE to 

determine whether the conditions for 

FFP approval are being met and to 

determine the efficiency, effectiveness, 

reasonableness of the system and its 

cost. 

Response to Comments 

Comments were received from 13 

Tribes and Tribal organizations, 1 State 

and the participants of three 

consultation sessions. A discussion of 

the comments received and our 

responses follows: 

General Comments 

1. Comment: Three Tribal 

commenters stated that delaying this 

rule and release of the Model Tribal IV– 

D System would harm Tribes’ progress. 

Response: We recognized from the 

initial consultations on the Tribal IV–D 

program that for Comprehensive Tribal 

IV–D programs, automation would 

eventually become necessary to 

accurately and efficiently process child 

support collections. However, Tribes 

would need adequate time to develop 

their IV–D programs and to determine 

appropriate approaches, levels of 

automation, and processes for delivering 

services before adequate information 

would be available to design a state-ofthe art, culturally-appropriate 

automated system. We convened a Joint 

Federal/Tribal Workgroup (the 

Workgroup) and conducted market 

research, a feasibility study and the 

development of the Model Tribal IV–D 

System. We believe, based on our 

extensive consultation and work with 

Tribes over the past eight years, that 

publication of this final rule and making 

the Model Tribal IV–D System available 

to comprehensive Tribal IV–D programs 

is appropriate and timely. 

2. Comment: Five Tribal commenters 

requested that this rule be withdrawn 

because they believe OCSE did not 

comply with HHS Tribal consultation 

policy and offered to assist OCSE in 

better implementing Tribal consultation. 

Another seven commenters asserted that 

OCSE should better adhere to its own 

Tribal consultation policy, but did not 

request that this rule be withdrawn. One 

Tribal commenter stated that the 

consultation process was circumvented 

and should be addressed for future 

regulations and stressed that it is 

important to expedite release of the 

Model Tribal IV–D System. 

Response: OCSE followed 

Departmental policy on Tribal 

consultation. Three consultation 

sessions were held on June 27, July 8, 

and July 9 of 2008 as well as an 


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informational meeting at the National 

Tribal Child Support Association 

conference on June 11, 2008. The input 

we received from the consultation 

sessions and other collaborative efforts 

helped to shape the final rule. 

3. Comment: Five Tribal commenters 

suggested that OCSE should proceed 

with pilot testing of the Model Tribal 

IV–D System so that Tribes will be able 

to assess whether it meets Tribal 

program needs. Six other Tribal 

commenters suggested that OCSE 

should proceed with the Model Tribal 

IV–D System pilot regardless of whether 

this final rule is published. Five Tribal 

commenters recommended that OCSE 

select at least three pilot sites and 

consult Tribes in the criteria for 

selection. 

Response: In response to comments, 

OCSE issued a Dear Colleague Letter 

(DCL–08–47: http://www.acf.hhs.gov/ 

programs/cse/pol/DCL/2008/dcl-08- 

47.htm) to solicit interest in piloting the 

Model Tribal IV–D System from 

comprehensive Tribal IV–D programs. 

Based on the selection criteria outlined 

in the Dear Colleague Letter, OCSE 

selected Forest County Potawatomi as 

the pilot site. The pilot phase, once 

initiated, is expected to last two to three 

months. OCSE will provide training, 

technical assistance, operational 

oversight, and support during this 

critical testing process. Due to limited 

resources, additional pilots were not 

possible. 

Subpart A—General Provisions 

Section 310.0 What does this Part 

cover? 

1. Comment: Six Tribal commenters 

and one State requested that the scope 

of the regulation be expanded to include 

Tribes and Tribal organizations funded 

under start-up funding as specified in 

§ 309.65(b) of this chapter, 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? 

Response: We do not agree that it is 

appropriate to expand the scope of this 

regulation to include Tribal IV–D 

programs in the start-up phase. 

Automated data processing is intended 

for comprehensive Tribal IV–D 

programs performing actions in the 

child support collection and paternity 

determination processes under the 

Tribal IV–D plan. Tribes receiving startup funding are in the planning phase of 

developing an operational Tribal IV–D 

program and do not have adequate 

operational experience dealing with 

actual caseloads or case activities to 

determine the appropriate level or type 

of automation required for their specific 

comprehensive Tribal IV–D program. In 

addition, a start-up Tribe’s focus toward 

the end of its two-year development 

phase must be on preparing for and 

requesting approval to operate a 

comprehensive Tribal IV–D program. It 

would be premature for a start-up Tribe 

to anticipate approval of its application 

and divert the resources and time 

necessary to complete the automated 

system application process. However, 

once funding for a comprehensive 

Tribal IV–D program is approved, 

technical assistance is available to 

Tribal programs for developing and 

assessing the program’s automation 

needs based on its caseload and 

developing the appropriate request for 

such automation funding. 

2. Comment: Three Tribal 

commenters stated that access to 

Federal Tax Refund Offset (FTRO), 

Multi-State Financial Institution Data 

Match (MSFIDM) and data from the 

Federal Parent Locator Service (FPLS) 

would enhance Tribal automation and 

should be addressed in this regulation. 

Response: We are aware that Tribal 

IV–D programs are interested in having 

access to FTRO, MSFIDM and the FPLS. 

However, Title IV–D of the Act does not 

currently authorize direct Tribal access 

to these enforcement tools, so 

expanding access to these systems 

cannot be addressed in this regulation. 

3. Comment: Six Tribal commenters 

criticized the proposed regulations as 

infringing on Tribal sovereignty and 

exceeding the Department’s statutory 

authority under section 455(f) of the Act 

stating that the rule ‘‘purports to regulate 

existing email, tribal computer networks 

and other office automation processes 

used in a Tribe’s child support 

program.’’ 

Response: We do not believe this 

regulation, enabling Tribes to apply for 

and receive Federal funding for the 

costs of automated data processing, 

infringes on Tribal sovereignty. Office 

Automation is currently governed by 

existing regulations found in 

§ 309.145(h). This rule builds on the 

existing regulation to expand allowable 

activities and costs for Tribal IV–D 

program automation. Section 455(f) of 

the Act clearly states that the Secretary 

shall ‘‘promulgate regulations 

establishing requirements which must 

be met by an Indian Tribe or Tribal 

organization to be eligible for a direct 

grant under title IV–D.’’ The resulting 

regulation reflects the Federal 

government’s determination of the 

minimum regulatory requirements 

necessary for the successful 

administration and operation of 

automated Tribal systems. 

Section 310.1 What definitions apply 

to this Part? 

1. Comment: Five Tribal commenters 

stated that the terms Reasonable Cost, 

Essential Office Automation, Federal 

Financial Participation (FFP), 

Simplified Acquisition Threshold and 

the reference to Part 95 titled General 

Administration—Grant Programs, 

should not be used in this regulation 

because they are inapplicable to Tribes. 

Response: The terms specified above 

are applicable to Tribes and Tribal 

organizations applying for Federal 

funding for Computerized Tribal IV–D 

Systems and Office Automation. Many 

of the terms such as Reasonable Cost, 

Essential Office Automation and FFP 

are familiar terms to the Tribal IV–D 

program and have been used in existing 

regulations and policy documents 

issued by OCSE. For example, § 309.155 

lists unallowable costs, including ‘‘all 

other costs that are not reasonable, 

necessary, and allocable to Tribal IV–D 

programs under the costs principles of 

OMB Circular A–87.’’ OMB Circular A– 

87 defines Reasonable Cost and applies 

to Tribes: ‘‘This Circular establishes 

principles and standards for 

determining costs for Federal awards 

carried out through grants, cost 

reimbursement contracts, and other 

agreements with State and local 

governments and Federally-recognized 

Indian tribal governments 

(governmental units).’’ 

The term Essential Office Automation 

appears in § 309.145 titled, What costs 

are allowable for Tribal IV–D programs 

carried out under § 309.65(a) of this 

part? as an allowable cost. In the final 

rule for the Tribal Child Support 

Enforcement program (69 FR 16638), the 

term Federal funding is used rather than 

FFP. However, we consider the two 

terms interchangeable. 

The term Simplified Acquisition 

Threshold is used in 45 CFR Part 92 

titled Uniform Administrative 

Requirements for Grants and 

Cooperative Agreements to State, Local 

and Tribal Governments which clearly 

applies to Tribes and Tribal 

organizations. The scope of 45 CFR Part 

92 states that ‘‘This part establishes 

uniform administrative rules for Federal 

grants and cooperative agreements and 

subawards to State, local and Indian 

tribal governments.’’ The definition of 

Simplified Acquisition Threshold in 

this rule means ‘‘a Tribe or Tribal 

organization’s monetary threshold for 

determining whether competitive 

acquisition rules are required for a given 

procurement or $100,000, whichever is 

less.’’ This provides flexibility in the 

definition of Simplified Acquisition 


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Threshold so that Tribes and Tribal 

organizations may apply their monetary 

threshold rather than the one defined in 

41 U.S.C. (Public Contracts—Office of 

Federal Procurement Policy— 

Definitions), given that their threshold is 

the lesser of the two. 

With regard to Part 95, General 

Administration—Grant Programs, OCSE 

solicited comments in the proposed rule 

for the Tribal Child Support 

Enforcement program (65 FR 50800, 

50825) stating that ‘‘OCSE [the Office] is 

considering applying part 95 to Tribal 

child support systems efforts’’ and that 

‘‘OCSE is, however, asking for comments 

on the appropriateness of applying 45 

CFR part 95 to the Tribal child support 

program and on the modifications that 

might be necessary or desirable to adapt 

part 95 to the Tribal CSE program.’’ In 

response to OCSE’s request for feedback, 

one out of twenty-nine commenters 

opposed the application of 45 CFR Part 

95 to Tribal IV–D programs. We took 

that commenter’s suggestion into 

consideration in combination with 

comments from other stakeholders 

including members of the Federal/Tribal 

Workgroup. After careful deliberation, 

we determined that it would not be 

necessary to make all sections of Part 95 

applicable to Tribal IV–D programs, but 

that certain terms identified in Subpart 

F of Part 95, Automated Data Processing 

Equipment and Services—Conditions 

for Federal Financial Participation 

(FFP), would be appropriately applied 

to this rule. 

2. Comment: One Tribal commenter 

expressed concern that Reasonable Cost 

may be interpreted differently and 

requested assurance that there would be 

consistency in the treatment for each 

Tribal IV–D agency. 

Response: This rule includes a very 

detailed definition of Reasonable Cost 

based on OMB Circular A–87, Cost 

Principles for State, Local, and Indian 

Tribal Governments which applies 

consistently to State, local and 

Federally-recognized Indian Tribal 

governments. A Tribal IV–D agency’s 

systems or Office Automation 

expenditures will be assessed based on 

this measurable definition of Reasonable 

Cost. 

3. Comment: One Tribal commenter 

suggested revising the definition of 

Reasonable Cost by deleting the terms 

‘ordinary’, ‘arms-length bargaining’, 

‘market price’ and ‘established 

practices’. 

Response: We did not revise the 

definition of Reasonable Cost under this 

regulation as each of the terms 

identified by the commenter is taken 

from the existing definition of 

Reasonable Cost under OMB Circular 

A–87, Cost Principles for State, Local 

and Indian Tribal Governments, which 

applies to Indian Tribal Governments. 

4. Comment: One Tribal commenter 

objected to the definition of Service 

Agreement stating that the Federal 

government cannot dictate how a Tribe 

executes contracts with outside 

agencies. 

Response: The definition recognizes 

the Federal government’s fiduciary 

responsibility to ensure reasonable cost 

of services rendered, the effective and 

efficient use of Federally-funded 

resources, the safety and security of 

Federally-funded equipment, resources, 

and data, and the accurate accounting of 

the charges and expenditures under 

such a service agreement. Thus, we have 

not changed the definition in response 

to the comment. 

Subpart B—Requirements for 

Computerized Tribal IV–D Systems and 

Office Automation 

Section 310.5 What options are 

available for Computerized Tribal IV–D 

Systems and Office Automation? 

1. Comment: Eight Tribal commenters 

and one State commenter requested 

expanding Federal funding for the 

development of an alternative system 

designed, developed, procured or 

enhanced entirely with Tribal funds. 

One commenter suggested that Federal 

funding should be available for a 

Tribally-developed system, if the cost 

for that system is equal to or less than 

the highest cost of a Computerized 

Tribal IV–D System or Office 

Automation. 

Response: In our experience over 

many years with funding the 

development of automated systems in 

State IV–D programs, we are persuaded 

that the costs involved in the design and 

development of individual Tribal IV–D 

automated child support enforcement 

systems would be unreasonable relative 

to the size of the Tribal programs being 

served or compared to the costs of other 

automation options (i.e., installation 

costs of the Model Tribal IV–D System, 

Intergovernmental Service Agreement or 

Office Automation). To allow Federal 

funding in the cost of an alternative 

system would, therefore, be contrary to 

the funding prerequisite for cost 

reasonableness cited in OMB Circular 

A–87. 

2. Comment: Two Tribal commenters 

questioned whether the Model Tribal 

IV–D System would be available as an 

option for Tribal IV–D automation since 

it is currently in the testing phase and 

has not been released to Tribes for their 

review. 

Response: OCSE completed 

development of the Model Tribal IV–D 

System in October 2008 and expects to 

complete the pilot phase in the fall of 

2009. Many Tribes have reviewed the 

Model Tribal IV–D System by 

participating in one or more of the 

numerous live demonstrations of the 

system as it has been built. Additional 

demonstrations of the completed Model 

Tribal IV–D System are planned through 

2009. 

Section 310.10 What are the functional 

requirements for the Model Tribal IV–D 

System? 

1. Comment: Two Tribal commenters 

requested that the language in this 

section be revised to clarify that Tribes 

will not be required to interface with 

any other system. 

Response: This rule does not require 

Tribes to develop an automated 

interface with any other system. Section 

310.10(c) refers to the Model Tribal IV– 

D System’s capacity to add on an 

electronic interface with State or Tribal 

financial management and expenditure 

information at the Tribe’s option versus 

manually reporting any fees. The 

requirement in § 310.10(c) is that the 

Model Tribal IV–D System must record 

and report any fees collected. We have 

not made any changes to the regulatory 

language. 

2. Comment: Two Tribal commenters 

requested greater specificity as to the 

type of data OCSE would have access to 

based on § 310.10(g), which states that 

a Model Tribal IV–D System must 

‘‘provide automated processes to enable 

the office to monitor Tribal IV–D 

program operations and to assess 

program performance through the audit 

of financial and statistical data 

maintained by the system.’’ 

Response: Section 310.10(g) requires 

access to any Tribal IV–D program’s 

financial and statistical data maintained 

by the system. 

3. Comment: One commenter asked 

that language be added to indicate that 

Federal funding will be available if any 

new data elements are added to those in 

§ 310.10(a)(1) which requires that the 

Model Tribal IV–D System accept, 

maintain and process identifying 

information such as Social Security 

numbers, names, dates of birth and 

other data as required by OCSE. 

Response: The regulation already 

addresses funding for new systems 

requirements, including data elements, 

in § 310.20(a)(4), governing the 

availability of Federal funding for 

enhancement of the Model Tribal IV–D 

System, should new data requirements 

be imposed by OCSE. 


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Federal Register / Vol. 75, No. 37 / Thursday, February 25, 2010 / Rules and Regulations 8517 

Section 310.15 What are the 

safeguards and processes that 

comprehensive Tribal IV–D agencies 

must have in place to ensure the 

security and privacy of Computerized 

Tribal IV–D Systems and Office 

Automation? 

1. Comment: Six Tribal commenters 

questioned whether the safeguarding 

requirement in § 310.15(a) to ensure that 

the Computerized Tribal IV–D System 

and Office Automation complies with 

the requirements of the Federal 

Information Security Management Act 

and the Privacy Act apply to Tribal 

governments. 

Response: The Federal Information 

Security Management Act (FISMA) and 

the Privacy Act are Federal laws that 

apply to Federal agencies. These laws 

require Federal agencies to ensure that 

information and information systems 

used by the agency or other sources on 

behalf of the agency are safeguarded. 

The FISMA applies to both information 

and information systems used by a 

Federal agency and its contractors and 

grantees, which would include State 

and local governments and Federallyrecognized Tribes. Although Tribal IV– 

D programs do not currently have direct 

access to Federal information systems, 

they may have indirect access through 

agreements with State IV–D agencies. 

Federal agencies must develop 

policies for information security 

oversight of contractors and other users 

with privileged access to Federal data. 

To that end, OCSE considers it 

imperative that Tribal IV–D programs 

are aware of the requirements in FISMA 

and the Privacy Act and that Tribal IV– 

D agencies should ensure that the 

Computerized Tribal IV–D Systems and 

Office Automation comply with such 

requirements. 

2. Comment: Five Tribal commenters 

questioned the safeguarding 

requirement in § 310.15(a)(5) for a Tribal 

IV–D agency to include written policies 

and procedures concerning mechanisms 

to report (to the Department of 

Homeland Security) and respond to 

breaches of personally identifiable 

information and stated that reporting to 

the Department of Homeland Security 

should not apply to Indian Tribes. 

Response: Federal agencies are 

required to report breaches or suspected 

breaches of Federal data to the U.S. 

Computer Emergency Readiness Team 

(US–CERT), which is part of the 

Department of Homeland Security 

(DHS) and is charged with the task of 

coordinating defense against and 

responses to cyber attacks across the 

nation. 

A Tribal IV–D program, as part of the 

overall child support enforcement 

information system, must have written 

policies and procedures concerning 

mechanisms to report breaches or 

suspected breaches of Federal data. The 

Tribal IV–D agency has the discretion to 

determine the mechanism used to report 

the breach as a part of its written 

policies and procedures. The procedure 

for a State IV–D agency that suspects 

compromised Federal data is to report 

the suspected breach to OCSE. OCSE 

would then notify the ACF Chief 

Information Security Officer (CISO), 

who in turn would notify the HHS 

Computer Security Incident Response 

Center. The HHS Computer Security 

Incident Response Center then notifies 

the US–CERT of the Department of 

Homeland Security. A Tribal IV–D 

agency may establish a similar 

procedure. 

3. Comment: One Tribal commenter 

encouraged that the preamble language 

stating ‘‘We also would emphasize that 

no Federal Tribal IV–D program 

requirement obligates comprehensive 

Tribal IV–D agencies to disclose, or 

otherwise make accessible, their Tribal 

enrollment records for the purposes of 

providing child support enforcement 

services or automating child support 

enforcement activities’’ be retained in 

the final rule. 

Response: We agree and retained the 

language in this preamble. 

4. Comment: One Tribal commenter 

referenced § 310.15(a), which requires 

written procedures to allow Tribal IV– 

D personnel controlled access and use 

of IV–D data including ‘‘permitting 

access to and use of data for the purpose 

of exchanging information with State 

and Tribal agencies administering 

programs under titles IV–A, IV–E and 

XIX of the Act’’ and suggested adding 

language stating that ‘‘no state or tribe 

can demand access to the information 

maintained in the tribal IV–D system 

without the express written consent of 

the Tribe.’’ 

Response: We agree that the section 

referenced by the commenter addresses 

procedures that must be put in place to 

safeguard access that Tribal IV–D 

personnel have to IV–D information and 

data from programs administered under 

titles IV–A, IV–E and XIX of the Act. 

This and other sections of this 

regulation do not imply that a State or 

Tribe could demand access to a Tribal 

IV–D agency’s automated data 

processing system or Office Automation. 

For this reason, we do not find it 

necessary to revise or add language as 

suggested. 

5. Comment: One Tribal commenter 

referenced § 310.15(a), which requires 

the comprehensive Tribal IV–D agency 

to have written policies and procedures 

to safeguard the access to and use of 

data in the Computerized Tribal IV–D 

System and Office Automation. The 

commenter suggested adding 

clarification as to which safeguards 

must be included in the Tribal IV–D 

agency’s written policies and 

procedures. 

Response: The proposed regulatory 

language in § 310.15(a) stating ‘‘Some of 

the required safeguards must include 

written polices and procedures * * *’’ 

has been revised deleting the words 

‘some of’ for clarity so that the sentence 

reads: ‘‘The required safeguards must 

include written policies and procedures 

concerning the following:’’. A list of 

required safeguards appears after the 

introductory phrase. 

Subpart C—Funding for Computerized 

Tribal IV–D Systems and Office 

Automation 

Section 310.20 What are the 

conditions for funding the installation, 

operation, maintenance and 

enhancement of Computerized Tribal 

IV–D Systems and Office Automation? 

1. Comment: One Tribal commenter 

recommended that a comprehensive 

Tribal IV–D agency be able to use more 

than one of the options for 

Computerized Tribal IV–D Systems and 

Office Automation as defined in § 310.5 

at one point in time to allow for 

transitions such as from a State system 

to the Model Tribal IV–D System. 

Response: The language in 

§ 310.20(a)(2)(i) which states that ‘‘an 

APD for installation of a Computerized 

Tribal IV–D System must represent the 

sole systems effort being undertaken by 

the comprehensive Tribal IV–D agency’’ 

does not preclude situations wherein 

multiple systems may be in use during 

a reasonable transition period from one 

automated system solution to another. 

Clearly, any transition from one 

automated system to another includes 

tasks that will need to be performed 

concurrently, such as data conversion, 

training, testing, and installation. 

During the installation process, further 

guidance will be provided. 

2. Comment: Ten Tribal commenters 

and one State commenter suggested that 

the FFP rate in the costs of Tribal 

automation be increased from the 

applicable matching rate as defined in 

§ 309.130(c), How will Tribal IV–D 

programs be funded and what forms are 

required? (The applicable matching rate, 

as proposed, would have been 90 

percent for comprehensive Tribal IV–D 

programs that are operating within the 

first three-year period of Federal 


jlentini on DSKJ8SOYB1PROD with RULES
8518 Federal Register / Vol. 75, No. 37 / Thursday, February 25, 2010 / Rules and Regulations 

funding and 80 percent for 

comprehensive Tribal IV–D programs 

operating in all periods following the 

first three-year period.) A number of 

commenters and consultation 

participants suggested that FFP in the 

costs of Tribal automation be increased 

to 100 percent Federal funding. Five 

commenters stressed that the proposed 

funding scheme would penalize the 

more experienced Tribes. Two 

commenters suggested that Federal 

funding for Tribal automation should in 

no way penalize the more experienced 

Tribes. 

Response: We are persuaded that 

Tribes with comprehensive Tribal IV–D 

programs that have been in operation for 

over three years and are receiving 80 

percent Federal funding should not be 

disadvantaged when funding for 

installing the Model Tribal IV–D System 

is available. Therefore, the final rule 

extends 90 percent FFP in the preapproved costs of installing the Model 

Tribal IV–D System for all 

comprehensive Tribal IV–D programs. 

FFP in the costs of all other allowable 

activities will remain at the applicable 

matching rate. This includes the cost of 

access to State automated systems or 

Office Automation, for which Federal 

funding has been available to 

comprehensive Tribal IV–D programs 

since the inception of the program. 

3. Comment: One Tribal commenter 

asked if in-kind payments or services 

would be accepted towards the Tribal 

IV–D agency’s share of automation 

costs. 

Response: Current regulations at 

§ 309.130(d)(3) allow in-kind payments 

and services as a Tribal IV–D agency’s 

share of costs, including automation 

costs. 

4. Comment: One Tribal commenter 

referenced § 310.20(a)(4), which sets 

forth conditions that must be met in 

order to obtain FFP in the costs of 

enhancements, and objected to the 

requirement that ‘‘The project’s Total 

Acquisition Cost cannot exceed the 

comprehensive Tribal IV–D agency’s 

total Tribal IV–D program grant award 

for the year in which the acquisition 

request is made.’’ The commenter 

explained such a provision would limit 

smaller Tribal programs. 

Response: Based on our experience 

with State automation efforts, this 

requirement is consistent with States’ 

annual automation project expenditures 

and represents a sound, practical 

threshold to apply to ensure the cost 

reasonableness of Tribal automation 

efforts. 

5. Comment: One Tribal commenter 

stated that the proposed rule does not 

allocate Federal funds to be used in the 

development of a Model Tribal IV–D 

System. 

Response: This rule does not provide 

for Federal funds towards the 

development of a Model Tribal IV–D 

System because the Model Tribal IV–D 

System has already been designed and 

developed by OCSE for use by 

comprehensive Tribal IV–D programs 

electing to automate child support 

activities under this rule. There are no 

costs, including license fees or other 

charges, to Tribal IV–D programs to 

acquire a complete copy of the Model 

Tribal IV–D System from OCSE, and 90 

percent Federal funding is available to 

Tribal IV–D programs for pre-approved 

costs of installing the Model Tribal IV– 

D System. 

Section 310.25 What conditions apply 

to acquisitions of Computerized Tribal 

IV–D Systems? 

1. Comment: Six Tribal commenters 

questioned whether the Model Tribal 

IV–D System was developed through 

competitive contracting in accordance 

with the Competition in Contracting 

Act. 

Response: The Model Tribal IV–D 

System was developed under the 

direction of OCSE through the use of 

contractor resources from two 

competitively procured contracts. These 

two procurements adhered to all Federal 

acquisition regulations. 

2. Comment: One Tribal commenter 

stated that its ability to ensure full and 

open competition would be hampered 

because there are only two specialists in 

the area who are capable of enhancing 

their Tribe’s Computerized Tribal IV–D 

System. 

Response: There are many ways to 

enable increased competition in 

procurements, including participating 

in consortia-based contracts with other 

Tribal IV–D programs, increasing the 

distance or range of the procurement 

search, and allowing successful offerors 

remote access to the Computerized 

Tribal IV–D System, thereby reducing 

contracted travel and similar costs. 

Remote access can increase interest in 

the vendor community to participate in 

a Tribe’s procurement as it can have a 

leveling effect on the costs being 

proposed by all of the prospective 

offerors. 

3. Comment: One Tribal commenter 

requested clarification of the 

procurement process and asked if Tribes 

would need to solicit bids from other 

States. 

Response: There is no requirement 

that Tribal IV–D programs solicit bids 

from other States. 

4. Comment: Seven Tribal 

commenters questioned the intent of 

§ 310.25(c) titled Software and 

Ownership Rights, as it relates to 

Tribally-funded systems; they suggested 

that the provisions of this section may 

inappropriately result in the Federal 

government reserving a license on 

property acquired with the Tribal funds. 

One commenter stated that provisions 

in § 310.25(c)(2) that OCSE reserves a 

royalty-free, nonexclusive and 

irrevocable license to reproduce, 

publish, or otherwise use and to 

authorize others to use for Federal 

Government purposes would discourage 

Tribes or Tribal organizations from 

development of their own systems at 

their own expense. 

Response: In the preamble language to 

§ 310.25, we indicate that 

‘‘Comprehensive Tribal IV–D agencies 

that have elected to automate program 

activities through Office Automation or 

another alternative to Computerized 

Tribal IV–D Systems [such as an 

automated system funded entirely by a 

Tribe] as discussed in proposed § 310.5, 

would not be subject to the 

requirements presented in proposed 

§ 310.25.’’ A Tribal IV–D program’s 

alternative system, one that was 

designed and developed as a fully 

Tribally-funded system, would only 

become subject to the Software and 

Ownership Rights clauses in § 310.25(c) 

if the Tribal IV–D program later sought 

Federal funding in the costs to operate 

and maintain its alternative system. We 

agree with commenters that 

§ 310.25(c)(2), which states that OCSE 

reserves a royalty-free, nonexclusive 

and irrevocable license to reproduce, 

publish, or otherwise use and to 

authorize others to use for Federal 

Government purposes, should not apply 

to a Tribally-funded system. We have 

revised this rule to limit the Software 

and Ownership Rights clause for a 

Tribally-funded system to § 310.25(c)(1), 

which requires that all procurement and 

contract instruments must include a 

clause that provides that the 

comprehensive Tribal IV–D agency will 

have all ownership rights to 

Computerized Tribal IV–D System 

software or enhancements thereof and 

all associated documentation designed, 

developed or installed with FFP. 

Subpart D—What requirements apply 

for accessing systems and records for 

monitoring Computerized Tribal IV–D 

Systems and Office Automation? 

1. Comment: Six Tribal commenters 

questioned the language in § 310.40 

which states that ‘‘In accordance with 45 

CFR Part 95 of this title, under proposed 

§ 310.40 a comprehensive Tribal IV–D 

agency must allow OCSE access to the 

system in all of its aspects.’’ The 


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Federal Register / Vol. 75, No. 37 / Thursday, February 25, 2010 / Rules and Regulations 8519 

commenters proposed restricting 

OCSE’s access to financial and 

procurement information in the Tribe’s 

automated system. 

Response: We do not agree that 

OCSE’s access to information on the 

Tribe’s automated system should be 

restricted. This requirement is critical 

for Federal oversight responsibility to 

ensure that Federal funds are expended 

appropriately and Federal grantees meet 

all requirements as a condition of 

receiving Federal funds. 

Paperwork Reduction Act of 1995 

Under the Paperwork Reduction Act 

of 1995 (Pub. L. 104–13), all 

Departments are required to submit to 

the Office of Management and Budget 

(OMB) for review and approval any 

reporting or recordkeeping requirements 

inherent in a proposed or final rule. 

This final rule contains reporting 

requirements at 45 CFR Part 310. The 

Department has submitted these 

reporting requirements to OMB for 

review. 

Part 310 contains a regulatory 

requirement that, in order to receive 

funding for a Computerized Tribal IV– 

D System, a Tribe or Tribal organization 

must submit an Advanced Planning 

Document (APD) which represents the 

sole systems effort being undertaken by 

the comprehensive Tribal IV–D agency; 

describes the projected resource 

requirements for staff, hardware, 

software, network connections and 

other needs and resources available and 

expected to be available; contains a 

proposed schedule of project 

milestones; contains a proposed budget; 

and contains a statement that the 

comprehensive Tribal IV–D agency 

agrees in writing to use the 

Computerized Tribal IV–D System for a 

minimum period of time. Tribes and 

Tribal organizations must respond if 

they wish to operate a Federally-funded 

Computerized Tribal IV–D System. The 

potential respondents to these 

information collection requirements are 

approximately 40 Federally-recognized 

Tribes, and Tribal organizations, during 

Year 1; 5 additional Federallyrecognized Tribes and Tribal 

organizations during Year 2; and 5 

additional Federally-recognized Tribes 

and Tribal organizations during Year 3; 

for a three-year total of 50 grantees. This 

information collection requirement will 

impose the estimated total annual 

burden on the Tribes and Tribal 

organizations described in the table 

below: 

Information collection Number of 

respondents 

Response per 

respondent 

Average 

burden per 

response 

Total annual 

burden 

Year 1 

APD .................................................................................................................. 40 2 108 8,640 

Acquisitions (RFPs, Contracts, etc.) ................................................................ 6 2 24 288 

Total .......................................................................................................... ........................ ........................ ........................ 8,928 

Year 2 

APD .................................................................................................................. *11 2 108 2,376 

Acquisitions (RFPs, Contracts, etc.) ................................................................ 6 2 24 288 

Total .......................................................................................................... ........................ ........................ ........................ 2,664 

Year 3 

APD .................................................................................................................. *8 2 108 1,728 

Acquisitions (RFPs, Contracts, etc.) ................................................................ 3 2 24 144 

Total .......................................................................................................... ........................ ........................ ........................ 1,872 

* Figures reflect APDs from 5 additional Tribes in Year 2 and Year 3 as well as APD Updates from Tribes included in Year 1 and 2

respectively. 

Total Burden for 3 Years: 13,464. 

Total Annual Burden Averaged over 3 

Years: 4,488 per year. 

Regulatory Flexibility Analysis 

The Secretary certifies, under 5 U.S.C. 

605(b), the Regulatory Flexibility Act 

(Pub. L. 96–354), that these regulations 

will not result in a significant impact on 

a substantial number of small entities 

because the primary impact of these 

regulations is on Tribal governments. 

Tribal governments are not considered 

small entities under the Act. 

Regulatory Impact Analysis 

Executive Order 12866 requires that 

regulations be reviewed to ensure that 

they are consistent with the priorities 

and principles set forth in the Executive 

Order. The Department has determined 

that this final rule is consistent with 

these priorities and principles. 

Moreover, we have consulted with the 

Office of Management and Budget 

(OMB) and determined that these rules 

meet the criteria for a significant 

regulatory action under Executive Order 

12866. Thus, they were subject to OMB 

review. 

We have determined that this final 

rule, including setting the FFP rate in 

the costs of installing the Model Tribal 

IV–D System at 90 percent for all 

comprehensive Tribal IV–D agencies, is 

not an economically significant rule 

under Executive Order 12866 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, 

adjusted for inflation from 1995 to 2008 

using the GDP Price Deflator. The 

current threshold is $133 million. 

Therefore, we have not prepared a 

budgetary impact statement. We 

anticipate that the costs associated with 

this rule will be: FY 2010—$8m; FY 

2011—$4m; FY 2012—$2m; FY 2013— 

$3m; FY 2014—$3m. 

These regulations are authorized by 

42 U.S.C. 655(f) and 42 U.S.C. 1302 and 

represent the final regulations governing 

direct funding for computerized systems 

and Office Automation of Tribal IV–D 

agencies that demonstrate the capacity 

to operate a child support enforcement 

program, including establishment of 

paternity, establishment, modification 

and enforcement of support orders, and 

location of noncustodial parents. 


jlentini on DSKJ8SOYB1PROD with RULES
8520 Federal Register / Vol. 75, No. 37 / Thursday, February 25, 2010 / Rules and Regulations 

The Executive Order encourages 

agencies, as appropriate, to provide the 

public with meaningful participation in 

the regulatory process. As described 

elsewhere in the preamble, ACF 

consulted with Tribes and Tribal 

organizations and their representatives 

to obtain their views prior to the 

publication of this rule. 

Executive Order 13175 

Executive Order 13175 sets forth 

principles to strengthen the United 

States’ government-to-government 

relationships with Indian Tribes and to 

reduce the imposition of unfunded 

mandates upon Indian Tribes. In 

association with this rule, ACF held 

three consultation sessions on June 27, 

July 8 and July 9 of 2008. The 

consultations were held in Seattle, 

Washington; Catoosa, Oklahoma; and 

Milwaukee, Wisconsin during the 

summer and elicited a range of 

questions and suggestions which are 

discussed in detail throughout the 

preceding pages of this preamble. 

Unfunded Mandates Reform Act of 

1995 

Section 202 of the Unfunded 

Mandates Reform Act of 1995, Public 

Law 104–4, requires that a covered 

agency prepare a budgetary impact 

statement before promulgating a rule 

that includes a Federal mandate that 

may result in the expenditure by State, 

local and Tribal governments, in the 

aggregate, or by the private sector, of 

$100 million or more in any one year. 

As indicated above, we have determined 

this rule will not result in the 

expenditure by State, local and Tribal 

governments, in the aggregate, or by the 

private sector, of more than $100 

million in any one year. 

Congressional Review 

This final rule is not a major rule as 

defined in 5 U.S.C., Chapter 8. 

Assessment of Federal Regulations and 

Policies on Family Well-Being 

We certify that we have made an 

assessment of this rule’s impact on the 

well-being of families, as required under 

sec. 654 of the Treasury and General 

Government Appropriations Act of 

1999, Pub. L. 105–277. This final rule 

gives flexibility to Tribes and Tribal 

organizations to use technological 

advancements to meet program 

objectives that serve this purpose. 

Executive Order 13132 

Executive Order 13132 prohibits an 

agency from publishing any rule that 

has federalism implications if the rule 

either imposes substantial direct 

compliance costs on State and local 

governments or is not required by 

statute, or the rule preempts State law, 

unless the agency meets the 

consultation and funding requirements 

of section 6 of the Executive Order. 

These regulations do not have 

federalism implications for State or 

local governments as defined in the 

Executive Order. 

List of Subjects 

45 CFR 309 

Child support, Grant programs— 

Social programs, Indians, Native 

Americans. 

45 CFR 310 

Child support, Grant programs— 

Social programs, Indians, Native 

Americans. 

(Catalogue of Federal Domestic Assistance 

Programs No. 93.563, Child Support 

Enforcement Program) 

Dated: October 28, 2009. 

Carmen Nazario, 

Assistant Secretary for Children and Families. 

Approved: November 16, 2009. 

Kathleen Sebelius, 

Secretary, Department of Health and Human 

Services. 

■ For the reasons discussed in the 

preamble, title 45 chapter III of the Code 

of Federal Regulations is amended as 

follows: 

PART 309—TRIBAL CHILD SUPPORT 

ENFORCEMENT (IV–D) PROGRAM 

■ 1. The authority citation for part 309 

continues to read as follows: 

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

■ 2. In § 309.130, revise paragraph (c)(3) 

to read as follows: 

§ 309.130 How will Tribal IV–D programs 

be funded and what forms are required? 

* * * * * 

(c) Federal share of program 

expenditures. * * * 

(3)(i) Except as provided in paragraph 

(c)(3)(ii) of this section, for all periods 

following the three-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. 

(ii) A Tribe or Tribal organization will 

receive Federal grant funds equal to 90 

percent of pre-approved costs of 

installing the Model Tribal IV–D 

System. 

* * * * * 

■ 3. In § 309.145, revise paragraph (h) to 

read as follows: 

§ 309.145 What costs are allowable for 

Tribal IV–D programs carried out under 

§ 309.65(a) of this part? 

* * * * * 

(h) Automated data processing 

computer systems, including: 

(1) Planning efforts in the 

identification, evaluation, and selection 

of an automated data processing 

computer system solution meeting the 

program requirements defined in a 

Tribal IV–D plan and the automated 

systems requirements in part 310 of this 

chapter; 

(2) Installation, operation, 

maintenance, and enhancement of a 

Model Tribal IV–D System as defined in 

and meeting the requirements of part 

310 of this title; 

(3) Procurement, installation, 

operation and maintenance of essential 

Office Automation capability; 

(4) Establishment of 

Intergovernmental Service Agreements 

with a State and another comprehensive 

Tribal IV–D agency for access to the 

State or other Tribe’s existing automated 

data processing computer system to 

support Tribal IV–D program 

operations, and Reasonable Costs 

associated with use of such a system; 

(5) Operation and maintenance of a 

Tribal automated data processing 

system funded entirely with Tribal 

funds if the software ownership rights 

and license requirements in 

§ 310.25(c)(1) are met; and 

(6) Other automation and automated 

data processing computer system costs 

in accordance with instructions and 

guidance issued by the Secretary. 

* * * * * 

■ 4. Revise part 310 to read as follows: 

PART 310—COMPUTERIZED TRIBAL 

IV–D SYSTEMS AND OFFICE 

AUTOMATION 

Subpart A—General Provisions 

Sec. 

310.0 What does this part cover? 

310.1 What definitions apply to this part? 

Subpart B—Requirements for Computerized 

Tribal IV–D Systems and Office Automation 

310.5 What options are available for 

Computerized Tribal IV–D Systems and 

Office Automation? 

310.10 What are the functional 

requirements for the Model Tribal IV–D 

System? 

310.15 What are the safeguards and 

processes that comprehensive Tribal IV– 

D agencies must have in place to ensure 

the security and privacy of 

Computerized Tribal IV–D Systems and 

Office Automation? 


jlentini on DSKJ8SOYB1PROD with RULES
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Subpart C—Funding for Computerized 

Tribal IV–D Systems and Office Automation 

310.20 What are the conditions for funding 

the installation, operation, maintenance 

and enhancement of Computerized 

Tribal IV–D Systems and Office 

Automation? 

310.25 What conditions apply to 

acquisitions of Computerized Tribal 

IV–D Systems? 

310.30 Under what circumstances would 

FFP be suspended or disallowed in the 

costs of Computerized Tribal IV–D 

Systems? 

310.35 Under what circumstances would 

emergency FFP be available for 

Computerized Tribal IV–D Systems? 

Subpart D—Accountability and Monitoring 

Procedures for Computerized Tribal IV–D 

Systems 

310.40 What requirements apply for 

accessing systems and records for 

monitoring Computerized Tribal IV–D 

Systems and Office Automation? 

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

Subpart A—General Provisions 

§ 310.0 What does this part cover? 

This part addresses conditions for 

funding and requirements governing 

Computerized Tribal IV–D Systems and 

Office Automation including: 

(a) The automated systems options for 

comprehensive Tribal IV–D programs in 

§ 310.5 of this part; 

(b) The functional requirements for 

the Model Tribal IV–D Systems in 

§ 310.10 of this part; 

(c) The security and privacy 

requirements for Computerized Tribal 

IV–D Systems and Office Automation in 

§ 310.15 of this part; 

(d) The conditions for funding the 

installation, operation, maintenance, 

and enhancement of Computerized 

Tribal IV–D Systems and Office 

Automation in § 310.20 of this part; 

(e) The conditions that apply to 

acquisitions of Computerized Tribal IV– 

D Systems in § 310.25 of this part; and 

(f) The accountability and monitoring 

of Computerized Tribal IV–D Systems in 

§ 310.40 of this part. 

§ 310.1 What definitions apply to this part? 

(a) The following definitions apply to 

this part and part 309: 

(1) Automated Data Processing 

Services (ADP Services) means services 

for installation, maintenance, operation, 

and enhancement of ADP equipment 

and software performed by a 

comprehensive Tribal IV–D agency or 

for that agency through a services 

agreement or other contractual 

relationship with a State, another Tribe 

or private sector entity. 

(2) Comprehensive Tribal IV–D 

agency means the organizational unit in 

the Tribe or Tribal organization that has 

the authority for administering or 

supervising a comprehensive Tribal IV– 

D program under section 455(f) of the 

Act and implementing regulations in 

part 309 of this chapter. This is an 

agency meeting all requirements of 

§ 309.65(a) of this chapter which is not 

in the start-up phase under § 309.65(b) 

of this chapter. 

(3) Computerized Tribal IV–D System 

means a comprehensive Tribal IV–D 

program’s system of data processing that 

is performed by electronic or electrical 

machines so interconnected and 

interacting as to minimize the need for 

human assistance or intervention. A 

Computerized Tribal IV–D System is: 

(i) The Model Tribal IV–D System; or 

(ii) Access to a State or 

comprehensive Tribal IV–D agency’s 

existing automated data processing 

computer system through an 

Intergovernmental Service Agreement; 

(4) Installation means the act of 

installing ADP equipment and software, 

performing data conversion, and 

turnover to operation status. 

(5) Maintenance is the totality of 

activities required to provide costeffective support to an operational ADP 

system. Maintenance is generally 

routine in nature and can include 

activities such as: Upgrading ADP 

hardware, and revising/creating new 

reports, making limited data element/ 

data base changes, minor data 

presentation changes, and other 

software corrections. 

(6) Model Tribal IV–D System means 

an ADP system designed and developed 

by OCSE for comprehensive Tribal IV– 

D programs to include system 

specifications and requirements as 

specified in this part. The Model Tribal 

IV–D System effectively and efficiently 

allows a comprehensive Tribal IV–D 

agency to monitor, account for, and 

control all child support enforcement 

services and activities pursuant to part 

309 of this chapter. 

(7) Office Automation means a generic 

adjunct component of a computer 

system that supports the routine 

administrative functions in an 

organization (e.g., electronic mail, word 

processing, internet access), as well as 

similar functions performed as part of 

an automated data processing system. 

Office Automation is not specifically 

designed to meet the programmatic and 

business-centric needs of an 

organization. 

(8) Reasonable Cost means a cost that 

is determined to be reasonable if, in its 

nature and amount, it does not exceed 

that which would be incurred by a 

prudent person under the circumstances 

prevailing at the time the decision was 

made to incur the cost. In determining 

reasonableness with regard to ADP 

systems cost, consideration shall be 

given to: 

(i) Whether the cost is of a type 

generally recognized as ordinary and 

necessary for the operation of a 

comprehensive Tribal IV–D agency; 

(ii) The restraints or requirements 

imposed by such factors as: Sound 

business practices; arms-length 

bargaining; Federal, Tribal laws and 

regulations; and terms and conditions of 

any direct Federal funding; 

(iii) Whether the individual 

concerned acted with prudence in the 

circumstances considering his or her 

responsibilities to the comprehensive 

Tribal IV–D agency, its employees, the 

public at large, and the Federal 

Government; 

(iv) Market prices for comparable 

goods or services; 

(v) Significant deviations from the 

established practices of the 

comprehensive Tribal IV–D agency 

which may unjustifiably increase the 

cost; and 

(vi) Whether a project’s Total 

Acquisition Cost is in excess of the 

comprehensive Tribal IV–D agency’s 

total Tribal IV–D program grant award 

for the year in which the request is 

made. 

(9) Service Agreement means a 

document signed by the Tribe or Tribal 

organization operating a comprehensive 

Tribal IV–D program under § 309.65(a) 

and the State or other comprehensive 

Tribal IV–D program whenever the latter 

provides data processing services to the 

former and identifies those ADP 

services that the State or other 

comprehensive Tribal IV–D program 

will provide to the Tribe or Tribal 

organization. Additionally, a Service 

Agreement would include the following 

details: 

(i) Schedule of charges for each 

identified ADP service and a 

certification that these charges apply 

equally to all users; 

(ii) Description of the method(s) of 

accounting for the services rendered 

under the agreement and computing 

service charges; 

(iii) Assurances that services provided 

will be timely and satisfactory; 

(iv) Assurances that information in 

the computer system as well as access, 

use and disposal of ADP data will be 

safeguarded in accordance with 

proposed § 310.15; 

(v) Beginning and ending dates of the 

period of time covered by the Service 

Agreement; and 

(vi) Schedule of expected total 

charges for the period of the Service 

Agreement. 


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8522 Federal Register / Vol. 75, No. 37 / Thursday, February 25, 2010 / Rules and Regulations 

(10) Simplified Acquisition Threshold 

for ADP systems, equipment, and 

service acquisitions means a Tribe or 

Tribal organization’s monetary 

threshold for determining whether 

competitive acquisition rules are 

required for a given procurement or 

$100,000, whichever is less. 

(b) The following terms apply to this 

part and are defined in § 95.605 of this 

title: ‘‘Acquisition’’; ‘‘Advance Planning 

Document (APD)’’; ‘‘Design or System 

Design’’; ‘‘Development’’; 

‘‘Enhancement’’; ‘‘Federal Financial 

Participation (FFP)’’; ‘‘Operation’’; 

‘‘Project’’; ‘‘Software’’; and ‘‘Total 

Acquisition Cost’’. 

(c) All of the terms defined in § 309.05 

of this chapter apply to this part. 

Subpart B: Requirements for 

Computerized Tribal IV–D Systems and 

Office Automation 

§ 310.5 What options are available for 

Computerized Tribal IV–D Systems and 

office automation? 

(a) Allowable computerized support 

enforcement systems for a 

Comprehensive Tribal IV–D agency. A 

comprehensive Tribal IV–D agency may 

have in effect an operational 

computerized support enforcement 

system that meets Federal requirements 

under this part. 

(b) Computerized Tribal IV–D 

Systems. A Computerized Tribal IV–D 

System must be one of the design 

options listed below. A comprehensive 

Tribal IV–D program may automate its 

case processing and recordkeeping 

processes through: 

(1) Installation, operation, 

maintenance, or enhancement of the 

Model Tribal IV–D System designed by 

OCSE to address the program 

requirements defined in a Tribal IV–D 

plan in accordance with § 309.65(a) of 

this chapter and the functional 

requirements in § 310.10 of this part; 

(2) Establishment of 

Intergovernmental Service Agreements 

with a State or another comprehensive 

Tribal IV–D agency for access to that 

agency’s existing automated data 

processing computer system to support 

comprehensive Tribal IV–D program 

operations. 

(c) Office Automation. A 

comprehensive Tribal IV–D agency may 

opt to conduct automated data 

processing and recordkeeping activities 

through Office Automation. Allowable 

activities under this paragraph include 

procurement, installation, operation and 

maintenance of essential Office 

Automation capability as defined in 

§ 310.1 of this part. 

(d) Alternative to Computerized Tribal 

IV–D Systems and Office Automation. A 

comprehensive Tribal IV–D agency may 

design, develop, procure, or enhance an 

automated data processing system 

funded entirely with Tribal funds. 

§ 310.10 What are the functional 

requirements for the Model Tribal IV–D 

System? 

A Model Tribal IV–D System must: 

(a) Accept, maintain and process the 

actions in the support collection and 

paternity determination processes under 

the Tribal IV–D plan, including: 

(1) Identifying information such as 

Social Security numbers, names, dates 

of birth, home addresses and mailing 

addresses (including postal zip codes) 

on individuals against whom paternity 

and support obligations are sought to be 

established or enforced and on 

individuals to whom support 

obligations are owed, and other data as 

may be requested by OCSE; 

(2) Verifying information on 

individuals referred to in paragraph 

(a)(1) of this section with Tribal, 

Federal, State and local agencies, both 

intra-tribal and intergovernmental; 

(3) Maintaining information 

pertaining to: 

(i) Applications and referrals for 

Tribal IV–D services, including: 

(A) Case record; 

(B) Referral to the appropriate 

processing unit (i.e., locate or paternity 

establishment); 

(C) Caseworker notification; 

(D) Case Identification Number; and 

(E) Participant Identification Number; 

(ii) Delinquency and enforcement 

activities; 

(iii) Intra-tribal, intergovernmental, 

and Federal location of the putative 

father and noncustodial parents; 

(iv) The establishment of paternity; 

(v) The establishment of support 

obligations; 

(vi) The payment and status of current 

support obligations; 

(vii) The payment and status of 

arrearage accounts; 

(4) Maintaining data on case actions 

administered by both the initiating and 

responding jurisdictions in 

intergovernmental cases; 

(b) Update, maintain and manage all 

IV–D cases under the Tribal IV–D plan 

from initial application or referral 

through collection and enforcement, 

including any events, transactions, or 

actions taken therein; 

(c) Record and report any fees 

collected, either directly or by 

interfacing with State or Tribal financial 

management and expenditure 

information; 

(d) Distribute current support and 

arrearage collections in accordance with 

Federal regulations at § 309.115 of this 

chapter and Tribal laws; 

(e) Maintain, process and monitor 

accounts receivable on all amounts 

owed, collected, and distributed with 

regard to: 

(1) Detailed payment histories that 

include the following: 

(i) Amount of each payment; 

(ii) Date of each collection; 

(iii) Method of payment; 

(iv) Distribution of payments; and 

(v) Date of each disbursement; 

(2) Automated income withholding 

activities such as: 

(i) Recording and maintaining any 

date the noncustodial parent defaults on 

payment of the support obligation in an 

amount equal to the support payable for 

one month; 

(ii) Generating the Standard Federal 

Income Withholding Form; and 

(iii) Allocating amounts received by 

income withholding according to 

§§ 309.110 and 309.115 of this chapter. 

(f) Maintain and automatically 

generate data necessary to meet Federal 

reporting requirements on a timely basis 

as prescribed by OCSE. At a minimum 

this must include: 

(1) Yearly notices on support 

collected, which are itemized by month 

of collection and provided to families 

receiving services under the 

comprehensive Tribal IV–D program as 

required in § 309.75(c) of this chapter, to 

all case participants regarding support 

collections; and 

(2) Reports submitted to OCSE for 

program monitoring and program 

performance as required in § 309.170 of 

this chapter; 

(g) Provide automated processes to 

enable OCSE to monitor Tribal IV–D 

program operations and to assess 

program performance through the audit 

of financial and statistical data 

maintained by the system; and 

(h) Provide security to prevent 

unauthorized access to, or use of, the 

data in the system as detailed in 

§ 310.15 of this part. 

§ 310.15 What are the safeguards and 

processes that comprehensive Tribal IV–D 

agencies must have in place to ensure the 

security and privacy of Computerized Tribal 

IV–D Systems and Office Automation? 

(a) Information integrity and security. 

The comprehensive Tribal IV–D agency 

must have safeguards on the integrity, 

accuracy, completeness, access to, and 

use of data in the Computerized Tribal 

IV–D System and Office Automation. 

Computerized Tribal IV–D Systems and 

Office Automation should be compliant 

with the Federal Information Security 

Management Act, and the Privacy Act. 

The required safeguards must include 

written policies and procedures 

concerning the following: 


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Federal Register / Vol. 75, No. 37 / Thursday, February 25, 2010 / Rules and Regulations 8523 

(1) Periodic evaluations of the system 

for risk of security and privacy breaches; 

(2) Procedures to allow Tribal IV–D 

personnel controlled access and use of 

IV–D data, including: 

(i) Specifying the data which may be 

used for particular IV–D program 

purposes, and the personnel permitted 

access to such data; 

(ii) Permitting access to and use of 

data for the purpose of exchanging 

information with State and Tribal 

agencies administering programs under 

titles IV–A, IV–E and XIX of the Act to 

the extent necessary to carry out the 

comprehensive Tribal IV–D agency’s 

responsibilities with respect to such 

programs; 

(3) Maintenance and control of 

application software program data; 

(4) Mechanisms to back-up and 

otherwise protect hardware, software, 

documents, and other communications; 

and, 

(5) Mechanisms to report breaches or 

suspected breaches of personally 

identifiable information to the 

Department of Homeland Security, and 

to respond to those breaches. 

(b) Monitoring of access. The 

comprehensive Tribal IV–D agency must 

monitor routine access to and use of the 

Computerized Tribal IV–D System and 

Office Automation through methods 

such as audit trails and feedback 

mechanisms to guard against, and 

promptly identify, unauthorized access 

or use; 

(c) Training and information. The 

comprehensive Tribal IV–D agency must 

have procedures to ensure that all 

personnel, including Tribal IV–D staff 

and contractors, who may have access to 

or be required to use confidential 

program data in the Computerized 

Tribal IV–D System and Office 

Automation are adequately trained in 

security procedures. 

(d) Penalties. The comprehensive 

Tribal IV–D agency must have 

administrative penalties, including 

dismissal from employment, for 

unauthorized access to, disclosure or 

use of confidential information. 

Subpart C—Funding for Computerized 

Tribal IV–D Systems and Office 

Automation 

§ 310.20 What are the conditions for 

funding the installation, operation, 

maintenance and enhancement of 

Computerized Tribal IV–D Systems and 

Office Automation? 

(a) Conditions that must be met for 

FFP at the applicable matching rate in 

§ 309.130(c) of this chapter for 

Computerized Tribal IV–D Systems. The 

following conditions must be met to 

obtain 90 percent FFP in the costs of 

installation of the Model Tribal IV–D 

System and FFP at the applicable 

matching rate under § 309.130(c) of this 

chapter in the costs of operation, 

maintenance, and enhancement of a 

Computerized Tribal IV–D System: 

(1) A comprehensive Tribal IV–D 

agency must have submitted, and OCSE 

must have approved, an Advance 

Planning Document (APD) for the 

installation and enhancement of a 

Computerized Tribal IV–D System; 

(2) An APD for installation of a 

Computerized Tribal IV–D System must: 

(i) Represent the sole systems effort 

being undertaken by the comprehensive 

Tribal IV–D agency under this part; 

(ii) Describe the projected resource 

requirements for staff, hardware, 

software, network connections and 

other needs and the resources available 

or expected to be available to meet the 

requirements; 

(iii) Contain a proposed schedule of 

project milestones with detail sufficient 

to describe the tasks, activities, and 

complexity of the initial 

implementation project; 

(iv) Contain a proposed budget 

including a description of expenditures 

by category and amount for items 

related to installing, operating, 

maintaining, and enhancing the 

Computerized Tribal IV–D System; and 

(v) Contain a statement that the 

comprehensive Tribal IV–D agency 

agrees in writing to use the 

Computerized Tribal IV–D System for a 

minimum period of time; 

(3) The following conditions, in 

addition to those in paragraphs (a)(1) 

and (2) of this section, must be met to 

obtain FFP in the installation costs of 

access to a State or another 

comprehensive Tribal IV–D program’s 

ADP system established under an 

Intergovernmental Service Agreement. 

The comprehensive Tribal IV–D agency 

must: 

(i) Maintain a copy of each 

intergovernmental cooperative 

agreement and Service Agreement in its 

files for Federal review; and 

(ii) Ensure that the: 

(A) Service Agreement for which FFP 

is being sought, meets the definition of 

a Service Agreement as defined in 

§ 310.1 of this title; 

(B) Claims for FFP conform to the 

timely claim provisions of part 95 

subpart A of this title; and 

(C) Service Agreement was not 

previously disapproved by the 

Department. 

(4) The following conditions, in 

addition to those in paragraphs (a)(1) 

through (3) of this section, must be met 

in order for a comprehensive Tribal IV– 

D agency to obtain FFP in the costs of 

enhancements to its Computerized 

Tribal IV–D System: 

(i) The project’s Total Acquisition 

Cost cannot exceed the comprehensive 

Tribal IV–D agency’s total Tribal IV–D 

program grant award for the year in 

which the acquisition request is made; 

and 

(ii) The APD budget, schedule and 

commitment to use the Computerized 

Tribal IV–D System for a specified 

minimum period of time must be 

updated to reflect the enhancement 

project. 

(5) To receive FFP in the costs of the 

operation and maintenance of a 

Computerized Tribal IV–D System 

installed under § 310.20 or developed 

under § 309.145(h)(5), which refers to a 

Tribal automated data processing 

system that is funded entirely with 

Tribal funds, the comprehensive Tribal 

IV–D agency must include operation 

and maintenance costs in its annual 

Title IV–D program budget submission 

in accordance with § 309.15(c) of this 

chapter; 

(6) To receive FFP in the costs of the 

installation, operation, and maintenance 

of essential Office Automation 

capabilities, the comprehensive Tribal 

IV–D agency must include such costs in 

its annual Title IV–D program budget 

submission in accordance with 

§ 309.15(c) of this chapter; 

(b) Procedure for APD Submittal. The 

comprehensive Tribal IV–D agency must 

submit an APD for a Computerized 

Tribal IV–D System to the 

Commissioner of OCSE, Attention: 

Division of State and Tribal Systems. 

The APD submitted by the 

comprehensive Tribal IV–D agency must 

be approved and signed by the 

comprehensive Tribal IV–D agency 

Director and the appropriate Tribal 

officials prior to submission to OCSE for 

approval. 

§ 310.25 What conditions apply to 

acquisitions of Computerized Tribal IV–D 

Systems? 

(a) APD Approval. A comprehensive 

Tribal IV–D agency must have an 

approved APD in accordance with the 

applicable requirements of § 310.20 of 

this part prior to initiating acquisition of 

a Computerized Tribal IV–D System. 

(b) Procurements. Requests for 

Proposals (RFP) and similar 

procurement documents, contracts, and 

contract amendments involving costs 

eligible for FFP, must be submitted to 

OCSE for approval prior to release of the 

procurement document, and prior to the 

execution of the resultant contract when 

a procurement is anticipated to or will 


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8524 Federal Register / Vol. 75, No. 37 / Thursday, February 25, 2010 / Rules and Regulations 

exceed the Simplified Acquisition 

Threshold; 

(c) Software and ownership rights. (1) 

All procurement and contract 

instruments must include a clause that 

provides that the comprehensive Tribal 

IV–D agency will have all ownership 

rights to Computerized Tribal IV–D 

System software or enhancements 

thereof and all associated 

documentation designed, developed or 

installed with FFP. Intergovernmental 

Service Agreements are not subject to 

this paragraph. 

(2) OCSE reserves a royalty-free, 

nonexclusive, and irrevocable license to 

reproduce, publish, or otherwise use 

and to authorize others to use for 

Federal Government purposes, such 

software, modifications and 

documentation. 

(3) FFP is not available for the costs 

of rental or purchase of proprietary 

application software developed 

specifically for a Computerized Tribal 

IV–D System. Commercial-off-the-shelf 

(COTS) software packages that are sold 

or leased to the general public at 

established catalog or market prices are 

not subject to the ownership and license 

provisions of this requirement. 

(d) Requirements for acquisitions 

under the threshold amount. A 

comprehensive Tribal IV–D agency is 

not required to submit procurement 

documents, contracts, and contract 

amendments for acquisitions under the 

Simplified Acquisition Threshold 

unless specifically requested to do so in 

writing by OCSE. 

§ 310.30 Under what circumstances would 

FFP be suspended or disallowed in the 

costs of Computerized Tribal IV–D 

Systems? 

(a) Suspension of APD approval. 

OCSE will suspend approval of the APD 

for a Computerized Tribal IV–D System 

approved under this part as of the date 

that the system ceases to comply 

substantially with the criteria, 

requirements, and other provisions of 

the APD. OCSE will notify a Tribal IV– 

D agency in writing in a notice of 

suspension, with such suspension 

effective as of the date on which there 

is no longer substantial compliance. 

(b) Suspension of FFP. If OCSE 

suspends approval of an APD in 

accordance with this part during the 

installation, operation, or enhancement 

of a Computerized Tribal IV–D System, 

FFP will not be available in any 

expenditure incurred under the APD 

after the date of the suspension until the 

date OCSE determines that the 

comprehensive Tribal IV–D agency has 

taken the actions specified in the notice 

of suspension described in paragraph (a) 

of this section. OCSE will notify the 

comprehensive Tribal IV–D agency in 

writing upon making such a 

determination. 

§ 310.35 Under what circumstances would 

emergency FFP be available for 

Computerized Tribal IV–D Systems? 

(a) Conditions that must be met for 

emergency FFP. OCSE will consider 

waiving the approval requirements for 

acquisitions in emergency situations, 

such as natural or man-made disasters, 

upon receipt of a written request from 

the comprehensive Tribal IV–D agency. 

In order for OCSE to consider waiving 

the approval requirements in § 310.25 of 

this part, the following conditions must 

be met: 

(1) The comprehensive Tribal IV–D 

agency must submit a written request to 

OCSE prior to the acquisition of any 

ADP equipment or services. The written 

request must be sent by registered mail 

and include: 

(i) A brief description of the ADP 

equipment and/or services to be 

acquired and an estimate of their costs; 

(ii) A brief description of the 

circumstances which resulted in the 

comprehensive Tribal IV–D agency’s 

need to proceed prior to obtaining 

approval from OCSE; and 

(iii) A description of the harm that 

will be caused if the comprehensive 

Tribal IV–D agency does not acquire 

immediately the ADP equipment and 

services. 

(2) Upon receipt of the information, 

OCSE will, within 14 working days of 

receipt, take one of the following 

actions: 

(i) Inform the comprehensive Tribal 

IV–D agency in writing that the request 

has been disapproved and the reason for 

disapproval; or 

(ii) Inform the comprehensive Tribal 

IV–D agency in writing that OCSE 

recognizes that an emergency exists and 

that within 90 calendar days from the 

date of the initial written request under 

paragraph (a)(1) of this section the 

comprehensive Tribal IV–D agency must 

submit a formal request for approval 

which includes the information 

specified at § 310.25 of this title in order 

for the ADP equipment or services 

acquisition to be considered for OCSE’s 

approval. 

(b) Effective date of emergency FFP. If 

OCSE approves the request submitted 

under paragraph (a)(2) of this section, 

FFP will be available from the date the 

comprehensive Tribal IV–D agency 

acquires the ADP equipment and 

services. 

Subpart D—Accountability and 

Monitoring Procedures for 

Computerized Tribal IV–D Systems 

§ 310.40 What requirements apply for 

accessing systems and records for 

monitoring Computerized Tribal IV–D 

Systems and Office Automation? 

In accordance with Part 95 of this 

title, a comprehensive Tribal IV–D 

agency must allow OCSE access to the 

system in all of its aspects, including 

installation, operation, and cost records 

of contractors and subcontractors, and 

of Service Agreements at such intervals 

as are deemed necessary by OCSE to 

determine whether the conditions for 

FFP approval are being met and to 

determine the efficiency, effectiveness, 

reasonableness of the system and its 

cost. 

[FR Doc. 2010–3572 Filed 2–24–10; 8:45 am] 

BILLING CODE P 

DEPARTMENT OF TRANSPORTATION 

Office of the Secretary 

49 CFR Part 40 

[Docket OST–2008–0184] 

RIN 2105–AD67 

Procedures for Transportation 

Workplace Drug and Alcohol Testing 

Programs 

AGENCY: Office of the Secretary, DOT. 

ACTION: Final rule; response to 

comments on Interim Final rule. 

SUMMARY: This final rule adopts as final, 

without change, a June 13, 2008, interim 

final rule (IFR) authorizing employers in 

the Department’s drug and alcohol 

testing program to disclose to State 

commercial driver licensing (CDL) 

authorities the drug and alcohol 

violations of employees who hold CDLs 

and operate commercial motor vehicles 

(CMVs), when a State law requires such 

reporting. The rule also responds to 

comments on the IFR. 

DATES: This rule is effective February 

25, 2010. 

FOR FURTHER INFORMATION CONTACT: 

Patrice M. Kelly, Deputy Director, Office 

of Drug and Alcohol Policy and 

Compliance, 1200 New Jersey Avenue, 

SE., Washington, DC 20590; 202–366– 

3784 (voice), 202–366–3897 (fax), or 

patrice.kelly@dot.gov (e-mail). 

SUPPLEMENTARY INFORMATION: 

Background and Purpose 

The Department’s drug and alcohol 

testing procedures regulation, 49 CFR 

Part 40, provides confidentiality of 


jlentini on DSKJ8SOYB1PROD with RULES