[Federal Register Volume 63, Number 140 (Wednesday, July 22, 1998)]
[Proposed Rules]
[Pages 39366-39429]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-19007]



[[Page 39365]]

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Part II





Department of Health and Human Services





_______________________________________________________________________



Administration for Children and Families



_______________________________________________________________________



45 CFR Parts 286-287



Tribal Temporary Assistance for Needy Families Program (Tribal TANF) 
and Native Employment Works (NEW) Program; Proposed Rule

Federal Register / Vol. 63, No. 140 / Wednesday, July 22, 1998 / 
Proposed Rules

[[Page 39366]]



DEPARTMENT OF HEALTH AND HUMAN SERVICES

Administration for Children and Families

45 CFR Parts 286 and 287

RIN 0970-AB78


Tribal Temporary Assistance for Needy Families Program (Tribal 
TANF) and Native Employment Works (NEW) Program

AGENCY: Administration for Children and Families, HHS.

ACTION: Proposed rule.

-----------------------------------------------------------------------

SUMMARY: The Administration for Children and Families (ACF) proposes to 
issue regulations to implement key Tribal provisions of the Personal 
Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA) 
and the Balanced Budget Act of 1997, Pub. L. 105-33. PRWORA established 
the Tribal Temporary Assistance for Needy Families program and a tribal 
work program which we have named the Native Employment Works (NEW) 
program at the suggestion of some Indian tribes. The Balanced Budget 
Act of 1997 made technical corrections to PRWORA.

DATES: You must submit comments by September 21, 1998.

ADDRESSES: You may mail or hand-deliver comments to the Administration 
for Children and Families, Office of Community Services, Division of 
Tribal Services, 5th Floor, 370 L'Enfant Promenade, SW, Washington, DC 
20447. You may also transmit written comments electronically via the 
Internet. To transmit comments electronically, or download an 
electronic version of the proposed rule, you should access the ACF 
Welfare Reform Home Page at http:/www.acf.dhhs.gov/news/welfare and 
follow any instructions provided.
    We will make all comments available for public inspection on the 
5th Floor, 901 D Street, SW, Washington, DC 20447, from Monday through 
Friday between the hours of 9 a.m. and 4 p.m. Eastern time, except for 
holidays. For additional information, see Supplementary Information 
section of the preamble.

FOR FURTHER INFORMATION, CONTACT: John Bushman, Director, Division of 
Tribal Services, Office of Community Services, ACF, at 202-401-2418, 
Raymond Apodaca, at 202-401-5020 or Ja-Na Oliver, NEW Team Leader at 
202-401-5713.
    Deaf and hearing-impaired individuals may call the Federal Dual 
Party Relay Service at 1-800-877-8339 from Monday through Friday 
between the hours of 8 a.m. and 7 p.m., Eastern time.

SUPPLEMENTARY INFORMATION:

Comment Procedures

    We will not consider comments received beyond the 60-day comment 
period in developing the final rule. Because of the large volume of 
comments we anticipate, we will accept written comments only. In 
addition, your comments should:
    <bullet> Be specific;
    <bullet> Address issues raised by the proposed rule;
    <bullet> Where appropriate, propose alternatives;
    <bullet> Explain reasons for any objections or recommended changes; 
and
    <bullet> Reference the specific section of the proposed rule that 
you are addressing.
    We will not acknowledge the comments we receive. However, we will 
review and consider all comments that are germane and that are received 
during the comment period.

Table of Contents

I. The Personal Responsibility and Work Opportunity Reconciliation 
Act of 1996
II. Regulatory Framework
    A. Consultations
    B. Related Regulations under Development
    C. Statutory Context
    D. Regulatory Reform
    E. Scope of This Rulemaking
    F. Applicability of the Rules
III. Principles Governing Regulatory Development
    A. Tribal Flexibility
    B. Regulatory Authority
    C. Accountability for Meeting Program Requirements and Goals
IV. Discussion of Individual Regulatory Provisions
    A. Part 286--Tribal TANF Program Provisions
    B. Part 287--Native Employment Works (NEW) Program
V. Regulatory Impact Analyses
    A. Executive Order 12866
    B. Regulatory Flexibility Analysis
    C. Paperwork Reduction Act
    D. Unfunded Mandates Reform Act of 1995

I. The Personal Responsibility and Work Opportunity Reconciliation 
Act of 1996

    On August 22, 1996, President Clinton signed the ``Personal 
Responsibility and Work Opportunity Reconciliation Act of 1996'' 
(PRWORA) into law. The first title of this new law (Pub. L. 104-193) 
establishes a comprehensive welfare reform program which is designed to 
change the nation's welfare system. The new program is called Temporary 
Assistance for Needy Families, or TANF, in recognition of its focus on 
moving recipients into work and time-limited assistance.
    PRWORA repeals the existing welfare program known as Aid to 
Families with Dependent Children (AFDC), which provided cash assistance 
to needy families on an entitlement basis. It also repeals the related 
programs known as the Job Opportunities and Basic Skills Training 
(JOBS) program and Emergency Assistance (EA).
    The new law reflects agreement on several key principles:
    <bullet> Welfare programs should be designed to help move people 
from welfare to work.
    <bullet> Welfare should be a short-term, transitional experience, 
not a way of life.
    <bullet> Parents should receive the child care and the health care 
they need to protect their children as they move from welfare to work.
    <bullet> Child support programs should become tougher and more 
effective in securing support from absent parents.
    <bullet> Because many factors contribute to poverty and dependency, 
solutions to these problems should not be ``one size fits all.'' The 
system should allow States, Tribes, and localities to develop diverse 
and creative responses to their own problems.
    <bullet> The Federal government should place more emphasis on 
program results.
    The new law provides federally-recognized Indian tribes, or 
consortia of such Tribes, the opportunity to apply for funding under 
section 412 of the Social Security Act (or the Act), as amended by 
PRWORA, to operate their own TANF programs beginning July 1, 1997.
    Indian tribes that choose to administer a Tribal TANF program have 
been given broad flexibility to set TANF eligibility rules and to 
decide what benefits are most appropriate for their service areas and 
populations. Tribes may try new, far-reaching approaches that can 
respond more effectively to the needs of families within their own 
unique environments. The TANF program challenges Tribal governments to 
foster positive changes in the culture of the welfare system and to 
take responsibility for program results and outcomes.
    Under the new statute, TANF funding and assistance for families 
comes with new expectations and responsibilities. Adults receiving 
assistance are expected to engage in work activities and develop the 
capability to support themselves and their families before their time-
limited assistance runs out. Tribes who take on the responsibility for 
administering a TANF program will be expected to

[[Page 39367]]

assist recipients making the transition to employment. Tribal TANF 
grantees also will be expected to meet work participation rates and 
other critical program requirements in order to avoid penalties and 
maintain their Federal funding.
    In meeting these expectations, Tribes need to examine the needs of 
their service areas and service populations, identify the causes of 
long-term underemployment and dependency, and work with families, 
communities, businesses, and other social service agencies in resolving 
employment barriers.
    In addition to establishing the Tribal TANF program, PRWORA 
authorizes funding, to the former Tribal JOBS grantees, for a tribal 
program ``to make work activities available * * *''. Based upon Tribal 
recommendations, we have designated this tribal work activities program 
as the Native Employment Works (NEW) program. Tribes are encouraged to 
focus the NEW program on work activities and on services which support 
participation in work activities. In addition, Tribes are encouraged to 
create and expand employment opportunities when possible.
    The new welfare reform legislation not only gives Tribes new 
opportunities, as in the case of the TANF program, and continued 
responsibilities, as in the case of the NEW program, it also 
dramatically affects intergovernmental relationships. It challenges 
Federal, Tribal, State and local governments to foster positive changes 
in the culture of welfare. It transforms the way agencies do business, 
requiring true partnerships with each other, community organizations, 
businesses and needy families.

II. Regulatory Framework

A. Consultations

    In the spirit of both regulatory reform and PRWORA, and consistent 
with the Secretary's policy on consultation with Indian tribes, we 
implemented a broad consultation strategy prior to drafting this Notice 
of Proposed Rulemaking (NPRM). We had discussions with a number of 
different audiences, including representatives of Tribal, State, and 
local governments. We solicited both written and oral comments and 
worked to ensure that concerns raised during this process were shared 
with both the staff working on individual regulatory issues and key 
policy-makers.
    The purpose of these efforts was to gain a variety of informational 
perspectives about the potential benefits and pitfalls of various 
regulatory approaches.
    The discussions and written comments were very useful in helping us 
identify key issues and evaluate policy options. However, we would like 
to emphasize that, although we used this early input to draft the 
proposed rules, this is not the only opportunity to provide comments. 
All interested parties now have the opportunity to comment on specific 
policy proposals contained in this NPRM. We will review all comments 
submitted during the comment period and will take them into 
consideration before issuing a final rule.

B. Related Regulations Under Development

    This NPRM addresses the provisions of the Tribal TANF and NEW; the 
NPRM on the State TANF program was published in the Federal Register on 
November 20, 1997. This NPRM addresses, but does not contain proposed 
rules for the Alaska TANF comparability criteria, which the Secretary 
will develop in consultation the State of Alaska and the Alaska Native 
entities eligible to operate TANF. We will publish the Alaska TANF 
comparability criteria at a later date. There are no other regulations 
related to the Tribal TANF or NEW program under development.
    This NPRM does not include the provisions for the new Tribal 
Welfare-to-Work (WTW) program at section 412(a)(3) of the Act, as 
created by section 5001(c) of Pub. L. 105-33. The Secretary of Labor is 
responsible for issuing rules for this program.

C. Statutory Context

    These proposed rules reflect PRWORA, as enacted, and the amendments 
contained in Pub. L. 105-33.
    Pub. L. 105-33 created the new Welfare-to-Work (WTW) program, made 
a few substantive changes to the TANF and NEW program, and made 
numerous technical corrections to the TANF statute. Throughout the 
preamble discussion and the appendices, you will note references to the 
amendments made by this legislation. However, as previously mentioned, 
this NPRM includes only a limited number of changes related to the new 
WTW provisions. The Department of Labor has primary responsibility for 
administering the program and issuing the WTW regulations. We have 
responsibility for issuing rules on the WTW data collection 
requirements, but will do that at a subsequent date.

D. Regulatory Reform

    In its latest Document Drafting Handbook, the Office of the Federal 
Register supports the efforts of the National Performance Review and 
encourages Federal agencies to produce more reader-friendly 
regulations. In drafting this proposed rule, we have paid close 
attention to this guidance. Individuals who are familiar with our 
existing welfare regulations should notice that this package 
incorporates a distinctly different, more readable style.

E. Scope of This Rulemaking

    Because there are no existing Tribal TANF or NEW regulations, this 
package is intended to cover the proposed rules as they relate to the 
provisions of the Tribal TANF and NEW programs (including definitions 
of common and frequently used terms).

F. Applicability of the Rules

    A Tribe may operate its TANF and/or NEW program under a reasonable 
interpretation of the statute prior to publication of final rules. 
Thus, in determining whether a Tribe is subject to a penalty under TANF 
or a disallowance under the NEW program, we will not apply regulatory 
interpretations retroactively. However, Tribes are bound by any Policy 
Announcements issued by ACF, including those issued in advance of final 
regulations.

III. Principles Governing Regulatory Development

A. Tribal Flexibility

    In the Conference Report to PRWORA, Congress stated that the best 
welfare solutions come from those closest to the problems, not from the 
Federal government. Thus, the legislation provides Tribes with the 
opportunity to reform welfare in ways that work best to serve the needs 
of their service areas and service populations. It gives Tribes the 
flexibility to design their own programs, define who will be eligible, 
establish what benefits and services will be available, and develop 
their own strategies for achieving program goals, including how to help 
recipients move into the work force.
    To ensure that our rules support the legislative goals of PRWORA, 
we are also committed to gathering information on how Tribes are 
responding to the new opportunities available to them. We reserve the 
right to revisit some issues, either through proposed legislation or 
regulation, if we identify situations where our rules are not 
furthering the objectives of the Act.

[[Page 39368]]

B. Regulatory Authority

    Early consultation input from Indian tribes suggested that the 
intent of Congress to provide for program flexibility should limit the 
extent to which we regulate Tribal TANF and NEW programs. However, 
Congress gave us more authority to regulate the Tribal TANF and NEW 
programs than State TANF programs.
    Unlike the process for reviewing and accepting plans for State 
TANF, the statute requires us to approve Tribal TANF plans. While we 
propose maximum flexibility in program design and procedures, we 
believe that it is important for us to set forth, in regulations, the 
process for the submission and approval of plans and other program 
requirements.
    Tribal TANF programs must meet minimum work participation rates, 
and Tribal TANF recipients are subject to maximum time limits for the 
receipt of assistance as well as penalties for failure to meet program 
requirements. While these requirements are specified in PRWORA for 
State TANF programs, we will establish these for each Tribal program 
with Tribal input. Although the proposed rules suggest flexibility in 
how these requirements are established, we believe that it is important 
for us to lay out, in regulations, the criteria that we propose to use.
    Although Tribes that operate TANF programs are subject to some of 
the same statutory requirements as are States, there are some 
requirements that do not apply to Tribes, such as the prohibitions in 
section 408. At the same time, the statute provides options to States 
such as the option to exempt families from applicable time limits due 
to hardship, that we propose to make available to Tribes, unless 
precluded by other legal authority. Thus, since the statute does not 
treat Tribes and States in the same way, we believe the Tribal TANF 
regulations should reflect this.

C. Accountability for Meeting Program Requirements and Goals

    The new law gives Tribes flexibility to design their TANF programs 
in ways that strengthen families and promote work, responsibility, and 
self-sufficiency. At the same time, however, it reflects a commitment 
to ensuring that the goals of welfare reform are met. To this end, the 
statutory provisions on data collection and penalties are crucial 
because they give us the authority we need to track what is happening 
to needy families and children under the new law, measure program 
outcomes, and promote key program objectives.
    While we have proposed rules on data collection and reporting 
requirements for State TANF programs, this Notice of Proposed 
Rulemaking lays down our proposal specific to the Tribal programs. This 
is because the Tribal TANF programs will not be subject to the final 
rules for the State TANF programs. Thus, we need to ensure that there 
is a clear understanding of the data collection and reporting 
requirements as they apply to Tribes.

IV. Discussion of Individual Regulatory Provisions

    The following is a discussion of all the regulatory provisions we 
have included in this package. The discussion follows the order of the 
regulatory text, addressing each part and section in turn.

A. PART 286--TRIBAL TANF PROGRAM PROVISIONS

Subpart A--General Tribal TANF Provisions
    What does this part cover? (Sec. 286.1)
    This part contains our proposed rule for the implementation of 
section 412 of the Social Security Act, except for section 412(a)(2) 
which is covered in part 287. Section 412 allows federally-recognized 
Indian tribes, certain specified Alaska Native organizations and Tribal 
consortia to submit plans for the administration of a Temporary 
Assistance for Needy Families (TANF) program.
    In this proposed rule, we have tried to retain the flexibility 
provided by the statute to the Tribal Family Assistance program. At the 
same time, we recognize the need to set forth the general rules that 
will govern the program.
    In addition, in recognition of the unique legal relationship the 
United States has with Tribal governments, these regulations will be 
applied in a manner that respects and promotes a government-to-
government relationship between Tribal governments and the United 
States government, Tribal sovereignty, and the realization of Indian 
self-governance.
    In this proposed rule the terms ``Tribal Family Assistance 
program'' or ``TFAP'' and ``Tribal TANF program'' are used 
interchangeably.
    What definitions apply to this part? (Sec. 286.5)
    This section of the proposed rule includes definitions of the terms 
used in part 286. Where appropriate, it also includes cross-references 
which direct the reader to other sections or subparts of the proposed 
rule for additional information.
    In drafting this section of the proposed rule, we chose not to 
define every term used in the statute and in these proposed 
regulations. We understand that excessive definitions may unduly and 
unintentionally limit Tribal flexibility in designing programs that 
best serve their needs.
    For example, we have not defined ``Indian family'' or ``service 
population.'' Each Tribe administering its own Tribal TANF program is 
permitted by the statute to define its service population. Because 
funding for the Tribal TANF program is based on State expenditures of 
Federal funds on Indian families during fiscal year 1994, we believe 
the Tribal TANF program was intended to serve primarily Indian 
families. However, in order to provide flexibility to Tribes and 
States, Tribes may define service population and have the option of 
including only a portion of the Tribal enrollment, only Tribal members, 
all Indians, or even non-Indians residing in the service area. It will 
be up to each Tribe submitting a TANF plan to define the service 
population that the plan covers. The service population definition 
provided by a Tribe in turn determines what data the State would be 
asked to provide to calculate the amount of the Tribal TANF grant. Note 
that at Sec. 286.65(d)(2) if a Tribe chooses to include non-Indian 
families in its service population definition, the Tribe is required to 
demonstrate State agreement with the inclusion of that portion of the 
Tribe's service population.
    We also have not defined the individual work activities that count 
for the purpose of calculating a Tribe's work participation rate. These 
are terms the Tribe should define in designing its Tribal TANF program. 
We believe Tribes should have maximum flexibility to define these terms 
as appropriate for their program design.
    Readers will note that we use the term ``we'' throughout the 
regulation and preamble. The term ``we'' means the Secretary of the 
Department of Health and Human Services or any of the following 
individuals or agencies acting on the Secretary's behalf: The Assistant 
Secretary for Children and Families, the Regional Administrators for 
Children and Families, the Department of Health and Human Services, and 
the Administration for Children and Families.
    Readers should also note that we use the term ``Tribe'' throughout 
the regulation and preamble. The term ``Tribe'' means federally-
recognized Indian tribes, consortia of such Indian tribes, and the 13 
entities in the State of Alaska that are eligible to administer a 
Tribal Family Assistance program, under an approved plan. It also 
refers to

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the Indian tribes and the Alaska Native organizations that are eligible 
to administer a NEW program because they operated a Tribal JOBS program 
in fiscal year 1995.
    We have provided necessary definitions from PRWORA for the readers' 
convenience. However, we have chosen not to augment these statutory 
definitions.
    We also have provided clarifying, operational and administrative 
definitions in the interest of developing a clearer, more coherent and 
succinct regulation. These include common acronyms and definitions we 
believe are needed in order to understand the nature and scope of the 
provisions in this proposed rule. Some of these terms have commonly 
understood meanings; others are consistent with proposed definitions 
included in the State TANF NPRM. We advise readers to review all the 
terms in this section carefully because many of them determine the 
application of substantive requirements.
    Federal requirements related to the expenditures of Federal grant 
funds necessitate the use of precise definitions. An example of such a 
definition is that used for the term ``administrative costs'' which 
triggers particular Federal grant requirements (see Sec. 286.40).
    Assistance. The terms ``assistance'' and ``families receiving 
assistance'' are used in the PRWORA in many critical places that affect 
the Tribal TANF program, including: (1) In the numerator and 
denominator of the work participation rates in section 407(b); and (2) 
the data collection requirements of section 411(a). Largely through 
reference, the term also affects the scope of the penalty provision in 
section 409(a)(1). Thus, it is important that Tribes have a definition 
of ``assistance.'' For the purposes of the Tribal TANF program, we 
propose to adopt the same definition of assistance as developed and 
included in the NPRM for the State TANF program.
    Because PRWORA is a block grant, a Tribe may provide some forms of 
support under TANF that would not commonly be considered public 
assistance. Some of this support might resemble the types of short-
term, crisis-oriented support that were provided previously by the 
States under the EA program. Other forms might be more directly related 
to the work objectives of the Act and not have a direct monetary value 
to the family. We are proposing to exclude some of these forms of 
support from the definition of assistance.
    The general legislative history for this title indicates that 
Congress meant that this term encompass more than cash assistance (H.R. 
Rep. No. 725, 104 Cong., 2d Sess (1996)). Therefore, as we suggested in 
our January policy announcement (TANF-ACF-PA-97-1) for State TANF 
programs, the definition of assistance should encompass most forms of 
support. However, we recognized two basic forms of support that would 
not be considered welfare and proposed to exclude them from the 
definition. In brief, the two exclusions were: (1) Services that had no 
direct monetary value and did not involve direct or indirect income 
support; and (2) one-time, short-term assistance.
    In the proposed rule, we are clarifying that child care, work 
subsidies, and allowances that cover living expenses for individuals in 
education or training are included within the definition of assistance. 
For this purpose, child care includes payments or vouchers for direct 
child care services, as well as the value of direct child care services 
provided under contract or a similar arrangement. It does not include 
child care services such as information and referral or counseling, or 
child care provided on a short-term, ad hoc basis. Work subsidies 
include payments to employers to help cover the costs of employment or 
on-the-job training.
    We are also proposing to define one-time, short-term assistance as 
assistance that is paid no more than once in any twelve-month period, 
is paid within a 30-day period, and covers needs that do not extend 
beyond a 90-day period. In response to the policy announcement, we 
received a number of questions about what the term ``one-time, short-
term'' meant. Based on our experience with the EA program, we realized 
that a wide range of interpretations was possible, and we were 
concerned that ``short-term'' or ``one-time'' could be defined to 
encompass many situations where assistance was of a significant and 
ongoing nature. We believe our proposal will give Tribes the 
flexibility to meet short-term and emergency needs (such as an 
automobile repair), without invoking too many administrative 
requirements and undermining the objectives of the Act. We welcome 
comments on whether the proposed policy achieves this end.
    Under the policy announcement and this proposed rule, we define the 
minimum types of services and benefits that must be included as 
assistance. Based on comments we received, we considered allowing 
Tribes to include additional kinds of benefits and services, at their 
option. However, we were concerned that varying Tribal definitions 
would create additional comparability problems with respect to data 
collection and penalty determinations. Also, we were concerned that an 
expanded definition might have undesirable program effects.
    If Tribes expanded their definitions of assistance, they would have 
to apply that same definition under all provisions of the regulations. 
Thus, if something fell within the definition of assistance, the family 
receiving that type of benefit would be subject to work requirements, 
and Federal time limits; and the family would have to be included in 
the Tribe's data collection and reporting.
    In response to the policy announcement, we received a number of 
questions about the treatment of TANF assistance under the child 
support enforcement program. The Office of Child Support Enforcement 
will issue guidance on the distribution of child collections under 
PRWORA; this guidance will explain the treatment of TANF assistance 
under the new distribution rules.
    For those concerned about the inclusion of child care in the 
definition of assistance, we would point out the child care 
expenditures made under the Child Care Development Fund program are not 
subject to TANF requirements, including time limits for the receipt of 
assistance.
    As a part of the Tribal TANF Financial Report that is being 
developed, we will propose to collect data on how much of the program 
expenditures are being spent on different kinds of ``assistance'' and 
``non-assistance.'' If the data that will be collected show that large 
portions of the program resources are being spent on ``non-
assistance,'' we would have concerns that the flexibility in our 
definition of ``assistance'' is undermining the goals of the 
legislation. We would then look more closely at the ``non-assistance'' 
being provided and try to assess whether work requirements, time limits 
and case-record data would be appropriate for those cases. If 
necessary, we would consider a change to the definition of 
``assistance'' or other remedies.
    While our definition excludes some forms of support as 
``assistance,'' the exclusions do not apply to the eligible Alaska 
Tribal entities and the State of Alaska in determining whether the 
Alaska Tribal entities' Tribal TANF programs are comparable to Alaska's 
State TANF program. For example, an Alaska Tribal entity that 
implements a Tribal TANF program may choose to include ``direct 
services'' as part of their benefit level definition, and these 
``direct services'' would trigger the TANF requirements, i.e., work 
requirements, time limits, and data

[[Page 39370]]

collection and reporting. Please refer to Sec. 286.150 for more 
information on the Alaska comparability requirement.
    Finally, we would like to note that Sec. 286.5 contains a 
definition of ``administrative costs.'' This definition is important 
because we are proposing, at Sec. 286.40, to limit to 20 percent the 
amount of Tribal TANF funds that a Tribe may use for administrative 
costs.
    Who is eligible to operate a Tribal TANF program? (Sec. 286.10)
    This section of the proposed rule specifies which Indian tribes are 
eligible to submit Tribal Family Assistance Plans (TFAPs).
    In general, any federally-recognized Indian tribe is eligible to 
submit a Tribal Family Assistance Plan. However, with respect to the 
State of Alaska, only the 12 Alaska Native regional nonprofit 
corporations specified at section 419 of the Act, plus the Metlakatla 
Indian Community of the Annette Islands Reserve may submit a TFAP.
    In addition, a consortium of eligible Indian tribes may develop and 
submit a single TFAP.
Subpart B--Tribal TANF Funding
    How is the amount of a Tribal Family Assistance Grant determined? 
(Sec. 286.15)
    How will we resolve disagreements over the State-submitted data 
used to determine the amount of a Tribal Family Assistance Grant? 
(Sec. 286.20)
    We have combined the discussions for these two sections of the 
proposed rule because they are interrelated. These sections of the 
proposed rule discuss how the amount of a Tribal Family Assistance 
Grant (TFAG) will be determined and the actions we believe will be 
necessary to resolve disagreements over the data received from a State.
    PRWORA requires the Secretary to pay TFAGs to federally-recognized 
Indian tribes with approved 3-year Tribal Family Assistance Plans. To 
determine the amount of a TFAG, we must use data submitted by the State 
or States in which the Indian tribe is located. Section 412(a)(1)(B) 
specifies the data that we will use. The statute provides that, for 
each fiscal year 1997-2002, an Indian tribe that has an approved Tribal 
Family Assistance Plan will receive an amount equal to the Federal 
share (including administrative expenditures, which would include 
systems costs) of all expenditures (other than child care expenditures) 
by the State or States under the AFDC and Emergency Assistance (title 
IV-A) programs, and the JOBS (title IV-F) program for fiscal year (FY) 
1994 for Indian families residing in the service area(s) identified in 
the Tribal Family Assistance Plan. For Tribes that operated a Tribal 
JOBS program in FY 1994, the State title IV-F expenditures (including 
administrative costs) used in the calculation of the TFAG would be for 
expenditures made by the State on behalf of non-member Indians and non-
Indians, if either or both are included in the Tribal TANF population 
and are living in the designated Tribal TANF service area(s). Any 
expenditures by the State for Tribal members who were served by the 
State JOBS program will also be included in the determination.
    Section 412(a)(1)(B)(ii)(II) of the statute allows Tribes the 
opportunity to disagree with State-submitted data and to submit 
additional information relevant to our determination of the TFAG 
amount. We believe Tribes should have an opportunity to submit relevant 
information in instances in which the State has failed to submit 
requested data on a timely basis. However, we believe the lack of 
State-submitted data will be a very rare occurrence.
    We will request State data based on the Tribe's identified service 
area and population, which may include areas outside the reservation 
and non-Indian families. We will allow States 21 days from the date of 
our request to submit the requested data before notifying the affected 
Tribe of its option under section 412(a)(1)(B)(ii)(II) of PRWORA to 
submit its own data. This time frame should allow States adequate time 
to gather and submit the data. However, in order for us to notify the 
State of any reduction in its grant not later than three months before 
payment of any quarterly installment, as specified by section 405(b), 
we will use the best available data to determine the amount of the 
TFAG, if the State has not submitted the specified data at the end of 
the 21-day period. Our experience to date has shown that we need time 
to resolve any issues related to determining the amount of a TFAG in 
order to meet the statutory requirement for notification to the State 
of the reduction in the amount of their State TANF grant.
    We also believe a Tribe should have a reasonable period of time in 
which to review the State-submitted data and make a determination as to 
whether or not it concurs with the data. We have determined that a 
twenty-one (21) day period should be sufficient for this activity. 
Therefore, we propose to allow a Tribe 21 days from when it receives 
the State-submitted data from us to notify us of its concurrence or 
non-concurrence with the data.
    Once we receive State data, we will share it with the Tribe. We 
will also facilitate any meeting or discussions between the Tribe and 
the State to answer any questions the Tribe has about the submitted 
data. Any meetings or discussions to answer the Tribe's questions about 
the data need to be held within the proposed 21-day period for Tribal 
concurrence. We believe it is in the best interests of both the Tribe 
and the State to reach a consensus on the State data. However, if the 
Tribe finds it cannot concur with the State data and has notified us to 
this effect, we will provide the Tribe an additional 21 days to submit 
additional relevant information. It will then be our responsibility 
under section 412(a)(1)(B)(ii)(II) to make the final determination as 
to the amount of the TFAG after review of the information submitted by 
the Tribe.
    In instances in which the State has not submitted the requested 
data within the time period given, we will notify the Tribe. We will 
give the Tribe 21 days from the date of our notification to submit 
relevant data. This 21-day time frame is the same time frame we have 
proposed for Tribes to submit information if they disagree with State-
submitted data. In the absence of State-submitted data, we propose to 
use relevant Tribe-submitted data to determine the amount of the TFAG.
    If a Tribe disagrees with the data submitted by the State, we will 
use the State-submitted data and any additional relevant information 
submitted by the Tribe to determine the amount of the TFAG. Relevant 
Tribal data may include, but are not limited to, Census Bureau data, 
data from the Bureau of Indian Affairs, data from other Federal 
programs, and tribal records.
    Once the amount of the TFAG is officially determined, we will 
notify both the Tribe and the State of the Secretary's decision. Our 
goal will be to resolve any data issues at least two weeks prior to 
when we are required to notify the State. We will make official 
notification of the amount of the State Family Assistance Grant 
reduction to the appropriate State(s) no later than 90 days before the 
payment of the State's next quarterly SFAG installment.
    What is the process for retrocession of a Tribal Family Assistance 
Grant? (Sec. 286.25)
    As defined at Sec. 286.5, retrocession is a voluntary termination 
of a Tribal TANF program. Section 412 of the Act does not include a 
provision for retrocession. However, we recognize that Tribes 
voluntarily implement a TANF program for their needy families and 
should, therefore, be afforded the opportunity to withdraw their 
agreement to operate the program. For

[[Page 39371]]

example, a Tribe may lose a State's commitment to provide State funds 
for Tribal TANF, which could significantly impact the Tribe's financial 
ability to operate the program. Based on overwhelming support and 
comments by both Tribes and States, we determined the necessity of a 
retrocession provision in these regulations.
    In providing for the retrocession of a Tribal TANF program, we 
recognize several needs. Thus, the proposed specified time frame is 
intended to ensure that: (1) There is minimal disruption of services to 
families in need of assistance; (2) a Tribe makes an informed decision 
in determining whether or not to cease operating the Tribal TANF 
program; and (3) a State is provided adequate notice to ensure 
continuity of program services.
    A Tribe that decides to terminate its Tribal TANF program must 
notify the Secretary in writing of its decision and the reason(s) for 
retrocession at least 120 days prior to the effective date of the 
termination. The effective date must coincide with the end of the grant 
period (i.e., September 30). This deadline reflects our intention to 
notify the State no later than 90 days prior to the effective date of 
the termination. We believe this will give the State ample time to 
implement services for the families who had been served by the Tribal 
TANF program.
    For Tribes that retrocede, the provisions of 45 CFR part 92 will 
apply with regard to closeout of the grant. The Tribe must return all 
unobligated funds to the Federal government. The appropriate SFAG will 
be increased by the amount of the TFAG.
    Tribes that retrocede the program may be eligible to operate a 
Tribal TANF program at a later date. However, in the proposed rule we 
state that we will not approve another TFAP until the Tribe can 
demonstrate that the reasons for the earlier retrocession no longer 
exist and that all outstanding penalty amounts have been repaid. We 
will not return the TANF program to the Tribe unless and until we are 
certain that it has resolved any outstanding problems.
    A Tribe that retrocedes a Tribal TANF program is responsible for 
complying with the data collection and reporting requirements and all 
other program requirements for the period before the retrocession is 
effective. In addition, the Tribe is liable for any applicable 
penalties (see subpart D); and it is subject to the provisions of 45 
CFR part 92 and OMB Circulars A-87 and A-133, and other Federal 
statutes and regulations applicable to the TANF program. The Tribe also 
will be responsible for any penalties resulting from audits covering 
the period up to the effective date of retrocession. Please refer to 
Sec. 286.170 for the discussion on penalties.
    What are proper uses of Tribal Family Assistance Grant funds? 
(Sec. 286.30)
    Section 412 of the Act does not specify the particular purposes for 
which a TFAG may be used. However, under these proposed rules any such 
use must be consistent with section 401(a) of the Act. We believe the 
Tribes should have the same flexibility as the States in their use of 
TANF funds. Therefore, we propose at Sec. 286.30 that the Tribal TANF 
grantees will be able to use their TFAGs for the same purposes as 
States may use their TANF funds as specified in section 404(a) of the 
Act.
    Thus, a Tribe may use its TFAG in any reasonable manner to 
accomplish the purposes of part A of title IV of the Act. This may 
include the provision of low-income households with assistance in 
meeting home heating and cooling costs. In addition, we believe that 
Tribes should be able to use their TFAGs in any manner that was an 
authorized use of funds under the AFDC and JOBS programs, as those 
programs were in effect on September 30, 1995.
    In determining whether a welfare-related service or activity may be 
funded with its TFAG, a Tribe should refer to the purposes of TANF, as 
described in section 401 of the Act, as well as to section 404(a). 
Tribes should be aware that TANF funds may be used only for welfare-
related services or activities reasonably calculated to accomplish the 
purposes of part IV-A of the Act. TANF funds are not authorized to be 
used to contribute to or otherwise support non-TANF programs. Use of 
TANF funds to support non-TANF programs or other unauthorized purpose 
shall give rise to penalties under section 409(a)(1) of the Act (made 
applicable to Tribes by section 412(g).
    What uses of Tribal Family Assistance Grant funds are improper? 
(Sec. 286.35)
    Just as section 412 of the Act does not specify the particular 
purposes for which Tribal Family Assistance Grant funds may be used, it 
does not specify any prohibitions or restrictions on the use of TFAG 
funds in a Tribal TANF program. As we are proposing rules for the uses 
of Tribal Family Assistance Grants, we believe it is important to 
indicate in this proposed rule what would not be a proper use of a 
TFAG. Section 401 of the Act makes clear that TFAG funds are restricted 
to the operation and administration of the TANF program. Tribal TFAG 
funds may not be used to contribute to or to subsidize non-TANF 
programs. Any use of TFAG funds to contribute to or otherwise support 
non-TANF programs will be considered an improper use of TANF funds and 
subject to penalties under Sec. 286.170.
    We propose to restrict the use of a TFAG to providing welfare-
related services and assistance to families that include either a minor 
child who resides with a custodial parent or other adult caretaker 
relative of the child or a pregnant individual. In addition, we propose 
that a TFAG may be used to provide welfare-related services or 
assistance for no more than the number of months specified in a Tribe's 
approved TFAP.
    OMB Circular A-87 includes restrictions and prohibitions that limit 
the use of a TFAG. In addition, all provisions in 45 CFR part 92 and 
OMB Circular A-133 apply to the Tribal TANF program. TANF is not one of 
the Block Grant programs exempt from the requirement of part 92 because 
OMB has determined that TANF should be subject to part 92.

Non-Citizens

    Title IV of PRWORA establishes restrictions on the use of TANF 
funds to provide assistance to certain individuals who are not citizens 
of the United States. These restrictions are part of the definition of 
eligible family at Sec. 286.5. Individuals who do not meet the criteria 
at Sec. 286.5 may not receive TANF assistance paid with Tribal Family 
Assistance Grant funds.

Construction and Purchase of Facilities

    The Comptroller General of the United States has prohibited the use 
of Federal funds for the construction or purchase of facilities or 
buildings unless there is explicit statutory authority permitting such 
use. Since the statute is silent on this, a Tribe may not use its TFAG 
for construction or for the purchase of facilities or buildings.

Program Income

    We have received inquiries as to whether TANF funds may be used to 
generate program income. An example of program income is the income a 
Tribe earns if it sells a product (e.g., a software program) developed, 
in whole or mostly with TANF funds.
    Tribes may generate program income to defray costs of the program. 
Under 45 CFR 92.25, there are several options for how this program 
income may be treated. To give Tribes flexibility in the use of TFAGs, 
we are proposing to permit Tribes to add to their Tribal Family 
Assistance Grant program income that has been earned by the Tribe. 
Tribes must use such program

[[Page 39372]]

income for the purposes of the TANF program and for allowable TANF 
services, activities and assistance. We will not require Tribes to 
report on the amount of program income earned, but they must keep on 
file financial records on program income earned and the purposes for 
which it is used in the event of an audit or review.
    Is there a limit on the percentage of a Tribal Family Assistance 
Grant that can be used for administrative costs? Sec. 286.40
    Under section 404(b) of the Act no more than 15 percent of a 
State's SFAG may be spent on administrative expenditures. Expenditures 
by a State for information technology and computerization needed for 
tracking or monitoring cases covered by the TANF program are excluded 
from the 15 percent limit. Because section 404(b) is not applicable to 
Tribal TANF programs, we asked in our discussions with Tribes and 
States, what limit, if any, should be placed on administrative 
expenditures under the Tribal TANF program. Many respondents indicated 
that a limit on administrative expenditures should not be applied to 
Tribal TANF programs. Other respondents indicated that Tribes do not 
have the same level of experience in operating this kind of welfare 
program as do States, and, that if a limit had to be set, any limit 
should be higher than the State TANF limit. Respondents also cited both 
the additional start-up expenses that Tribes will experience and the 
new requirements of the TANF program as a reason to set a higher limit 
for Tribal TANF programs.
    In our deliberations on whether to propose a limit on 
administrative expenditures, we considered various options. One was to 
follow the statute and be silent on the issue. The second option was to 
apply the same limit placed on States. The third option was to set a 
limit that recognizes the special needs of Tribes mentioned above. In 
whatever option we choose, we felt it necessary to ensure that most of 
a Tribal TANF grant would be available to carry out the primary 
objective of the TANF statute.
    We understand the reason why many of the respondents said that an 
administrative expenditure limit should not be placed on Tribal TANF 
programs. However, not placing a limit could result in depriving needy 
families of the program benefits Congress intended families to receive. 
We believe setting a limit on administrative expenditures is more 
consistent with the purposes of the Act. Placing a limit on 
administrative expenditures guarantees that the major portion of a 
Tribal TANF grant goes to assisting needy families.
    We will respond to the fact that Tribes do not have the same level 
of experience operating welfare programs as do the States. In addition, 
we want to recognize that Tribes will need to expend a larger portion 
of their grant funds on administration than States because they cannot 
take advantage of economies of scale. Therefore, at Sec. 286.40 we 
propose to limit Tribal TANF administrative expenditures during any 
grant period to 20 percent of a Tribal TANF grant. Thus, each Tribal 
TANF grantee will be required to expend at least 80 percent of its 
grant on direct program services (and technology) during the grant 
period.
    Because expenditures for information technology and computerization 
needed for tracking and monitoring of cases under the TANF program by 
the States will be excluded from the administrative expenditure limit, 
these same expenditures by Tribes will also be excluded from the Tribal 
limit.
    If a Tribe's administrative costs exceed the 20 percent limit, the 
penalty for misuse of funds (refer to Sec. 286.170) will apply. The 
penalty will be the amount spent on administrative costs in excess of 
20 percent. We will take an additional penalty in the amount of 5 
percent of the adjusted TFAG if we find that a Tribe has intentionally 
exceeded the 20 percent limit.
    Tribes must allocate costs to proper programs. Under the Federal 
Appropriations Law, grantees must use funds in accordance with the 
purpose for which they were appropriated. In addition, as stated 
previously, the grants administration regulations at part 92, and OMB 
Circular A-87, ``Cost Principles for State, Local, and Indian Tribal 
Governments'', apply to the TANF program. OMB Circular A-87, in 
particular, establishes the procedures and rules applicable to the 
allocation of costs among programs and the allowability of costs under 
Federal grant programs such as TANF.
    What types of costs are subject to the administrative cost limit on 
Tribal Family Assistance Grants? (Sec. 286.45)
    Of particular interest to our Tribal partners and other interested 
parties will be the definition of the costs that are included as 
administrative costs because of the proposed rule at Sec. 286.40 that 
places a limit on administrative expenditures. In the development of 
the NPRM for the State TANF program, we consulted with State and local 
representatives and other parties and organizations on the extent to 
which we should define administrative costs.
    Just as with the State TANF program, we considered not proposing a 
Federal definition. That option had appeal because: (1) It is 
consistent with the philosophy of a block grant; (2) we took a similar 
approach in some other policy areas (i.e., in not defining individual 
work activities); (3) we support the idea that we should focus on 
outcomes, rather than process; and (4) the same definition might not 
work for each Tribe. Also, we were concerned we could exacerbate 
consistency problems if we created a Federal definition. Because of the 
wide variety of definitions in other related Federal programs, adoption 
of a single national definition could create variances in operational 
procedures within Tribal agencies and add to the complexities 
administrators would face in operating these programs.
    At the same time, we were hesitant to defer totally to Tribal 
definitions. The philosophy underlying this provision is very 
important; in the interest of protecting needy families and children, 
it is critical that the substantial majority of Federal TANF funds go 
towards helping needy families. If we did not provide some definition, 
it would be impossible to ensure that the limit had meaning. Also, we 
felt that it would be better to give general guidance to Tribes than to 
get into disputes with individual Tribes about whether their 
definitions represented a ``reasonable interpretation of the statute.''
    We thought that it was very important that any definition be 
flexible enough not to unnecessarily constrain Tribal choices on how 
they deliver services. We believe a traditional definition of 
administrative costs would be inappropriate because the TANF program is 
unique, and we expect TANF to evolve into something significantly 
different from its predecessors and from other welfare-related 
programs. Specifically, we expect TANF to be a more service-oriented 
program, with substantially more resources devoted to case management 
and fewer distinctions between administrative activities and services 
provided to recipients.
    The definition we have proposed does not directly address case 
management or eligibility determination. We understand that, especially 
for Tribal programs, the same individuals may be performing both 
activities. In such cases, to the extent that a worker's activities are 
essentially administrative in nature (e.g., traditional eligibility 
determinations or verifications), the portion of the worker's time 
spent on such activities can be treated as administrative costs. 
However, to the extent that a worker's time is spent on case-management 
functions or delivering services to clients, that

[[Page 39373]]

portion of the worker's time can be charged as program costs.
    We believe that the definition we have proposed will not create a 
significant new administrative burden on Tribes. We believe that it is 
flexible enough to facilitate effective case management, accommodate 
evolving TANF program designs, and support innovation and diversity 
among Tribal TANF programs. It also has the significant advantage of 
being closely related to the definition in effect under the Job 
Training Partnership Act (JTPA). Thus, it should facilitate the 
coordination of Welfare-to-Work and TANF activities and support the 
transition of hard-to-employ TANF recipients into the work force.
    We have not included specific language in the proposed rule about 
treatment of costs incurred by subgrantees, contractors, community 
service providers, and other third parties. Neither the statute nor the 
proposed regulations make any provision for special treatment of such 
costs. Thus, the expectation is that administrative costs incurred by 
these entities would be part of the total administrative cost cap. In 
other words, it is irrelevant whether costs are incurred by the TANF 
agency directly or by other parties.
    We realize this policy may create additional administrative burdens 
for the Tribe and do not want to unnecessarily divert resources to 
administrative activities. At the same time, we do not want to distort 
agency incentives to contract for administrative or program services. 
In seeking possible solutions for this problem, we looked at the JTPA 
approach (which allows expenditures on services that are available 
``off-the-shelf'' to be treated entirely as program costs), but did not 
think that it provided an adequate solution. We thought that too few of 
the service contracts under TANF would qualify for simplified treatment 
on that basis.
    We welcome comments on how to deal with this latter dilemma, as 
well as comments on our overall approach to the definition of 
administrative costs.
    Must Tribes obligate all Tribal Family Assistance Grant funds by 
the end of the fiscal year in which they are awarded? (Sec. 286.50)
    Section 404(e) of the statute does not apply to Tribal TANF or NEW 
programs. Section 404(e) allows States to reserve amounts paid to the 
State for any fiscal year for the purpose of providing TANF assistance 
without fiscal year limitation. Section 412 is silent on an obligation 
period for Tribal TANF or NEW program funds. However, Federal 
Appropriations Law (at 31 U.S.C. 1301(c)) states ``An appropriation in 
a regular, annual appropriation law may be construed to be permanent or 
available continuously only if the appropriation-- (1) is for rivers 
and harbors, lighthouses, public buildings, or the pay of the Navy and 
Marine Corps; or (2) expressly provides that it is available after the 
fiscal year covered by the law in which it appears.'' This statutory 
provision precludes us granting to Tribes the authority to reserve 
TFAGs grants paid to them without fiscal year limitation. Therefore, 
Tribes must obligate their TFAGs by the end of the fiscal year in which 
they are awarded. In accordance with the authority granted to us by 45 
CFR 92.23(b), we propose to extend to 12 months the period of time when 
unliquidated obligations must be liquidated by Tribes.
Subpart C--Tribal TANF Plan Content and Processing
    How can a Tribe apply to administer a Tribal TANF program? 
(Sec. 286.55)
    Any eligible Indian tribe or Alaska Native regional non-profit 
corporation or intertribal consortium that wishes to administer a 
Tribal TANF program must submit a three-year Tribal Family Assistance 
Plan to the Secretary of the Department of Health and Human Services. 
This requirement extends to those Tribes that are operating a Pub. L. 
102-477 employment and training program (please refer to Sec. 286.140 
for information on this).
    Who submits a Tribal Family Assistance Plan? (Sec. 286.60)
    The chief executive officer of the Tribe, eligible Alaska Tribal 
entity, or Tribal consortium must sign and submit the TFAP. This is 
generally the Tribal Chairperson. The TFAP must also be accompanied by 
a Tribal resolution indicating Tribal Council support for the proposed 
Tribal TANF program. In the case of a Tribal consortium, the TFAP must 
be accompanied by Tribal resolutions from all members of the 
consortium. These Tribal Council resolutions must demonstrate each 
individual Tribe's support of the consortium, the delegation of 
decision-making authority to the consortium's governing board, and the 
Tribe's recognition that matters involving relationships between the 
Tribal TANF consortia and the State and/or Federal government on TANF 
matters are the express responsibility of the consortium's governing 
board.
    We recognize that changes in the leadership of a Tribe or some 
other event may cause a participating Tribe to rethink its 
participation in the consortium and/or in Tribal TANF. If, for example, 
a subsequently elected Council decided to terminate participation in 
the consortium and in TANF, that decision might create a need for time 
to reintegrate a Tribal program or a part of the Tribal program into 
the State program. Thus, we propose at Sec. 286.60(c) that, when one of 
the participating Tribes in a consortium wishes to withdraw from the 
consortium for purposes of either withdrawing from Tribal TANF 
altogether or to operate its own Tribal TANF program, that the Tribe 
needs to notify both the consortium and us of this fact at least 120 
days prior to the planned effective date. This notification time frame 
is especially applicable if the Tribe was withdrawing from Tribal TANF 
altogether and the Tribe's withdrawal will cause a change to the 
service area or population of the consortium.
    A Tribe withdrawing from a consortium for purposes of operating its 
own program must, in addition to the notification specified in the 
previous paragraph, submit its own Tribal TANF plan that meets the plan 
requirements at Sec. 286.65 and the time frames specified at 
Sec. 286.140.
    What must be included in the Tribal Family Assistance Plan? 
(Sec. 286.65)
    The TANF program concerns work, responsibility, and self-
sufficiency for families. To that end, section 412(b) of the Act lists 
six features of a Tribal Family Assistance Plan.

Approach to Providing Welfare-Related Services

    The TFAP must outline the Tribe's strategy for providing welfare-
related services. The Act does not specify what this outline must 
entail; however, we believe it is important that it includes 
information necessary for anyone to understand what services will be 
provided and to whom the services will be provided.
    To that end, we propose that the Tribal Family Assistance Plan must 
include, but is not limited to, information such as general eligibility 
criteria and special populations to be served, a description of the 
assistance and services to be offered, and the means by which they will 
be offered using TANF funds.
    The description of general eligibility requirements consists of the 
Tribe's definition of ``eligible family,'' including income and 
resource limits that make a family ``needy,'' and the Tribe's 
definition of ``Tribal member family'' or ``Indian family''. The 
description of the services and

[[Page 39374]]

assistance to be provided includes whether the Tribe will provide cash 
assistance, and what other assistance and services will be provided.
    The PRWORA discusses a variety of special populations who can 
benefit from a TANF Program. While the statute does not require a 
Tribal TANF program to provide specific or targeted services to these 
populations, if the Tribe opts to do so, it must include a discussion 
of those services in the TFAP. For example, teen parents without a 
secondary degree are a special target population for State TANF-related 
services. If a Tribe wants to provide specific services to teen 
parents, it needs to describe the specific services in the plan.
    We are proposing to require information in the Tribal TANF plan 
regarding whether services will be provided to families who are 
transitioning off TANF assistance due to employment. Section 411(a)(5) 
requires Tribes to report, on a quarterly basis, the total amount of 
TANF funds expended to provide transitional services to families that 
have ceased to receive assistance because of employment, along with a 
description of such services. Therefore, we believe it prudent for ACF 
and the public to know whether the Tribe's TANF program provides 
transitional services and, if so, what types of services will be 
offered.
    Questions have been raised about the potential dual eligibility of 
Indians for State and Tribal TANF programs. It is the position of the 
Department that section 417 of the Act precludes our regulating the 
conduct of States in this area. Nonetheless, we note that the issue of 
the dual eligibility of Indians raises constitutional concerns about 
the denial of state citizenship rights under the fourteenth amendment. 
We also note that, under section 408(c) of the Act, State TANF programs 
are subject to title VI of the Civil Rights Act of 1964 and certain 
other Federal non-discrimination provisions.
    As TANF focuses on outcomes, we believe a TFAP needs to identify 
the Tribe's goals for its TANF program and indicate how it will measure 
progress towards those goals. We believe this will help focus efforts 
on achieving positive outcomes for families. Progress can be measured 
longitudinally over time or over the short term, but should be clearly 
targeted on those being served by the Tribal TANF program. For example: 
The incidence of teen pregnancy will be reduced by approximately X % 
over the three-year period of the TFAP, or educational achievement by 
teen parents receiving TANF assistance will experience an overall gain 
of at least one grade level over the three year-period of the TFAP.
    Sections 402(a)(4)(A) and (B) of the Act require States to certify 
that local governments and private sector organizations have been 
consulted regarding the State TANF plan and design of welfare services 
and have had at least 45 days to submit comments on the plan. We 
propose similar requirements as part of the Tribal TANF plan process. 
We propose a public comment period as a means of soliciting input into 
the design of the Tribal TANF program and providing a means through 
which Tribes may design a program which truly meets the community's 
needs. This public comment period should afford affected parties the 
opportunity to review and comment on a Tribe's TFAP. While the Act does 
not specifically require Tribes to conduct a public comment period 
prior to submission of the TFAP, previous experience demonstrates the 
value of such a comment period towards tailoring the program to meet 
the individual circumstances of those who will be affected by the 
program and its far-reaching impact on Tribal children and families. 
Furthermore, we discern Congressional recognition in the Act of the 
value of public comment on the content of TANF plans and the design of 
welfare services. We believe that this is equally applicable to Tribal 
TANF plans.
    Finally, it is important that individuals who apply for and/or 
receive TANF are afforded due process should the Tribe take an adverse 
action against them. Therefore, the TFAP must include an assurance that 
the Tribe has developed a specific TANF dispute resolution process. 
This process must be used when individuals or families dispute the 
Tribe's decision to deny, reduce, suspend, sanction or terminate 
assistance.

Child Support Enforcement

    Just as the enactment of PRWORA created opportunities for Tribes to 
operate their own TANF programs, it provided new opportunities to 
ensure that Tribal families receive child support from responsible 
parents. The relationship between TANF and child support enforcement 
programs is important, regardless of whether the State or Tribe 
operates one or both of these programs. In addition, the relationship 
between self-sufficiency and child support becomes extremely important 
for TANF families because of the time-limited nature of TANF 
assistance.
    Under PRWORA, in order to receive a TANF block grant, a State must 
certify that it operates a child support enforcement program meeting 
requirements under title IV-D of the Act. A State child support 
enforcement program must provide the following services to TANF and 
former TANF recipients and to others who apply for services: Location 
of parents, establishment of paternity and support orders and 
enforcement of orders. In order to receive TANF assistance from a 
State, a TANF applicant or recipient must assign any rights to support 
to the State and cooperate with the child support enforcement program 
in establishing paternity and securing support. Collections of assigned 
support are used to reduce State and Federal costs of the TANF program.
    PRWORA does not place similar requirements on Tribes or families 
receiving Tribal TANF assistance. Tribes are not required to certify 
that they are operating a child support enforcement program as a 
condition of receiving a Tribal TANF grant. Nor is there any 
requirement that Tribal TANF applicants and recipients assign all 
rights to support as a condition of receipt of Tribal TANF. There are, 
therefore, no penalties to the Tribe for failing to operate a child 
support enforcement program nor to a Tribal TANF recipient for failing 
to cooperate with child support efforts. However, several Tribes with 
approved Tribal TANF plans are requiring Tribal TANF recipients to 
cooperate with child support efforts.
    Prior to enactment of PRWORA, title IV-D of the Act placed 
responsibility for the delivery of child support enforcement services 
with the States. Consequently, States have attempted to provide child 
support services on Tribal lands but have generally been constrained in 
their abilities to establish paternity, or establish or enforce child 
support orders with respect to noncustodial parents who reside within 
the jurisdiction of a Tribe because of sovereignty and jurisdictional 
issues. Therefore, arrangements for child support services on Tribal 
lands may involve a specific agreement to recognize State or county 
jurisdiction on Tribal lands for the narrow purpose of child support 
enforcement. In such agreements, Tribes agree to allow the child 
support agency to extend State program procedures to the reservation. 
Alternatively, some States and Tribes have entered into cooperative 
agreements under which a Tribal entity provides child support services 
on Tribal lands and receives funding from the State.
    Under PRWORA, requirements for State/Tribal cooperative agreements, 
as

[[Page 39375]]

well as direct Federal funding of Tribes for operating child support 
enforcement programs, were addressed for the first time in title IV-D 
of the Act. Section 5546 of the Balanced Budget Act of 1997 made 
technical amendments to the cooperative agreements language in section 
454(33) of the Act and to direct funding of Tribal child support 
enforcement programs under section 455(f) of the Act.
    Issues relating to responsibilities for providing child support 
enforcement services for Tribal TANF assistance cases and distribution 
of support collections in such cases have already been raised in 
several States and Tribes must work together to determine how Tribal 
TANF and State child support programs will work best for Tribal 
families. More than ever before, this collaboration is critical.
    Since child support is a critical component of self-sufficiency for 
many single parent families, Tribes need to determine whether they want 
to condition a family's eligibility for Tribal TANF assistance on 
cooperation with the State child support enforcement program. If the 
Tribe will so condition eligibility, the TFAP should so specify.
    Tribes that have entered into, or will enter into, cooperative 
agreements with their States on child support matters have decided that 
child support is a critical issue for families. Likewise, Tribes that 
will decide, after regulations have been issued, to operate their own 
child support enforcement programs know the importance of child 
support. We invite comments from readers as to whether Tribes should be 
required to condition Tribal TANF eligibility on cooperation with child 
support enforcement efforts if they either operate their own child 
support enforcement programs or have cooperative agreements with their 
States.

Provision of Services

    As required by section 412(b)(1)(B), the TFAP must indicate whether 
the welfare-related services provided under this plan will be provided 
by the Indian tribe or through agreements, contracts or compacts with 
inter-Tribal consortia, States, or other entities. The Tribe determines 
which Tribal agency will have the lead responsibility for the overall 
administration of the Tribal TANF program. The designated lead agency 
plans, directs and operates the Tribal TANF Program on behalf of the 
Tribe. While it has the flexibility to contract many portions of the 
Tribal TANF program with public and/or private entities, the lead 
agency must maintain overall administrative control of the program. The 
lead agency is required to administer the Tribal TANF plans, submit the 
Tribal TANF Family Assistance Plan, coordinate Tribal TANF services 
with other Tribal and State programs, and collect and submit required 
data. Although not required by statute, we are proposing at 
Sec. 286.65(b) to require Tribes to identify the lead agency in the 
TFAP because of its importance in the overall administration of and 
responsibility for the Tribal TANF program. The plan must also include 
a description of the administrative structure for supervision of the 
Tribal TANF program, including the designated unit responsible for the 
program and its location within the Tribal government.
    For lead agencies that wish to enter into agreements or contracts 
with other entities, the TFAP needs to specify how the welfare-related 
services will be provided, e.g., through sub-contracts. In the instance 
of Tribal consortia, the lead agency fulfills the same responsibility 
as the designated unit discussed above.

Population/Service Area

    Section 412(b)(1)(C) requires that a TFAP identify the population 
and service area or areas to be served by the plan. Yet the statute 
defines neither of these terms.
    In our consultation with Tribes on how service area and population 
should be defined, we heard from Tribes that they should be given 
flexibility to define their own Tribal TANF service area and 
population. We have also heard that, at least in the case of Oklahoma, 
we might expect disagreements between Tribes to arise if service area 
parameters were not established for Tribes in that State. This concern 
is due to the fact that none of the Tribes in Oklahoma, except for one, 
have reservations. Our intent in this proposed rule is to balance 
Tribal flexibility with the need to afford consideration to Tribes who 
disagree with another Tribe's proposed service area or population.
    Therefore, with regards to service population, Tribes have the 
flexibility to decide whether their TFAP will serve all Indian families 
within the service area or solely the enrolled members of the Tribe. A 
Tribe would convey its decision in the TFAP. If the TFAP provides for 
services to all Indian families within the service area, then the Tribe 
agrees to provide such services. If the TFAP provides for services 
solely to families of enrolled members of the Tribe, then the Tribe 
does not agree to provide services to the families of non-enrolled 
Indians residing in the service area of the Tribe.
    Regardless of the decision reached by the Tribe in this matter, the 
responsibility for TANF services to non-Indian families in the Tribal 
service area resides with the State TANF program, unless the Tribe has 
negotiated an agreement with the State to allow the Tribe to serve non-
Indian families within the Tribal service area. If such an agreement 
has been reached, the Tribe must include a copy of the agreement or 
other such documentation of State concurrence, such as a letter from 
the State, with the TFAP.
    There may be various reasons why both a Tribe and the State would 
want the Tribe to provide TANF assistance to all needy families in its 
service area (for example, there are very few non-Indian families in 
the service area). We believe this flexibility to allow a Tribe to 
include non-Indians in its service population, with State agreement, 
benefits both Tribes and States.
    In those instances where non-enrolled Indians or non-Indians are 
served by the Tribal TANF Program, the Tribal TANF program is the final 
authority on the services to be provided. The non-enrolled member's 
Tribe or the State(s) cannot decide on the nature of the services to be 
provided by the Tribal TANF program.
    With regards to service area, a Tribal TANF service area could 
include the Tribe's reservation or just portions of the reservation. It 
could also include ``near reservation areas'' meeting BIA requirements 
as outlined at 25 CFR 20.1(r). For Tribes without land bases, the 
service area could include all or part of the Tribe's service area as 
defined by BIA.
    In the case of claimed service areas extending beyond the Tribe's 
``near reservation area'' or BIA-defined service area, we are concerned 
about possible complications resulting from misunderstandings on the 
scope of the service area. Therefore, if a Tribe claims an alternative 
service area, the TFAP should clearly define the demographic extent of 
such areas and include a memorandum of understanding with the 
appropriate State(s) agency or Tribal government reflecting State(s) or 
Tribal agreement to the servicing of the Tribal TANF service population 
by the Tribal TANF Program in the extended area.
    Likewise, for Tribes in Oklahoma, if the Tribe defines its service 
area as other than just its ``tribal jurisdiction statistical area'' 
(TJSA), the Tribe must include an agreement with the appropriate Tribal 
government reflecting that Tribe's agreement to the service area. TJSAs 
are areas delineated for each federally-recognized Tribe in

[[Page 39376]]

Oklahoma without a reservation by the Census Bureau.

Duplicative Assistance

    Section 412(b)(1)(D) indicates that an individual receiving 
assistance from a Tribal TANF program may not receive assistance from 
another State or Tribal TANF program for the same purpose. The TFAP 
must contain an assurance that families receiving assistance under the 
Tribal TANF plan will not receive duplicative services under any other 
State or Tribal TANF plan. The Tribe must develop a process to ensure 
that duplication does not occur and must include a description of that 
process in the TFAP. We believe any process the Tribe develops should 
include a mutual information exchange between the Tribe and State(s) 
and other nearby Tribal TANF grantees.

Employment Opportunities

    Section 412(b)(1)(E) requires that Tribes identify in their TFAPs 
the employment opportunities in and near the service area or areas of 
the Indian tribe. Section 286.65(g) of the proposed rule reiterates 
this requirement. The employment opportunities within and near the 
Tribal TANF service area will greatly impact the service population's 
ability to obtain and maintain employment. In designing the Tribal TANF 
program, Tribes should consider current unemployment rates, public and 
private sector employment opportunities, and education and training 
resources. These factors should provide a basis for the Tribe's 
proposed work activities, work participation requirements, penalties 
against individuals, and time limits.
    Section 412(b)(1)(D) also requires that TFAPs identify the manner 
in which the Indian tribe will cooperate and participate in enhancing 
employment opportunities for TANF recipients consistent with any 
applicable State standards. At Sec. 286.65(g)(2) we reiterate the 
statutory requirement that the TFAPs describe how the Tribe will 
enhance employment opportunities for their TANF recipients. Tribes 
should consider the best means by which they can work with other Tribal 
or State agencies, and other private and public sector entities on or 
near the reservation, to enhance employment opportunities. These 
efforts may be through memoranda of understanding or other public-
private partnerships. These activities should also be consistent with 
any State employment standards (for example, a State minimum wage 
requirement).

Fiscal Accountability

    As required by section 412(b)(1)(F), the TFAP must provide an 
assurance that the Tribe applies the fiscal accountability provisions 
of section 5(f)(1) of the Indian Self-Determination and Education 
Assistance Act (25 U.S.C. 450c(f)(1)), relating to the submission of a 
single-agency audit report required by chapter 75 of title 31, United 
States Code.

Establishing Minimum Work Participation Requirements, Time Limits for 
the Receipt of Welfare-Related Services and Penalties Against 
Individuals

    PRWORA promotes self-sufficiency and independence while holding 
individuals to a higher standard of personal responsibility for the 
support of their children than prior law. The legislation expands the 
concept of mutual responsibility, introduced under the Family Support 
Act of 1988, that income assistance to families with able-bodied adults 
should be transitional and conditioned upon their efforts to become 
self-sufficient. These goals are reflected in the State TANF provisions 
requiring individuals to participate in work activities, limiting the 
number of months that assistance will be provided, and penalizing 
individuals for failure to participate in work activities as required.
    Minimum work participation requirements, time limits for the 
receipt of assistance and penalties against individuals who refuse to 
participate in work activities as required are explicitly stated for 
the State TANF programs in the statute. For the Tribal TANF programs, 
these three components are not specified. Instead, section 412(c) of 
the Act provides that for each Tribal TANF grantee Tribal TANF minimum 
work participation requirements, time limits for the receipt of 
welfare-related services, and penalties against individuals are to be 
established by the Secretary with the participation of the Tribes.
    The statute further specifies that Tribal TANF work participation 
requirements and time limits are to be consistent with the purposes of 
TANF and consistent with the economic conditions and resources 
available to each Tribe. In addition, penalties against individuals are 
to be similar to those found in section 407(e) of the statute. However, 
the statute does not specify a process or procedure to be used to 
establish minimum work participation requirements, appropriate time 
limits for the receipt of welfare-related services, and penalties 
against individuals for each Tribal TANF grantee.
    During discussions with Tribes and States as to what process should 
be used to establish these requirements for each Tribal TANF grantee, 
many suggested that we use the proposal a Tribe includes in its Tribal 
TANF plan as the basis for negotiating and establishing these 
requirements. We agree that it would be prudent to establish these 
requirements as part of the TANF plan process so that Tribes will know 
in advance of accepting the TANF program grant the requirements to 
which they are committing and for which they will be held accountable.
    Thus, we propose that each Tribe specify its proposal for minimum 
work participation requirements, time limits for the receipt of 
welfare-related services, penalties against individuals who refuse to 
participate in work activities as required, and related policies in its 
Tribal TANF plan. In addition, the Tribe must include a rationale for 
its proposals and related policies in the plan. The rationale should 
address how the Tribe's proposal is consistent with the purposes of 
TANF and is consistent with the economic conditions and resources 
available to the Tribe. In addition, for its proposal for penalties 
against individuals, the rationale should indicate how they are similar 
to the requirements applicable to States as specified at section 407(e) 
of the Act.
    Examples of the information that we would expect to be included to 
illustrate the Tribe's proposal include, but are not limited to: 
Poverty, unemployment, jobless and job surplus rates; education levels 
of adults in the service area; availability of and/or accessibility to 
resources (educational facilities, transportation) to help families 
become employable and find employment; and employment opportunities on 
and near the service area.
    We propose to review and evaluate a Tribe's proposal for these 
components as part of the review and approval process for the entire 
plan. Additional information or discussion about a Tribe's proposal may 
be necessary before we approve the plan.
    Minimum work participation requirements are further detailed at 
Secs. 286.70-105 of the proposed regulation. The proposed rules at 
Secs. 286.110-120 contain additional information on time limits. 
Information on penalties against individuals is outlined at 
Secs. 286.125-135.
    What information on minimum work participation requirements must a 
Tribe include in its Tribal Family Assistance Plan? (Sec. 286.70)

[[Page 39377]]

    As Tribes focus on assisting adults in obtaining work and earning 
paychecks quickly, parents receiving assistance from a Tribal TANF 
program are also expected to meet new and more stringent work 
requirements.
    Section 401(a)(2) of the Act states that one of the purposes of 
TANF is to promote job preparation and work to help needy families 
become self-sufficient. The statute, at section 407, provides specific 
individual work participation requirements and participation rate goals 
to ensure this purpose is carried out under State TANF programs. For 
State TANF programs, work participation requirements encompass (1) the 
proportion of TANF families participating in the activities 
(participation rate targets); (2) the activity level to be required of 
families, e.g., average number of hours of work per week; (3) the 
activities that families must be engaged in, e.g., subsidized 
employment, vocational training, etc.; and (4) exemptions, limitations 
and special rules related to work requirements.
    In providing flexibility in establishing work participation 
requirements, Congress recognized that Tribal economies and resources 
will vary and affect a Tribal TANF family's and program's ability to 
meet the work requirements imposed upon State TANF recipients and State 
TANF programs. Since the statutory language requires that the work 
requirements take into consideration the economic conditions and 
resources available to each Tribe, we cannot establish across-the board 
minimum work requirements that would be applied to all Tribes. 
Additionally, written and verbal feedback from Tribes indicated 
overwhelming support for negotiating on a case-by-case basis with each 
individual Tribe (as opposed to applying an across-the-board minimum) 
that will reflect the differences among Tribal economies and resources.
    In order to have the information needed to establish minimum work 
participation requirements for each Tribal grantee, we propose at 
Sec. 286.70 that each Tribe specify in its TFAP: (1) The targeted 
participation rates for each of the fiscal years covered by the plan; 
(2) the minimum number of hours families will be required to 
participate in work activities for each of the fiscal years covered by 
the plan; (3) the work activities that count towards the work 
requirement; (4) any limitations and special rules related to work 
requirements; and (5) if the targeted rates, the minimum number of 
required hours, or the work activities are different from those 
required of State TANF programs, the rationale for the Tribe's proposed 
work requirements, including how they are consistent with the purposes 
of TANF and with the economic conditions and resources available to the 
Tribe.
    Considering that many Tribal families reside in remote areas and 
lack of adequate transportation is a major concern, the proposed 
regulation at Sec. 286.70(b)(2)(i) allows a Tribe to include reasonable 
transportation time to and from the activity site in determining the 
number of hours of participation. Counting transportation time may be 
indicative of the economic conditions and resources available to a 
Tribe, and transportation is an economic resource.
    Therefore, if a Tribe proposes to count reasonable transportation 
time towards the minimum number of hours individuals participate, the 
Tribe's TFAP will need to so specify. The Tribe's definition of 
``reasonable'' would also have to be included in the plan. However, we 
would also expect Tribes proposing to include reasonable transportation 
time in determining the number of hours of work participation, to 
demonstrate that their overall proposal for number of hours is 
consistent with the purposes of TANF.
    As discussed above, the Tribe's rationale for its proposed work 
participation requirements could include, but is not limited to: 
Poverty, unemployment, jobless and job surplus rates; education levels 
of adults in the service area; availability and/or accessibility to 
resources (educational facilities, transportation) to help families 
become employable and find employment; and employment opportunities on 
and near the service area.
    We are proposing not to require an explanation for any element of a 
Tribe's minimum work participation requirements proposal if a Tribe 
chooses to adopt the requirements, the limitations or special rules 
related to work requirements applicable to the State TANF programs. 
There would be no need for us to negotiate on this element; we would, 
in these cases, defer to the Tribe's decision to target the 
requirements/limitations/special rules established for States. However, 
as noted above, any Tribe proposing to include reasonable 
transportation time as part of its proposal on minimum hours of 
participation will have to include a rationale for this decision.
    What additional information on minimum work participation rates 
must be included in a Tribal Family Assistance Plan? (Sec. 286.75)
    We recognize that the statute requires two separate participation 
rate targets that State TANF programs must meet; one for all families 
and a separate one for two-parent families. However, the statute 
pertaining to Tribal TANF programs does not stipulate that there be two 
separate Tribal TANF participation rates to meet; rather, we interpret 
the flexibility in negotiating work requirements with Tribes pursuant 
to section 412(c) of the statute to include whether there should be one 
or more participation rates. We propose at Sec. 286.70(c)(1) that it 
will be at the Tribe's option to propose one rate for all families; a 
rate for all families and two-parent families (the two rates States are 
subject to); or two separate rates for one-parent families and two-
parent families. A Tribe that proposes more than one rate would be held 
accountable for achieving both rates; failing either could result in 
the participation rate penalty. A Tribe that proposed only the overall 
rate would be held accountable for only one. We invite the reader's 
comments to these proposals.
    We have decided not to reiterate in this proposed rule the work 
participation rates for State TANF programs; Tribes should refer to 
section 407(a) of the Act for this information. Tribes can use these 
rates as a guide in determining their own proposal for participation 
rate targets. The proposed rule at Sec. 286.75(a) requires a rationale 
from the Tribe if it proposes work participation rates other than those 
required of State TANF programs.
    The proposed regulation at Sec. 286.75(b) suggests, but does not 
require, that Tribes propose rates that increase over time. While the 
Act does not specify that rates increase over time, we believe that, 
consistent with the intent of the statute, increasing rates reflect the 
need to ensure that increasing numbers of families are progressively 
engaged in necessary activities before they reach their time limit.
    We recognize that many Tribes may not have experience in operating 
a welfare program that emphasizes placing a significant portion of the 
caseload into work activities. Consequently, establishing realistic 
participation rates may initially be a Tribe's ``best guess.'' 
Additionally, we recognize that resources available to Tribes as well 
as Tribal economies may change significantly from year to year. We are, 
therefore, proposing at Sec. 286.75(c) to allow Tribes the opportunity 
to renegotiate rates in advance of each year's target.
    How will we calculate the work participation rates? (Sec. 286.80)

[[Page 39378]]

    Similar to the calculations for State participation rates, the 
proposed regulations at Sec. 286.80 indicate that the yearly 
participation rate will be the average of the monthly participation 
rates. Monthly rates, for each rate approved in the Tribe's TANF plan, 
will be determined by a ratio with the numerator and denominator 
defined as follows:
    Numerator: The number of families receiving assistance (including 
minor heads-of-household) engaged in work activities as defined in the 
Tribe's approved TANF plan for the required number of hours.
    Denominator: The number of families with an adult or minor head-of-
household receiving TANF assistance from the Tribe.
    This calculation will be appropriately modified depending upon 
whether the Tribe chooses to target (1) an all-family rate, (2) an all-
family rate and a two-parent rate, or (3) a one-parent rate and a two-
parent rate.
    We have also made it clear in this proposed rule that a Tribe may 
count as a month of participation any partial months of assistance, if 
an adult in the family is engaged in work activities for the minimum 
average number of hours in each full week that the family receives 
assistance in that month. These families are already included in the 
denominator since they are recipients of assistance in that month.

Exclusions From Work Participation Rate Calculations

    The PRWORA does not specify exclusions from the participation rate 
calculations for Tribal TANF programs. However, consistent with the 
flexibility provided State TANF programs, we are proposing at 
Sec. 286.80(c)(2) to allow Tribes to exclude from the total number of 
TANF families (the denominator): (1) those families who have a child 
under the age of one if the Tribe opts to exempt these families from 
participating in activities (and so specified in the Tribe's TANF 
plan); and (2) on a limited basis, those families who are sanctioned 
for non-compliance.
    The statute at section 407(b)(1)(B)(i)(II) precludes States from 
excluding families sanctioned for non-compliance with the work 
participation requirements from the denominator if the families have 
been sanctioned for more than three months out of a twelve-month 
period. We considered whether to apply the same restriction to Tribal 
TANF work participation rate calculations. We were concerned that if we 
did not apply the same restriction and allowed Tribes to exclude 
sanctioned families indefinitely, then we would be inadvertently 
encouraging Tribes to discontinue their efforts in bringing those 
families into compliance and working towards self-sufficiency. 
Therefore, we are proposing at Sec. 286.80(c)(2)(A) that families 
sanctioned for non-compliance with the work participation requirements 
are to be excluded from the denominator only if they have not been 
sanctioned for more than three months (whether or not consecutively) 
out of the last twelve months.
    The proposed regulations do not provide for any other exclusions in 
calculating the Tribal TANF participation rate. However, in light of 
the Secretary's authority to negotiate work participation requirements 
that reflect economic conditions and resources available to a Tribe, we 
welcome comments about whether there should be additional exclusions.
    We considered whether we should negotiate exclusions from the work 
participation rate calculations on a case-by-case basis with each 
individual Tribe. We rejected this approach because we believe a 
uniform method for calculating Tribal TANF work participation rates 
will help ensure that penalties are applied equitably across Tribes 
administering a TANF program. Additionally, since the rates themselves 
will be negotiated with each individual Tribe, such negotiations will 
already take into account unique circumstances which may make it 
difficult for certain families to participate in work activities. 
However, we welcome comments about whether exclusions should be 
negotiated on a case-by-case basis.

Two-Parent Families

    Section 407(b)(2) of the Act, as amended by the Balanced Budget Act 
of 1997, requires a State to not consider as a two-parent family a 
family in which one of the parents is disabled for purposes of the work 
participation rate. Thus, a two-parent family in which one of the 
parents is disabled will be treated as a single-parent family for 
purposes of calculating the work participation rate. We propose at 
Sec. 286.80(e) to make this provision applicable to Tribal TANF 
programs as well.
    How many hours per week must an adult or minor head-of-household 
participate in work-related activities to count in the numerator of the 
work participation rate? (Sec. 286.85)
    For Tribal TANF programs the statute does not specify the minimum 
number of hours individuals must participate in order to be counted for 
participation rate calculations. The Act gives us the authority to 
negotiate these requirements with Tribes. The draft regulation at 
Sec. 286.85 proposes that the minimum average number of hours per week 
for State TANF families presumptuously applies to Tribal TANF families 
as well. However, unlike the State requirements, we propose to provide 
Tribes the opportunity to rebut this presumption. Tribes will be 
permitted to establish fewer minimally required hours for families if a 
Tribe provides appropriate justification in its TANF plan. For example, 
the availability and accessibility of resources may not enable Tribal 
individuals to participate at the minimum number of hours per week 
required of State TANF recipients.
    What, if any, are the special rules concerning counting work for 
single custodial parents, caretaker relatives and two-parent families? 
(Sec. 286.90)
    Section 407(c)(2)(B) of the Act enables States to consider as 
engaged in work a custodial parent or caretaker relative with a child 
under age 6, who is the only parent or caretaker relative in the 
family, if s(he) participates for an average of 20 hours per week. We 
propose to extend this provision to Tribal TANF programs.
    The Balanced Budget Act of 1997 amended section 407(c)(1)(B)(i) of 
the Act to allow both parents in a two-parent family to share the 
number of hours required to be considered as engaged in work for 
purposes of meeting State TANF work requirements. The proposed 
regulation at Sec. 286.90 indicates that Tribal TANF programs will also 
be able to apply this policy.
    What activities count towards the work participation rate? 
(Sec. 286.95)
    PRWORA does not specify the work activities required of Tribal TANF 
recipients but instead authorizes the establishment of minimum work 
participation requirements, which include work activities, for each 
Tribal grantee. The overwhelming feedback we received in discussions 
with Tribes suggested that the work activities identified for States in 
the statute be considered activities that count toward a Tribal TANF 
participation rate with two caveats: (1) That they not be limited to 
those activities; and (2) that they not be further defined in the 
regulations. Therefore, at Sec. 286.95 we are listing the same 
activities found at section 407(b) of the Act. In addition, we are 
providing Tribes further flexibility to identify additional activities 
that they would consider acceptable and necessary in helping families 
work towards self-sufficiency. For example, a Tribe may identify 
subsistence activities or substance abuse treatment as activities the 
Tribe believes necessary to help families achieve self-sufficiency.

[[Page 39379]]

    Furthermore, since we are not defining the work activities in the 
proposed regulations for States, but are instead asking States to 
define them, we feel it is appropriate to afford Tribes the same 
definition flexibility.
    What limitations concerning vocational education, job search and 
job readiness assistance exist with respect to the work participation 
rate? (Sec. 286.100)
    Comments we received recommended that Tribal TANF work activities 
not be subject to the same restrictions on vocational training as are 
placed on State TANF programs by statute (i.e., not be limited to 12 
months). Because Tribal families may have minimal work skills and 
experience, and Tribal work opportunities may be much more limited, 
Tribes should have the flexibility to engage Tribal families in more 
extensive training. Therefore, the proposed regulation at 
Sec. 286.100(a) does not impose the same limitation that is imposed 
upon States.
    However, with respect to the job search/job readiness limitation 
required of State TANF programs, we believe that Tribal TANF families 
should also not simply be asked to job search or participate in job 
readiness activities as their sole activity for lengthy periods of 
time. Therefore, the proposed regulation at Sec. 286.100(b) is similar 
to the provision found at section 407(c)(2)(A)(i) that limits to six 
weeks in a fiscal year the length of time that a State can consider 
participation in job search/job readiness in a fiscal year by any 
individual to be considered engaged in work.
    We are also proposing to afford Tribes the option afforded to 
States that if the unemployment rate in a Tribal TANF service area is 
at least 50 percent greater than the United States' total unemployment 
rate for the fiscal year, then job search and job readiness assistance 
can be counted for up to twelve weeks during that fiscal year.
    However, unlike for State TANF programs, we are proposing at 
Sec. 286.100(c) that if job search is conducted on an ancillary basis 
as part of another activity, then time spent in job search activities 
can count without limitation. We believe that as long as a family is 
engaging in activities in addition to job searching, then including 
hours spent in job search as part of their other activities is 
consistent with the intent of the law, to help families reach their 
goal of achieving self-sufficiency as soon as possible.
    What safeguards are there to ensure that participants in Tribal 
TANF work activities do not displace other workers? (Sec. 286.105)
    Section 407(f)(2) of the Act contains two safeguards to ensure that 
in helping welfare recipients become self-sufficient, we do not 
jeopardize the economic well-being of non-TANF families through 
displacement. First, a recipient may not be assigned to a vacant 
position if the employer has placed other individuals on layoff from 
the same or equivalent job. Second, an employer may not terminate the 
employment of any regular employee in order to create a vacancy for the 
employment of a TANF recipient. We believe these safeguards provide 
important protection for all workers and need to be in place under both 
Tribal and State TANF programs. Furthermore, we do not intend for these 
provisions to preempt or supersede any Tribal laws providing greater 
protection for employees.

Time Limits

    In addition to promoting self-sufficiency and independence through 
employment, PRWORA stresses the temporary nature of welfare and limits 
the number of months that assistance can be provided with TANF funds. 
PRWORA provides a 60-month (or less, at State option) time limit for 
the receipt of TANF assistance under State TANF programs. The time 
limit provisions include not only the length of time that assistance 
can be provided, but also what months of assistance will count toward 
the time limit and whether any categories of recipients are exempt from 
the time limit rules. We have the authority, under section 412(c) of 
the Act, to establish for each Tribe, with the participation of the 
Tribe, appropriate time limits for receipt of welfare-related services. 
Once established for each Tribe, the Tribe may not use its TFAG to 
provide welfare-related services to a family that includes an adult 
beyond the established time limit.
    Section 412(c)(2) of the statute further provides that the time 
limits established for Tribal TANF programs must be consistent with the 
purposes of TANF and consistent with the economic conditions and 
resources available to each Tribe. This principle has been echoed in 
our on-going consultation with Tribes and Tribal organizations. The 
comments we have received strongly suggests that the Tribal TANF time 
limits should reflect the unique circumstances of each service area and 
service population.
    What information on time limits for the receipt of welfare-related 
service must a Tribe include in its Tribal Family Assistance Plan? 
(Sec. 286.110)
    As part of its plan, a Tribe will propose a time limit for receipt 
of Tribal TANF assistance that will apply to its service population and 
provide a rationale for its proposal. By ``time limit,'' we mean the 
maximum number of months (whether or not consecutive) that federally 
funded assistance will be provided to a Tribal TANF family that 
includes an adult. The proposed time limit should reflect the intent of 
Congress that welfare should be temporary and not a way of life. The 
proposal should also take into consideration those factors that may 
impact on the length of time that a TANF family might be expected to 
need in order to find employment and become self-sufficient.
    To allow for maximum flexibility, we are not requiring that the 
same time limit apply throughout the Tribal TANF service area. A Tribe 
should have the option to decide that because economic conditions and 
the availability and accessibility of services vary, it is appropriate 
to establish different time limits by geographic area. For example, a 
Tribe could choose to establish a shorter time limit for a part of the 
service area that has many employment opportunities than for another 
part of the service area with high unemployment.
    If a Tribe proposes to use the 60-month time limit that applies 
under State TANF programs, we would not expect a detailed explanation 
of the rationale. However, if the Tribe proposes to provide assistance 
for longer than 60 months, it should explain how that time limit was 
determined. As mentioned earlier, examples of the information that we 
would expect to be included to illustrate the Tribe's proposal include, 
but are not limited to: Poverty, unemployment, jobless and job surplus 
rates; education levels of adults in the service area; availability of 
and/or accessibility to resources (educational facilities, 
transportation) to help families become employable and find employment; 
and employment opportunities on and near the service area.
    As part of the negotiation process, we may ask for additional 
information and/or further discussion before the proposed time limits 
are approved. This would ensure that all factors are considered in 
establishing appropriate time limits for a Tribal TANF program.

Determining if the Time Limit Has Been Exceeded

    Section 408(a)(7) of the Act provides that States may not use 
Federal funds to provide assistance to a family that includes an adult 
who has received assistance for more than five years. In other words, 
if a family does not include

[[Page 39380]]

any adults who are receiving assistance (i.e., only the children 
receive assistance), then the time limit does not apply. We propose to 
make the Tribal TANF requirements consistent with the State 
requirements in this area. The intent of Congress is that families 
should achieve self-sufficiency through employment. It does not seem 
reasonable to apply the time limit requirement to cases where only 
children are receiving assistance, and employment is not an option.
    Section 408(a)(7)(B) of the Act requires States to disregard 
certain months of assistance in determining if the 60-month time limit 
has been exceeded. Specifically, State TANF programs do not count any 
month during which a minor who was not head of the household or married 
to the head of the household received assistance. For the reasons 
explained below, we propose to apply this disregard provision to 
Tribes.
    The decision as to whether a family has met the time limit is based 
on how long the adults have received assistance. Therefore, it does not 
seem reasonable to include months when an individual received 
assistance as a minor. However, Tribes, like States, would count months 
when a minor received assistance as the head of a household or as the 
spouse of the head of the household. The reason is that minor heads of 
households and minors who are married to heads of household are 
generally treated as adults in terms of other program requirements 
under the Act.
    Section 407(a)(7)(D) of the Act, as amended by the Balanced Budget 
Act of 1997, requires that Tribes and States disregard as a month of 
assistance any month during which an adult lived in Indian country or 
an Alaskan Native village in which at least 50 percent of the adults 
were not employed. To determine whether 50 percent of the adults were 
not employed, the statute allows the use of any reliable data with 
respect to the month. This would allow the use of the Labor Force 
Report, which is issued every two years by the Bureau of Indian 
Affairs, Department of Labor Unemployment Data, or any other reliable 
data source or combination of data sources.
    Can Tribes makes exceptions to the established time limit for 
families? (Sec. 286.115)
    For State TANF programs, section 408(a)(7)(C) of the Act allows for 
two hardship exceptions from the 60-month time limit: (1) Families that 
meet the State's definition of ``hardship''; and (2) families that 
include an individual who has been battered or subjected to extreme 
cruelty. A State may exempt no more than 20 percent of its average 
monthly caseload under these exceptions.
    Section 412(c) of the Act does not mention a similar exception for 
Tribal TANF programs. However, because the time limit provisions 
include not only how long a family may receive Tribal TANF benefits, 
but also who is subject to the time limits, it is reasonable that 
Tribes should have the option to provide for similar exceptions from 
their established time limits. The proposed regulations provide that we 
will negotiate the maximum percentage of cases in the Tribe's caseload 
which may be exempted from the established time limits.
    Although the proposed regulations include the same definition of 
``battered or subjected to extreme cruelty'' as is set forth in section 
408(a)(7)(C)(iii) for State TANF, we request comments as to whether 
there are additional situations particular to Tribes that should be 
included in this proposed definition. We also invite comments on 
whether this exception should be defined in regulations at all or left 
to each Tribe to define.
    Does the receipt of TANF assistance under a State or other Tribal 
TANF program count towards a Tribe's TANF time limit? (Sec. 286.120)
    Under section 408(a)(7) of the Act, a State must consider receipt 
of TANF benefits under other State programs in determining if the 60-
month time limit has been exceeded. Although section 412 of the Act 
does not include a similar requirement for Tribal TANF programs, we 
believe that prior receipt of TANF must also be counted by Tribes when 
determining if the time limit has been exceeded. We do not believe the 
intent of Congress was otherwise. Thus, a Tribe must count towards an 
adult's time limit all prior months of TANF assistance funded with TANF 
block grant funds, except for any month that was exempt or disregarded 
by statute or regulation.

Penalties Against Individuals

    As stated earlier, the PRWORA promotes self-sufficiency and 
independence by providing people with more work opportunities while 
holding individuals to a higher standard of personal responsibility for 
the support of their children. The legislation expands the concept of 
mutual responsibility, introduced under the Family Support Act of 1988, 
that income assistance to families with able-bodied adults should be 
transitional and conditioned upon their efforts to become self-
sufficient. As Tribes focus on helping adults get work and earn 
paychecks quickly, parents are also expected to meet new, tougher work 
requirements. We will expect Tribes to ensure that parents understand 
what is required of them, and to develop proposals for penalties 
against individuals that reflect the importance of those requirements.
    What information on penalties against individuals must be included 
in a Tribal Family Assistance Plan? (Sec. 286.125)
    What is the penalty if an individual refuses to engage in work 
activities? (Sec. 286.130)
    Can a family, with a child under age 6, be penalized because a 
parent refuses to work because (s)he cannot find child care? 
(Sec. 286.135)
    This proposed rule combines the discussions of these three sections 
of this part because of the inter-relationship among them.
    As mentioned above, section 412(c) of the Act gives flexibility to 
establish penalties against individuals, and related policies, for each 
Tribal TANF grantee. Section 412(c)(3) specifies that penalties against 
individuals established for each Tribal TANF grantee must be similar to 
comparable provisions in section 407(e). However, the statute does not 
specify a process or procedure to accomplish this.
    As discussed earlier, we propose to use the Tribal TANF plan 
process to establish the requirements related to penalties against 
individuals and related policies that will become a part of the Tribal 
TANF program. In addition, the Tribe must include a rationale for its 
proposal and related policies in the plan. The rationale needs to 
address how the Tribe's proposal is: Consistent with the purposes of 
section 412 of the Act; consistent with the economic conditions and 
resources available to the Tribe; and similar to the requirements 
applicable to States as specified at section 407(e) of the Act.
    States are required to reduce the amount of assistance otherwise 
payable to the family pro rata (or more at State option) for the period 
during the month in which the individual refused to engage in work as 
required, subject to good cause and other exceptions determined by the 
State. The States also are given, by the statute at section 
407(e)(1)(B), the option to terminate the case.
    In addition, a State may establish, pursuant to section 407(e)(1) 
of the Act, good cause exceptions to penalties for failure to engage in 
work as required. We believe that Tribes must also be able to establish 
reasonable good cause exceptions because penalties against individuals 
established for each Tribal

[[Page 39381]]

TANF grantee must be comparable to those specified at section 407(e). A 
Tribe must include a rationale for its good cause exceptions. The 
rationale should address how the good cause exceptions are reasonable 
and how they relate to the goals of the Tribe's TANF program.
    As specified in the statute at section 407(e)(2), a State may not 
reduce or terminate assistance to a single custodial parent caring for 
a child under age six for refusing to engage in work as required, if 
the parent demonstrates an inability (as determined by the State) to 
obtain needed child care. The parent's demonstrated inability must be 
for one of the following reasons:
    <bullet> Appropriate child care within a reasonable distance from 
the individual's home or work site is unavailable;
    <bullet> Informal child care by a relative or under other 
arrangements is unavailable or unsuitable; or
    <bullet> Appropriate and affordable formal child care arrangements 
are unavailable.
    We believe a comparable provision should apply to Tribal TANF 
programs as the lack of child care may be even more acute on remote 
Indian reservations.
    Under section 402(a)(7) States may opt to establish and enforce 
standards and procedures for identifying and helping victims of 
domestic violence. If the State has chosen to establish these 
standards, it may waive certain program requirements, including work 
requirements, in cases where compliance would make it more difficult 
for an individual receiving assistance to escape domestic violence or 
would unfairly penalize victims or individuals who are at risk of 
further violence. The State must determine that the individual 
receiving the program waiver has good cause for failing to comply with 
the requirements. Tribes may also wish to consider whether to establish 
their own standards and procedures related to victims of domestic 
violence.
    There may be other reasons a Tribe may want to impose a penalty on 
an individual who refuses to cooperate with program requirements other 
than work activity requirements. For example, a Tribe may want to 
impose a penalty on a custodial parent who refuses to cooperate with a 
child support enforcement program.
    Based on the above information, we believe the Tribe's TANF plan 
must address the following questions:
    (1) Will the Tribe impose a pro rata reduction, or more at Tribal 
option, or will it terminate assistance to a family which includes an 
adult or minor head-of-household that refuses to engage in work as 
required?
    (2) What will be the proposed Tribal policies with respect to a 
single custodial parent, with a child under the age of 6, who refuses 
to engage in work activities because of a demonstrated inability to 
obtain child care?
    (3) What good cause exceptions, if any, does the Tribe propose 
which will allow individuals to avoid penalties for failure to engage 
in work activities? What is the rationale for these exceptions?
    (4) What other rules governing penalties does the Tribe propose?
    (5) What, if any, will be the Tribe's policies in relation to 
victims of domestic violence?
    With respect to the prohibition on penalizing single custodial 
parents with a child under age 6, we want to underscore the pivotal 
role of child care in supporting work and that the lack of appropriate, 
affordable child care can create unacceptable hardships on children and 
families. To keep families moving toward self-sufficiency, Tribes may 
want to consider adopting a process or procedure that enables a family 
to demonstrate its inability to obtain needed child care. Just as 
States must have policies for continuing benefits to a single-parent 
family when it demonstrates that it is unable to work due to the lack 
of child care for a child under the age of six, it is important for 
Tribes to have policies too. Like States, Tribes should inform eligible 
parents that the time during which they are excepted from the penalty 
will count towards the time limit on benefits, unless the Tribe's 
approved time limit proposal provides for an exception.
    The proposed regulations for the Child Care and Development Fund 
(CCDF) reinforce the importance of providing this vital information to 
parents by requiring the child care Lead Agency, as part of its 
consumer education efforts, to inform parents about the penalty 
exception to the TANF work requirement. It must also provide parents 
with the information outlined above concerning the process or 
procedures for demonstrating an inability to obtain needed child care.
    Because the Tribe will have the authority to determine whether the 
individual has adequately demonstrated an inability to obtain needed 
child care, we expect the Tribe to provide families with the criteria 
that it will use to implement the exception and the means by which a 
parent can demonstrate such an inability. In providing these criteria, 
each Tribe needs to define the following terms: ``Appropriate child 
care,'' ``reasonable distance,'' ``unsuitability of informal care,'' 
and ``affordable child care arrangements.'' In the proposed CCDF rule, 
we require the Lead Agency for child care to coordinate with the TANF 
agency in order to understand how the TANF agency defines and applies 
the terms of the statute regarding the exception to the penalty and to 
include those definitions and criteria in the CCDF plan.
    As the role of child care is pivotal in supporting work activities, 
it is important for the Tribal and State CCDF programs to coordinate 
fully with the Tribal TANF program. Coordination between CCDF and TANF 
is critical to the success of both programs.
    In addressing the economic conditions and available resources in 
support of its proposal for penalties against individuals, the Tribe 
may refer back to the information already provided in the plan in 
relation to the Tribe's proposal for minimum work participation 
requirements and time limits. It may also offer additional information 
in support of its proposal.

Tribal TANF Plan Processing

    What are the applicable time frames and procedures for submitting a 
Tribal Family Assistance Plan? (Sec. 286.140)
    The PRWORA does not give a date by which a Tribe must submit a 
Tribal Family Assistance Plan. In establishing the time frame within 
which a Tribe must submit the TFAP, we have to consider two factors. 
The first is the requirement found at section 405(b) of the Act that we 
provide to a State timely notice of the amount of the reduction to its 
State Family Assistance Grant (SFAG) that results from the operation of 
a Tribal TANF program. The statute requires this notice to be made 3 
months before we take the reduction in the State's SFAG quarterly 
installment. The second consideration is the authority at section 
412(b)(2) of the Act which provides for Secretarial approval of each 
Tribal Family Assistance Plan.
    As mentioned in the discussion on determining the amount of a 
Tribal Family Assistance Grant, our experience to date has indicated 
that we need sufficient time to request data from the State, receive 
and process it, and resolve any issues, prior to making official notice 
to the State. We have outlined time frames at Sec. 286.15 for 
requesting State data and resolving any issues concerning the data. In 
order to meet these time frames and meet the requirement for a three-
month notice to the State, the proposed regulation at Sec. 286.140 
requires a Tribe to submit to us a letter of intent, unless the Tribes 
have already requested, received and resolved any issues regarding the 
State-

[[Page 39382]]

supplied data. We will use the letter of intent to request the data 
from the State and thus will need to specify the Tribe's proposed 
implementation date and proposed service area and population. We have 
proposed time frames for the submission of the letter of intent at 
Sec. 286.140(a).
    In order to meet the approval requirement, including review, 
discussion, and where appropriate, modification of the TFAP in 
consultation with the Tribe, we have determined that we will need a 
minimum of 120 days to accomplish these actions for Tribes who propose 
to implement a program on the first day of a calendar quarter. 
Therefore, the proposed regulation at Sec. 286.140(a) requires the 
formal submission of a Tribal TANF plan to us based on the dates 
specified in the table below.
    A Tribe will be able to implement a Tribal TANF program on the 
first day of any month. However, due to the requirement for a three-
month notification to the State of its adjusted quarterly SFAG amount, 
a Tribe who wishes to implement a TANF program on other than the first 
day of a calendar quarter, i.e., January 1, April 1, July 1 or October 
1, will need to submit both its letter of intent and its formal plan as 
if the proposed implementation date was the first day of a calendar 
quarter. The following table illustrates, based on implementation 
dates, when a Tribe needs to submit its letter of intent and formal 
plan in order for us to meet the statutory requirement for notification 
to the State.

--------------------------------------------------------------------------------------------------------------------------------------------------------
 If proposed implementation  date is:    The letter of intent is due:      The formal plan is due:              And we must notify the State by:        
--------------------------------------------------------------------------------------------------------------------------------------------------------
January 1, February 1 or March 1......  July 1 of previous year.......  September 1 of previous year.  October 1 of previous year.                      
April 1, May 1 or June 1..............  October 1 of previous year....  December 1 of previous year..  January 1 of same year.                          
July 1, August 1 or September 1.......  January 1 of same year........  March 1 of same year.........  April 1 of same year.                            
October 1, November 1 or December 1...  April 1 of same year..........  June 1 of same year..........  July 1 of same year.                             
--------------------------------------------------------------------------------------------------------------------------------------------------------

    We had considered whether to establish a format or preprint for the 
Tribal TANF plans. In discussions with Tribes, we heard from some 
Tribes that did not want us to dictate plan format. Yet we also heard 
from some Tribes that indicated they would appreciate having a 
preprint, similar to the one that was used for the Tribal JOBS program. 
We invite additional comments from readers as to whether to develop and 
require the use of a specific format or preprint for use by Tribes in 
submitting TFAPs. One option would be to develop an optional plan 
preprint.
    As noted above, the Secretary has explicit authority to approve 
Tribal TANF plans. In exercising this authority, we plan to work with 
each Tribe that submits a TFAP to ensure that plans contain the 
information required by statute and regulation. A Tribe may make 
revisions to its plan during the review process. In instances where we 
disapprove a plan, the proposed regulation at Sec. 286.140(e) provides 
an appeal process.

Public Law 102-477

    Pub. L. 102-477, the Indian Employment, Training and Related 
Services Demonstration Act of 1992, allows Tribes to integrate certain 
federally funded employment, training and related services programs 
into a single plan. The purpose of this public law is to improve the 
effectiveness of these programs and services.
    The PRWORA requires the Secretary to review and approve all TFAPs 
for Tribes seeking to operate a Tribal TANF Program. Those requirements 
are found at section 412(a). Section 5 of Pub. L. 102-477 states ``the 
programs that may be integrated in a demonstration project * * * shall 
include any program under which an Indian tribe is eligible for receipt 
of funds.'' In order to receive a Tribal Family Assistance Grant, 
Tribes must first have approved Tribal TANF plans. Therefore, the 
proposed regulation at Sec. 286.140(f) indicates that a Tribe must have 
separate approval of its TFAP from the Secretary before it can 
integrate the Tribal TANF program into a Pub. L. 102-477 plan.
    How is a Tribal Family Assistance Plan amended? (Sec. 286.145)
    Section 412 of the statute does not address amendments to Tribal 
TANF plans. We believe that Tribes need to have an opportunity, during 
the period covered by a plan, to amend the plan. Thus, the proposed 
regulation at Sec. 286.145 allows Tribes to amend TFAPs.
    In addition, the proposed regulation establishes the procedure for 
the submission, review and implementation of a Tribal TANF plan 
amendment. We propose to require the submission to the Secretary of a 
plan amendment no later than thirty (30) days prior to the 
implementation of the amendment. The implementation date for an 
approved amendment will to be the first day of any month. We will take 
action to approve or disapprove the proposed amendment within fourteen 
(14) days. If we disapprove a plan amendment, the Tribe will be given 
an opportunity to appeal the decision. Use of TANF funds for services 
or activities under an amendment cannot be made until the 
implementation date of the approved amendment.

Specials Provisions for Alaska

    What special provisions apply to Alaska? (Sec. 286.150)
    What is the process for developing the comparability criteria that 
are required in Alaska? (Sec. 286.155)
    What happens when a dispute arises between the State of Alaska and 
the Tribal TANF eligible entities in the State related to the 
comparability criteria? (Sec. 286.160)
    If the Secretary, in the State of Alaska, or any of the Tribal TANF 
eligible entities in the State of Alaska want to amend the 
comparability criteria, what is the process for doing so? 
(Sec. 286.165)
    Section 412(i) of the Act requires the Tribal TANF eligible 
entities in the State of Alaska to operate a program in accordance with 
requirements comparable to the State of Alaska's TANF program. In 
response to this provision in the statute, we sponsored a meeting in 
Anchorage on November 15, 1996, to begin discussions on welfare reform 
and the Alaska-specific comparability issue. During that meeting a 
group formed, consisting of representatives from each of the Tribal 
TANF eligible entities, as defined in section 417(4)(B) of the Act, the 
Alaska State Department of Health and Social Service and ACF. This 
``Single Points of Contact (SPOC)'' group has met regularly to discuss 
welfare reform issues unique to Alaska and worked on developing an 
initial comparability criteria document. This process, developed in the 
absence of any written Federal guidance, continues to further the 
communication among the Federal Government, the State and the 13 
eligible Tribal TANF eligible entities in the State. The 13 eligible 
entities have

[[Page 39383]]

agreed to submit Tribal TANF plans for implementation no sooner than 
July 1, 1998, and thus, the comparability criteria document will 
continue to be refined until such time as an eligible entity submits 
the first Alaska Tribal TANF plan.
    Because of the extensive work being done by the SPOC group, and the 
consultation that continues to take place, we have decided not to 
regulate either the specific comparability criteria or the process by 
which the comparability criteria will be developed. We believe that the 
SPOC group has a well-developed process for working on the Alaska-
specific challenges of welfare reform and that allowing the greatest 
level of flexibility possible for this group will achieve the best 
results. However, we have chosen to include regulations on how to 
settle disputes that cannot be resolved through this process, as well 
as regulations on how to amend the comparability criteria. Based on the 
comments we received during the preconsultation process, we determined 
that regulations would be helpful in these two areas.
Subpart D--Accountability and Penalties
    It is clear that, in enacting the applicable penalties at section 
409(a) of the Act, Congress intended for Tribal flexibility to be 
balanced with Tribal accountability. To assure that Tribes fulfil their 
new responsibilities under the TANF program, Congress established a 
number of penalties and requirements under section 409. The penalty 
areas indicate the areas of performance that Congress found most 
significant and appropriate for Tribal programs. Through specific 
sanctions, Congress provided the Secretary authority to enforce 
particular provisions in the law.
    As referenced in section 412 of the Act, section 409(a) includes 
four penalties that can be imposed on Tribes. This subpart of the 
proposed rule covers these penalties.
    What penalties will apply to Tribes? (Sec. 286.170)
    The four penalties that apply to Tribes are as follows:
    (1) A penalty of the amount by which a Tribe's grant was used in 
violation of part IV-A of the Act;
    (2) A penalty of five percent of the TFAG as a result of findings 
which show that the Tribe intended to violate a provision of the Act;
    (3) A penalty in the amount of the outstanding loan plus the 
interest owed on the outstanding amount for failure to repay a Federal 
loan; and
    (4) A penalty for failure to satisfy the minimum work participation 
rates.
    As specified in section 409(a)(3), the participation rate penalty 
amount will depend on whether the Tribe was under a penalty for this 
reason in the preceding fiscal year. If a penalty was not imposed on 
the Tribe in the preceding year, the penalty reduction will be a 
maximum of five percent of the TFAG in the following year. If a penalty 
was imposed in the preceding year, the penalty reduction will be 
increased by 2 percent per year, up to a maximum of 21 percent. We will 
take into consideration the severity of the failure in determining the 
amount of the penalty. In our consultation with Tribes, we have been 
advised that it will be difficult to satisfy the participation rates 
because of economic conditions (e.g., high unemployment rates) in 
Tribal service areas. Although these conditions will be considered in 
establishing the minimum participation rates for each TFAG program, we 
recognize that it may still be difficult for Tribes to meet this 
requirement. For this reason, we propose to take into consideration the 
following two factors in determining the amount of the penalty: (1) 
Increases in the unemployment rate in the Tribe's service area, and (2) 
changes in TFAG caseload (e.g., increases in the number of families 
receiving services).
    If we impose a penalty on a Tribe, the following fiscal year's TFAG 
will be reduced. In calculating the amount of the penalty, all 
applicable penalty percentages will be added together and the total 
will be applied to the amount of the TFAG that would have been payable 
if no penalties were assessed against the Tribe. As a final step, other 
(non-percentage) penalty amounts will be subtracted. If this 
calculation would result in the TFAG being reduced by more than 25 
percent, we propose to apply the State TANF limitation in section 
409(d). In applying the penalties against a State TANF program, we 
cannot reduce the State's block grant by more than 25 percent in any 
quarter. If we are unable to collect the entire penalty in a fiscal 
year, any excess penalty amounts will be applied against the grants for 
succeeding years. We propose to treat Tribes like States and limit the 
amount of TFAG reduction due to penalties to 25 percent in any given 
fiscal year.

Failure To Repay a Federal Loan

    Section 406 permits Tribes to borrow funds to operate their TANF 
programs. Tribes must use these loan funds for the same purposes as 
apply to other Federal TANF funds. In addition, the statute also 
specifically provides that Tribes may use such loans for welfare anti-
fraud activities and for the provision of assistance to Indian families 
that have moved from the service area of a State or other Tribe 
operating a Tribal TANF program. Tribes have three years to repay loans 
and must pay interest on any loans received. We will be issuing a 
program instruction notifying Tribes and States of the application 
process and the information needed for the application.
    Section 409(a)(6) establishes a penalty for Tribes that do not 
repay loans provided under section 406. We will penalize Tribes for 
failing to repay a loan provided under section 406 (see 
Sec. 286.170(a)(4) and Sec. 286.185). A specific vehicle for 
determining a Tribe's compliance with this requirement is unnecessary. 
In our loan agreements with Tribes, we will specify due dates for the 
repayment of the loans and will know if payments are not made.

Outstanding Penalties and Retrocession

    In developing these proposed rules, a question arose concerning how 
we will treat situations where a Tribe decides to retrocede the TANF 
program. Since the Tribe will no longer receive a TFAG, we would be 
unable to collect any penalty by withholding or offsetting in the 
succeeding fiscal year. However, we stipulate in the proposed 
regulation that a Tribe that retrocedes a Tribal TANF program is 
responsible for the payment of any penalty that may be assessed for the 
period the program was in effect.

Replacement of Penalty Amounts

    Section 409(a)(12) of the Act requires a State to expend its own 
funds to replace any reduction in its SFAG due to the imposition of a 
penalty. This is to prevent recipients from also being penalized for 
the State's failure to administer its program in accordance with the 
requirements of the Act. We believe that a similar failure by a Tribe 
should not cause Tribal TANF recipients to be penalized. For this 
reason, in the same fiscal year as a penalty is imposed, at 
Sec. 286.170(c)(1) we propose to require a Tribe to expend Tribal funds 
to replace any reduction in the TFAG resulting from penalties that have 
been imposed. The Tribe must document compliance with this provision on 
its TANF Financial Report.
    As amended by the Balanced Budget Act of 1997, section 409(a)(12) 
states that failure of a State to replace any reduction in its SFAG 
amount due to penalties may result in a penalty of not more than 2 
percent of the SFAG, plus the amount that was required to be replaced. 
However, we do not want to

[[Page 39384]]

subject Tribes to a penalty that is so severe that services to 
recipients are jeopardized. Therefore, we propose at Sec. 286.170(c)(2) 
to impose a similar, but not the same, penalty on Tribes. We stipulate 
in the proposed rule that we may impose a penalty of not more than 2 
percent of the TFAG if a Tribe fails to expend its own funds to replace 
any reduction in the TFAG due to penalties.
    We invite comments on our decision to impose this requirement.
    How will we determine if Tribal Family Assistance Grant funds were 
misused or intentionally misused? (Sec. 286.175)
    It is clear that in establishing the many penalties at section 
409(a) of the Act, Congress expressed its intent that both States and 
Tribes balance flexibility with accountability. Because of the 
differences in the requirements for State and Tribal programs, as 
mentioned above, section 412 specifies that only four of the 
requirements and penalties under section 409 apply to Tribes. The 
penalty areas, or rather, the areas of Tribal performance that Congress 
found significant and attached fiscal sanctions to, vary considerably. 
Thus, in considering what method to employ in monitoring Tribal 
performance, we concluded that no one method could be employed. The 
following explains the different methods we will use to determine if a 
Tribe used TFAG funds in violation of the Act.

Misuse of Funds

    The penalty at Sec. 286.170(a)(1) and Sec. 286.175(a) provides that 
if a Tribe has been found to have used funds in violation of title IV-A 
through an audit conducted under the Single Audit Act (31 U.S.C. 
Chapter 75), as referenced in section 102(f) of the Indian Self-
Determination Act Amendments of 1994 (Pub. L. 103-413), the Tribe is 
subject to a penalty in the amount misused. This is the only penalty 
for which Congress identified a method for determining a penalty.
    Under the requirements of the Single Audit Act, Tribes operating 
Federal grant programs meeting a monetary threshold (currently $300,000 
for all Federal grants) must conduct an annual audit. Those Tribes 
which meet the threshold must comply with this annual audit 
requirement.
    The single audit is an organization-wide audit that reviews Tribal 
performance in many program areas. We implemented the Single Audit Act 
through use of Office of Management and Budget (OMB) Circular A-128, 
``Audits of State and Local Governments.'' Because of amendments made 
to the Single Audit Act in 1996, OMB recently revised this circular and 
a similar circular for non-profit organizations, A-133. Effective June 
30, 1997, A-128 has been rescinded, with the result that the revised A-
133 now includes the single audit requirements for States, local 
governments, Indian tribes and non-profit organizations.
    In conducting their audits, among the tools auditors use are the 
statute and regulations for each program and a compliance supplement 
issued by OMB that focuses on certain areas of primary concern. Upon 
issuance of final regulations, we will prepare a TANF program 
compliance supplement.
    The Single Audit Act does not preclude us or other Federal offices 
or agencies, such as the Office of the Inspector General (OIG), from 
conducting audits or reviews. In fact, we conclude that we have 
specific authority to conduct additional audits or reviews. Under 31 
U.S.C. 7503(b),

    . . . a Federal agency may conduct, or arrange for additional 
audits which are necessary to carry out its responsibilities under 
Federal law or regulation. The provisions of this chapter do not 
authorize any non-Federal entity (or subrecipient thereof) to 
constrain, in any manner, such agency from carrying out or arranging 
for such additional audits, except that the Federal agency shall 
plan such audits to not be duplicative of audits of Federal awards.

    Thus, although the single audit will be our primary means for 
determining if a Tribe has misused funds, we may, through our own 
audits and reviews, or through OIG and its contractors, conduct audits 
or reviews of the Tribal TANF program which will not be duplicative of 
single organization-wide audit activities. Our need to conduct such 
audits may arise from complaints from individuals and organizations, 
requests by the Congress to review particular areas of interest, or 
other indications which signal problems in Tribal compliance with TANF 
program requirements. These additional reviews and audits may be the 
basis for assessing a penalty under this section.

Intentional Misuse of Funds

    Where a penalty is determined for the misuse of funds, we may apply 
a second penalty if we determine that the Tribe has intentionally 
misused its TFAG. The proposed criteria for determining ``intentional 
misuse'' are found at Sec. 286.175(c). We propose that the single audit 
should be the primary means for determining this penalty as it is 
linked to the penalty for misuse of funds. However, as with the use of 
the single audit for misuse of funds, we may also conduct other reviews 
and audits in response to complaints from individuals and organizations 
or other indications which signal problems with compliance with TANF 
program requirements. These additional reviews and audits may be the 
basis for assessing a penalty under this section.

Additional Single Audit Discussion

    Although we propose that the single audit be the primary means to 
determine the specific penalties for misuse and intentional misuse of 
TFAG funds, we will not ignore other single audit findings such as 
Tribal non-compliance with the minimum participation rate requirement. 
Where the single audit is used to determine a penalty for failure to 
satisfy the minimum participation rate, the penalty that will apply is 
the percentage reduction described at Sec. 286.170(a)(3), not the 
dollar-for-dollar penalty at Sec. 286.170(a)(1) for misuse of funds.
    The single audit may also reveal Tribal non-compliance with the 
negotiated time limit requirements (see Sec. 286.110). Since Tribes are 
not subject to the State penalty at section 409(a)(9) for failure to 
comply with the time limit provisions, the question arose as to whether 
the Tribe's failure should be treated as a misuse of funds. Because the 
penalty for misuse of funds is equal to the amount that was spent 
incorrectly, the Tribal penalty could potentially be higher than the 5 
percent penalty for States. As a result, a Tribe could be subject to a 
higher penalty by comparison. To avoid disparate treatment of States 
and Tribes in this area, we propose to limit any potential penalty for 
failure to comply with the Tribal time limits to a maximum of 5 
percent.
    Similarly, where we, or OIG, conduct an audit or review and have 
findings that could result in a penalty, the penalty amount that will 
apply is the penalty amount associated with the specific penalty under 
section 409(a) of the Act.
    How will we determine if a Tribe fails to meet the minimum work 
participation rate(s)? (Sec. 286.180)
    Tribal compliance with the minimum work participation rates under 
Sec. 286.80 will be primarily monitored through the information 
required by section 411(a) of the Act. The proposed rule at Sec. 286.70 
provides additional information on minimum work participation 
requirements.
    Some of the data required to be reported by section 411(a) of the 
Act were included to gather information in this area. Thus, we 
concluded that the section 411(a) data collection tools would be our 
primary means for

[[Page 39385]]

determining this penalty. Our ability to meet our program management 
responsibilities may also mean that we will conduct reviews in the 
future to verify the data submitted by Tribes, particularly in this 
area where a fiscal penalty is applicable.
    Timely and accurate data is essential if we are to determine Tribal 
compliance in this area. Thus, if a Tribe fails to submit a timely 
report, we will consider this as a failure by the Tribe to meet its 
work participation rate requirements and will enforce the penalty for 
failure to meet the work participation requirements. Likewise, if the 
data indicating that the Tribe has met its participation rate is found 
to be so inaccurate as to seriously raise a doubt that the Tribe has 
met these requirements, we may enforce the participation rate penalty.
    Although we propose that the single audit should be the primary 
means for determining certain specific penalties for misuse or 
intentional misuse of TFAG funds, if a single audit detects Tribal non-
compliance in the minimum participation rate area, we cannot ignore 
that finding. Therefore, we will consider imposing a penalty based on 
the single audit in this area. The penalty amount that will apply is 
the penalty under section 409(a)(3) for failure to meet the 
participation rates and not the penalty under section 409(a)(1) for 
misuse of funds.
    What is the penalty for a Tribe's failure to repay a Federal loan? 
(Sec. 286.185)
    If the Tribe fails to repay its loan, plus any accumulated 
interest, in accordance with its agreement with ACF, we will reduce the 
Tribe's TFAG for the immediately succeeding fiscal year by the 
outstanding loan amount, plus any interest owed. Neither the reasonable 
cause provisions at Sec. 286.200 of this chapter nor the corrective 
compliance plan provisions at Sec. 286.205 of this chapter apply when a 
Tribe fails to repay a Federal loan. Please refer to Sec. 286.210 for 
more information on this penalty.
    When are the TANF penalty provisions applicable? (Sec. 286.190)
    Tribes may choose to implement the TANF program at different times, 
but no earlier than July 1, 1997. In our consultation with Tribes, we 
received several comments concerning the difficulties that Tribes will 
face in attempting to implement a TANF program. Unlike States that were 
operating AFDC and similar welfare programs prior to implementing TANF, 
Tribes may not have this past history on which to build. We received 
several recommendations to provide for a grace period for 
implementation before we begin to assess any Tribal penalties.
    Section 116(a)(2) of PRWORA delays the effective dates of some 
provisions for States, and we propose to apply a similar rule for 
Tribes. States are generally held accountable for meeting the 
requirements of the Act from the first day that the program is 
implemented. However, Congress delayed the effective dates of some 
provisions because it recognized that States may need some lead time in 
implementing certain requirements. In a number of instances it provided 
that the related penalty requirements will not apply for six months 
after the State implements a TANF plan. Similarly, while Tribes will be 
held accountable for the penalties for misuse and intentional misuse of 
funds from the date of implementation of TANF, the penalty for failure 
to satisfy minimum participation rates will not apply until six months 
after the date of implementation of the Tribal TANF program.
    In the period prior to the issuance of final rules, Tribes must 
implement the TANF provisions in accordance with a reasonable 
interpretation of the statute. If a Tribe's actions are found to be 
inconsistent with the final regulations, but it has acted in accordance 
with a reasonable interpretation of the statute and its approved TFAP, 
no penalty will be taken against the Tribe. However, if a Tribe is 
found to be liable for a penalty prior to the issuance of final rules, 
the Tribe may present its arguments for ``reasonable cause,'' which, if 
granted, will result in no penalty being taken.
    What happens if a Tribe fails to meet TANF requirements? 
(Sec. 286.195)
    If we determine that a Tribe has failed to meet any of the 
requirements included in the penalty provisions, we will notify the 
Tribe in writing. Our notification to the Tribe will include: (1) The 
penalty, including the specific penalty amount; (2) the basis for our 
decision; (3) an explanation of the Tribe's opportunity to submit a 
reasonable cause justification and/or corrective compliance plan where 
appropriate; and, (4) an invitation to the Tribe to present its 
arguments if it believes that the data or method for making the 
decision was in error, or that the Tribe's actions, in the absence of 
Federal regulations, were based on a reasonable interpretation of the 
statute.

Reasonable Cause and Corrective Compliance Plan

    Provisions at sections 409(b) of the Act state that we can excuse 
or reduce certain penalties if we determine that the Tribe has 
reasonable cause for failing to comply with certain requirements that 
are subject to a penalty. At Sec. 286.200 Tribes will have the 
opportunity to demonstrate reasonable cause upon receipt of a written 
notification of a proposed penalty.
    Section 409(c) of the Act, as amended by the Balanced Budget Act of 
1997, provides that prior to imposing certain penalties against a 
Tribe, we will notify the Tribe of the violation and allow the Tribe 
the opportunity to enter into a corrective compliance plan which 
outlines how the Tribe will correct the violation and ensure continuing 
compliance with TANF requirements.
    How may a Tribe establish reasonable cause for failing to meet a 
requirement that is subject to application of a penalty? (Sec. 286.200)
    In the discussion that follows, we will describe the factors that 
we will consider in deciding whether or not to excuse a penalty based 
on a Tribe's claim of reasonable cause, describe the contents of an 
acceptable corrective compliance plan that will correct the problems 
that resulted in a penalty, and discuss the process for applying these 
provisions.
    PRWORA did not specify any definition of reasonable cause or 
indicate what factors we should use in determining a reasonable cause 
exceptions for a penalty. We propose to consider only certain, limited 
factors when we decide whether or not to excuse a penalty for 
reasonable cause.
    During our deliberations on reasonable cause factors, we considered 
the opinions presented during our consultation process as well as the 
need to support the commitment of Congress, the Administration, States, 
and Tribes to the objectives of the TANF program, including program 
accountability. In keeping with these objectives, we propose a limited 
number of reasonable cause factors with an emphasis on corrective 
solutions. These are the same reasonable cause factors that we propose 
for State programs.
    We propose factors which would be applicable to all penalties for 
which the reasonable cause provision applies and, in the case of the 
penalty for failure to satisfy the minimum participation rates, one 
additional factor only applicable to that specific penalty.
    General reasonable cause may include the following: (1) Natural 
disasters and other calamities (e.g., hurricanes, tornadoes, 
earthquakes, fires, floods, etc.) whose disruptive impact was so 
significant that the Tribe failed to meet a requirement; (2) formally 
issued Federal guidance which provided incorrect information resulting 
in the

[[Page 39386]]

Tribe's failure, or guidance that was issued after a Tribe implemented 
the requirements of the Act based on a different but reasonable 
interpretation of the Act; and (3) isolated, non-recurring problems of 
minimum impact that are not indicative of a systemic problem.
    We are also proposing one additional specific reasonable cause 
factor for a Tribe's failure to satisfy minimum work participation 
rates. Under the proposed rule at Sec. 286.200(b), a Tribe may 
demonstrate that its failure is due to its granting of good cause to 
victims of domestic violence. In this case, the Tribe must show that it 
would have achieved the work participation rate(s) if cases with good 
cause were removed from both parts of the calculation (i.e., from the 
denominator and the numerator described in Sec. 286.80). In addition, a 
Tribe must show that it granted good cause in accordance with policies 
approved in the Tribe's Family Assistance Plan (refer to Sec. 286.125).
    We understand that limited employment opportunities in many Tribal 
service areas may affect a Tribe's ability to satisfy the participation 
rates. However, as explained in Sec. 286.95, the work participation 
requirements established for each Tribe will take into consideration 
the Tribe's economic conditions and resources. We invite comments on 
the additional reasonable cause factor for failure to meet work 
participation requirements, as well as whether there are other factors 
we should consider for determining reasonable cause.
    The burden of proof rests with the Tribe to adequately and fully 
explain what circumstances, events, or other occurrences constitute 
reasonable cause with reference to failure to meet a particular 
requirement. The Tribe must provide us with all relevant information 
and documentation to substantiate its claim of reasonable cause for 
failure to meet one or more of these requirements.
    What if a Tribe does not have reasonable cause for failing to meet 
a requirement? (Sec. 286.205)
    As mentioned above, section 409(c) of the Act, as amended by the 
Balanced Budget Act of 1997, provides that prior to imposing certain 
penalties against a Tribe, the Tribe will be given the opportunity to 
enter into a corrective compliance plan.
    The corrective compliance plan must identify the action steps, 
outcomes, and time frames for completion that the Tribe believes will 
fully and adequately correct the violation. We recognize that each plan 
will be specific to the violation (or penalty) and that each Tribe 
operates its TANF program in a unique manner. Thus, we will review each 
plan on a case-by-case basis. Our determination to accept a plan will 
be guided by the extent to which the Tribe's plan indicates that it 
will correct the situation leading to the penalty.
    In instances where a Tribe used its TFAG in a manner that is 
prohibited (see Sec. 286.175 on misuse of funds), we will expect that 
it will remove this expenditure from its TANF accounting records and 
provide steps to assure that such a problem does not recur.
    Section 409(c)(3) of the Act appropriately requires that a 
violation be corrected ``in a timely manner.'' A Tribe's timely 
correction of problems resulting in a penalty is critical if for no 
other reason than to assure that the Tribe is not subject to subsequent 
penalties. While we recognize that the types of problems Tribes 
encounter may vary, some concern exists that, if we do not restrict the 
length of a corrective compliance plan, there is the possibility a 
Tribe could indefinitely prolong the corrective compliance process, 
leaving problems unresolved into another fiscal year. As a result, the 
Tribe's ability to operate an effective program to serve the needs of 
its service population would be severely limited.
    Therefore, we are considering a proposal to limit the period 
covered by a corrective compliance plan to 6 months, i.e., the plan 
period ends 6 months from the date we accept a Tribe's compliance plan. 
We believe that, for most violations, Tribes will have some indication 
prior to our notice that a problem exists and will be able to begin 
addressing the problem prior to submitting the corrective compliance 
plan. Therefore, we think it fair and reasonable that the corrective 
compliance plan period begin with our acceptance of the plan, giving 
the Tribe sufficient time to correct or terminate the violation(s). We 
would like to hear comments from Tribes and other interested parties on 
this proposal on the appropriate time period for a corrective 
compliance plan.
    Our review of a Tribe's efforts to complete its action steps and 
achieve the outcomes within the time frames established in the plan 
will determine if the penalty will be fully excused, reduced, or 
applied in full.

Corrective Compliance Plan Review

    During the 60-day period defined below, we propose to consult with 
the Tribe on any modifications to the corrective compliance plan and 
seek mutual agreement on a final plan. Any modifications to the Tribe's 
corrective compliance plan resulting from such consultation will 
constitute the Tribe's final corrective compliance plan and will 
obligate the Tribe to initiate the corrective actions specified in that 
plan.
    We may either accept the Tribe's corrective compliance plan within 
the 60-day period that begins on the date the plan is received by us, 
or reject the plan during this same period. If a Tribe does not agree 
to modify its plan as we recommend, we may reject the plan. If we 
reject the plan, we will immediately notify the Tribe that the penalty 
is imposed. The Tribe may appeal this decision in accordance with the 
provisions of section 410 of the Act and the proposed regulations at 
Sec. 286.215. If we have not taken an action to reject a plan by the 
end of the 60-day period, the plan is accepted, as required by section 
409(c)(1)(D) of the Act.
    If a Tribe corrects or discontinues, as appropriate, the problems 
in accordance with its corrective compliance plan, we will not impose 
the penalty. If we find that the Tribe has acted in substantial 
compliance with its plan but the violation has not been fully 
corrected, we may decide to reduce the amount of the penalty or, if the 
situation is compelling, excuse the penalty in its entirety. We will 
make a determination of substantial compliance based upon information 
and documentation furnished by the Tribe. In determining substantial 
compliance, we will consider the willingness of the Tribe to correct 
the violation and the adequacy of the corrective actions undertaken by 
the Tribe pursuant to its plan.

Process

    Because both the reasonable cause and the corrective compliance 
plan provisions apply, we propose to establish the determination of 
reasonable cause in conjunction with the determination of acceptability 
of a Tribe's corrective compliance plan, if any is submitted. Thus, we 
propose that a Tribe may submit to us its justification for reasonable 
cause and corrective compliance plan within 60 days of the receipt of 
our notice of failure to comply with a requirement.
    A Tribe may choose to submit reasonable cause justification without 
a corrective compliance plan. If we do not accept the Tribe's 
justification, the Tribe will be notified in writing. This notification 
will also inform the Tribe of its opportunity to submit a corrective 
compliance plan. The Tribe will have a 60-day period that begins with 
the date of the notice of the violation to submit to us a corrective 
compliance plan to correct the violation. A Tribe may also choose to 
submit only a corrective compliance plan if it believes that the 
reasonable cause factors do not apply to the particular penalty.

[[Page 39387]]

    Although we do not propose to require corrective compliance plans 
when a Tribe has reasonable cause for failing to meet a requirement 
which is subject to a penalty, we want to stress the importance of 
corrective action to prevent similar problems from recurring. While a 
Tribe may have a very good explanation why it failed to satisfy a 
requirement under the Act, we will work with the Tribe to identify 
solutions to eliminate these problems or prevent them from recurring. 
Otherwise, they may well continue and detract from the Tribe's ability 
to operate an effective program to serve the needs of its families. Our 
goal is to focus on positive steps to improve the program.

Due Dates

    The Tribe's response to our notification that it has failed to meet 
a requirement under section 409(a) of the Act, either including its 
reasonable cause justification and/or its corrective compliance plan, 
must be postmarked within 60 days of the receipt of our notification 
letter to the Tribe. Also, if a Tribe believes that our determination 
is incorrect, any documentation supporting its position should be 
submitted within 60 days of the date of the receipt of our notice.
    If, upon review of the Tribe's submittal, we find that we need 
additional information, the Tribe must provide the information within 
two weeks of the date of our request. This is to make sure we are able 
to respond timely.

Imposing the Penalty

    Once a final decision is made to impose a full or partial penalty, 
we will notify the Tribe that its TFAG will be reduced and inform the 
Tribe of its right to appeal our decision to the Departmental Appeals 
Board (the Board).
    In imposing a penalty, we will not reduce any TFAG to a Tribe by 
more than 25 percent. If this limitation of 25 percent prevents us from 
recovering the full amount of penalties during a fiscal year, we will 
carry the penalty forward and reduce the TFAG for the immediately 
succeeding fiscal year by the remaining amount.
    What penalties cannot be excused? (Sec. 286.210)
    Sections 409(b)(2) and 409(c)(3), as amended by the Balanced Budget 
Act of 1997, provide that reasonable cause and corrective compliance 
plan are not available for certain penalties. One of these penalties is 
the penalty for failure to repay a Federal loan issued under section 
406. Thus we cannot forgive any outstanding loan amount or the interest 
owed on the outstanding amount.
    The other penalty that cannot be excused is the penalty for failure 
to replace any grant reduction resulting from other penalties that have 
been imposed.
    How can a Tribe appeal our decision to take a penalty? 
(Sec. 286.215)
    Section 410 of the Act provides that within five days after the 
date the Secretary takes any adverse action under this part with 
respect to a State, the Secretary shall notify the chief executive 
officer of the State of the adverse action. We believe that it is 
reasonable to make these same appeal provisions, including the time 
frames in section 410, available for Tribes. Thus, within 60 days after 
the date a Tribe receives notice of such adverse action, the Tribe may 
appeal the action, in whole or in part, to the Board by filing an 
appeal with the Board. Where not inconsistent with section 410(b)(2), a 
Tribes's appeal to the Board will be subject to our regulations at 45 
CFR part 16.
    By inclusion in this rule, section 410(b)(2) provides that the 
Board shall consider an appeal filed by the Tribe on the basis of 
documentation the Tribe may submit, along with any additional 
information required by the Board to support a final decision. In 
deciding whether to uphold an adverse action or any portion of such 
action, the Board shall conduct a thorough review of the issues and 
make a final determination within 60 days after the appeal is filed.
    Finally, a Tribe may obtain judicial review of a final decision by 
the Board by filing an action within 90 days after the date of the 
final decision with the district court of the United States in the 
judicial district where the Tribe or TFAG service area is located. The 
district court shall review the final decision of the Board on the 
record established in the administrative proceeding, in accordance with 
the standards of review prescribed by subparagraphs (A) and (E) of 
section 706(2) of title 5, U.S.C. The review will be on the basis of 
the documents and supporting data submitted to the Board.
Subpart E--Data Collection and Reporting Requirements

General Approach

    Section 412(h) of the Act makes section 411, regarding the data 
collection and reporting requirements for States, applicable to Tribes. 
The requirements for States are addressed separately under the proposed 
State TANF regulations published November 20, 1997. Although the 
reporting requirements stipulated under the proposed State TANF 
regulations are also required of Tribes under the statute, some of the 
particular data elements are not applicable. In order to minimize 
misunderstandings about what data elements are applicable to Tribes, we 
separately address the Tribal data collection and reporting 
requirements in this proposed rule.
    Based on comments we received prior to our developing these 
proposed regulations, Tribes generally view the section 411 
requirements as very difficult to meet. A barrier most often cited was 
the need for sophisticated automated tracking systems. The National 
Congress of American Indians conducted an extensive survey of Tribes, 
the results of which support the view that automated systems 
capabilities necessary for collecting and reporting the data required 
of the Act are sorely lacking on most reservations.
    As another challenge in fulfilling the reporting requirements, 
Tribes cited the difficulties in obtaining current and accurate data 
from other program sources that are not administered by Tribes and that 
may not be readily available to Tribal TANF program operators. For 
example, Tribes do not generally administer programs such as Food 
Stamps, Medicaid, subsidized housing, Child Support Enforcement, and 
State-administered child care programs, yet the specified data elements 
require such information. Tribes expressed concern that obtaining these 
data would entail developing costly mechanisms to gather accurate 
information on a monthly basis from States.
    We are sensitive to these issues and are committed to helping 
Tribes, to the extent possible, in meeting the reporting requirements.

Summary of the Proposed Data Collection and Reporting Provisions

    There are a substantial number of specific data reporting 
requirements on Tribes and States under the TANF program. Some of these 
reporting requirements are explicit, primarily in section 411(a); 
others are implicit, e.g., Tribes and States represent the source of 
information for reports that the Secretary must submit to Congress and 
for the determination of penalties.
    These data requirements support two complementary purposes: (1) 
They enable determinations about the success of TANF programs in 
meeting the purposes described in section 401; and (2) they assure 
Tribal accountability for key programmatic requirements. In particular, 
they ensure accurate measurement of Tribal performance in

[[Page 39388]]

achieving established work participation rates and other objectives of 
the Act.
    Some of these purposes can only be achieved if data are comparable 
across Tribes and over time. At section 411(a)(6), the TANF statute 
provides that, to the extent necessary, the Secretary shall provide 
definitions of the data elements required in the reports mandated by 
section 411(a).
    With respect to the first purpose, measuring the success of TANF 
programs, the data requirements of section 411(a) reflect particular 
features of the TANF program. States have collected and reported 
similar data on the characteristics, financial circumstances, and 
assistance received by families served by the AFDC and JOBS programs 
for many years. By requiring the collection of similar data under TANF, 
the statute enables the Congress, the public, Tribes and States to 
observe how welfare reform changes the demographic characteristics and 
the financial circumstances of, and the self-sufficiency services 
received by, needy families. In so doing, it promotes better 
understanding of what is happening nationwide--how Tribes and States 
are assisting needy families; how they are promoting job preparation 
and work; and what kinds of support two-parent families are receiving.
    With respect to ensuring accurate measurement of work 
participation, section 411(a)(1)(A)(xii) specifically requires 
reporting on the ``information necessary to calculate participation 
rates.'' Given the significance of the work rates for achieving the 
objectives of TANF and for determining whether Tribes face penalties, 
this is an area where accurate and timely measurement is particularly 
important.
    Our goal in implementing the data collection and reporting 
requirements of the Act is to collect the data required and necessary 
to monitor program performance. A secondary goal is to give Tribes 
clear guidance about what these requirements entail and the 
consequences of failing to meet the requirements.
    At the same time, however, we are sensitive to the issue of 
paperwork burden and committed to minimizing the reporting burden on 
Tribes, consistent with the TANF statutory framework. We welcome 
comments on whether these proposed rules, and appendices, are 
consistent with our interest in both minimizing reporting burdens and 
meeting TANF requirements.
    Under this NPRM, Tribes must submit two quarterly reports (the TANF 
Data Report and the TANF Financial Report) and two annual reports (a 
program and performance report for the annual report to Congress and, 
as an addendum to the fourth quarter Financial Report, Tribal 
definitions and other information).
    Most of the information we propose to collect is required by 
section 411(a). We do not have the authority to permit Tribes to report 
only some of the data required in section 411(a), and our authority to 
require expanded data reporting is limited. We are, however, proposing 
to require some additional data elements necessary to ensure 
accountability under section 409(a) (i.e., for penalties) and meet 
other requirements.
    Before we discuss each of the quarterly and annual reports in 
detail, we present an overview of the major provisions of this part.
    The following is a summary of the major proposed data collection 
and reporting provisions for Tribes.
    We propose that each Tribe--
    <bullet> Collect and report the disaggregated case record 
information on individuals and families and other data, as required in 
section 411(a) of the Act. ``Disaggregated'' case record information 
refers to reporting characteristics for each family and, for some 
characteristics, for every individual member of the family.
    <bullet> Collect and report information to monitor compliance with 
the work requirements in section 407, as authorized by section 
411(a)(1)(A)(xii).
    <bullet> Collect and report aggregate fiscal data related to 
administrative costs and program expenditures, as required by sections 
411(a)(2), (a)(3), and (a)(5) of the Act. This includes expenditures 
for transitional services (i.e., services to help employed, former 
Tribal TANF families remain self-sufficient). ``Aggregated'' data 
refers to reporting selected monthly totals for all families receiving 
benefits under the program.
    <bullet> Collect and report a minimum number of items as break-outs 
of the data elements specified in section 411(a), such as citizenship 
status, educational level, and earned and unearned income; and a few 
additional items necessary to the operation of a data collection 
system, including Social Security Numbers. (Social Security Numbers are 
common personal identifiers that provide a means to track time limits 
and to ensure that duplicative TANF assistance is not received.)
    <bullet> Collect and report a minimum number of data elements 
related to child care.
    <bullet> Collect and report monthly aggregate data on non-custodial 
parents participating in work activities as required by section 
411(a)(4) of the Act.
    <bullet> Submit an annual report to assist us in preparing the 
Annual Report to Congress as required by section 411(b) of the Act.
    We also propose a definition for ``scientifically acceptable 
sampling method'' which Tribes must use if they wish to submit data on 
a sample basis.
    We propose to reduce the reporting burden on Tribes by--
    <bullet> Giving Tribes the option of recording the amount received 
in the previous month if updated information has not been obtained for 
the following: (a) Subsidized housing, (b) Medicaid and/or (c) Food 
Stamps. If any of these programs are administered by the Tribe (either 
directly or through a contract), then we expect the current monthly 
data to be supplied.
    <bullet> Requiring Tribes to report only on the demographic and 
financial characteristics of families applying for assistance whose 
applications are approved; and
    <bullet> Allowing Tribes to report on work activities as defined in 
their TANF plans.
    Readers should note that Appendices E, F and G of the proposed 
State TANF regulations require data on persons provided assistance by 
States under separate State programs and are inapplicable to Tribes. 
They are not included in the proposed Tribal TANF regulations.
    Finally, in order to provide an opportunity for maximum review and 
public comment on the Tribal reporting requirements, we have attached 
the proposed Tribal TANF Data Report forms (including the specific data 
elements) as Appendices to the proposed part 286. We will revise these 
instruments following the comment period on the NPRM and will issue 
them to Tribes through the ACF policy issuance system. As mentioned 
earlier, we will not re-publish these appendices as part of the final 
rule.
    We have submitted copies of this proposed rule and the proposed 
data reporting requirements that are included in this package to OMB 
for its review of the information collection requirements. We encourage 
Tribes, States, organizations, individuals, and others to submit 
comments regarding the information collection requirements to ACF (at 
the address above) and to the Office of Information and Regulatory 
Affairs, OMB, Room 3208, New Executive Office Building, Washington, DC 
20503, ATTN: Laura Oliven, Desk Officer for ACF.

[[Page 39389]]

    What data collection and reporting requirements apply to Tribal 
TANF programs? (Sec. 286.220)
    This section describes the general scope and purpose of this 
subpart as it applies to Tribal TANF data collection and reporting. 
Paragraph (a) also makes clear that section 412(h) of the Act requires 
that the same reporting requirements of section 411 of the Act be 
applied to Tribal TANF Programs. We have modified the proposed State 
regulatory requirements in order to collect from Tribal TANF programs 
only the data required based on section 411(a) of the Act--quarterly 
reporting requirements; and section 411(b)--report to Congress, and 
section 412(c)--work participation requirements. One reason for the 
modification is that Tribes do not have a maintenance-of-effort (MOE) 
requirement; thus there is no need for data related to MOE. (Section 
411(a)(1)(A)(xii) authorizes the collection of information that is 
necessary for calculating participation rates.)
    The proposed regulation at Sec. 286.230(a) also makes clear that 
Tribes will be required to submit: (1) Disaggregated data for two types 
of families: Those receiving assistance and those no longer receiving 
assistance; and (2) aggregated data for three categories of families: 
Those receiving assistance, those applying for assistance, and those no 
longer receiving assistance.
    This subpart also explains the proposed content of the quarterly 
TANF Data Report, TANF Financial Report, and the annual report, as well 
as reporting due dates.
    What definitions apply to this subpart? (Sec. 286.225)
    The data collection and reporting regulations rely on the general 
TANF definitions at Sec. 286.5.
    In this subpart, we are proposing one additional definition--for 
data collection and reporting purposes only--a definition of ``TANF 
family.'' This definition will apply to data collection for the Tribal 
TANF program as it will to State TANF programs.
    The law uses various terms to describe persons being served under 
the TANF program, e.g., eligible families, families receiving 
assistance, and recipients. Unlike the AFDC program, there are no 
persons who must be served under the TANF program. Therefore, each 
Tribe and State will develop its own definition of ``eligible family,'' 
to meet its unique program design and circumstances.
    We do not expect coverage and family eligibility definitions to be 
comparable across Tribes and States. Therefore, we have proposed a 
definition that will enable us to better understand the different 
Tribal and State programs and their effects. We are proposing that the 
definition of ``TANF family'' start with the persons in the family who 
are actually receiving assistance under the Tribal TANF program. (Any 
non-custodial parents participating in work activities will be included 
as a person receiving assistance in an ``eligible family'' since Tribes 
may only serve non-custodial parents on that basis.) We, then, would 
include three additional categories of persons living in the household, 
if they are not already receiving assistance. These three additional 
categories are:
    (1) Parent(s) or caretaker relative(s) of any minor child receiving 
assistance;
    (2) Minor siblings of any child receiving assistance; and
    (3) Any person whose income and resources would be counted in 
determining the family's eligibility for or amount of assistance.
    We believe information on these additional individuals is critical 
to understanding the effects of TANF on families and the variability 
among Tribal and State caseloads, e.g., to what extent are differences 
due to, or artifacts of, Tribal or State eligibility rules.
    <bullet> We need information on the parent(s) or caretaker 
relative(s) (i.e., an adult relative, living in the household but not 
receiving assistance, and caring for a minor child) to understand the 
circumstances that exist in no-parent (e.g., child-only) cases not 
covered by key program requirements, such as time limits and work 
requirements.
    <bullet> We need information on minor siblings in order to 
understand the impact of ``family cap'' provisions.
    <bullet> We also need information on other persons whose income or 
resources are considered in order to understand the paths by which 
families avoid dependence.
    We considered alternative terms on which to base TANF data 
collection such as the ``TANF assistance unit'' or ``TANF reporting 
unit.'' However, as participants in the external consultation process 
pointed out, these terms no longer have a commonly understood meaning, 
particularly as Tribes and States re-design their assistance and 
service programs.
    For research and other purposes, there was interest in collecting 
data on a broader range of persons in the household, e.g., any other 
person living in the household such as a grandmother or a non-marital 
partner of the mother. We determined that we should limit reporting to 
those categories of persons on whom the Tribes and States will gather 
data for their own purposes and for which information will be directly 
relevant to administration of the TANF program.
    In the interest of greater comparability of data, we also 
considered defining terms such as ``parent,'' ``caretaker relative,'' 
and ``sibling.'' We chose not to define these terms because we were 
concerned that our data collection policies could inadvertently 
constrain Tribal and State flexibility in designing their programs. We 
believe that variation among Tribal and State definitions in these 
areas will not be significant and will not decrease the usefulness of 
the data.
    We believe this definition of family will not create an undue 
burden on Tribes since all these additional persons either are part of 
an aided child's immediate family or have their income or resources 
considered in determining eligibility.
    Finally, we want to emphasize that we have proposed this definition 
of ``TANF family'' for reporting purposes only. Our aim is to obtain 
data that will be as comparable as possible under the statute, and, to 
the extent possible, over time. Some comparability in data collection 
is necessary for assessing program performance; understanding the 
impact of program changes on families and children; and informing the 
States, the Tribes, the Congress, and the public of the progress of 
welfare reform.
    What quarterly reports must the Tribe submit to us? (Sec. 286.230)
    We propose that each Tribe file two reports on a quarterly basis--
the TANF Data Report and the Tribal TANF Financial Report. You will 
find the proposed Data Report in its entirety in the Appendices to this 
Part.

TANF Data Report

    The proposed TANF Data Report consists of three sections 
(Appendices A, B, and C), two of which provide disaggregated case 
information. The third section provides aggregated data. The contents 
of each section are discussed below.

Disaggregated Data

    We propose that each Tribe collect monthly and file quarterly 
disaggregated case information on: (1) Families receiving TANF 
assistance; and (2) families no longer receiving TANF assistance. (See 
Appendices A and B for the specific data elements.)
    The data to be collected includes identifying and demographic 
information; the types and amount of assistance received under the TANF 
program and reason for and amount of any reduction in assistance; data 
on

[[Page 39390]]

adults, including the Social Security Number, educational status, 
citizenship status, work participation activities, employment status, 
earned and unearned income; and data on children, including the Social 
Security Number, educational status, and child care information.
    We propose to reduce the burden on Tribes of reporting 
``demographic and financial characteristics of families applying for 
assistance, families receiving assistance, and families that become 
ineligible to receive assistance'' as needed for the Annual Report to 
Congress. In interpreting this requirement in section 411(b)(2) of the 
Act, we propose to collect information, not on all families who apply, 
but only on those receiving assistance.
    We took this position because the question of ``what is an 
application'' and ``what is a denied application'' (as opposed to a 
referral or diverted family, for example) is often very difficult to 
determine. If we were to require data on all applications, we believe 
that considerable portions of the demographic and financial data would 
be incomplete or entirely missing. We also believe that there would be 
extraordinary variability in the information provided across Tribes. 
This would have an adverse impact on the quality of the estimates made 
based on these data, and on our ability to interpret these data. 
Finally, data collection on all applicants could be very burdensome on 
Tribes as they would need to create an additional sample frame to 
select samples for all applications.

Data Administration

    The following are items not required by statute but are necessary 
to, and implicit in, the administration of a data collection system:

1. Tribal Code
2. Reporting Month
3. Stratum
4. Family case number
5. Disposition

    We received suggestions from a small number of Tribes that we 
should also include a Tribal enrollment identifier. We would appreciate 
further comments from more Tribes about whether a Tribal enrollment 
identifier would be helpful and for what purpose we might use such 
information.
    Specifically, we would like to know whether collecting and 
reporting a Tribal enrollment identifier (1) is feasible for all 
Indians that a Tribal TANF program may serve; (2) should be collected 
for the aided adult(s) only, or for the aided children also; and (3) 
will be useful, i.e., what purpose would the Tribal enrollment data 
serve. We would also like to know whether obtaining Tribal enrollment 
information for all Tribal TANF recipients would be information a Tribe 
would generally include as part of its application process so that the 
burden of collecting and reporting the information would not outweigh 
its usefulness.

Non-Statutory Elements

    We propose to request the following additional data that are not 
explicitly required by statute:
    1. ZIP Code: This information is readily available and is needed 
for geographical coding and rural/urban analyses.
    2. Family Affiliation: This information is needed to identify which 
persons are in the Tribe-defined family in order to monitor work 
participation, receipt of assistance, and time limits. However, since 
we propose that the Tribes be required to submit data for individuals 
who are only in the Tribe's definition of eligible family, Tribes will 
use only one code for this element: ``member of the Tribe-defined 
eligible family.''
    3. Social Security Number: We propose to require that Social 
Security Numbers be reported to provide a means for tracking time 
limits that are applicable to TANF recipients as well as for ensuring 
non-duplicative assistance.
    4. Gender: This is a standard demographic data element. The 
information could be collected under a relationship element (e.g., 
father, mother, brother). However, by using this single element, the 
coding is simpler; it is easier to report; and, thus, is less 
burdensome.
    5. Child Care: These data are similar to data required under the 
Child Care Development Fund. TANF child care data is necessary for 
assessing program performance and the total financial commitment Tribes 
are making to achieve the work objectives of the Act.
    6. Child Support: We propose to include two data elements related 
to child support. The amount of child support is a break-out of the 
data element ``unearned income'' required in section 411(a) of the Act. 
However, Tribes that do not administer the Child Support Enforcement 
program can leave this element for amount of child support received 
blank if they are unable to collect this data. The second data element, 
``cooperation with child support,'' is asked to implement the penalty 
provision in section 409(a)(5). Since section 409(a)(5) is not 
applicable to Tribal TANF programs, Tribes will have the option to 
leave this element blank should data for this element not be available.

Aggregated Data

    We propose that each Tribe also collect monthly and file aggregate 
caseload data quarterly. (See Appendix C for the list of data 
elements.)
    The proposed data elements in this section of the report cover 
families receiving, applying for, and no longer receiving TANF 
assistance. They include total figures on the number of approved and 
denied applications; the number of no-parent, one-parent, and two-
parent families; the number of child and adult recipients; the number 
of teen heads-of-household; the number of births; the number of out-of-
wedlock births; and the number of closed cases. (One item of 
expenditure data is requested: The total amount of TANF assistance 
provided.)
    This section of the TANF Data Report incorporates data elements of 
sections 411(a) and 411(b). The data are also needed to test the 
reliability of the estimates and the representativeness of the 
disaggregated sample data as well as to calculate monthly participation 
rates.

Alternative Approach

    As much as possible, the TANF Data Report, as it applies to Tribes, 
only requires data elements which are required by section 411 of the 
Act. While we remain confident that the analyses of the data from the 
TANF Report could be useful to Tribes, we recognize that Tribes may not 
have the resources to develop sophisticated data collection systems 
and/or will need ample time to develop such systems capable of 
gathering the information required in section 411.
    Although the Act does not impose upon Tribes a penalty for non-
reporting, we also recognize that non-reporting may indirectly result 
in a penalty because the TANF Data Report includes data necessary for 
calculating participation rates. Therefore, we are considering whether 
to develop a separate report to collect the information for 
participation rate purposes until the pc-based data collection and 
reporting system we plan to develop for Tribes is completed and 
accessible to all Tribes. Such a report would include monthly aggregate 
counts of TANF families with an adult or minor head-of-household 
receiving assistance and the number of TANF families with adults or 
minor heads-of-household who participated in work activities at least 
the minimum number of hours per week. In this way, Tribes will be 
assured that they will not be penalized for not meeting participation

[[Page 39391]]

rate targets simply because their systems capabilities for reporting 
the disaggregated and aggregated data are under development. If, 
however, a Tribe submits the data required of the TANF Report, we do 
not propose to require the additional participation report because it 
would be unnecessary. We invite any reactions the reader may have to 
this alternative approach.

TANF Financial Report

    We are proposing that each Tribe file a Tribal TANF Financial 
Report on a quarterly basis. This report will be designed to serve 
multiple purposes: (1) To gather data under section 411, i.e., 
administrative costs, program expenditures, and expenditures related to 
transitional services for families who are no longer receiving 
assistance; and (2) to monitor expenditures and close out TANF grants 
for a fiscal year in accordance with the financial reporting 
requirements under 45 CFR 92.41.
    The Tribal TANF Financial Report itself is not included in this 
proposed rule, but will be issued separately.
    May Tribes use sampling and electronic filing? (Sec. 286.235)
    We propose to implement section 411(a) of the Act by permitting 
Tribes to meet the data collection and reporting requirements by 
submitting the disaggregated case file data based on the use of a 
scientifically acceptable sampling method approved by the Secretary. 
Tribes may also submit all data on all cases monthly rather than on a 
sample of cases. However, Tribes, like States, are not authorized to 
submit aggregated data based on a sample.
    We propose a definition of ``scientifically acceptable sampling 
method'' in paragraph (b) of this section. This definition reflects 
generally acceptable statistical standards for selecting samples and is 
consistent with existing AFDC/JOBS statistical policy. (See Appendix E 
for a summary of the sampling specifications.)
    At a later date, we will issue the TANF Sampling and Statistical 
Manual which will contain instructions on the approved procedures and 
more detailed specifications for sampling methods applicable to both 
Tribal and State TANF programs.
    We also propose to offer Tribes the opportunity to file quarterly 
reports electronically. We plan to develop a pc-based software package 
that will facilitate data entry and create transmission files for each 
report. The transmission files created by the system will be the 
standard file format for electronic submission to us. We also plan to 
provide some edits in the system to ensure data consistency. We invite 
Tribes to comment on what kinds of edits they would like in the system.
    Because the data collection and reporting requirements are 
applicable in advance of our developing the software package, Tribes 
will have the option to submit a disk with the required data or submit 
hard copy reports. Additionally, Tribes that do not have the necessary 
equipment for electronic submission would continue to submit data on 
disk or submit hard copy reports.
    When are quarterly reports due? (Sec. 286.240)
    Unlike for States, there are no report submission time frames 
specified by the Act for Tribes. In our December 1997 policy 
announcement (TANF-ACF-PA-97-4), we stated that Tribes are required to 
submit the TANF data reports within 45 days following the end of each 
report quarter (consistent with that given to States). This proposed 
rule contains the same time frame; Tribes must submit the TANF Data 
Report and the Tribal TANF Financial Report no later than 45 days 
following the close of each report quarter. If the 45th day falls on a 
weekend or national holiday, the reports will be due no later than the 
next business day.
    Section 116(a) of PRWORA indicates that the effective date for 
title IV-A of the Social Security Act as amended by PRWORA is July 1, 
1997. This would seem to indicate that Tribal TANF grantees would need 
to begin collecting the required TANF data as of the implementation 
date of their Tribal TANF program. However, section 116(a)(2) states 
that the provisions of section 411(a) are delayed for States to the 
later of July 1, 1997, or the date that is 6 months after the date that 
the Secretary of Health and Human Services receives a complete State 
plan.
    Although section 116(a) on its face seems to apply only to the 
States, we are interpreting this section to be applicable to Tribal 
grantees as well with regards to section 411(a). We base our 
interpretation on section 412(h) which states that section 411 applies 
to Tribes and the fact that section 116(a)(2) is titled ``Delayed 
Effective Date For Certain Provisions''. We interpret the language of 
section 116(a)(2) to mean that section 411(a) of the Act could be 
delayed by all entities subject to it. As the effective date of section 
411(a) is delayed for States, we believe the effective date is also 
delayed for Tribes.
    We also propose to apply section 116(a)(2) of the Act to Tribes. 
Section 116(a)(2) gives States a six-month reprieve from data reporting 
requirements upon initial implementation of their TANF programs. We 
received a number of comments from Tribes and other organizations that 
emphasized the need to recognize that, unlike States, most Tribes have 
never operated an AFDC-type program, and considerable time and effort 
will be needed to start up the Tribal TANF program. We believe that 
providing Tribes with a six-month time period before data needs to 
begin to be collected and submitted will aid Tribes in the initial 
program implementation stage.
    Therefore, we propose that the effective date of a Tribe's first 
TANF Data Report and Tribal TANF Financial Report will be for the 
period beginning six months after the implementation date of its TANF 
program.
    For example--

----------------------------------------------------------------------------------------------------------------
                                   Data collection reporting                                                    
      Tribe implements TANF              period starts           Covering the period    First data report is due
----------------------------------------------------------------------------------------------------------------
July 1, 1997.....................  January 1, 1998..........  Jan.-Mar. 1998..........  May 15, 1998.           
October 1, 1997..................  April 1, 1998............  Apr.-June 1998..........  Aug. 14, 1998.          
November 1, 1997.................  May 1, 1998..............  May-June 1998...........  Aug. 14, 1998.          
January 1, 1998..................  July 1, 1998.............  July-Sept. 1998.........  Nov. 16, 1998.          
February 1, 1998.................  August 1, 1998...........  Aug.-Sept. 1998.........  Nov. 16, 1998.          
March 1, 1998....................  September 1, 1998........  Sept. 1998..............  Nov. 16, 1998.          
April 1, 1998....................  October 1, 1998..........  Oct.-Dec. 1998..........  Feb. 15, 1999.          
----------------------------------------------------------------------------------------------------------------

    What happens if the Tribe does not satisfy the quarterly reporting 
requirements? (Sec. 286.245)
    As previously discussed, section 412(h) of the Act requires Tribes 
to report on certain data in accordance with section 411. Unlike for 
States, the Act does not impose fiscal penalties on Tribes that do not 
submit the reports.

[[Page 39392]]

However, in the proposed Sec. 286.245(b), we caution Tribes that by not 
submitting complete and accurate reports, which include the data 
necessary for calculating participation rates, they are liable for 
penalties associated with failure to meet the established participation 
targets.
    In addition, failure to submit the required Tribal TANF Financial 
Report could raise an issue of proper use of funds.
    What information must Tribes file annually? (Sec. 286.250)
    Section 411(b) of the Act requires the Secretary to prepare an 
annual report to Congress addressing the States' implementation and 
operation of the TANF program. Since section 412(h) makes all of 
section 411 applicable to Tribal TANF programs, we interpret this to 
mean that Congress intended that Tribes as well as States collect the 
data necessary for the section 411(b) annual report. Therefore, we will 
need data on Tribal TANF programs for inclusion in the section 411(b) 
Report to Congress. We propose to collect some of the information 
required in section 411(b) for this Report to Congress as an addendum 
to the fourth quarter Tribal TANF Financial Report.
    In addition, in order to obtain and reflect the most current and 
accurate information about Tribal TANF programs in the Secretary's 
Annual Report to Congress, we propose that each Tribe file an annual 
program and performance report. The content of this report will address 
the provisions of section 411(b) and the concerns of Congress and 
others about the implementation of the Tribal TANF program.
    At a later date, we will work with Tribes and others to identify 
the specific information that should be included in this report.
    In order to minimize the reporting burden on Tribes, we will 
collect some information for our report to Congress from the quarterly 
Data and Financial Reports, Tribal plans, annual reviews, and/or 
special studies. We also want to take advantage of the research efforts 
on the TANF program currently being conducted by several research 
organizations. To the extent that we may be able to build on existing 
endeavors, we will avoid duplication of effort, reduce reporting 
burden, and produce a better, more complete picture of Tribal TANF 
programs nationally.
    When are annual reports due? (Sec. 286.255)
    We propose at Sec. 286.255(a) that the annual reports be filed 90 
days after the close of the Federal fiscal year. This deadline is 
consistent with the deadline for most annual reports under DHHS grant 
programs.
    We also propose at Sec. 286.255(b) that Tribes implementing TANF 
during fiscal year 1997 will not be required to file data for the 
fiscal year 1997 annual report. We considered whether to require Tribes 
to submit an annual report for fiscal year 1997 as is requested of 
States. We rejected this because the few Tribes implementing the 
program during fiscal year 1997 will have had only three months of 
experience to report on. Additionally, since these regulations will not 
be finalized until after fiscal year 1997, gathering the data 
retroactively may be too burdensome. The proposed rule provides Tribes 
implementing TANF on July 1, 1997, with some relief in order to focus 
their efforts on implementing their programs.
    How do the data collection and reporting requirements affect Public 
Law 102-477 Tribes? (Sec. 286.260)
    Pub. L. 102-477, the Indian Employment and Training and Related 
Services Demonstration Act of 1992, affords Tribes an opportunity to 
consolidate certain programs into one grant. In paragraph (a) of this 
section we propose to require Tribes desiring to include TANF in their 
Pub. L. 102-477 plan to obtain approval to operate a Tribal TANF 
program first through the Tribal TANF plan submission process outlined 
in these regulations. (See Sec. 286.140 regarding the Tribal TANF plan 
approval process).
    While Pub. L. 102-477 enables Tribes to prepare one consolidated 
report regarding the programs included in the plan, it does not provide 
for waivers of statutory requirements. Because the Tribal TANF data 
collection and reporting requirements are statutory, Sec. 286.260(b) 
clarifies that Pub. L. 102-477 Tribes must continue to submit the 
specified data of the Act.
    However, in Sec. 286.260(c) we propose that the statutory data 
(both disaggregated and aggregated) can be submitted in a Pub. L. 102-
477 consolidated report to the U.S. Department of the Interior, Bureau 
of Indian Affairs (BIA), in a format negotiated with BIA. We considered 
whether we should require Pub. L. 102-477 Tribes to submit TANF reports 
directly to us, but rejected this idea on the basis that Pub. L. 102-
477 specifically authorizes Tribes to consolidate data and make one 
report for all integrated programs in the plan. However, we propose to 
provide Pub. L. 102-477 Tribes with the option to report the required 
TANF data directly to us. We will work jointly with BIA in collecting 
the statutory data required.

B. PART 287--THE NATIVE EMPLOYMENT WORKS (NEW) PROGRAM

Discussion of Selected Regulatory Provisions

    The following is a discussion of selected NEW regulatory 
provisions. It is divided into two sections. In the first section, we 
summarize each subpart of part 287 and provide background or additional 
explanatory information if it is helpful for clarification of the rules 
we are proposing. In the second section, we address these program areas 
in detail: client eligibility, work activities and coordination.

Discussion of Subparts of Part 287

Subpart A--General NEW Provisions
    Under this subpart, we explain that part 287 contains our proposed 
rule for implementation of section 412(a)(2) of the Act, as enacted by 
the Personal Responsibility and Work Opportunity Reconciliation Act of 
1996 (PRWORA). We emphasize that the statute provides flexibility to 
the Tribes in the implementation and operation of the NEW program, 
which is to provide work activities. Not only do we highlight this 
factor as an intent of the statute, we express that Tribes have the 
opportunity to create a program that will serve a Tribe's most 
vulnerable and needy population.
    This is also the portion of the proposed rule where we indicate the 
start date and define terms in part 287 that have special meanings or 
need clarification to ensure a common understanding. Although a term 
may be defined in this subpart, we may choose to repeat the definition 
in a section if the term is uncommon or used in a special way. In 
drafting this section of the proposed rule, we chose not to define 
every term used in the statute and in these proposed rules. We believe 
that excessive definitions may unduly and unintentionally limit Tribal 
flexibility in designing programs.
Subpart B--Eligible Tribes
    Funding to operate a NEW program is only available to those 
grantees who are defined as ``eligible Indian tribes'' in the statute. 
An eligible Indian tribe is an Indian tribe or Alaska Native 
organization that operated a Job Opportunities and Basic Skills 
Training (JOBS) program in fiscal year (FY) 1995. When PRWORA was 
enacted, 76 Indian tribes and Alaska Native organizations comprised the 
universe of eligible Indian tribes.
    A consortium of eligible Indian tribes may receive NEW program 
funding. Where the consortium operated a JOBS

[[Page 39393]]

program in FY 1995, the Tribes may apply again as a consortium for NEW 
program funds or a Tribe that is a member of the consortium may apply 
for individual funding.
    If a consortium should break up or any Tribe withdraws from a 
consortium, remaining funds and future grants must be divided among the 
Tribes that were members of the consortium, if each individual Tribe 
obtains ACF approval to continue to operate a NEW program.
    Public Law 102-477 allows Tribal governments to coordinate 
federally funded programs that provide employment, training and related 
services into a single, comprehensive program. The 102-477 grantees may 
include the NEW program in their plan.
Subpart C--NEW Program Funding
    With the creation of the TANF block grant, the JOBS programs, 
including Tribal JOBS, were terminated. However, funding was continued 
to those Tribes who operated a Tribal JOBS program in fiscal year 1995 
for the purpose of providing work activities. The NEW program provides 
funding for Tribes and inter-tribal consortia to administer NEW 
programs in FYs 1997 through 2002. The funding level is set by the 
statute to remain at $7,633,287 for each FY, the FY 1994 Tribal JOBS 
funding level. This is the sole basis for the funding amounts. The FY 
1994 JOBS grant amounts were originally based on agreements between 
Tribal JOBS grantees and their respective States regarding the ratio of 
Tribe to State adult AFDC recipients. Recipient counts and agreements 
are not now required, since the NEW program grants are fixed amounts. 
There are no matching fund requirements for NEW. To apply for funding, 
an eligible grantee must submit a plan that establishes it will operate 
a program in accordance with the statute.
    We note in this subpart that the only restriction in determining if 
expenditures of NEW program funds is appropriate is whether the 
expenditures are made for work activities or support services for the 
designated service population. PRWORA does not define work activities 
or support services for the NEW program and we are not proposing a 
regulatory definition.
    Some Tribes expressed an interest in being able to carry forward 
any unexpended NEW funds to the next year. Section 404(e) of the Act 
allows States to reserve amounts paid to the State for any FY for the 
purpose of providing TANF assistance without FY limitation. This 
section 404(e) of the statute is not applicable to Tribal TANF or NEW 
programs. Section 412(a)(2) is silent on an obligation period for NEW 
program funds. The absence in the statute of a specific provision 
authorizing carryover of NEW program funds means that such carryover is 
not permissible. Carryover authority may not be implied, but must be 
specifically granted by Congress. Unauthorized carryover of 
appropriated funds violates 31 U.S.C. 1301(c)(2) which states that an 
appropriation may be construed to be permanent or available 
continuously only if the appropriation expressly provides that it is 
available after the fiscal year covered by the law in which it appears.
Subpart D--Plan Requirements
    The submission of a NEW plan is to document the establishment and 
operation of a Tribe's NEW program. Through this document the Tribe 
requests funding for its program, as outlined. The requirement for 
submission of a NEW program plan also applies to a Tribe if it operates 
a Tribal TANF program.
    For operation of a NEW program for the first year in which funds 
were available, FY 1997, we required a one year interim preprint. This 
allowed Tribes the opportunity to structure their initial NEW program 
around a shorter planning cycle. Guidance for preprint submittal to 
operate a FY 1997 NEW program was issued in the document entitled, 
``Native Employment Works Program: Abbreviated Preprint.'' Issued 
through a program instruction (NEW-ACF-PI-97-1, dated July 17, 1997), 
it also included instructions for Tribes operating Pub. L. 102-477 
programs.
    After the first year of operation, a Tribe will be able to develop 
a long range planning document that takes into consideration the 
positive and negative aspects of the interim preprint. We will require 
the ongoing plan, including certifications, to cover a three year 
period. The requirement that a NEW program plan cover a three year 
period is consistent with the Tribal TANF plan requirement. We will 
issue program instructions to provide guidance for submission and 
approval of future NEW plans and any subsequent modifications.
    In general, Tribes who had previously consolidated their JOBS 
program into a Pub. L. 102-477 plan submitted a letter indicating that 
the NEW program was incorporated into their 102-477 plan where there 
were no substantive changes between the Tribal JOBS program and the NEW 
program. However, a 102-477 plan modification will be required if 
substantive changes are made in the future.
    We considered a number of factors in deciding on the funding period 
for the NEW program. We noted that PRWORA first made funds available on 
July 1, 1997, for the operation of the NEW program. Yet, the law refers 
to funding the program for FYs and defines FY in the usual manner. We 
believe a correct interpretation of the statute is to have the NEW 
program begin on July 1 of each year and run through June 30 of the 
following year.
Subpart E--Program Design and Operations
    In this subpart, we require Tribes to indicate who the program will 
serve, what activities and services will be provided, the coordination 
required to promote program effectiveness and program outcomes. Each 
Tribe will have to give careful consideration to the populations most 
in need of services to help them avoid long-term dependency and chronic 
unemployment. Opportunities for work may not be readily available on 
reservations and the surrounding economic conditions vary greatly. 
Consequently, we are allowing grantees the option of using program 
funds to encourage economic development initiatives leading to job 
creation. Additionally, we support the alternative of encouraging 
traditional subsistence and other culturally relevant activities.
    Generally, the need for services exceeds the demand. Consequently, 
an intake prioritization procedure may need to be instituted to 
determine the order of serving clients. NEW programs should be tailored 
to fit the needs of its designated population and can be designed to 
serve a variety of clients, including General Assistance, TANF clients, 
other target groups such as teen parents, non-custodial parents, 
seasonal workers, unemployed parents and veterans, ex-offenders, etc.
    It is not only important to coordinate with other tribal programs 
to develop a comprehensive service delivery system, but State programs, 
social service agencies, non-profit organizations, private industry and 
any other entity which can provide resources or opportunities for the 
benefit of NEW clients and their families. It is common practice to 
combine activities and services from different programs to provide 
seamless services to individual clients and their families. This may be 
very appropriate in the delivery of services to TANF clients who are 
obligated to participate in prescribed work activities. NEW program 
activities may supplement TANF work activities in order to meet TANF 
work requirements. In some cases States are counting NEW program 
participation in

[[Page 39394]]

fulfillment of participation rate requirements, where possible.
    By allowing Tribes flexibility in determining measures of program 
outcome, we do not intend to imply that this is not an important area. 
Because each NEW program grantees' goals, objectives, population and 
economic conditions will be different, we anticipate that Tribes will 
develop different program standards and measures to realistically 
reflect achievable outcomes and evaluate program performance.
    It is crucial for NEW program grantees to establish at the outset 
of program operations their goals, expected outcomes, and outcome 
measures. Only with such information will program administrators be 
able to reasonably evaluate to what extent a NEW program is successful.
Subpart F--Data Collection and Reporting Requirements
    Although not specified in PRWORA for the NEW program, it is 
necessary to outline the minimum data gathering and reporting 
obligations for any grantee receiving Federal funding. The particular 
nature of the program services offered within the NEW program require 
the granting authority to set forth some uniform standards for 
appropriate accountability and service definitions and to insure the 
availability of information necessary for public oversight and 
evaluation.
    Through considerable consultation and discussion with advocacy 
groups and many eligible Tribes, the Secretary has elected to develop 
minimum reporting and data collection requirements. This minimum 
reporting requirement will be evident in the shift from quarterly 
reporting, which was required under the Tribal JOBS program, to annual 
program and fiscal reporting. We expect NEW grantees to simply maintain 
certain case information on file rather than regularly submitting 
formal reports of these records to the Federal government.
    We have taken care to not overburden NEW program grantees with 
elaborate and detailed program and fiscal reporting obligations that 
ultimately offer little management value while creating time-consuming 
paperwork and filing activities.
    We propose to require NEW program grantees to submit a report 
covering program operations and a report covering financial 
expenditures. These reports must also be submitted by NEW program 
grantees who operate a TANF program.
    The program operations report will provide information essential 
for monitoring and measuring program performance. It also includes data 
elements to assist management in evaluating program objectives, 
performance measures and allocation of resources.
    We propose that the NEW program operations report be an annual 
report. The report will be due September 28, 90 days after the close of 
the NEW program year. The report is based on data collected from the 
current program year. The report must be submitted to the appropriate 
ACF Regional Administrator and a copy forwarded to the ACF, Office of 
Community Services, Division of Tribal Services, Attention: Data 
Reporting Team.
    Under the Pub. L. 102-477 initiative, all services are integrated 
under a single 102-477 program plan; funds from the programs are 
commingled under a single budget; and activities are reported under a 
single reporting system. In general, the 102-477 Tribes deal only with 
the lead Federal agency, the Bureau of Indian Affairs (BIA). The report 
is submitted annually to BIA and shared with the Departments of Health 
and Human Services and Labor.
    The program operations report was developed by the Secretary in 
consultation with NEW program grantees, and other interested parties. 
We identified the data elements that Tribes must collect on the 
proposed report and have submitted it to OMB for clearance. For 
simplicity and consistency the NEW report was formatted very similar to 
the 102-477 report.
    For Tribes that operate both the NEW and TANF programs, we 
considered developing a single reporting instrument. However, we 
believe that a single report is not feasible nor would it reduce the 
amount of reporting. There are TANF reporting requirements in the law 
which are not required for NEW program grantees. Also, the reporting 
cycles could be different for a Tribe operating TANF and NEW programs 
and to report program operations with different reporting periods on a 
single form could be more complicated and confusing than if separate 
reports were used. In addition, we may obtain data which is not 
comparable if we require Tribes who operate only a NEW program to 
report one set of data while requiring Tribes that operate TANF and NEW 
programs to report on different or fewer data elements.
    We propose that grantees report NEW financial activities annually 
on a Standard Form SF-269A. This form is required for reporting NEW 
program expenditures if a Tribe operates both NEW and TANF programs. 
102-477 grantees also report financial data on the SF-269A.

Discussion of Program Areas

    Consultation with our Tribal partners and other stakeholders 
indicate that these are the key areas which generate the most questions 
regarding the rules which we should develop to govern the NEW program.

Client Eligibility

    Section 412(a)(2)(C) of the Act, as amended, allows for NEW 
grantees to define their population and service area(s) for the NEW 
program. This eligibility requirement is different and much broader 
than the Tribal JOBS Program, where the purpose was to provide Tribal 
members receiving AFDC with education, training and employment 
services.
    There has been some discussion between ACF and the Tribes on how 
and who the NEW program should supplement or support. Should NEW be an 
adaptable, independent program addressing client needs; should it 
support the Tribal TANF program if a Tribe were to choose to operate 
its own TANF program; should it be a supplement to State TANF programs, 
acting as a safety net for those that don't qualify for TANF or who 
have met the TANF time limits; or should the program be a combination 
of these options? We believe each NEW grantee should make these 
determinations. For they are in the best position to respond to the 
needs of their reservation and to allocate Tribal program resources to 
meet those needs.
    In light of scarce Tribal resources, unnecessary restrictions and 
rules may prevent Tribes from using their NEW programs as safety nets 
for families ineligible for other programs or who have met the time 
limits under TANF. Some Tribes are beginning to struggle with the issue 
of Tribal families having met the time limits in States where shorter 
time limits were established under waivers.
    Moreover, the Indian and Native American Welfare-to-Work program, 
which all NEW grantees are eligible to apply for, makes available 
funding to serve categories of hard-to-employ TANF recipients. 
Duplication of services should be avoided. NEW grantees have the option 
of supplementing work activities and services provided by TANF and 
Welfare to Work programs to TANF clients or providing work activities 
and services to other needy clients. A grantee may also choose to serve 
both TANF and non-TANF clients. The decisions are left to

[[Page 39395]]

Tribal discretion and not dictated by these rules.
    When an eligible Tribe elects to receive NEW program funds, but not 
to operate the Tribal TANF program, individuals receiving State TANF 
assistance must participate in State TANF work activities. If a NEW 
program elects to serve individuals who are State TANF recipients, then 
it should do so as an addition to or extension of the State TANF work 
activities to avoid duplication of services and provide maximum 
benefits to the families served. There will need to be close 
coordination between the TANF agency and the NEW program to provide 
comprehensive services to the families jointly served.
    During our consultation phase, our Tribal partners overwhelmingly 
recommended that they be allowed maximum flexibility as reflected in 
PRWORA, including defining their service population and area(s) and 
designing and operating effective programs. Restrictive program rules 
on client eligibility and program expenditures would create barriers to 
providing comprehensive, seamless service delivery to needy Tribal 
families. Consequently, in keeping with the intent of the law and 
Tribal sovereignty, we have chosen to allow maximum flexibility in NEW 
client eligibility requirements, program design and operations.

Work Activities

    Section 412(a)(2)(C) of the Act, as amended, describes the use of 
the NEW grant. Each Indian tribe to which a grant is made under this 
paragraph must use the grant for the purpose of operating a program to 
make work activities available to such population and service area(s) 
as the Tribe specifies.
    ACF supports Tribal autonomy in defining what constitutes work 
activities. The statutory language for NEW contrasts notably with the 
statute for the now repealed Tribal JOBS program. JOBS required that 
Tribes have the following mandatory work components: Educational 
activity; job skills training; job readiness; and job development and 
job placement activity. In addition, a Tribe was required to have at 
least one of the following components: Group and individual job search; 
on-the-job training; community work experience; work supplementation; 
or alternative education, training and employment activities.
    Section 407(d) defines work activities for the TANF program as: 
Unsubsidized employment; subsidized private or public sector 
employment; work experience; on-the-job training; job search and job 
readiness; community service programs; vocational educational training; 
job skills training; education; satisfactory attendance; and provision 
of child care.
    In order to determine how work activities should be defined under 
NEW, we reviewed allowable activities under JOBS, TANF and Welfare to 
Work. Again we consulted our Tribal partners and other interested 
parties regarding both the Tribal TANF and the NEW programs.
    The first question posed was: ``What relationship should there be 
between work activities as defined in section 407 of the Act and the 
work activity that is required to be made available by section 
412(a)(2)?'' The consensus was that NEW program grantees should define 
``work activities'' and that section 407 should serve as a guideline 
for them. Tribes stated that they should be allowed to use culturally 
relevant activities to solve unique problems. In order to give Tribes 
as much flexibility, as possible we have included the activities listed 
in section 407 as examples of NEW work activities. In addition, we have 
added job creation, economic development, and traditional subsistence 
activities, such as hunting and fishing.
    The second question posed was: ``What is the interconnection 
between NEW work activities and work activity participation to the 
State or Tribal TANF program?'' Some felt that requiring NEW programs 
to ``mirror'' TANF work activities would facilitate Tribe/State 
coordination and simplify program administration. However, certain 
educational and training assistance which may accrue to the clients 
would be lost in the process, possibly eliminating client options which 
are more practical, available or needed. NEW programs can provide work 
activities above and beyond what can be provided under TANF or WTW 
programs. Thus broadening the clients' opportunities and options.
    States and Tribes should coordinate closely to ensure that NEW and 
TANF work activities are best arranged in a complimentary fashion to 
advance the TANF client's employability goals.

Coordination

    The Family Support Act of 1988 created the opportunity for Indian 
tribes and Alaska Native organizations to conduct JOBS programs. 
Operating a Tribal JOBS program required coordination with State 
programs to ensure that the necessary interfaces between the Tribal 
JOBS programs and State title IV-A programs were in place. It also 
required that a Tribe and a State be able to exchange information 
regarding such things as eligibility status, child care services, 
changes in employment status, and participation status.
    Under the JOBS program, coordination was necessary in order to 
prevent duplication of services, assure the maximum level of services 
was available to participants and ensure that costs of other program 
services for which welfare recipients were eligible were not shifted to 
the JOBS program. Coordination between TANF and NEW is still needed for 
some of these same reasons.
    All work activities required as a condition of eligibility to 
receive temporary public assistance are now prescribed by the TANF 
program administered by the States and, at their option, Tribes. There 
is some misunderstanding that NEW programs should serve all State 
tribal TANF recipients. With 74% of all NEW grants being below 
$100,000, it is unrealistic to expect NEW programs to be able to meet 
such demands. The Tribe and State should negotiate an agreement if the 
Tribe plans to serve all Tribal TANF clients, which may necessitate the 
need for supplementary funding from the State. Additional State funds 
would allow Tribes to: Increase the availability of activities and 
services; provide additional activities and services so that clients 
could meet the State's participation rate; or serve more clients.
    Congress did not replace the Tribal JOBS program with another 
tribal work program of identical focus. Individuals who receive TANF 
assistance, regardless of Native American or Alaska Native heritage, 
have to participate in work activities as prescribed by the State TANF 
program (unless the Tribe elects to operate its own TANF program) in 
order to continue to be eligible to receive TANF assistance. Under 
these circumstances then, what are the requirements for coordination 
between a NEW program and a State TANF program?
    For participants in the NEW program, coordination efforts should be 
designed to best fulfill the participants' self-sufficiency goals. It 
is critical that any TANF client referred to NEW be placed in 
activities leading to fulfillment of their employment goal or a job as 
soon as possible. Otherwise the client may consume valuable time.
    Since TANF is time limited any TANF client not able to receive 
immediate services should be sent back to the referring agency. Clients 
in work activities under a State TANF program may be required to 
participate for a

[[Page 39396]]

minimum number of hours per week to remain eligible for TANF 
assistance, and the State maintains responsibility for the costs of 
that participation. If a NEW program elects to serve individuals who 
are participating in State TANF work activities, it should do so as an 
addition or extension to the State TANF work activities. This will 
avoid duplication of services, extend the range of work activities and 
services provided, and assure that costs of State TANF work activities 
are not shifted inappropriately to the NEW program. In order to provide 
these assurances, initial and ongoing coordination between the NEW 
program and the State TANF agency will be necessary. Also, the 
responsibility of meeting the TANF reporting requirements must be 
coordinated when serving TANF clients.
    Moreover, local NEW and TANF case workers need to be aware of each 
program's requirements and procedures to offer the best mix of services 
to joint clients. For example, bonuses, stipends, and performance 
awards are allowed under NEW. However, depending on the rules of a 
Tribal or State TANF program, such payments made from NEW program funds 
may be counted as income in determining and maintaining TANF 
eligibility. Rules of other need-based programs may also require that 
such payments be counted as income in the eligibility and payment 
determinations. NEW program operators would want to take such 
information into consideration when determining what services to 
provide and the affect on their clients' situations.
    For a Tribe that previously operated a JOBS program and elects to 
also conduct a TANF program, many of the coordination and collaboration 
relationships will be internal within the Tribe. This would also be 
true if a grantee had responsibility for the JTPA or BIA employment 
programs. The importance of developing and maintaining those 
relationships are amplified by the additional responsibilities that 
come with operating a public assistance program. Many contracted work 
sites, for example, used by a State may also be available to Tribal 
TANF programs.
    Section 407(b)(4) of the Act, as amended by the Balanced Budget Act 
of 1997, expands the State option to include individuals receiving 
assistance from a Tribal TANF program in the State's work participation 
rate calculation to also include individuals receiving assistance from 
a Tribal NEW program. Unlike the Tribal JOBS program, this is a State 
option, and as such Tribes do not have authority to exempt NEW/TANF 
program participants from State TANF program work requirements. The 
statute is silent (exception at section 412(h) noted) regarding 
comparability of programs. However, the statute prescribes minimum work 
participation rates for State TANF programs and the minimum number of 
hours necessary to qualify as engaged in work, and we would expect that 
agreements on respective roles and responsibilities will be established 
between States and Tribes operating NEW programs.

V. Regulatory Impact Analyses

A. Executive Order 12866

    Executive Order 12866 requires that regulations be drafted to 
ensure that they are consistent with the priorities and principles set 
forth in the Executive Order. The Department has determined that this 
proposed rule is consistent with these priorities and principles. This 
proposed rulemaking implements statutory authority based on broad 
consultation and coordination.
    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 Tribal, State, 
and local officials and their representative organizations, as well as 
a broad range of advocacy groups, researchers, and others to obtain 
their views prior to drafting these proposed rules.
    We discuss the input received during the consultation process in 
the ``Regulatory Framework'' section of the preamble and in discussions 
of individual regulatory provisions. To a considerable degree, these 
proposed rules reflect the discussion and concerns of the groups with 
whom we consulted.
    These proposed rules reflect the intent of PRWORA to achieve a 
balance between granting Indian tribes the flexibility they need to 
develop and operate effective and responsive programs and ensuring that 
the objectives of the program are met. In addition, these proposed 
rules recognize the differences that must and will exist between State 
and Tribal TANF programs.
    Under the new law, Tribal flexibility is achieved by giving Tribes 
the opportunity to develop, design and administer their own TANF block 
grants; and for the NEW grantees, they have great flexibility in the 
design of their NEW programs. Ensuring that program goals are 
accomplished is achieved through the provisions on plan content, a 
number of Tribal TANF penalty provisions and data collection.
    We support Tribal flexibility in various ways--such as by giving 
Tribes the ability to define key program terms; and supporting the 
negotiation of minimum work participation requirements and time limits 
for each Tribal TANF program. We support the achievement of program 
goals by ensuring that we capture key information on what is happening 
under both the Tribal TANF and NEW programs and maintaining the 
integrity of the work and other penalty provisions of the TANF program.
    We take care to protect against negative impacts on needy families 
receiving assistance from Tribal TANF grantees by proposing three 
provisions not required by the statute, using the regulatory authority 
given to us by the statute. One of these provisions is the provision 
for retrocession; the second provision is the limit on administrative 
expenditures. Please refer to the preamble discussion at section 
Sec. 286.25 for our decision to include a retrocession provision; the 
discussion on our decision to propose a limit on administrative 
expenditures can be found at Sec. 286.40.
    The third provision we have proposed to protect against negative 
impacts on needy families is the provision for the replacement of 
amounts withheld from a Tribal Family Assistance Grant due to the 
imposition of a penalty. We considered not proposing this provision; 
however, we believe that the benefits and protections this proposal 
brings to the needy families being served by a Tribal TANF program 
outweigh the potential cost to the Tribe.
    One of our key goals in drafting the Tribal TANF penalty rules was 
to ensure Tribal performance in the key areas provided under statute--
including work participation, the proper use of Federal funds and data 
reporting. The law specified that we should enforce Tribal actions in 
these areas and specified the penalty for each failure. Through the 
``reasonable cause'' and ``corrective compliance'' provisions in the 
proposed rules we give some consideration to special circumstances 
within a Tribe to help ensure that the Tribe will not be unfairly 
penalized for circumstances beyond their control.
    In the work and penalty areas of the Tribal TANF program, this 
rulemaking provides information to the Tribes that will help them 
understand our specific expectations and take the steps necessary to 
avoid penalties. These rules may ultimately affect the number and size 
of penalties that are imposed on Tribes, but the basic expectations on 
Tribes are statutory, and the effect of these rules is non-material.

[[Page 39397]]

    The financial impacts to the Federal government of these proposed 
rules should be minimal for three reasons. First is that the level of 
funding provided for both the block grant and the NEW program is fixed. 
Secondly, the amount of a Tribe's TANF block grant is deducted from the 
State TANF block grant of the State in which the Tribe is located; 
thus, no additional Federal outlays are necessary beyond the amount 
needed for State Family Assistance Grants. And thirdly, Tribal TANF 
grantees are not eligible for either the contingency fund or 
performance bonuses; thus, there are no additional outlays required for 
these two items. (We expect Federal outlays for State Family Assistance 
Grants to amount to nearly $15.6 billion in FY 1998; the annual outlay 
for the NEW program is fixed at $7,633,287.)
    A Tribe's TANF grant could be affected by the penalty decisions 
made under the law and these rules. Otherwise, we do not believe that 
the rulemaking will affect the overall level of funding or 
expenditures. However, it could have minor impacts on the nature and 
distribution of such expenditures.
    These proposed rules could have a minimal financial impact on State 
governments. This is due to the statutory requirement that State data 
be used to determine the amount of a Tribal Family Assistance Grant. 
The actual impact to any one State is difficult to determine as it is 
not known how many Tribes will apply to administer a TANF program.
    There are some States that have several federally-recognized Tribes 
within their borders; yet there are many that do not have any 
federally-recognized Tribes within their borders. (We estimate that the 
cost to a State to provide the needed data to determine the grant 
amount for one Tribe is less than $1,000.)
    In the area of TANF data collection, the statutory requirements are 
very specific and extensive--especially with respect to case-record or 
disaggregated data. These proposed rules include additional data 
reporting with respect to program expenditures. They expand upon the 
expenditure data explicitly mentioned by the statute in order to ensure 
that: Needy families continue to receive assistance and services; 
monies go for the intended purposes; and the financial integrity of the 
program is maintained.
    The impacts of these rules on needy individuals and families will 
depend on the choices the Tribe makes in implementing the new law. We 
expect our proposed Tribal TANF data collection to enable tracking of 
these effects over time and across Tribes. Overall, our assessment of 
these proposed rules indicates that they represent the least burdensome 
approach and that the impacts and consequences are non-material for 
individuals, Tribes, and other entities.

B. Regulatory Flexibility Analysis

    The Regulatory Flexibility Act (5 U.S.C. Ch. 6) requires the 
Federal government to anticipate and reduce the impact of rules and 
paperwork requirements on small businesses and other small entities. 
Small entities are defined in the Act to include small businesses, 
small non-profit organizations, and small governmental entities. This 
rule will affect only federally-recognized Indian tribes and Alaska 
Native organizations. Therefore, the Secretary certifies that this rule 
will not have a significant impact on small entities.

C. Paperwork Reduction Act

    This proposed rule contains information collection activities which 
are subject to review and approval by the Office of Management and 
Budget (OMB) under the Paperwork Reduction Act of 1995 (OMB has already 
approved an Interim Tribal TANF Data Report, Form ACF-343, Control No. 
0970-0176). Under this Act, no persons are required to respond to a 
collection of information unless it displays a valid OMB control 
number. As required by the Paperwork Reduction Act, we have submitted 
the proposed Tribal TANF data collection requirements to OMB for review 
and approval. We are concurrently using this NPRM as a vehicle for 
seeking comment from the public on these information collection 
activities.
    The proposed rule contains provisions covering two quarterly 
reports (one program data, the other financial) and one annual report 
for the Tribal TANF program. In order to provide an opportunity for 
maximum review and public comment on the Tribal TANF Data Report, we 
have attached the proposed quarterly report (including the specific 
data elements) as an Appendix. We will revise this instrument following 
the comment period on the NPRM and will issue it to Tribes through the 
ACF policy issuance system. We will not re-publish these appendices as 
a part of the final rule.
    The two quarterly reports are the Tribal TANF Data Report 
(Appendices A through C) and the Tribal TANF Financial Report. The 
Tribal TANF Data Report consists of three sections. Two of these three 
sections consist of disaggregated case-record data elements, and one 
consists of aggregated data elements.
    We need this proposed information collection to meet the 
requirements of section 411(a) and to implement other sections, 
including sections 407 (work participation requirements), 409 
(penalties), and 411(b) (Annual report to Congress).
    The Tribal TANF Financial Report will consist of one form with an 
annual addendum to be submitted at the same time as the Tribal TANF 
Financial Report for the fourth quarter. We need this report to meet 
the requirements of sections 411(a)(2), 411(a)(3), and 411(a)(5), and 
to carry out our other financial management and oversight 
responsibilities. These include providing information that could be 
used in determining whether Tribes are subject to penalties under 
section 409(a)(1), tracking the reasonableness of our definition of 
``assistance,'' learning the extent to which recipients of benefits and 
services are covered by program requirements, and helping to validate 
the disaggregated data we receive on TANF cases.
    We are also proposing an annual report in order to collect the data 
required by section 411(b). This report requires the submission of 
information about the characteristics of each Tribal program; the 
design and operation of the program; the services, benefits, and 
assistance provided; the Tribe's eligibility criteria; and the Tribe's 
definition of work activities. At its option, each Tribe may also 
include a description of any unique features, accomplishments, 
innovations, or additional information appropriate for inclusion in the 
Department's annual report to the Congress.
    We will work with representatives of Tribes and others to identify 
the specific form that will be used for this report, building on the 
information currently being collected on the TANF program by research 
organizations and others. Before we issue a reporting form to gather 
this information and instructions for filing the report, we will give 
the public another opportunity to comment on its content and the burden 
imposed.
    The respondents for the Tribal TANF Data Reports and the Reasonable 
Cause/Corrective Action documentation process are the Tribes that have 
approved Tribal TANF plans.
    In providing these estimates of reporting burden, we would like to 
point out that this reporting burden will be new to the Tribes. Unlike 
States, many Tribes do not have the electronic capacity for meeting the 
reporting requirements. However, Tribal TANF programs will not be 
required to submit

[[Page 39398]]

all of the data required for State TANF programs because some 
provisions for which data are being collected apply only to States. In 
addition, the number of families on which the Tribal TANF grantees will 
have to report will be substantially lower than the number of families 
on which States will be reporting.
    In calculating the estimates of the reporting burden, we assumed 
that not all Tribal TANF grantees would collect the data by means of a 
review sample because their caseloads will not support a valid sample. 
However, we believe that a number of Tribal TANF grantees will 
eventually choose to undertake the one-time burden and cost of 
developing or modifying their systems to provide the required data 
directly from their automated systems, thus substantially reducing or 
eliminating the ongoing annual burden and cost reflected in these 
estimates.
    In a very limited number of cases, we have proposed collecting 
information quarterly where the statute only requires annual reporting, 
or we have added elements not directly specified in the statute. We did 
this because one of our goals was to limit the number of reporting 
forms that Tribes would be required to complete.
    Specifically, we believe that adding a data element like gender, 
that had been developed for other purposes such as Quality Control, 
would be useful to understanding the impact of the program and would 
not impose an additional burden. Similarly, while the reporting of the 
demographic and financial characteristics of families that become 
ineligible to receive assistance is only required annually, these data 
can be collected and reported more efficiently and without creating 
another form by inclusion in the quarterly TANF Data Report.
    We realize the proposed reporting burden, required by the statute, 
represents a substantial burden. Nevertheless, we encourage Tribes and 
members of the public to comment and provide suggestions on how the 
burden can be further reduced and whether we have taken the right 
course regarding frequency of reporting.
    The annual burden estimates include any time involved pulling 
records from files, abstracting information, returning records to 
files, assembling any other material necessary to provide the requested 
information, and transmitting the information.
    Prior to the development of the data collection instruments, we 
conducted extensive consultations on general data collection issues 
with representative groups such as the American Public Welfare 
Association (APWA), the National Governors' Association (NGA), and the 
National Conference of State Legislatures (NCSL). We also researched 
the burden estimates for similar OMB-approved data collections in our 
inventory and consulted with knowledgeable Federal officials.

The annual burden estimates for these Tribal TANF data collections 
are:

----------------------------------------------------------------------------------------------------------------
                                                                     Number of    Average burden                
            Instrument or requirement                Number of     responses per     hours per     Total burden 
                                                    respondents     respondent       response          hours    
----------------------------------------------------------------------------------------------------------------
Tribal TANF Data Report-Sec.  286.230(b)........          \1\ 18               4             451          32,472
Tribal TANF Annual Report-Sec.  286.255.........          \2\ 18               1              40             720
  Reasonable Cause/Corrective Action                                                                            
   Documentation-Sec.  286.200..................          \3\ 18               1              60          1,080 
----------------------------------------------------------------------------------------------------------------
\1\ We estimate that there will be 18 Tribes with approved Tribal TANF plans and that these Tribes will be      
  respondents.                                                                                                  
\2\ We estimate that the Tribes with approved Tribal TANF plans will be respondents.                            
\3\ We estimate that the Tribes with approved Tribal TANF plans will be respondents, though not necessarily all 
  will elect to respond the first year.                                                                         

Estimated Total Annual Burden Hours: 34,272.
    We encourage Tribes, States, organizations, individuals, and other 
parties to submit comments regarding the information collection 
requirements to ACF (at the address above) and to the Office of 
Information and Regulatory Affairs, OMB, Room 3208, New Executive 
Office Building, 725 17th Street, Washington, DC 20503, ATTN: Laura 
Oliven, Desk Officer for ACF.
    To ensure that public comments have maximum effect in developing 
the final regulations and the data collection forms, we urge that each 
comment clearly identify the specific section or sections of the 
proposed rule or data collection form that the comment addresses and 
follow the same order as the regulations and forms.
    We will consider comments by the public on these proposed 
collections of information in:
    <bullet> Evaluating whether the proposed collections are necessary 
for the proper performance of our functions, including whether the 
information will have practical utility;
    <bullet> Evaluating the accuracy of our estimate of the burden of 
the proposed collections of information, including the validity of the 
methodology and assumptions used, and the frequency of collection;
    <bullet> Enhancing the quality, usefulness, and clarity of the 
information to be collected; and
    <bullet> Minimizing the burden of the collection of information on 
those who are to respond, including through the use of appropriate 
automated, electronic, mechanical, or other technology, e.g., the 
electronic submission of responses.
    OMB is required to make a decision concerning the collections of 
information contained in these proposed rules between 30 and 60 days 
after publication of this document in the Federal Register. Therefore, 
a comment is assured of having its full effect if OMB receives it 
within 30 days of publication. This OMB review schedule does not affect 
the deadline for the public to comment to ACF on the proposed rules. 
Written comments to OMB for the proposed information collection should 
be sent directly to the following: Office of Management and Budget, 
Paperwork Reduction Project, 725 17th Street, NW., Washington, DC. 
20502, Attn: Ms. Wendy Taylor.

D. Unfunded Mandates Reform Act of 1995

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

[[Page 39399]]

uniquely impacted by the proposed rule.
    We have determined that the proposed rules 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 1 year. 
Accordingly, we have not prepared a budgetary impact statement, 
specifically addressed the regulatory alternatives considered, or 
prepared a plan for informing and advising any significantly or 
uniquely impacted small government.

List of Subjects in 45 CFR Part 286

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

(Catalogue of Federal Domestic Assistance Programs: 93.558 TANF 
programs--Tribal Family Assistance Grants; 93.559--Loan Fund; 
93.594--Native Employment Works Program; 93.595--Welfare Reform 
Research, Evaluations and National Studies)

    Dated: February 18, 1998.
Olivia A. Golden,
Assistant Secretary for Children and Families.

    Approved: April 13, 1998.
Donna E. Shalala,
Secretary, Department of Health and Human Services.

    For the reasons set forth in the preamble, we propose to amend 45 
CFR chapter II by adding parts 286 and 287 to read as follows:

PART 286--TRIBAL TANF PROVISIONS

Subpart A--General Tribal TANF Provisions

Sec.
286.1  What does this part cover?
286.5  What definitions apply to this part?
286.10  Who is eligible to operate a Tribal TANF program?

Subpart B--Tribal TANF Funding

286.15  How is the amount of a Tribal Family Assistance Grant (TFAG) 
determined?
286.20  How will we resolve disagreements over the State-submitted 
data used to determine the amount of a Tribal Family Assistance 
Grant?
286.25  What is the process for retrocession of a Tribal Family 
Assistance Grant?
286.30  What are proper uses of Tribal Family Assistance Grant 
funds?
286.35  What uses of Tribal Family Assistance Grant funds are 
improper?
286.40  Is there a limit on the percentage of a Tribal Family 
Assistance Grant that can be used for administrative costs?
286.45  What types of costs are subject to the administrative cost 
limit on Tribal Family Assistance Grants?
286.50  Must Tribes obligate all Tribal Family Assistance Grant 
funds by the end of the fiscal year in which they are awarded?

Subpart C--Tribal TANF Plan Content and Processing

286.55  How can a Tribe apply to administer a Tribal Temporary 
Assistance for Needy Families (TANF) Program?
286.60  Who submits a Tribal Family Assistance Plan?
286.65  What must be included in the Tribal Family Assistance Plan?
286.70  What information on minimum work participation requirements 
must a Tribe include in its Tribal Family Assistance Plan?
286.75  What additional information on minimum work participation 
rates must be included in a Tribal Family Assistance Plan?
286.80  How will we calculate the work participation rates?
286.85  How many hours per week must an adult or minor head-of-
household participate in work-related activities to count in the 
numerator of the work participation rate?
286.90  What, if any, are the special rules concerning counting work 
for single custodial parents, caretaker relatives and two-parent 
families?
286.95  What activities count towards the work participation rate?
286.100  What limitations concerning vocational education, job 
search and job readiness assistance exist with respect to the work 
participation rate?
286.105  What safeguards are there to ensure that participants in 
Tribal TANF work activities do not displace other workers?
286.110  What information on time limits for the receipt of welfare-
related service must a Tribe include in its Tribal Family Assistance 
Plan?
286.115  Can Tribes makes exceptions to the established time limit 
for families?
286.120  Does the receipt of TANF benefits under a State or other 
Tribal TANF program count towards a Tribe's TANF time limit?
286.125  What information on penalties against individuals must be 
included in a Tribal Family Assistance Plan?
286.130  What is the penalty if an individual refuses to engage in 
work activities?
286.135  Can a family, with a child under age 6, be penalized 
because a parent refuses to work because (s)he cannot find child 
care?
286.140  What are the applicable time frames and procedures for 
submitting a Tribal Family Assistance Plan?
286.145  How is a Tribal Family Assistance Plan amended?
286.150  What special provisions apply in Alaska?
286.155  What is the process for developing the comparability 
criteria that are required in Alaska?
286.160  What happens when a dispute arises between the State of 
Alaska and the Tribal TANF eligible entities in the State related to 
the comparability criteria?
286.165  If the Secretary, the State of Alaska, or any of the Tribal 
TANF eligible entities in the State of Alaska want to amend the 
comparability criteria, what is the process for doing so?

Subpart D--Accountability and Penalties

286.170  What penalties will apply to Tribes?
286.175  How will we determine if Tribal Family Assistance Grant 
funds were misused or intentionally misused?
286.180  How will we determine if a Tribe fails to meet the minimum 
work participation rate(s)?
286.185  What is the penalty for a Tribe's failure to repay a 
Federal loan?
286.190  When are the TANF penalty provisions applicable?
286.195  What happens if a Tribe fails to meet TANF requirements?
286.200  How may a Tribe establish reasonable cause for failing to 
meet a requirement that is subject to application of a penalty?
286.205  What if a Tribe does not have reasonable cause for failing 
to meet a requirement?
286.210  What penalties cannot be excused?
286.215  How can a Tribe appeal our decision to take a penalty?

Subpart E--Data Collection and Reporting Requirements

286.220  What data collection and reporting requirements apply to 
Tribal TANF programs?
286.225  What definitions apply to this subpart?
286.230  What quarterly reports must the Tribe submit to us?
286.235  May Tribes use sampling and electronic filing?
286.240  When are quarterly reports due?
286.245  What happens if the Tribe does not satisfy the quarterly 
reporting requirements?
286.250  What information must Tribes file annually?
286.255  When are annual reports due?
286.260  How do the data collection and reporting requirements 
affect Public Law 102-477 Tribes?
Appendix A--Proposed TANF Disaggregated Data Collection for Families 
Receiving Assistance Under the TANF Program
Appendix B--Proposed TANF Disaggregated Data Collection for Families 
No Longer Receiving Assistance Under the TANF Program
Appendix C--Proposed TANF Aggregated Data Collection for Families 
Applying for, Receiving, and No Longer Receiving Assistance Under 
the TANF Program
Appendix D--Proposed Summary of Sampling Specifications
Appendix E--Statutory Reference Table for Appendix A
Appendix F--Statutory Reference Table for Appendix B

[[Page 39400]]

Appendix G--Statutory Reference Table for Appendix C

    Authority: 42 U.S.C. 612.


Sec. 286.1  What does this part cover?

    Section 412 of the Social Security Act allows Indian tribes to 
apply to operate a Tribal Family Assistance program. This part 
implements section 412. It specifies:
    (a) Who can apply to operate a Tribal Family Assistance program;
    (b) The requirements for the submission and contents of a Tribal 
Family Assistance Plan;
    (c) The determination of the amount of a Tribal Family Assistance 
Grant; and
    (d) Other program requirements and procedures.


Sec. 286.5  What definitions apply to this part?

    The following definitions apply under this part:
    ACF means the Administration for Children and Families.
    Act means the Social Security Act, unless otherwise specified.
    Administrative cost means costs necessary for the proper 
administration of the TANF program. It includes the costs for general 
administration and coordination of this program, including overhead 
costs. Examples of administrative costs include:
    (1) Salaries and benefits and all other indirect (or overhead) 
costs not associated with providing program services (such as 
diversion, assessment, work activities and post-employment services, 
and supports) to individuals;
    (2) Preparation of program plans, budgets, and schedules;
    (3) Monitoring of programs and projects;
    (4) Fraud and abuse units;
    (5) Procurement activities;
    (6) Public relations;
    (7) Services related to accounting, litigation, audits, management 
of property, payroll, and personnel;
    (8) Costs for goods and services required for administration of the 
program such as rental and purchase of equipment, utilities, office 
supplies, postage, and rental and maintenance of office space;
    (9) Travel costs incurred for official business;
    (10) Management information systems not related to the tracking and 
monitoring of TANF requirements (e.g., for a personnel and payroll 
system for Tribal staff); and
    (11) Preparing reports and other documents related to program 
requirements.
    Adult means an individual who is not a ``minor child'', as defined 
below.
    Alaska Tribal TANF entity means the twelve Alaska Native regional 
nonprofit corporations in the State of Alaska and the Metlakatla Indian 
Community of the Annette Islands Reserve.
    Assistance means every form of support provided to families under 
TANF (including child care, work subsidies, and allowances to meet 
living expenses), except: Services that have no direct monetary value 
to an individual family and that do not involve implicit or explicit 
income support, such as counseling, case management, peer support and 
employment services that do not involve subsidies or other forms of 
income support; and one-time, short-term assistance (i.e., assistance 
paid within a 30-day period, no more than once in any twelve-month 
period, to meet needs that do not extend beyond a 90-day period, such 
as automobile repair to retain employment and avoid welfare receipt and 
appliance repair to maintain living arrangements). This definition does 
not apply to the use of the term assistance at subpart E of this 
chapter.
    Assistant Secretary means the Assistant Secretary for Children and 
Families, Department of Health and Human Services.
    Comparability means similarity between State and Tribal TANF 
programs in the State of Alaska. Comparability, when defined related to 
services provided, does not necessarily mean identical or equal 
services.
    Consortium means a group of Tribes working together for the same 
purpose and receiving consolidated TANF funding for that purpose.
    The Department means the Department of Health and Human Services.
    Duplicative assistance means the receipt of services/assistance 
from two or more TANF programs for the same purpose.
    Eligible families means all families eligible for assistance under 
the Tribal TANF program funded under section 412(a), including:
    (1) All U.S. citizens who meet the Tribe's criteria for Tribal TANF 
assistance;
    (2) All qualified aliens, who meet the Tribe's criteria for Tribal 
TANF assistance, who entered the U.S. before August 22, 1996;
    (3) All qualified aliens, who meet the Tribe's criteria for Tribal 
TANF assistance, who entered the U.S. on or after August 22, 1996, who 
have been in the U.S. for at least 5 years beginning on the date of 
entry into the U.S. with a qualified alien status, are eligible for 5 
years after the date of entry into the U.S. There are exceptions to 
this 5-year bar for qualified aliens who enter on or after August 22, 
1996, and the Tribal TANF program must cover these excepted 
individuals:
    (a) An alien who is admitted to the U.S. as a refugee under section 
207 of the Immigration and Nationality Act;
    (b) An alien who is granted asylum under section 208 of such Act;
    (c) An alien whose deportation is being withheld under section 
243(h) of such Act; and
    (d) An alien who is lawfully residing in any State and is a veteran 
with an honorable discharge, is on active duty in the Armed Forces of 
the U.S., or is the spouse or unmarried dependent child of such an 
individual;
    (4) All permanent resident aliens who are members of an Indian 
Tribe, as defined in section 4(e) of the Indian Self-Determination and 
Education Assistance Act;
    (5) All permanent resident aliens who have 40 qualifying quarters 
of coverage as defined by Title II of the Act.
    Eligible Indian tribe means any Tribe or intertribal consortium 
that meets the definition of Indian tribe in this section and is 
eligible to submit a Tribal TANF plan to ACF.
    Fiscal year means the 12-month period beginning on October 1 of the 
preceding calendar year and ending on September 30.
    FY means fiscal year.
    Grant period means the period of time that is specified in the 
Tribal TANF grant award document.
    Indian, Indian tribe and Tribal Organization have the same meaning 
given such terms by section 4 of the Indian Self-Determination and 
Education Assistance Act (25 U.S.C. 450b), except that the term Indian 
tribe means, with respect to the State of Alaska, only the Metlakatla 
Indian Community of the Annette Islands Reserve and the following 
Alaska Native regional nonprofit corporations:
    (1) Arctic Slope Native Association;
    (2) Kawerak, Inc.;
    (3) Maniilaq Association;
    (4) Association of Village Council Presidents;
    (5) Tanana Chiefs Council;
    (6) Cook Inlet Tribal Council;
    (7) Bristol Bay Native Association;
    (8) Aleutian and Pribilof Island Association;
    (9) Chugachmuit;
    (10) Tlingit Haida Central Council;
    (11) Kodiak Area Native Association; and
    (12) Copper River Native Association.
    Indian country has the meaning given the term in 18 U.S.C. Section 
1151.
    Minor child means an individual who:
    (1) Has not attained 18 years of age; or
    (2) Has not attained 19 years of age and is a full-time student in 
a secondary

[[Page 39401]]

school (or in the equivalent level of vocational or technical 
training).
    Minor Head-of-Household means a child under age 18, or 19 and a 
full-time student in a secondary school, who is the custodial parent of 
a minor child.
    PRWORA means the Personal Responsibility and Work Opportunity 
Reconciliation Act of 1996.
    Qualified Aliens includes the following individuals:
    (1) An alien who is lawfully admitted for permanent residence under 
the Immigration and Nationality Act;
    (2) An alien who is granted asylum under section 208 of such Act;
    (3) A refugee who is admitted to the United States under section 
207 of such Act;
    (4) An alien who is paroled into the United States under section 
212(d)(5) of such Act for a period of at least 1 year;
    (5) An alien whose deportation is being withheld under section 
243(h) of such Act (as in effect immediately before the effective date 
of section 307 of division C of Pub. L. 104-208) or section 241(b)(3) 
of such Act (as amended by section 305(a) of division C of Pub. L. 104-
208;
    (6) An alien who is granted conditional entry pursuant to section 
203(a)(7) of such Act as in effect prior to April 1, 1980;
    (7) Certain battered aliens as defined in section 431 of the 
PRWORA, as amended by the Illegal Immigration Reform and Immigrant 
Responsibility Act of 1996;
    (8) An alien who is a member of an Indian tribe, as defined in 
section 4(e) of the Indian Self-Determination and Education Assistance 
Act; or
    (9) An alien who is a Cuban and Haitian entrant, as defined in 
section 501(e) of the Refugee Education Assistance Act of 1980.
    Retrocession means the process by which a Tribe voluntarily 
terminates and cedes back (or returns) a Tribal TANF program to the 
State which previously served the population covered by the Tribal TANF 
plan. Retrocession includes the voluntary relinquishment of the 
authority to obligate previously awarded grant funds before that 
authority would otherwise expire.
    Secretary means the Secretary of the Department of Health and Human 
Services.
    Scientifically acceptable sampling method means a probability 
sampling method in which every sampling unit has a known, non-zero 
chance to be included in the sample and the sample size requirements 
are met.
    SFAG or State Family Assistance Grant means the amount of the block 
grant funded under section 403(a) of the Act for each eligible State.
    SFAP or State Family Assistance Plan is the plan for implementation 
of a State TANF program under PRWORA.
    State means, except as otherwise specifically provided, the 50 
States of the United States, the District of Columbia, the Commonwealth 
of Puerto Rico, the United States Virgin Islands, Guam, and American 
Samoa.
    TANF means the Temporary Assistance for Needy Families Program 
which is authorized under title IV-A of the Social Security Act.
    TANF funds mean funds authorized under section 412(a) of the Act.
    TFAG or Tribal Family Assistance Grant means the amount of the 
block grant funded under section 412(a) of the Act for each eligible 
Tribe.
    TFAP or Tribal Family Assistance Plan means the plan for 
implementation of the Tribal TANF program under section 412(b) of the 
Act.
    Title IV-A refers to the title of the Social Security Act that now 
includes TANF, but previously included AFDC and EA. For the purpose of 
the TANF program regulations, this term does not include child care 
programs authorized and funded under section 418 of the Act, or their 
predecessors, unless we specify otherwise.
    Title IV-F refers to the title of the Social Security Act that was 
eliminated with the creation of TANF and previously included the Job 
Opportunities and Basic Skills Training Program (JOBS).
    Tribal TANF expenditures means expenditures of TANF funds, within 
the Tribal TANF program.
    Tribal TANF program means a Tribal program subject to the 
requirements of section 412 of the Act that is funded by TANF funds on 
behalf of eligible families.
    We (and any other first person plural pronouns) refers to The 
Secretary of Health and Human Services, or any of the following 
individuals or organizations acting in an official capacity on the 
Secretary's behalf: The Assistant Secretary for Children and Families, 
the Regional Administrators for Children and Families, the Department 
of Health and Human Services, and the Administration for Children and 
Families.
    Welfare-related services means all activities, assistance and 
services funded under Tribal TANF provided to an eligible family. See 
definition of ``Assistance'' above.


Sec. 286.10  Who is eligible to operate a Tribal TANF program?

    (a) An Indian tribe that meets the definition of Indian tribe given 
in Sec. 286.5 is eligible to apply to operate a Tribal Family 
Assistance Program.
    (b) In addition, an intertribal consortium of eligible Indian 
tribes may develop and submit a single TFAP.

Subpart B--Tribal TANF Funding


Sec. 286.15  How is the amount of a Tribal Family Assistance Grant 
(TFAG) determined?

    (a) We will request and use data submitted by a State to determine 
the amount of a TFAG. The State data that we will request and use are 
State expenditures, including administrative costs (which includes 
systems costs), of Federal payments to the State for fiscal year 1994 
under the former Aid to Families With Dependent Children, Emergency 
Assistance and Job Opportunities and Basic Skills Training programs, 
for Indian families residing in the service area or areas identified in 
the Tribe's letter of intent or Tribal Family Assistance Plan.
    (1) When we request the necessary data from the State, the State 
will be requested to submit the data no later than 21 days from the 
date of the request.
    (2)(i) If we do not receive the data requested from the State at 
the end of the 21-day period, we will so notify the Tribe.
    (ii) The Tribe will have 21 days from the date of the notification 
in which to submit relevant information. Relevant information may 
include, but is not limited to, Census Bureau data, data from the 
Bureau of Indian Affairs, data from other Federal programs, and Tribal 
records. In such a case, we will use the data submitted by the Tribe to 
determine the amount of the TFAG.
    (b) We will share the data submitted by the State under paragraph 
(a)(1) of this section with the Tribe. The Tribe must submit to the 
Secretary a notice as to the Tribe's agreement or disagreement with 
such data no later than 21 days after the date of our notice 
transmitting the data from the State. During this 21-day period we will 
help resolve any questions the Tribe may have about the State-submitted 
data.
    (c) We will notify each Tribe that has submitted a TFAP of the 
amount of the TFAG. At this time, we will also notify the State of the 
amount of the reduction in its SFAG.
    (d) We will prorate TFAGs that are initially effective on a date 
other than October 1 of any given Federal fiscal year, based on the 
number of days remaining in the Federal fiscal year.

[[Page 39402]]

Sec. 286.20  How will we resolve disagreements over the State-submitted 
data used to determine the amount of a Tribal Family Assistance Grant?

    (a) If a Tribe disagrees with the data submitted by a State, the 
Tribe may submit additional relevant information to the Secretary. 
Relevant information may include, but is not limited to, Census Bureau 
data, data from the Bureau of Indian Affairs, data from other Federal 
programs, and Tribal records.
    (1) The Tribe must submit any relevant information within 21 days 
from the date it notifies the Secretary of its disagreement with State 
submitted data under Sec. 286.15(b).
    (2) We will review the additional relevant information submitted by 
the Tribe, together with the State-submitted data, in order to make a 
determination as to the amount of the TFAG. Our goal will be to make 
the determination no later than 14 days after receipt of the 
information.
    (b) [Reserved]


Sec. 286.25  What is the process for retrocession of a Tribal Family 
Assistance Grant?

    (a) A Tribe that wishes to terminate its TFAG prior to the end of 
its three-year plan must notify the Secretary in writing of the 
reason(s) for termination 120 days prior to the effective date of the 
termination. The effective date of the termination must coincide with 
the end of the grant period indicated on the Notice of Grant Award.
    (b)(1) For a Tribe that retrocedes, the provisions of 45 CFR part 
92 will apply with regard to closeout of the grant.
    (2) The Tribe must return all unobligated funds to the Federal 
government.
    (c) We will increase the appropriate SFAG by the amount of the 
TFAG.
    (d) We will not return a TANF program to a Tribe that has 
retroceded until the reasons for retrocession are no longer applicable 
and all outstanding funds and penalty amounts repaid.
    (e) A Tribe which retrocedes a Tribal TANF program is:
    (1) Responsible for:
    (i) Complying with the data collection and reporting requirements 
and all other program requirements for the period before the 
retrocession is effective;
    (ii) Any applicable penalties (see subpart D of this part); and
    (iii) Any penalties resulting from audits for the period before the 
effective date of retrocession.
    (2) Subject to the provisions of 45 CFR Part 92 and OMB Circulars 
A-87 and A-133, and other Federal statutes and regulations applicable 
to the TANF program.


Sec. 286.30  What are proper uses of Tribal Family Assistance Grant 
funds?

    (a) Tribes may use TFAGs for expenditures that:
    (1) Are reasonably related to the purposes of TANF, including to 
provide low income households with assistance in meeting home heating 
and cooling costs; or
    (2) Was an authorized use of funds under Parts A or F of title IV 
of the Social Security Act, as such parts were in effect on September 
30, 1995.
    (b) [Reserved]


Sec. 286.35  What uses of Tribal Family Assistance Grant funds are 
improper?

    (a) A Tribe may not use Tribal Family Assistance Grant funds to 
provide welfare-related services and assistance to:
    (1) Families that do not include either a minor child who resides 
with a custodial parent or other adult caretaker relative of the child 
or a pregnant individual; or
    (2) For more than the number of months as specified in a Tribe's 
TFAP; or
    (3) Individuals who are not citizens of the United States and who 
do not meet the definition of ``eligible families'' at Sec. 286.5.
    (b) Tribal Family Assistance Grant funds may not be used to 
contribute to or to subsidize non-TANF programs.
    (c) A Tribe may not use Tribal Family Assistance Grant funds for 
services or activities prohibited by OMB Circular A-87.
    (d) All provisions in OMB Circular A-133 and in 45 CFR part 92 are 
applicable to the Tribal TANF program.
    (e) Tribal TANF funds may not be used for the construction or 
purchase of facilities or buildings.
    (f) Tribes must use program income generated by the Tribal Family 
Assistance grant for the purposes of the TANF program and for allowable 
TANF services, activities and assistance.


Sec. 286.40  Is there a limit on the percentage of a Tribal Family 
Assistance Grant that can be used for administrative costs?

    A Tribe may not expend more than 20 percent of its Tribal Family 
Assistance Grant for administrative costs during any grant period.


Sec. 286.45  What types of costs are subject to the administrative cost 
limit on Tribal Family Assistance Grant funds?

    (a) Activities that fall within the definition of ``administrative 
costs'' at Sec. 286.5 are subject to the limit at Sec. 286.40.
    (b) Information technology and computerization for tracking and 
monitoring are not administrative costs for this purpose.


Sec. 286.50  Must Tribes obligate all Tribal Family Assistance Grant 
funds by the end of the fiscal year in which they are awarded?

    (a) Yes, Tribes must obligate Tribal Family Assistance Grants by 
the end of the fiscal year in which they are awarded. They must return 
any unobligated funds to the Federal government.
    (b) Tribes will have until the end of the next fiscal year to 
expend any unliquidated obligations. Any unliquidated obligations 
remaining at the end of this period must also be returned to the 
Federal government.

Subpart C--Tribal TANF Plan Content and Processing


Sec. 286.55  How can a Tribe apply to administer a Tribal Temporary 
Assistance For Needy Families (TANF) Program?

    Any eligible Indian tribe, Alaska Native organization or 
intertribal consortium that wishes to administer a Tribal TANF program 
must submit a three-year TFAP to the Secretary of the Department of 
Health and Human Services. The original must be submitted to the 
appropriate ACF Regional Office with a copy to the ACF Central Office.


Sec. 286.60  Who submits a Tribal Family Assistance Plan?

    (a) A TFAP must be submitted by the chief executive officer of the 
Indian tribe and be accompanied by a Tribal resolution supporting the 
TFAP.
    (b) A TFAP from a consortium must be forwarded under the signature 
of the chief executive officer of the consortium and be accompanied by 
Tribal resolutions from all participating Tribes which demonstrate each 
individual Tribe's support of the consortium, the delegation of 
decision-making authority to the consortium's governing board, and the 
Tribe's recognition that matters involving operation of the Tribal TANF 
consortia are the express responsibility of the consortium's governing 
board.
    (c) When one of the participating Tribes in a consortium wishes to 
withdraw from the consortium, the Tribe needs to both notify the 
consortium and us of this fact.
    (1) This notification must be made at least 120 days prior to the 
effective date of the withdrawal.
    (2) The time frame in paragraph (c)1) of this section is applicable 
only if the Tribe's withdrawal will cause a change to the service area 
or population of the consortium.
    (d) When one of the participating Tribes in a consortium wishes to 
withdraw from the consortium in order to operate its own Tribal TANF

[[Page 39403]]

program, the Tribe needs to submit a Tribal TANF plan that follows the 
requirements at Sec. 286.65 and Sec. 286.140.


Sec. 286.65  What must be included in the Tribal Family Assistance 
Plan?

    (a) The TFAP must outline the Tribe's approach to providing 
welfare-related services for the three-year period covered by the plan, 
including:
    (1) Information on the general eligibility criteria the Tribe has 
established, which includes a definition of ``needy family,'' including 
income and resource limits and the Tribe's definition of ``Tribal 
member family'' or ``Indian family.''
    (2) A description of the assistance, services and activities to be 
offered, and the means by which they will be offered. The description 
of the services, assistance and activities to be provided includes 
whether the Tribe will provide cash assistance, and what other 
assistance, services and activities will be provided.
    (3) If the Tribe will not provide the same services, assistance and 
activities in all parts of the service area, the TFAP must indicate any 
variations.
    (4) If the Tribe opts to provide different services to specific 
populations including: Teen parents and individuals who are 
transitioning off TANF assistance, the TFAP must indicate whether any 
of these services will be provided and, if so, what services will be 
provided.
    (5) The Tribe's goals for its TANF program and the means of 
measuring progress towards those goals;
    (6) Assurance that a 45-day public comment period on the Tribal 
TANF plan concluded prior to the submission of the TFAP.
    (7) Assurance that the Tribe has developed a dispute resolution 
process to be used when individuals or families want to challenge the 
Tribe's decision to deny, reduce, suspend, sanction or terminate 
assistance.
    (b) The TFAP must identify which Tribal agency is designated by the 
Tribe as the lead agency for the overall administration of the Tribal 
TANF program along with a description of the administrative structure 
for supervision of the TANF program.
    (c) The TFAP must indicate whether the services, assistance and 
activities will be provided by the Tribe itself or through grants, 
contracts or compacts with inter-Tribal consortia, States, or other 
entities.
    (d) The TFAP must identify the population to be served by the 
Tribal TANF program.
    (1) The TFAP must identify whether it will serve Tribal member 
families only, or whether it will serve all Indian families residing in 
the Tribal TANF service area.
    (2) If the Tribe wishes to serve any non-Indian families (and thus 
include non-Indians in its service population), an agreement with the 
State TANF agency must be included in the TFAP. This agreement must 
provide that, where non-Indians are to be served by Tribal TANF, these 
families are subject to Tribal TANF program rules.
    (e) The TFAP must include a description of the geographic area to 
be served by the Tribal TANF program, including a specific description 
of any ``near reservation'' areas, as defined at 45 CFR 20.1(r), or any 
areas beyond ``near reservation'' to be included in the Tribal TANF 
service area.
    (1) In areas beyond those defined as ``near reservation'', the TFAP 
must demonstrate the Tribe's administrative capacity to serve such 
areas and the State(s)', and if applicable, other Tribe(s)' concurrence 
with the proposed defined boundaries.
    (2) A Tribe cannot extend its service area boundaries beyond the 
boundaries of the State(s) in which the reservation and BIA near-
reservation designations are located.
    (3) For Tribes in Oklahoma, if the Tribe defines its service area 
as other than its ``tribal jurisdiction statistical area'' (TJSA), the 
Tribe must include an agreement with the other Tribe(s) reflecting 
agreement to the service area. TJSAs are areas delineated by the Census 
Bureau for each federally-recognized Tribe in Oklahoma without a 
reservation.
    (f) The TFAP must provide that a family receiving assistance under 
the plan may not receive duplicative assistance from other State or 
Tribal TANF programs and must include a description of the means by 
which the Tribe will ensure duplication does not occur.
    (g) The TFAP must identify the employment opportunities in and near 
the service area and the manner in which the Tribe will cooperate and 
participate in enhancing such opportunities for recipients of 
assistance under the plan, consistent with any applicable State 
standards. This should include:
    (1) A description of the employment opportunities available, in 
both the public and private sector, within and near the Tribal service 
area; and
    (2) A description of how the Tribe will work with public and 
private sector employers to enhance the opportunities available for 
Tribal TANF recipients.
    (h) The TFAP must provide an assurance that the Tribe applies the 
fiscal accountability provisions of section 5(f)(1) of the Indian Self-
Determination and Education Assistance Act (25 U.S.C. 450c(f)(1)), 
relating to the submission of a single-agency audit report required by 
chapter 75 of title 31, United States Code.


Sec. 286.70  What information on minimum work participation 
requirements must a Tribe include in its Tribal Family Assistance Plan?

    (a) To assess a Tribe's level of success in meeting its TANF work 
objectives, a Tribe that submits a TFAP must negotiate with us minimum 
work participation requirements that will apply to the adults and minor 
heads of household receiving assistance from the Tribal TANF program.
    (b) A Tribe which submits a TFAP must include in the plan the 
Tribe's proposal for minimum work participation requirements, which 
includes the following:
    (1) For each fiscal year covered by the plan, the Tribe's proposed 
participation rate(s) for all families, for all families and two-parent 
families, or for one-parent families and two-parent families;
    (2) For each fiscal year covered by the plan, the Tribe's proposed 
minimum number of hours per week that adults and minor heads of 
household will be required to participate in work activities;
    (i) If the Tribe elects to include reasonable transportation time 
to and from the site of work activities in determining the hours of 
work participation, it must so indicate in its TFAP along with a 
definition of ``reasonable'' for purposes of this subsection, along 
with:
    (A) An explanation of how the economic conditions and/or resources 
available to the Tribe justify inclusion of transportation time in 
determining work participation hours; and
    (B) An explanation of how counting reasonable transportation time 
is consistent with the purposes of TANF;
    (3) The work activities that count towards these work requirements;
    (4) Any exemptions, limitations and special rules being established 
in relation to work requirements; and
    (5) The Tribe's rationale for the above if the Tribe's proposal 
differs from that required of State TANF programs (refer to section 
407(a) of the Act for the participation rate targets for States, 
section 407(c)(1)(A) of the Social Security Act for the minimum number 
of hours per week required of State TANF families, and Sec. 286.95 for 
the work activities applicable to State TANF programs).
    (i) The rationale must address how the proposed work requirements 
are

[[Page 39404]]

consistent with the purposes of TANF and with the economic conditions 
and resources of the Tribe.
    (ii) Examples of the information that could be included to 
illustrate the Tribe's proposal include, but are not limited to: 
poverty, unemployment, jobless and job surplus rates; education levels 
of adults in the service area; availability of and/or accessibility to 
resources (educational facilities, transportation) to help families 
become employable and find employment; and employment opportunities on 
and near the service area.


Sec. 286.75  What additional information on minimum work participation 
rates must be included in a Tribal Family Assistance Plan?

    (a) A Tribe's proposed rates may reflect increases over the life of 
the Tribal TANF plan.
    (b) Tribes will be given the opportunity to propose revisions to 
their targeted participation rates for subsequent years.


Sec. 286.80  How will we calculate the work participation rates?

    (a) Work participation rate(s) will be the percentage of families 
with an adult or minor head-of-household receiving TANF assistance from 
the Tribe who are participating in a work activity approved in the TFAP 
for at least the minimum number of hours approved in the TFAP.
    (b) The participation rate for a fiscal year is the average of the 
Tribe's participation rate for each month in the fiscal year.
    (c) A Tribe's participation rate for a month is expressed as the 
following ratio:
    (1) The number of families receiving TANF assistance that include 
an adult or a minor head-of-household who is participating in 
activities for the month (numerator), divided by
    (2) The number of families that include an adult or a minor head-
of-household receiving TANF assistance during the month excluding:
    (i) Families that were penalized for non-compliance with the work 
requirements in that month as long as they have not been sanctioned for 
more than three months (whether or not consecutively) out of the last 
12 months; and
    (ii) Families with children under age one, if the Tribe chooses to 
exempt these families from participation requirements.
    (d) If a family receives assistance for only part of a month or 
begins participating in activities during the month, the Tribe may 
count it as a month of participation if an adult or minor head-of-
household in the family is participating for the minimum average number 
of hours in each full week that the family receives assistance or 
participates in that month.
    (e) Two-parent families in which one of the parents is disabled are 
considered one-parent families for the purpose of calculating a Tribe's 
participation rate.


Sec. 286.85  How many hours per week must an adult or minor head-of-
household participate in work-related activities to count in the 
numerator of the work participation rate?

    During the month, an adult on minor head-of-household must 
participate in work activities for at least the minimum average number 
of hours per week specified in the Tribe's approved Tribal Family 
Assistance Plan.


Sec. 286.90  What, if any, are the special rules concerning counting 
work for single custodial parents, caretaker relatives and two-parent 
families?

    (a) A single custodial parent or caretaker relative with a child 
under age 6 will count as engaged in work if (s)he participates for an 
average of at least 20 hours per week.
    (b) Parent in a two-parent family may share the number of hours 
required to be considered as engaged in work.


Sec. 286.95  What activities count towards the work participation rate?

    (a) Activities that count toward a Tribe's participation rate may 
include, but are not limited to, the following:
    (1) Unsubsidized employment;
    (2) Subsidized private sector employment;
    (3) Subsidized public sector employment;
    (4) Work experience;
    (5) On-the-job training (OJT);
    (6) Job search and job readiness assistance; (see Sec. 286.100)
    (7) Community service programs;
    (8) Vocational educational training; (see Sec. 286.100)
    (9) Job skills training directly related to employment;
    (10) Education directly related to employment, in the case of a 
recipient who has not received a high school diploma or a certificate 
of high school equivalency;
    (11) Satisfactory attendance at secondary school or in a course of 
study leading to a certificate of general equivalence, if a recipient 
has not completed secondary school or received such a certificate;
    (12) Providing child care services to an individual who is 
participating in a community service program; and
    (13) Other activities that will help families achieve self-
sufficiency.
    (b) [Reserved]


Sec. 286.100  What limitations concerning vocational education, job 
search and job readiness assistance exist with respect to the work 
participation rate?

    (a) Tribes are not required to limit vocational education for any 
one individual to a period of 12 months.
    (b) There are two limitations concerning job search and job 
readiness:
    (1) Job search and job readiness assistance only count for 6 weeks 
in any fiscal year.
    (2) If the Tribe's unemployment rate in the Tribal TANF service 
area is at least 50 percent greater than the United States' total 
unemployment rate for that fiscal year, then an individual's 
participation in job search or job readiness assistance counts for up 
to 12 weeks in that fiscal year.
    (c) If job search or job readiness is an ancillary part of another 
activity, then there is no limitation on counting the time spent in job 
search/job readiness.


Sec. 286.105  What safeguards are there to ensure that participants in 
Tribal TANF work activities do not displace other workers?

    (a) An adult or minor head-of-household taking part in a work 
activity outlined in Sec. 286.95 cannot fill a vacant employment 
position if:
    (1) Any other individual is on layoff from the same or any 
substantially equivalent job; or
    (2) The employer has terminated the employment of any regular 
employee or otherwise caused an involuntary reduction in its work force 
in order to fill the vacancy with the TANF participant.
    (b) A Tribe must establish and maintain a grievance procedure to 
resolve complaints of alleged violations of this displacement rule.
    (c) This regulation does not preempt or supersede Tribal laws 
providing greater protection for employees from displacement.


Sec. 286.110  What information on time limits for the receipt of 
welfare-related services must a Tribe include in its Tribal Family 
Assistance Plan?

    (a) The TFAP must include the Tribe's proposal for:
    (1) Time limits for the receipt of Tribal TANF benefits;
    (2) Any exceptions to these time limits; and
    (3) The percentage of the caseload to be exempted from the time 
limit due to hardship or if the family includes an individual who has 
been battered or subjected to extreme cruelty.
    (b) The Tribe must also include the rationale for its proposal in 
the plan.

[[Page 39405]]

The rationale must address how the proposed time limits are consistent 
with the purposes of TANF and with the economic conditions and 
resources of the Tribe.
    (1) Examples of the information that could be included to 
illustrate the Tribe's proposal include, but are not limited to: 
Poverty, unemployment, jobless and job surplus rates; education levels 
of adults in the service area; availability of and/or accessibility to 
resources (educational facilities, transportation) to help families 
become employable and find employment; and employment opportunities on 
and near the service area.
    (c) We may require that the Tribe submit additional information 
about the rationale before we approve the proposed time limits.
    (d) Tribes must not count towards the time limit:
    (1) Any month of receipt of assistance by an individual when the 
individual was a minor who was not the head-of-household or married to 
the head-of-household; and
    (2) Any month of receipt of assistance by an adult during which the 
adult lived in Indian country or in an Alaskan Native Village in which 
at least 50 percent of the adults were not employed.
    (e) A Tribe must not use any of its TFAG to provide assistance (as 
defined in Sec. 286.5) to a family that includes an adult or minor 
head-of-household who has received assistance beyond the number of 
months (whether or not consecutive) that is negotiated with the Tribe.


Sec. 286.115  Can Tribes make exceptions to the established time limit 
for families?

    (a) Tribes have the option to exempt families from the established 
time limits for the following reasons:
    (1) Hardship, as defined by the Tribe, and
    (2) The family includes someone who has been battered or has been 
subject to:
    (i) Physical acts that resulted in, or treated to result in, 
physical injury to the individual;
    (ii) Sexual abuse;
    (iii) Sexual activity involving a dependent child;
    (iv) Being forced as the caretaker relative of a dependent child to 
engage in non-consensual sexual acts or activities;
    (v) Threats of, or attempts at, physical or sexual abuse;
    (vi) Mental abuse; or
    (vii) Neglect or deprivation of medical care.
    (b) If a Tribe elects this option, the Tribe must specify in its 
TFAP the maximum percent of its average monthly caseload of families on 
assistance that will be exempt from the established time limit.
    (1) If the Tribe proposes to exempt more than 20 percent of the 
caseload, the Tribe must include a rationale in the plan.
    (2) [Reserved]


Sec. 286.120  Does the receipt of TANF benefits under a State or other 
Tribal TANF program count towards a Tribe's TANF time limit?

    Yes, the Tribe must count prior months of TANF assistance funded 
with TANF block grant funds, except for any month that was exempt or 
disregarded by statute or regulation.


Sec. 286.125  What information on penalties against individuals must be 
included in a Tribal Family Assistance Plan?

    (a) The TFAP must include the Tribe's proposal for penalties 
against individuals who refuse to engage in work activities. The 
Tribe's proposal must address the following:
    (1) Will the Tribe impose a pro rata reduction, or more at Tribal 
option, or will it terminate assistance to a family?
    (2) After consideration of the provision specified at Sec. 286.135, 
what will be the proposed Tribal policies related to a single custodial 
parent, with a child under the age of 6, who refuses to engage in work 
activities because of a demonstrated inability to obtain child care?
    (3) What good cause exceptions, if any, does the Tribe propose that 
will allow individuals to avoid penalties for failure to engage in 
work?
    (4) What other rules governing penalties does the Tribe propose?
    (5) What, if any, will be the Tribe's policies related to victims 
of domestic violence?
    (b)(1) The Tribe's rationale for its proposal must also be included 
in the TFAP. The rationale must address how the proposed penalties 
against individuals are consistent with the purposes of TANF, 
consistent with the economic conditions and resources of the Tribe, and 
how they are similar to the requirements of section 407(e) of the Act.
    (2) Examples of the information that could be included to 
illustrate the Tribe's proposal include, but are not limited to; 
poverty, unemployment, jobless and job surplus rates; education levels 
of adults in the service area; availability of and/or accessibility to 
resources (educational facilities, transportation) to help families 
become employable and find employment; and employment opportunities on 
and near the service area.
    (c) We may require a Tribe to submit additional information about 
the rationale before we approve the proposed penalties against 
individuals.


Sec. 286.130  What is the penalty if an individual refuses to engage in 
work activities?

    If an individual refuses to engage in work activities in accordance 
with the minimum work participation requirements specified in the 
approved TFAP, the Tribe must apply to the individual the penalties 
against individuals that were established in the approved TFAP.


Sec. 286.135  Can a family, with a child under age 6, be penalized 
because a parent refuses to work because (s)he cannot find child care?

    A family must not be penalized if a custodial parent refuses to 
engage in work activities because (s)he cannot find child care and the 
Tribe's established exception due to inability to locate child care is 
satisfied.


Sec. 286.140  What are the applicable time frames and procedures for 
submitting a Tribal Family Assistance Plan?

    (a) A Tribe must submit a Tribal TANF letter of intent and/or a 
TFAP to the Secretary according to the following time frames:

--------------------------------------------------------------------------------------------------------------------------------------------------------
         Implementation date:                Letter of intent due:             Formal plan due:                    Notification to the State:           
--------------------------------------------------------------------------------------------------------------------------------------------------------
January 1, February 1 or March 1......  July 1 of previous year.......  September 1 of previous year.  October 1 of previous year.                      
April 1, May 1 or June 1..............  October 1 of previous year....  December 1 of previous year..  January 1 of same year.                          
July 1, August 1 or September 1.......  January 1 of same year........  March 1 of same year.........  April 1 of same year.                            
October 1, November 1 or December 1...  April 1 of same year..........  June 1 of same year..........  July 1 of same year.                             
--------------------------------------------------------------------------------------------------------------------------------------------------------


[[Page 39406]]

    (b) A Tribe which has requested and received data from the State 
and has resolved any issues concerning the data more than 6 months 
before its proposed implementation date, is not required to submit a 
letter of intent.
    (c) The effective date of the TFAP must be the first day of any 
month.
    (d) The original TFAP must be sent to the appropriate ACF Regional 
Administrator, with a copy sent to the Division of Tribal Services, 
Office of Community Services, Administration for Children and Families.
    (e) A Tribe that submits a TFAP or an amendment to an existing plan 
that cannot be approved by the Secretary will be given the opportunity 
to make revisions in order to make the TFAP, or an amendment, 
approvable. If a plan is disapproved, the Tribe may appeal the decision 
to the Departmental Appeals Board (the Board) within 60 days after such 
party receives notice of determination. The party's appeal to the Board 
should follow the provisions of the rules under this section and those 
at 45 CFR part 16, where applicable.
    (f) Tribes operating a consolidated Pub. L. 102-477 program must 
submit a TFAP plan to the Secretary for review and approval prior to 
the consolidation of the TANF program into the Pub. L. 102-477 plan.


Sec. 286.145  How is a Tribal Family Assistance Plan amended?

    (a) An amendment to a TFAP is necessary if the Tribe makes any 
substantial changes to the plan, including those which impact an 
individual's eligibility for Tribal TANF services or participation 
requirements, or any other program design changes which alter the 
nature of the program.
    (b) A Tribe must submit a plan amendment(s) to us no later than 30 
days prior to the proposed implementation date. Proposed implementation 
dates shall be the first day of any month.
    (c) We will review and either approve or disapprove the plan 
amendment(s) within 14 days of receipt.
    (d) Approved plan amendments are effective 30 days after date of 
submission.
    (e) A Tribe whose plan amendment is disapproved may appeal our 
decision to the Departmental Appeals Board no later than 60 days from 
the date of the disapproval. This appeal to the Board should follow the 
provisions of the rules under this subpart and those at 45 CFR part 16, 
where applicable.


Sec. 286.150  What special provisions apply in Alaska?

    A Tribe in the State of Alaska that receives a TFAG must use the 
grant to operate a program in accordance with program requirements 
comparable to the requirements applicable to the State of Alaska's 
Family Assistance program. Comparability of programs must be 
established on the basis of program criteria developed by the Secretary 
in consultation with the State of Alaska and the Tribes in Alaska. The 
State of Alaska has authority to waive the program comparability 
requirement based on a request by an Indian tribe in the State.


Sec. 286.155  What is the process for developing the comparability 
criteria that are required in Alaska?

    We will work with the Tribes in Alaska and the State of Alaska to 
develop an appropriate process for the development and amendment of the 
comparability criteria.


Sec. 286.160  What happens when a dispute arises between the State of 
Alaska and the Tribal TANF eligible entities in the State related to 
the comparability criteria?

    (a) If a dispute arises between the State of Alaska and the Tribes 
in the State on any part of the comparability criteria, we will be 
responsible for making a final determination and notifying the State of 
Alaska and the Tribes in the State of the decision.
    (b) Any of the parties involved may appeal our decision, in whole 
or in part, to the HHS Departmental Appeals Board (the Board) within 60 
days after such party receives notice of determination. The party's 
appeal to the Board should follow the provisions of the rules under 
this section and those at 45 CFR part 16, where applicable.


Sec. 286.165  If the Secretary, the State of Alaska, or any of the 
Tribal TANF eligible entities in the State of Alaska want to amend the 
comparability criteria, what is the process for doing so?

    (a) At such time that any of the above parties wish to amend the 
comparability document, the requesting party should submit a request to 
us, with a copy to the other parties, explaining the requested 
change(s) and supplying background information in support of the 
change(s).
    (b) After review of the request, we will make a determination on 
whether or not to accept the proposed change(s).
    (c) If any party wishes to appeal the decision regarding the 
adoption of the proposed amendment, they may appeal using the appeals 
process pursuant to Sec. 286.140.

Subpart D--Accountability and Penalties


Sec. 286.170  What penalties will apply to Tribes?

    (a) Tribes will be subject to fiscal penalties and requirements as 
follows:
    (1) If we determine that a Tribe misused its Tribal Family 
Assistance Grant funds, including providing assistance beyond the 
Tribe's negotiated time limit under Sec. 286.110, we will reduce the 
TFAG for the following fiscal year by the amount so used;
    (2) If we determine that a Tribe intentionally misused its TFAG for 
an unallowable purpose, the TFAG for the following fiscal year will be 
reduced by an additional five percent;
    (3) If we determine that a Tribe failed to meet the minimum work 
participation rate(s) established for the Tribe, the TFAG for the 
following fiscal year will be reduced. The amount of the reduction will 
depend on whether the Tribe was under a penalty for this reason in the 
preceding year. If not, the penalty reduction will be a maximum of five 
percent. If a penalty was imposed on the Tribe in the preceding year, 
the penalty reduction will be increased by an additional 2 percent, up 
to a maximum of 21 percent. In determining the penalty amount, we will 
take into consideration the severity of the failure and whether the 
reasons for the failure were increases in the unemployment rate in the 
TFAG service area and changes in TFAG caseload size during the fiscal 
year in question; and
    (4) If a Tribe fails to repay a Federal loan provided under section 
406, we will reduce the TFAG for the following fiscal year will be 
reduced by an amount equal to the outstanding loan amount plus 
interest.
    (b) In calculating the amount of the penalty, we will add together 
all applicable penalty percentages and the total is applied to the 
amount of the TFAG that would have been payable if no penalties were 
assessed against the Tribe. As a final step, we will subtract other 
(non-percentage) penalty amounts.
    (c) When imposing the penalties in paragraph (a) of this section, 
we will not reduce an affected Tribe's grant by more than 25 percent. 
If the 25 percent limit prevents the recovery of the full penalty 
imposed on a Tribe during a fiscal year, we will apply the remaining 
amount of the penalty to the TFAG payable for the immediately 
succeeding fiscal year.
    (1) If we reduce the TFAG payable to a Tribe for a fiscal year 
because of penalties that have been imposed, the Tribe must expend 
additional Tribal funds to replace any such reduction. The Tribe must 
document compliance

[[Page 39407]]

with this provision on its TANF expenditure report.
    (2) We will impose a penalty of not more than 2 percent of the 
amount of the TFAG on a Tribe that fails to expend additional Tribal 
funds to replace amounts deducted from the TFAG due to penalties. We 
will apply this penalty to the TFAG payable for the next succeeding 
fiscal year and this penalty cannot be excused (see Sec. 286.210).
    (d) If a Tribe retrocedes the program, the Tribe will be liable for 
any penalties incurred for the period the program was in operation.


Sec. 286.175  How will we determine if Tribal Family Assistance Grant 
funds were misused or intentionally misused?

    (a) We will use the single audit or Federal review or audit to 
determine if a Tribe should be penalized for misusing Tribal Family 
Assistance Grant funds under Sec. 286.170(a)(1) or intentionally 
misusing Tribal Family Assistance Grant funds under Sec. 286.170(a)(2).
    (b) If a Tribe uses the TFAG in violation of the provisions of the 
Act, the provisions of 45 CFR part 92, OMB Circulars A-87 and A-133, or 
any Federal statutes and regulations applicable to the TANF program, we 
will consider the funds to have been misused.
    (c) The Tribe must show, to our satisfaction, that it used the 
funds for purposes that a reasonable person would consider to be within 
the purposes of the TANF program (as specified at Sec. 286.30) and the 
provisions listed in Sec. 286.35.
    (d) We will consider the TFAG to have been intentionally misused 
under the following conditions:
    (1) There is supporting documentation, such as Federal guidance or 
policy instructions, indicating that TANF funds could not be used for 
that purpose; or
    (2) After notification that we have determined such use to be 
improper, the Tribe continues to use the funds in the same or similarly 
improper manner.
    (e) If the single audit determines that a Tribe misused Federal 
funds in applying the negotiated time limit provisions under 
Sec. 286.110, the amount of the penalty for misuse will be limited to 
five percent of the TFAG amount.


Sec. 286.180  How will we determine if a Tribe fails to meet the 
minimum work participation rate(s)?

    (a) We will use the Tribal TANF Data Reports required under 
Sec. 286.230 to determine if we will assess the penalty under 
Sec. 286.170(a)(3) for failure to meet the minimum participation 
rate(s) established for the Tribe.
    (b) The information from the Tribe's Tribal TANF Data Reports 
needed to determine the Tribe's work participation rate(s) must be 
timely, complete and accurate under Sec. 286.230. The accuracy of the 
reports are subject to validation by us.
    (1) If the Tribe fails to submit, on a timely basis, the Tribal 
TANF Data Report, we may apply the penalty under Sec. 286.170(a)(3).
    (2) If we find reports to be so significantly incomplete or 
inaccurate that we seriously question whether the Tribe has met its 
participation rate, we may apply the penalty under Sec. 286.170(a)(3).
    (c) If the single audit determines that the Tribe failed to meet 
the minimum participation rate, we may assess the penalty under 
Sec. 286.170(a)(1).


Sec. 286.185  What is the penalty for a Tribe's failure to repay a 
Federal loan?

    (a) If a Tribe fails to repay the amount of principal and interest 
due at any point under a loan agreement:
    (1) The entire outstanding loan balance, plus all accumulated 
interest, becomes due and payable immediately; and
    (2) We will reduce the TFAG payable for the immediately succeeding 
fiscal year quarter by the outstanding loan amount plus interest.
    (b) Neither the reasonable cause provisions at Sec. 286.200 nor the 
corrective compliance plan provisions at Sec. 286.205 apply when a 
Tribe fails to repay a Federal loan.


Sec. 286.190  When are the TANF penalty provisions applicable?

    (a) A Tribe may be subject to penalties, as described in 
Sec. 286.170(a)(1), Sec. 286.170(a)(2) and Sec. 286.170(a)(4), for 
conduct occurring on and after the first day of implementation of the 
Tribe's TANF program.
    (b) A Tribe may be subject to penalties, as described in 
Sec. 286.170(a)(3), for conduct occurring on and after the date that is 
six months after the Tribe begins operating the TANF program.
    (c) We will not apply the regulations retroactively. To the extent 
that a Tribe's failure to meet the requirements of the penalty 
provisions is attributable to the absence of Federal rules or guidance, 
Tribes may qualify for reasonable cause, as discussed in Sec. 286.200.


Sec. 286.195  What happens if a Tribe fails to meet TANF requirements?

    (a) If we determine that a Tribe is subject to a penalty, we will 
notify the Tribe in writing. This notice will:
    (1) Specify what penalty provision(s) are in issue;
    (2) Specify the amount of the penalty;
    (3) Specify the reason for our determination;
    (4) Explain how and when the Tribe may submit a reasonable cause 
justification under Sec. 286.200 and/or a corrective compliance plan 
under Sec. 286.205(d) for those penalties for which reasonable cause 
and/or corrective compliance plan apply; and
    (5) Invite the Tribe to present its arguments if it believes that 
the data or method we used were in error or were insufficient, or that 
the Tribe's actions, in the absence of Federal regulations, were based 
on a reasonable interpretation of the statute.
    (b) Within 60 days of receipt of our written notification, the 
Tribe may submit a written response to us that:
    (1) Demonstrates that our determination is incorrect because our 
data or the method we used in determining the penalty was in error or 
was insufficient, or that the Tribe acted prior to [effective date of 
final regulations], on a reasonable interpretation of the statute;
    (2) Demonstrates that the Tribe had reasonable cause for failing to 
meet the requirement(s); and/or
    (3) Provides a corrective compliance plan as discussed in 
Sec. 286.205.
    (c) If we find that the Tribe was correct and that a penalty was 
improperly determined, or find that a Tribe had reasonable cause for 
failing to meet one or more requirements, we will not impose that 
penalty and so notify the Tribe in writing.
    (d) If we determine that the Tribe's arguments that our original 
determination was incorrect or that it had reasonable cause are not 
persuasive, we will notify the Tribe of our decision in writing.
    (e) If we request additional information from a Tribe, it must 
provide the information within two weeks of the date of our request.


Sec. 286.200  How may a Tribe establish reasonable cause for failing to 
meet a requirement that is subject to application of a penalty?

    (a) We will not impose a penalty against a Tribe if it is 
determined that the Tribe had reasonable cause for failure to meet the 
requirements listed at Sec. 286.170(a)(1), Sec. 286.170(a)(2) or 
Sec. 286.170(a)(3). The general factors a Tribe may use to claim 
reasonable cause include but are not limited to the following:
    (1) Natural disasters and other calamities (e.g., hurricanes, 
earthquakes, fire) whose disruptive impact was so significant that the 
Tribe failed to meet a requirement.

[[Page 39408]]

    (2) Formally issued Federal guidance which provided incorrect 
information resulting in the Tribe's failure, or guidance that was 
issued after a Tribe implemented the requirements of the Act based on a 
different, but reasonable, interpretation of the Act.
    (3) Isolated, non-recurring problems of minimal impact that are not 
indicative of a systemic problem.
    (b) In addition to the general reasonable cause criteria specified 
in paragraph (a) of this section, a Tribe may also submit a request for 
a reasonable cause exemption from the requirement to meet its work 
participation requirements in the following situation:
    (1) We will consider that a Tribe has reasonable cause it 
demonstrates that its failure to meet its work participation rate(s) is 
attributable to its provisions with regard domestic violence as 
follows:
    (i) To demonstrate reasonable cause, a Tribe must provide evidence 
that it achieved the applicable work rates, except with respect to any 
individuals receiving good cause waivers of work requirements (i.e., 
when cases with good cause waivers are removed from the calculation in 
Sec. 286.80; and
    (ii) A Tribe must grant good cause in domestic violence cases 
appropriately, in accordance with the policies in the Tribe's approved 
Tribal Family Assistance Plan.
    (2) [Reserved]


Sec. 286.205  What if a Tribe does not have reasonable cause for 
failing to meet a requirement?

    (a) To avoid the imposition of a penalty under Sec. 286.170(a)(1), 
Sec. 286.170(a)(2) or Sec. 286.170(a)(3), under the following 
circumstances a Tribe must enter into a corrective compliance plan to 
correct the violation:
    (1) If a Tribe does not claim reasonable cause for failing to meet 
a requirement; or
    (2) If we found that a Tribe did not have reasonable cause.
    (b) A Tribe that does not claim reasonable cause will have 60 days 
from receipt of the notice described in Sec. 286.195(a) to submit its 
corrective compliance plan to us.
    (c) A Tribe that unsuccessfully claims reasonable cause will have 
60 days from receipt of the second notice described in Sec. 286.195(d) 
to submit its corrective compliance plan to us.
    (d) In its corrective compliance plan the Tribe must outline:
    (1) Why it failed to meet the requirements;
    (2) How it will correct the violation in a timely manner; and
    (3) What actions, outcomes and time line it will use to ensure 
future compliance.
    (e) During the 60-day period beginning with the date we receive the 
corrective compliance plan, we may, if necessary, consult with the 
Tribe on modifications to the plan.
    (f) A corrective compliance plan is deemed to be accepted if we 
take no action to accept or reject the plan during the 60-day period 
that begins when the plan is received.
    (g) Once a corrective compliance plan is accepted or deemed 
accepted, we may request reports from the Tribe or take other actions 
to confirm that the Tribe is carrying out the corrective actions 
specified in the plan.
    (1) We will not impose a penalty against a Tribe with respect to 
any violation covered by that plan if the Tribe corrects the violation 
within the time frame agreed to in the plan.
    (2) We must assess some or all of the penalty if the Tribe fails to 
correct the violation pursuant to its corrective compliance plan.


Sec. 286.210  What penalties cannot be excused?

    (a) The penalties that cannot be excused are:
    (1) The penalty for failure to repay a Federal loan issued under 
section 406.
    (2) The penalty for failure to replace any reduction in the TFAG 
resulting from other penalties that have been imposed.
    (b) [Reserved]


Sec. 286.215  How can a Tribe appeal our decision to take a penalty?

    (a) We will formally notify the Tribe that we will reduce the 
Tribe's TFAG within five days after we determine that a Tribe is 
subject to a penalty and inform the Tribe of its right to appeal to the 
Departmental Appeals Board (the Board) established in the Department of 
Health and Human Services.
    (b) Within 60 days of the date it receives notice of the penalty, 
the Tribe may file an appeal of the action, in whole or in part, to the 
Board.
    (c) The Tribe's appeal must include all briefs and supporting 
documentation for its case when it files its appeal. A copy of the 
appeal must be sent to the Office of General Counsel, Children, 
Families and Aging Division, Room 411-D, 200 Independence Avenue, SW, 
Washington, DC 20201.
    (d) ACF must file its reply brief and supporting documentation 
within 30 days after the Tribe files its appeal.
    (e) The Tribe's appeal to the Board must follow the provisions of 
this section and those at Secs. 16.2, 16.9, 16.10, and 16.13 through 
16.22 of this title.
    (f) The Board will consider an appeal filed by a Tribe on the basis 
of the documentation and briefs submitted, along with any additional 
information the Board may require to support a final decision. In 
deciding whether to uphold an adverse action or any portion of such 
action, the Board will conduct a thorough review of the issues and make 
a final determination within 60 days after the appeal if filed.
    (g)(1) The filing date shall be the date materials are received by 
the Board in a form acceptable to it.
    (2) If the Board requires additional documentation to reach its 
decision, the 60 days will be tolled for a reasonable period, specified 
by the Board, to allow production of the documentation.
    (h)(1) A Tribe may obtain judicial review of a final decision by 
the Board by filing an action within 90 days after the date of such 
decision with the district court of the United States in the judicial 
district where the Tribe or TFAG service area is located.
    (2) The district court will review the final decision of the Board 
on the record established in the administrative proceeding, in 
accordance with the standards of review prescribed by 5 U.S.C. 706(2). 
The court's review will be based on the documents and supporting data 
submitted to the Board.

Subpart E--Data Collection and Reporting Requirements


Sec. 286.220  What data collection and reporting requirements apply to 
Tribal TANF programs?

    (a) Section 412(h) of the Act makes section 411 regarding data 
collection and reporting applicable to Tribal TANF programs. This 
section of the regulations explains how we will collect the information 
required by section 411 of the Act and information to implement section 
412(c) (work participation requirements).
    (b) Each Tribe must collect monthly and file quarterly data on 
individuals and families as follows:
    (1) Disaggregated data collection and reporting requirements in 
this part apply to families receiving assistance and families no longer 
receiving assistance under the Tribal TANF program; and
    (2) Aggregated data collection and reporting requirements in this 
part apply to families receiving, families applying for, and families 
no longer receiving assistance under the Tribal TANF program.
    (c) Each Tribe must file in its quarterly TANF Data Report and in 
the quarterly TANF Financial Report the specified data elements.

[[Page 39409]]

    (d) Each Tribe must also submit an annual report that contains 
specified information.
    (e) Each Tribe must submit the necessary reports by the specified 
due dates.


Sec. 286.225  What definitions apply to this subpart?

    (a) Except as provided in paragraph (b) of this section, the 
general TANF definitions at Sec. 286.5 apply to this subpart.
    (b) For data collection and reporting purposes only, TANF family 
means:
    (1) All individuals receiving assistance as part of a family under 
the Tribe's TANF program; and
    (2) The following additional persons living in the household, if 
not included under paragraph (b)(1) of this section:
    (i) Parent(s) or caretaker relative(s) of any minor child receiving 
assistance;
    (ii) Minor siblings of any child receiving assistance; and
    (iii) Any person whose income or resources would be counted in 
determining the family's eligibility for or amount of assistance.


Sec. 286.230  What quarterly reports must the Tribe submit to us?

    (a) Quarterly reports. Each Tribe must collect on a monthly basis, 
and file on a quarterly basis, the data specified in the Tribal TANF 
Data Report and the Tribal TANF Financial Report.
    (b) Tribal TANF Data Report. The Tribal TANF Data Report consists 
of three sections. Two sections contain disaggregated data elements and 
one section contains aggregated data elements.
    (1) TANF Data Report: Disaggregated Data--Sections one and two. 
Each Tribe must file disaggregated information on families receiving 
TANF assistance (section one) and families no longer receiving TANF 
assistance (section two). <SUP>1</SUP> These two sections specify 
identifying and demographic data such as the individual's Social 
Security Number; and information such as the type and amount of 
assistance received, educational level, employment status, work 
participation activities, citizenship status, and earned and unearned 
income. These reports also specify items pertaining to child care and 
child support. The data requested cover adults (including non-custodial 
parents who are participating in work activities) and children.
---------------------------------------------------------------------------

    \1\  See Appendices A and B to this part for the specific data 
elements we are proposing.
---------------------------------------------------------------------------

    (2) TANF Data Report: Aggregated Data--Section three. Each Tribe 
must file aggregated information on families receiving, applying for, 
and no longer receiving TANF assistance. <SUP>2</SUP> This section of 
the Report asks for aggregate figures in the following areas: The total 
number of applications and their disposition; the total number of 
recipient families, adult recipients, and child recipients; the total 
number of births, out-of-wedlock births, and minor child heads-of-
households; the total number of non-custodial parents participating in 
work activities; and the total amount of TANF assistance provided.
---------------------------------------------------------------------------

    \2\  See Appendix C to this part for the specific data elements 
we are proposing.
---------------------------------------------------------------------------

    (c) The Tribal TANF Financial Report. (1) Each Tribe must file 
quarterly expenditure data on the Tribe's use of Tribal Family 
Assistance Grant funds, any Tribal contributions, and State 
contributions. The report must be submitted on a form prescribed by 
ACF.
    (2) In addition, each Tribe must file annually with the fourth 
quarter Tribal TANF Financial Report definitions and descriptive 
information on the Tribe's TANF program.
    (3) If a Tribe makes a substantive change in its definition of work 
activities, its description of transitional services provided to 
families no longer receiving assistance due to employment under the 
Tribal TANF program, or how it reduces the amount of assistance when an 
individual refuses to engage in work, as specified in Sec. 286.130, it 
must file a copy of the changed definition or description with the next 
quarterly report. The Tribe must also indicate the effective date of 
the change.


Sec. 286.235  May Tribes use sampling and electronic filing?

    (a)(1) Each Tribe may report disaggregated data on all recipient 
families (universal reporting) or on a sample of families selected 
through the use of a scientifically acceptable sampling method. The 
sampling method must be approved by ACF in advance of submitting 
reports.
    (2) Tribes may not use a sample to generate the aggregated data.
    (b) ``Scientifically acceptable sampling method'' means a 
probability sampling method in which every sampling unit has a known, 
non-zero chance to be included in the sample, and the sample size 
requirements are met.
    (c) Each Tribe may file quarterly reports electronically, based on 
format specifications which we will provide. Tribes who do not have the 
capacity to submit reports electronically may submit quarterly reports 
on a disk or in hard copy.


Sec. 286.240  When are quarterly reports due?

    (a) Each Tribe must submit (ie., postmarked) its Tribal TANF Data 
Report and Tribal TANF Financial Report, including the addendum to the 
fourth quarter Financial Report, within 45 days following the end of 
quarter. If the 45th day falls on a weekend or national holiday, the 
reports are due no later than the next business day.
    (b) The first reports required to be submitted must cover the 
period that begins six months after the date of implementation of the 
Tribal TANF program.


Sec. 286.245  What happens if the Tribe does not satisfy the quarterly 
reporting requirements?

    (a)(1) If we determine that a Tribe has not submitted to us a 
complete and accurate Tribal TANF Data Report within the time limit, 
the Tribe risks the imposition of a penalty at Sec. 286.180 related to 
the work participation rate targets since the data from the Tribal TANF 
Data Report is required to calculate participation rates.
    (2) Non-reporting of the Tribal TANF Financial Report may give rise 
to a penalty under Sec. 286.175--use of TANF funds in violation of part 
IV-A of the Act.
    (b) [Reserved]


Sec. 286.250  What information must Tribes file annually?

    (a) Each Tribe must file annually, as an addendum to the fourth 
quarter Tribal TANF Financial Report, the following definitions and 
information with respect to the Tribal TANF program for that year:
    (1) The number of families excluded from the calculations at 
Secs. 286.80 and 286.110 of this chapter because of the Tribe's 
definition of families receiving assistance, together with the basis 
for such exclusions;
    (2) The Tribe's definition of each work activity;
    (3) A description of the transitional services provided to families 
no longer receiving assistance due to employment; and
    (4) A description of how a Tribe will reduce the amount of 
assistance payable to a family when an individual refuses to engage in 
work without good cause.
    (b) Each Tribe must file an annual program and performance report 
that provides information about the characteristics and achievements of 
the Tribal program; the design and operation of the program; the 
services, benefits, assistance provided; the eligibility criteria; and 
the extent to which the Tribe has met its goals and objectives for the 
program. Each Tribe

[[Page 39410]]

may also include a description of any unique features, accomplishments, 
innovations, or additional information appropriate for the Department's 
annual report to Congress.


Sec. 286.255  When are annual reports due?

    (a) The annual report of Tribal definitions and expenditures 
required by Sec. 286.250 is due (ie., postmarked) at the same time as 
the fourth quarter Tribal TANF Financial Report.
    (b) The annual program and performance report to meet the 
requirements of section 411(b) of the Act (report to Congress) is due 
90 days after the end of the fiscal year. The first report, covering FY 
1998, is due December 30, 1998.


Sec. 286.260  How do the data collection and reporting requirements 
affect Public Law 102-477 Tribes?

    (a) A Tribe that consolidates its Tribal TANF program into a 
Public-Law 102-477 plan is required to comply with the TANF data 
collection and reporting requirements of this section.
    (b) A Tribe that consolidates its Tribal TANF program into a 
Public-Law 102-477 plan may submit the Tribal TANF Data Reports and the 
Tribal TANF Financial Report to the BIA, with a copy to us.

Appendix A--Tribal TANF Data Report--Section One; Disaggregated Data 
Collection for Families Receiving Assistance Under the TANF Program

Instructions and Definitions

    General Instruction: The Tribal grantee should collect and 
report data for each data element, unless explicitly instructed to 
leave the field blank.
    1. State FIPS Code: Tribal grantees should leave this field 
blank.
    2. County FIPS Code: Tribal grantees should leave this field 
blank.
    3. Tribal Code: Tribal grantees should enter the three-digit 
Tribal code that represents your Tribe. (A complete listing of 
Tribal Codes will be furnished to Tribes.)
    4. Reporting Month: Enter the four-digit year and two-digit 
month code that identifies the year and month for which the data are 
being reported.
    5. Stratum:
    Guidance: All TANF families selected in the sample from the same 
stratum must be assigned the same stratum code. Valid stratum codes 
may range from ``00'' to ``99.'' Tribes with stratified samples 
should provide the ACF Regional Office with a listing of the numeric 
codes utilized to identify any stratification. If a Tribe that could 
sample but opts to provide data for its entire caseload, enter the 
same stratum code (any two-digit number) for each TANF family.
    Instruction: Enter the two-digit stratum code.

Family-Level Data

    Definition: For reporting purposes, the TANF family means (a) 
all individuals receiving assistance as part of a family under the 
Tribe's TANF Program; and (b) the following additional persons 
living in the household, if not included under (a) above:
    (1) Parent(s) or caretaker relative(s) of any minor child 
receiving assistance;
    (2) Minor siblings (including unborn children) of any child 
receiving assistance; and
    (3) Any person whose income or resources would be counted in 
determining the family's eligibility for or amount of assistance.
    6. Case Number--TANF:
    Guidance: If the case number is less than the allowable eleven 
characters, a Tribe may use lead zeros to fill in the number.
    Instruction: Enter the number assigned by the Tribal grantee to 
uniquely identify the case after formal approval to receive 
assistance.
    7. ZIP Code: Enter the five-digit ZIP code for the TANF family's 
place of residence for the reporting month.
    8. Funding Stream: For Tribes that bifurcate their caseloads, 
enter the appropriate code for the funding stream used to provide 
assistance to this TANF family. If the Tribe does not bifurcate its 
caseload, enter code ``1.''

1 = Funded, in whole or in part, with Federal TANF block grant funds
2 = Funded entirely from State-only funds which are subject to TANF 
rules.

    9. Disposition:
    Guidance: A family that did not receive any assistance for the 
reporting month but was listed on the monthly sample frame for the 
reporting month is ``listed in error.'' Tribes are to complete data 
collection for all sampled cases that are not listed in error.
    Instruction: Enter one of the following codes for each TANF 
sampled case.

1 = Data collection completed
2 = Not subject to data collection/listed in error

    10. New Applicant:
    Guidance: A newly-approved applicant means the current reporting 
month is the first month for which the TANF family has received TANF 
assistance (and thus has had a chance to be selected into the TANF 
sample). This may be either the first month that the TANF family has 
ever received assistance or the first month of a new spell on 
assistance. A TANF family that is reinstated from a suspension is 
not a newly, approved applicant.
    Instruction: Enter the one-digit code that indicates whether or 
not the TANF family is a newly-approved applicant.

1 = Yes, a newly-approved application
2 = No

    11. Number of Family Members: Enter two digits that represent 
the number of members in the family receiving assistance under the 
Tribe's TANF Program during the reporting month.
    12. Type of Family for Work Participation:
    Guidance: This data element will be used to identify the type of 
family (i.e., the number of parents or care-taker relatives in the 
family receiving assistance) in order to calculate the all family 
and the two-parent family work participation rates. A family with a 
minor child head-of-household should be coded as either a single-
parent family or two-parent family, whichever is appropriate. A 
family that includes a disabled parent will not be considered a two-
parent family for purposes of the work participation rate. A 
noncustodial parent, who lives in the State, may participate in work 
activities funded under the Tribal TANF Program and receive other 
assistance. In order for the noncustodial parent to participate in 
work activities and receive assistance, (s)he must be a member of 
the eligible family receiving assistance and be reported as part of 
the TANF family. However, for Tribes with both a one-parent and a 
two-parent work participation rate, it is up to the Tribe to 
consider whether a family with a non-custodial parent is a one-
parent or two-parent family for the purposes of calculating the work 
participation rate.
    Instruction: Enter the one-digit code that represents the type 
of family for purposes of calculating the work participation rates.

1 = Single-Parent Family for participation rate purposes
2 = Two-Parent Family for participation rate purposes
3 = No Parent Family for participation rate purposes (does not 
include parents, care-taker relatives, or minor child heads-of-
household)

    13. Receives Subsidized Housing:
    Guidance: Subsidized housing refers to housing for which money 
was paid by the Federal, State, or Local government or through a 
private social service agency to the family or to the owner of the 
housing to assist the family in paying rent. Two families sharing 
living expenses does not constitute subsidized housing.
    Instruction: Enter the one-digit code that indicates whether or 
not the TANF family received subsidized housing for the reporting 
month.

1 = Public housing
2 = HUD rent subsidy
3 = Other rent subsidy
4 = No housing subsidy

    14. Receives Medical Assistance: Enter ``1'' if, for the 
reporting month, any TANF family member is eligible to receive 
(i.e., a certified recipient of) medical assistance under a State 
plan approved under Title XIX or ``2'' if no TANF family member is 
eligible to receive medical assistance under a State plan approved 
under Title XIX.

1 = Yes, is eligible to receive medical assistance
2 = No

    15. Receives Food Stamps:
    If the TANF family received Food Stamps for the reporting month, 
enter the one-digit code indicating the type of Food Stamp 
assistance. Otherwise, enter ``4.''

1 = Yes, Food Stamp coupon allotment
2 = Yes, cash
3 = Yes, wage subsidy
4 = No

    16. Amount of Food Stamp Assistance:
    Guidance: For situations in which the Food Stamp household 
differs from the TANF family, code this element in a manner that

[[Page 39411]]

most accurately reflects the resources available to the TANF family.
    Instruction: Enter the TANF family's authorized dollar amount of 
Food Stamp assistance for the reporting month.
    17. Receives Subsidized Child Care:
    Guidance: For the purpose of coding this data element, 
Subsidized Child Care funded under the Child Care and Development 
Fund with funds that were transferred from the State TANF Program 
should be coded as ``2.''
    Instruction: If the TANF family receives subsidized child care 
for the reporting month, enter code ``1'', ``2'', ``3'', or ``4'', 
whichever is appropriate. Otherwise, enter code ``5.''

1 = Yes, funded under the Tribal or State TANF Program
2 = Yes, funded under the Child Care and Development Fund
3 = Yes, funded under another Federal program (e.g., SSBG)
4 = Yes, funded under a Tribal, State, or local program
5 = No

    18. Amount of Subsidized Child Care:
    Guidance: Subsidized child care means a grant by the Federal, 
State or Local government to a parent (or care-taker relative) to 
support, in part or whole, the cost of child care services provided 
by an eligible provider to an eligible child. The grant may be paid 
directly to the parent (or care-taker relative) or to a child care 
provider on behalf of the parent (or care-taker relative).
    Instruction: Enter the dollar amount of subsidized child care 
that the TANF family has received for services in the reporting 
month. If the TANF family did not receive any subsidized child care 
for the reporting month, enter ``00.''
    19. Amount of Child Care Disregard: Enter the total dollar 
amount of the TANF family's actual disregard allowed for child care 
expenses during the reporting month. If there is no child care 
disregard, enter ``0'' as the amount.
    20. Amount of Child Support: Enter the total dollar value of 
child support received on behalf of the TANF family in the reporting 
month, which includes arrearages, recoupments, and pass-through 
amounts whether paid to the Tribe, the State or the family.
    21. Amount of the Family's Cash Resources: Enter the total 
dollar amount of the TANF family's cash resources for the reporting 
month.
    Amount of Assistance Received and the Number of Months that the 
Family Has Received Each Type of Assistance under the Tribal TANF 
Program:
    Guidance: Assistance means every form of support provided to 
TANF families under the Tribal TANF Program (including child care, 
work subsidies, and allowances to meet living expenses), except for 
the following:
    (1) Services that have no direct monetary value to an individual 
family and that do not involve implicit or explicit income support, 
such as counseling, case management, peer support and employment 
services that do not involve subsidies or other forms of income 
support; and
    (2) One-time, short-term assistance (i.e., assistance paid 
within a 30-day period, no more than once in any twelve-month 
period, to meet needs that do not extend beyond a 90-day period, 
such as automobile repair to retain employment and avoid welfare 
receipt and appliance repair to maintain living arrangements).
    Instruction: For each type of assistance provided under the 
Tribal TANF Program, enter the dollar amount of assistance that the 
TANF family received or that was paid on behalf of the TANF family 
for the reporting month and the number of months that the TANF 
family has received assistance under the Tribe's TANF program. If, 
for a ``type of assistance'', no dollar amount of assistance was 
provided during the reporting month, enter ``0'' as the amount. If, 
for a ``type of assistance'', no assistance has been received (since 
the Tribe began its TANF Program) by the TANF eligible family, enter 
``0'' as the number of months of assistance.
    22. Cash and Cash Equivalents:
      A. Amount
      B. Number of Months
    23. Educational:
      A. Amount
      B. Number of Months
    24. Employment Services:
      A. Amount
      B. Number of Months
    25. Work Subsidies:
      A. Amount
      B. Number of Months
    26. TANF Child Care:
    Guidance: Include only the child care funded directly by the 
Tribal TANF Program. Do not include child care funded under the 
Child Care and Development Fund, even though some of the funds were 
transferred to the CCDF from the TANF program.
      A. Amount
      B. Number of Months
    27. Transportation:
      A. Amount
      B. Number of Months
    28. Other Supportive Services and Special Needs, including 
Assistance with Meeting Home Heating and Air Conditioning Costs:
      A. Amount
      B. Number of Months
    29. Transitional Services:
      A. Amount
      B. Number of Months
    30. Contributions to Individual Development Accounts:
      A. Amount
      B. Number of Months
    31. Other:
      A. Amount
      B. Number of Months
    Reason for and Amount of Reduction in Assistance
    For each reason for which the TANF family received a reduction 
in assistance for the reporting month, enter the dollar amount of 
the reduction in assistance. Otherwise, enter ``0.''
    32. Work Requirements Sanction.
    33. Family Sanction for an Adult with No High School Diploma or 
Equivalent.
    34. Sanction for Teen Parent not Attending School.
    35. Non-Cooperation with Child Support.
    36. Failure to Comply with an Individual Responsibility Plan.
    37. Other Sanction.
    38. Recoupment of Prior Overpayment.
    39. Family Cap.
    40. Reduction Based on Family Moving into Tribe's Service Area 
from Another TANF Program (Tribal or State).
    41. Reduction Based on Length of Receipt of Assistance.
    42. Other, Non-sanction.
    43. Waiver Evaluation Research Group:
    Guidance: Tribal grantees should leave this field blank.
    44. Is the TANF Family Exempt from the Federal Time Limit 
Provisions:
    Guidance: Under Tribal TANF rules, an eligible family that does 
not include an adult (or minor child head-of-household) recipient, 
who has received assistance for the maximum number of months 
approved in the Tribe's TANF plan, may continue to receive 
assistance. A countable month is a month of assistance for which the 
adult (or minor child head-of-household) is not exempt from the 
Federal time limit provisions. Proposed Tribal TANF rules provide 
for two categories of exceptions. First, a family which does not 
include an adult (or minor child head-of-household) who has received 
the maximum number of months of countable assistance approved in the 
Tribe's TANF plan may be exempt from the accrual of months of 
assistance (i.e., clock not ticking). Second, a family with an adult 
(or minor child head-of-household), who has received the maximum 
months of countable assistance approved in the Tribe's TANF plan may 
be exempt from termination of assistance. Exemptions from 
termination of assistance include a hardship exemption which allows 
up to 20% of the families to receive assistance beyond the approved 
time limit.
    Instruction: If the TANF family has no exemption from the 
Tribe's approved time limit, enter code ``1.'' If the TANF family 
does not include an adult (or minor child head-of-household) who has 
received assistance for the maximum number of countable months and 
is exempt from accrual of months of assistance under the Tribe's 
approved time limit for the reporting month, enter ``2'', ``3'', or 
``4'', whichever is appropriate. Tribe's should not enter ``5''.
    If the TANF family includes an adult (or minor child head-of-
household) who has received assistance for the maximum number of 
countable months and the family is exempt from termination of 
assistance, enter code ``6'', ``7'' ``8'' or ``9'', whichever is 
appropriate. Tribe's should not enter ``10'' or ``11''.

01=Family is not exempt from Tribe's approved time limit.

    Family does not include an adult (or minor child head-of-
household) who has received assistance for the maximum number of 
countable months.

02=Yes, family is exempt from accrual of months under the Tribe's 
approved time limit for the reporting month because no adult or 
minor child head-of-household in eligible family receiving 
assistance.
03=Yes, family is exempt from accrual of months under the Tribe's 
approved time limit for the reporting month because assistance to 
family is funded entirely from State-only funds.

[[Page 39412]]

04=Yes, family is exempt from accrual of months under the Tribe's 
approved time limit for the reporting month because the family is 
living in Indian country or in an Alaska Native village in which at 
least 50 percent of whose adults are not employed.
05=Yes, family is exempt from accrual of months under the Federal 
five-year time limit for the reporting month based on an approved 
waiver policy.

    Family includes an adult (or minor child head-of-household) who 
has received assistance for the maximum number of countable months 
under the Tribe's approved time limit.

06=Yes, family is exempt from termination of assistance under the 
Tribe's approved time limit for the reporting month because 
assistance to family is funded entirely from State-only funds.
07=Yes, family is exempt from termination of assistance under the 
Tribe's approved time limit for the reporting month due to a 
temporary good cause domestic violence waiver (and an inability to 
work).
08=Yes, family is exempt from termination of assistance under the 
Tribe's approved time limit for the reporting month due to a 
hardship exemption for reason other than domestic violence.
09=Yes, family is exempt from termination of assistance under the 
Tribe's approved time limit for the reporting month because the 
adult's (minor child head-of-household's) residence is in Indian 
country or in an Alaska Native village in which at least 50 percent 
of whose adults are not employed.
10 = Yes, family (including adults) is exempt from termination of 
assistance under the Federal five-year time limit for the reporting 
month in accordance with extension policies prescribed under 
approved waivers.
11 = Yes, the children in the family are receiving assistance beyond 
the 60 countable months and the family is exempt from termination of 
assistance under the Federal five-year time limit for the reporting 
month in accordance with extension policies prescribed under 
approved waivers (i.e., adult-only time limit).

Person-Level Data

    Person-level data has two sections: the adult and minor child 
head-of-household characteristic section and the child 
characteristics section. Section 419 of the Act defines adult and 
minor child. An adult is an individual that is not a minor child. A 
minor child is an individual who (a) has not attained 18 years of 
age or (b) has not attained 19 years of age and is a full-time 
student in a secondary school (or in the equivalent level of 
vocational or technical training.)

Adult and Minor Child Head-of-Household Characteristics

    This section allows for coding up to six adults (or a minor 
child who is either a head-of-household or married to the head-of-
household and up to five adults) in the TANF family. A minor child 
who is either a head-of-household or married to the head-of-
household should be coded as an adult and will hereafter be referred 
to as a ``minor child head-of-household.'' For each adult (or minor 
child head-of-household) in the TANF family, complete the adult 
characteristics section. If a noncustodial parent is participating 
in work activities funded under the Tribal TANF Program for the 
reporting month, the noncustodial parent must also be reported in 
this section as a member of the family receiving assistance.
    If there are more than six adults (or a minor child head-of-
household and five adults) in the TANF family, use the following 
order to identify the persons to be coded: (1) The head-of-
household; (2) parents in the eligible family receiving assistance; 
(3) other adults in the eligible family receiving assistance; (4) 
Parents not in the eligible family receiving assistance; (5) 
caretaker relatives not in the eligible family receiving assistance; 
and (6) other persons, whose income or resources count in 
determining eligibility for or amount of assistance of the eligible 
family receiving assistance, in descending order the person with the 
most income to the person with least income.
    45. Family Affiliation:
    Guidance: This data element is used both for (1) the adult or 
minor child head-of-household section and (2) the minor child 
section. The same coding schemes are used in both sections. Some of 
these codes may not be applicable for adults.
    Instruction: Enter the one-digit code that shows the adult's (or 
minor child head-of-household's) relation to the eligible family 
receiving assistance.

1 = Member of the eligible family receiving assistance

    Not in eligible family receiving assistance, but in the 
household.

 2 = Parent of minor child in the eligible family receiving 
assistance
 3 = Caretaker relative of minor child in the eligible family 
receiving assistance
 4 = Minor sibling of child in the eligible family receiving 
assistance
 5 = Person whose income or resources are considered in determining 
eligibility for or amount of assistance for the eligible family 
receiving assistance
    46. Noncustodial Parent Indicator:
    Guidance: A noncustodial parent means a parent who does not live 
with his/her child(ren). A noncustodial parent, who lives in the 
State, may participate in work activities funded under the Tribal 
TANF Program. In order for the noncustodial parent to participate in 
work activities, (s)he must be a member of the eligible family 
receiving assistance and be reported as part of the TANF family.
    Instruction: Enter the one-digit code that indicates the adult's 
(or minor child head-of-household's) noncustodial parent status.

1 = Yes, a noncustodial parent
 2 = No

    47. Date of Birth: Enter the eight-digit code for date of birth 
for the adult (or minor child head-of-household) under the Tribal 
TANF Program in the format YYYYMMDD.
    48. Social Security Number: Enter the nine-digit Social Security 
Number for the adult (or minor child head-of-household) in the format 
nnnnnnnnn.
    49. Race: Enter the one-digit code for the race of the TANF adult 
(or minor child head-of-household).

1 = White, not of Hispanic origin
2 = Black, not of Hispanic origin
3 = Hispanic
 4 = American Indian or Alaska Native
5 = Asian or Pacific Islander
 6 = Other
9 = Unknown

    50. Gender: Enter the one-digit code that indicates the adult's 
(or minor child head-of-household's) gender.

1 = Male
2 = Female

Receives Disability Benefits

    The Act specifies five types of disability benefits. For each 
type of disability benefits, enter the one-digit code that indicates 
whether or not the adult (or minor child head-of-household) received 
the benefit.
    51. Receives Federal Disability Insurance Benefits: Enter the 
one-digit code that indicates the adult (or minor child head-of-
household) received Federal disability insurance benefits for the 
reporting month.

1 = Yes, received Federal disability insurance
 2 = No
    52. Receives Benefits Based on Federal Disability Status: Enter 
the one-digit code that indicates the adult (or minor child head-of-
household) received benefits based on Federal disability status for 
the reporting month.
1 = Yes, received benefits based on Federal disability status
2 = No

    53. Receives Aid Under Title XIV-APDT: Enter the one-digit code 
that indicates the adult (or minor child head-of-household) received 
aid under a State plan approved under Title XIV for the reporting 
month.

1 = Yes, received aid under Title XIV-APDT
2 = No

    54. Receives Aid Under Title XVI-AABD: Enter the one-digit code 
that indicates the adult (or minor child head-of-household) received 
aid under a State plan approved under Title XVI-AABD for the 
reporting month.

1 = Yes, received aid under Title XVI-AABD
2 = No

    55. Receives Aid Under Title XVI-SSI: Enter the one-digit code 
that indicates the adult (or minor child head-of-household) received 
aid under a State plan approved under Title XVI-SSI for the 
reporting month.

1 = Yes, received aid under Title XVI-SSI
2 = No

    56. Marital Status: Enter the one-digit code for the adult's (or 
minor child head-of-household's) marital status for the reporting 
month.

1 = Single, never married
2 = Married, living together
3 = Married, but separated
4 = Widowed
5 = Divorced

    57. Relationship to Head-of-Household: 
    Guidance: This data element is used both for (1) the adult or 
minor child head-of-

[[Page 39413]]

household section and (2) the minor child section. The same coding 
schemes are used in both sections. Some of these codes may not be 
applicable for adults.
    Instruction: Enter the two-digit code that shows the adult's 
relationship (including by marriage) to the head of the household, 
as defined by the Food Stamp Program or as determined by the Tribe, 
(i.e., the relationship to the principal person of each person 
living in the household). If minor child head-of-household, enter 
code ``01.''

01 = Head of household
02 = Spouse
03 = Parent
04 = Daughter or son
05 = Stepdaughter or stepson
06 = Grandchild or great grandchild
07 = Other related person (brother, niece, cousin)
08 = Foster child
09 = Unrelated child
10 = Unrelated adult

    58. Teen Parent With Child In the Family: 
    Guidance: A teen parent is a person who is under 20 years of age 
and that person's child is also a member of the TANF family.
    Instruction: Enter the one-digit code that indicates the adult's 
(or minor child head-of-household's) teen parent status.

1 = Yes, a teen parent
2 = No

Educational Level

    Educational level is divided into two parts: The highest level 
of education attained and the highest degree attained.
    59. Highest Level of Education Attained: Enter the two-digit 
code to indicate the highest level of education attained by the 
adult (or minor child head-of-household).
00 = No formal education
01-12 = Grade level completed in primary/secondary school including 
secondary level vocational school or adult high school

    60. Highest Degree Attained: If the adult (or minor child head-
of-household) has a degree(s), enter the one-digit code that 
indicates the adult's (or minor child head-of-household's) highest 
degree attained. Otherwise, leave the field blank.

0 = No degree
1 = High school diploma, GED, or National External Diploma Program
2 = Awarded Associate's Degree
3 = Awarded Bachelor's Degree
4 = Awarded graduate degree (Master's or higher)
5 = Other credentials (degree, certificate, diploma, etc.)

    61. Citizenship/Alienage:
    Guidance: As described in TANF-ACF-PA-97-1, States have the 
flexibility to: (1) Use State MOE funds to serve ``qualified'' 
aliens, including those who enter on or after August 22, 1996; (2) 
use Federal TANF funds to serve ``qualified'' aliens who arrived 
prior to the enactment of the PRWORA on August 22, 1996 (such aliens 
who arrived after enactment are barred from receiving Federal TANF 
funds for five years from the date of entry, except for certain 
aliens such as refugees and asylees); (3) use State MOE funds to 
serve legal aliens who are not ``qualified''; and (4) use, under 
section 411(d) of PRWORA, State MOE funds to serve aliens who are 
not lawfully present in the U.S., but only through enactment of a 
State law, after the date of PRWORA enactment, which ``affirmatively 
provides'' for such benefits.
    The citizenship/alienage is divided into four groups: 
Individuals eligible (for the TANF Program based on citizenship/
alienage), individuals eligible at Tribal/State option, individuals 
not eligible, and status unknown.
    Instruction: Enter the two-digit code that indicates the adult's 
(or minor child head-of-household's) citizenship/alienage.

Individuals Eligible for the TANF Program

01 = U.S. citizen, including naturalized citizens
02 = Permanent resident who has worked forty qualifying quarters; 
alien who is a veteran with an honorable discharge from the U.S. 
Armed Forces or is on active duty in the U.S. Armed Forces, or 
spouse or unmarried dependent children of such alien
03 = Qualified alien accorded refugee, Cuban or Haitian entrant, or 
Amerasian immigrant status (INS Form I-94) who has resided in the 
U.S. five years or less
04 = Qualified alien granted political asylum five or less years 
ago; qualified alien granted a withholding of deportation by INS 
(under sec. 243(h) or sec. 241(b)(3) of the INA) five or less years 
ago.

Individuals Eligible for the TANF Program at Tribal Option

05 = Qualified alien, (including immigrant accorded permanent 
resident status (``green card''), parolee granted parole for at 
least one year under sec. 212(d)(5) of the INA, and certain battered 
aliens and their children who are determined to be qualified), who 
arrived in the U.S. prior to enactment (August 22, 1996) or who 
arrived in the U.S. on or after enactment and has resided in the 
U.S. more than five years
06 = Qualified alien accorded refugee, Cuban or Haitian entrant, or 
Amerasian immigrant status (INS Form I-94) who has resided in the 
U.S. more than five years
07 = Qualified alien granted political asylum or granted withholding 
of deportation by INS (under sec. 243(h) or sec. 241(b)(3) of the 
INA) more than five years ago;

Individuals Not Eligible for the TANF Program

08 = Qualified alien (other than a refugee, Cuban or Haitian 
entrant, Amerasian immigrant, asylee, or alien whose deportation has 
been withheld under sec. 243(h) or sec. 241(b)(3) of the INA) who 
arrived in the U.S. on or after enactment and has resided in the 
U.S. less than 5 years.
09 = Any alien who is not a qualified alien.

Status Unknown

99 = Unknown

    62. Number of Months Countable toward Tribe's Approved Federal 
Time Limit in Own Tribe: Enter the number of months countable toward 
the adult's (or minor child head-of-household's) Federal time limit 
based on assistance received from the Tribe.
    63. Number of Months Countable toward Federal Time Limit in 
Other Tribes or States: Enter the number of months countable toward 
the adult's (or minor child head-of-household's) Federal time limit 
based on assistance received from other Tribes or States.
    64. Number of Countable Months Remaining Under Tribe's Time 
Limit: Enter the number of months that remain countable toward the 
adult's (or minor child head-of-household's) Tribal time limit.
    65. Is Current Month Exempt from the Tribe's Time Limit: Enter 
the one-digit code that indicates the adult's (or minor child head-
of-household's) current exempt status from Tribe's time limit.
1 = Yes, adult (or minor child head-of-household) is exempt from the 
Tribe's time limit for the reporting month
2 = No

    66. Employment Status: Enter the one-digit code that indicates 
the adult's (or minor child head-of-household's) employment status.

1 = Employed
2 = Unemployed, looking for work
3 = Not in labor force (i.e, unemployed, not looking for work, 
includes discouraged workers)

    67. Work Participation Status:
    Guidance: Disregarded from the participation rate means the TANF 
family is not included in the calculation of the work participation 
rate.
    Exempt means that the individual will not be penalized for 
failure to engage in work (i.e., good cause exception); however, the 
TANF family is included in the calculation of the work participation 
rate.
    Instruction: Enter the two-digit code that indicates the adult's 
(or minor child head-of-household's) work participation status. 
Tribes should not enter codes xxx.

01 = Disregarded from participation rate, single custodial parent 
with child under 12 months
02 = Disregarded from participation rate because all of the 
following apply: Required to participate, but not participating, 
sanctioned for the reporting month, but not sanctioned for more than 
3 months within the preceding 12-month period
03 = Disregarded, family is part of an ongoing research evaluation 
(as a member of a control group or experimental treatment group) 
approved under Section 1115 of the Social Security Act
04 = Disregarded from participation rate, is participating in a 
Tribal Work Program, and State has opted to exclude all Tribal Work 
Program participants from its work participation rate
05 = Exempt, single custodial parent with child under age 6 and 
unavailability of child care
06 = Exempt, disabled (not using an extended definition under a 
State waiver)
07 = Exempt, caring for a severely disabled child (not using an 
extended definition under a State waiver)

[[Page 39414]]

08 = A temporary good cause domestic violence waiver (not using an 
extended definition under a State waiver)
09 = Exempt, State waiver
10 = Exempt, other
11 = Required to participate, but not participating, sanctioned for 
the reporting month and sanctioned for more than 3 months within the 
preceding 12-month period
12 = Required to participate, but not participating, sanctioned for 
the reporting month but not sanctioned for more than 3 months within 
the preceding 12-month period
13 = Required to participate, but not participating and not 
sanctioned for the reporting month
14 = Deemed engaged in work, teen head-of-household who maintains 
satisfactory school attendance
15 = Deemed engaged in work, single parent with child under age 6 
and parent engaged in work activities for at least 20 hours per week
16 = Required to participate, participating but not meeting minimum 
participation requirements
17 = Required to participate, and meeting minimum participation 
requirements
99 = Not applicable (e.g., person living in household and whose 
income or resources are counted in determining eligibility for or 
amount of assistance of the family receiving assistance, but not in 
eligible family receiving assistance)

Adult Work Participation Activities

    Guidance: To calculate the average number of hours per week of 
participation in a work activity, add the number of hours of 
participation across all weeks in the month and divide by the number 
of weeks in the month. Round to the nearest whole number.
    Some weeks have days in more than one month. Include such a week 
in the calculation for the month that contains the most days of the 
week (e.g., the week of July 27-August 2, 1997 would be included in 
the July calculation). Acceptable alternatives to this approach must 
account for all weeks in the fiscal year. One acceptable alternative 
is to include the week in the calculation for whichever month the 
Friday falls (i.e., the JOBS approach.) A second acceptable 
alternative is to count each month as having 4.33 weeks.
    During the first or last month of any spell of assistance, a 
family may happen to receive assistance for only part of the month. 
If a family receives assistance for only part of a month, the Tribe 
may count it as a month of participation if an adult (or minor child 
head-of-household) in the family (both adults, if they are both 
required to work) is engaged in work for the minimum average number 
of hours for the full week(s) that the family receives assistance in 
that month.
    Special Rules: Each adult (or minor child head-of-household) has 
a life-time limit for vocational educational training. Vocational 
educational training for each adult or minor child head-of-household 
may only count as a work activity for a total of 12 months unless 
the Tribe has been approved for either no limit or some other limit. 
For any adult (or minor child head-of-household) that has exceeded 
the limit, enter ``0'' as the average number of hours per week of 
participation in vocational education training, even if (s)he is 
engaged in vocational education training. The additional 
participation in vocational education training may be coded under 
``Other.''
    Limitations: The four limitations concerning job search and job 
readiness are: (1) Job search and job readiness assistance only 
count for 6 weeks in any fiscal year; (2) An individual's 
participation in job search and job readiness assistance counts for 
no more than 4 consecutive weeks; (3) If the Tribe's total 
unemployment rate for a fiscal year is at least 50 percent greater 
than the United States' total unemployment rate for that fiscal 
year, then an individual's participation in job search or job 
readiness assistance counts for up to 12 weeks in that fiscal year; 
and (4) A State may count 3 or 4 days of job search and job 
readiness assistance during a week as a full week of participation, 
but only once for any individual.
    For each week in which an adult (or minor child head-of-
household) exceeds any of these limitations, use ``0'' as the number 
of hours in calculating the average number of hours per week of job 
search and job readiness, even if (s)he may be engaged in job search 
or job readiness activities.
    Instruction: For each work activity in which the adult (or minor 
child head-of-household) participated during the reporting month, 
enter the average number of hours per week of participation, except 
as noted above. For each work activity in which the adult (or minor 
child head-of-household) did not participate, enter zero as the 
average number of hours per week of participation.
    68. Unsubsidized Employment.
    69. Subsidized Private Sector Employment.
    70. Subsidized Public Sector Employment.
    71. Work Experience.
    72. On-the-job Training.
    73. Job Search and Job Readiness Assistance.
    74. Community Service Programs.
    75. Vocational Educational Training.
    76. Job Skills Training Directly Related to Employment.
    77. Education Directly Related to Employment for Individuals 
with no High School Diploma or Certificate of High School 
Equivalency.
    78. Satisfactory School Attendance for Individuals with No High 
School Diploma or Certificate of High School Equivalency.
    79. Providing Child Care Services to an Individual Who Is 
Participating in a Community Service Program.
    80. Additional Work Activities Permitted Under Waiver 
Demonstration.
    Instruction: Not applicable to Tribal TANF programs.
    81. Other Work Activities.
    Guidance: Tribes should complete this element only if they have 
approved work activities that are other than the above.
    82. Required Hours of Work Under Waiver Demonstration:
    Guidance: Not applicable to Tribal TANF programs.

Amount of Earned Income

    Earned income has two categories. For each category of earned 
income, enter the dollar amount of the adult's (or minor child head-
of-household's) earned income.
    83. Earned Income Tax Credit (EITC):
    Guidance: Earned Income Tax Credit is a refundable tax credit 
for families and dependent children. EITC payments are received 
either monthly (as advance payment through the employer), annually 
(as a refund from IRS), or both.
    Instruction: Enter the total dollar amount of the earned income 
tax credit actually received, whether received as an advance payment 
or a single payment (e.g., tax refund), by the adult (minor child 
head-of-household) during the reporting month. If the Tribe counts 
the EITC as a resource, report it here as earned income in the month 
received. If the Tribe assumes an advance payment is applied for and 
obtained, only report what is actually received for this item.
    84. Wages, Salaries, and Other Earnings:

Amount of Unearned Income

    Unearned income has four categories. For each category of 
unearned income, enter the dollar amount of the adult's (or minor 
child head-of-household's) unearned income.
    85. Social Security: Enter the dollar amount of Social Security 
that the adult in the Tribal TANF family has received for the 
reporting month.
    86. SSI: Enter the dollar amount of SSI that the adult in the 
Tribal TANF family has received for the reporting month.
    87. Worker's Compensation: Enter the dollar amount of Worker's 
Compensation that the adult in the Tribal TANF family has received 
for the reporting month.
    88. Other Unearned Income:
    Guidance: Other unearned income includes (but is not limited to) 
RSDI benefits, Veterans benefits, Unemployment Compensation, other 
government benefits, housing subsidy, contribution/income-in-kind, 
deemed income, Public Assistance or General Assistance, educational 
grants/scholarships/loans, other. Do not include Social Security, 
SSI, Worker's Compensation, value of Food Stamps assistance, the 
amount of the Child Care subsidy, and the amount of Child Support.
    Instruction: Enter the dollar amount of other unearned income 
that the adult in the Tribal TANF family has received for the 
reporting month.

Child Characteristics

    This section allows for coding up to ten children in the TANF 
family. A minor child head-of-household should be coded as an adult, 
not as a child. The youngest child should be coded as the first 
child in the family, the second youngest child as the second child, 
and so on. If the needs of an unborn child are included in the 
amount of assistance provided to the family, code the unborn child 
as one of the children. Do this by entering the Date-of-Birth as 
``99999999'' and leave the other Child Characteristics fields blank.
    If there are more than ten children in the TANF family, use the 
following order to identify the persons to be coded: (1) Children

[[Page 39415]]

in the eligible family receiving assistance in order from youngest 
to oldest; (2) minor siblings of child in the eligible family 
receiving assistance from youngest to oldest; and (3) any other 
children.
    89. Family Affiliation:
    Guidance: This data element is used both for (1) the adult or 
minor child head-of-household section and (2) the minor child 
section. The same coding schemes are used in both sections. Some of 
these codes may not be applicable for children.
    Instruction: Enter the one-digit code that shows the Child's 
relation to the eligible family receiving assistance.

1 = Member of the eligible family receiving assistance

    Not in eligible family receiving assistance, but in the 
household.

2 = Parent of minor child in the eligible family receiving 
assistance
3 = Caretaker relative of minor child in the eligible family 
receiving assistance
4 = Minor sibling of child in the eligible family receiving 
assistance
5 = Person whose income or resources are considered in determining 
eligibility for or amount of assistance for the eligible family 
receiving assistance

    90. Date of Birth: Enter the eight-digit code for date of birth 
for this child under the Tribal TANF Program in the format YYYYMMDD.
    91. Social Security Number: Enter the nine-digit Social Security 
Number for the child in the format nnnnnnnnn.
    92. Race: Enter the one-digit code for the race of the TANF 
child.

1 = White, not of Hispanic origin
2 = Black, not of Hispanic origin
3 = Hispanic
4 = American Indian or Alaska Native
5 = Asian or Pacific Islander
6 = Other
9 = Unknown

    93. Gender: Enter the one-digit code that indicates the child's 
gender.

1 = Male
2 = Female

Receives Disability Benefits

    The Act specifies five types of disability benefits. Two of 
these types of disability benefits are applicable to children. For 
each type of disability benefits, enter the one-digit code that 
indicates whether or not the child received the benefit.
    94. Receives Benefits Based on Federal Disability Status: Enter 
the one-digit code that indicates the child received benefits based 
on Federal disability status for the reporting month.

1 = Yes, received benefits based on Federal disability status
2 = No


    95. Receives Aid Under Title XVI-SSI: Enter the one-digit code 
that indicates the child received aid under a State plan approved 
under Title XVI-SSI for the reporting month.

1=Yes, received aid under Title XVI-SSI
2=No

    96. Relationship to Head-of-Household:
    Guidance: This data element is used both for (1) the adult or 
minor child head-of-household section and (2) the minor child 
section. The same coding schemes are used in both sections. Some of 
these codes may not be applicable for children.
    Instruction: Enter the two-digit code that shows the child's 
relationship (including by marriage) to the head of the household, 
as defined by the Food Stamp Program or as determined by the Tribe, 
(i.e., the relationship to the principal person of each person 
living in the household.)

01=Head-of-household
02=Spouse
03=Parent
04=Daughter or son
05=Stepdaughter or stepson
06=Grandchild or great grandchild
07=Other related person (brother, niece, cousin)
08=Foster child
09=Unrelated child
10=Unrelated adult

    97. Teen Parent With Child In the Family:
    Guidance: A teen parent is a person who is under 20 years of age 
and that person's child is also a member of the TANF family.
    Instruction: Enter the one-digit code that indicates the child's 
teen parent status.

1=Yes, a teen parent
2=No

Educational Level

    Educational level is divided into two parts: The highest level 
of education attained and the highest degree attained.
    98. Highest Level of Education Attained: Enter the two-digit 
code to indicate the highest level of education attained by the 
child.

00=no formal education
01-12=Grade level completed in primary/secondary school including 
secondary level vocational school or adult high school

    99. Highest Degree Attained:
    Guidance: This data element is used both for (1) the adult or 
minor child head-of-household section and (2) the minor child 
section. The same coding schemes are used in both sections. Some of 
these codes may not be applicable for children.
    Instruction: If the child has a degree(s), enter the one-digit 
code that indicates the child's highest degree attained. Otherwise, 
leave the field blank.

0=No degree
1 = High school diploma, GED, or National External Diploma Program
2=Awarded Associate's Degree
3=Awarded Bachelor's Degree
4=Awarded graduate degree (Master's or higher)
5=Other credentials (degree, certificate, diploma, etc.)
9=Not applicable

    100. Citizenship/Alienage: Enter the two-digit code that 
indicates the child's citizenship/alienage. The coding for this data 
element is the same as for item number 56.
    101. Cooperation with Child Support: Enter the one-digit code 
that indicates this child's parent has cooperated with child support 
for this child.

1 = Yes, child's parent has cooperated with child support
2 = No
3 = Not applicable

Amount of Unearned Income

    Unearned income has two categories. For each category of 
unearned income, enter the dollar amount of the child's unearned 
income.
    102. SSI: Enter the dollar amount of SSI that the child in the 
Tribal TANF family has received for the reporting month.
    103. Other Unearned Income: Enter the dollar amount of other 
unearned income that the child in the Tribal TANF family has 
received for the reporting month.

Child Care Reporting Section

    Complete this section for each child in the TANF family for 
which a TANF child care subsidy is received (i.e., funded under the 
Tribal TANF Program). If child care is provided by more than one 
provider, enter the child care data for the greatest number of hours 
on the Primary Care line, and the next highest number of child care 
hours on the Secondary Care line.
    104. Type of Child Care:
    Definition: Provider types are divided into two broad categories 
of licensed/regulated and legally operating (no license category 
available in Tribe, State or locality). Under each of these 
categories are four types of providers: In-home, family home, group 
home, and centers. A relative provider is defined as one who is at 
least 18 years of age and who is a grandparent, great-grandparent, 
aunt or uncle, or sibling living outside the child's home.
    Instruction: Enter the two-digit code indicating the type of 
care for each child. The following codes specify who cared for the 
child and where such care took place during the reporting month.

01 = Licensed/regulated in-home child care
02 = Licensed/regulated family child care
03 = Licensed/regulated group home child care
04 = Licensed/regulated center-based child care
05 = Legally operating (no license category available in Tribe, 
State or locality) in-home child care provided by a non-relative
06 = Legally operating (no license category available in Tribe, 
State or locality) in-home child care provided by a relative
 07 = Legally operating (no license category available in Tribe, 
State or locality) family child care provided by a non-relative.
08 = Legally operating (no license category available in Tribe, 
State or locality) family child care provided by a relative
 09 = Legally operating (no license category available in Tribe, 
State or locality) group child care provided by a non-relative
10 = Legally operating (no license category available in Tribe, 
State or locality) group child care provided by a relative

[[Page 39416]]

11 = Legally operating (no license category available in Tribe, 
State or locality) center-based child care

      A. Primary
      B. Secondary
    105. Total Monthly Cost of Child Care: For each child receiving 
child care, enter the total dollar amount (round to the nearest 
dollar) that the provider charges for the service. Include both the 
fee the family pays and the child care subsidy.
      A. Primary
      B. Secondary
    106. Total Monthly Hours of Child Care Provided During the 
Reporting Month: Enter the three-digit number for the total monthly 
number of child care hours provided for the reporting month.
    Tribes may use their own formula to estimate the number of child 
care hours provided. If the Tribal or State payment system is based 
on daily or part day rates, the calculated number of hours of 
service would be based on the number of full or part days given in 
each week (as defined by the Tribe or State) multiplied by the 
number of hours for the full or part day. The calculated number 
should be reported as the actual number of hours provided.

Example

Full day = 8 hours
Part day = 5 hours
Care given = 3 full days and 2 part days
Actual hours of care provided = (3*8 + 2*5) = 34

      A. Primary
      B. Secondary

Appendix B--Tribal TANF Data Report--Section Two Disaggregated Data 
Collection for Families No Longer Receiving Assistance Under the TANF 
Program

Instructions and Definitions

    General Instruction: The Tribal grantee should collect and 
report data for each data element, unless explicitly instructed to 
leave the field blank.
    1. State FIPS Code: Tribal grantees should leave this field 
blank.
    2. County FIPS Code: Tribal grantees should leave this field 
blank.
    3. Tribal Code: Tribal grantees should enter the three-digit 
Tribal code that represents your Tribe. (A complete listing of 
Tribal Codes will be furnished to Tribes.)
    4. Reporting Month: Enter the four-digit year and two-digit 
month code that identifies the year and month for which the data are 
being reported.
    5. Stratum:
    Guidance: All families selected in the sample from the same 
stratum must be assigned the same stratum code. Valid stratum codes 
may range from ``00'' to ``99.'' Tribes with approved stratified 
samples should provide the ACF Regional Office with a listing of the 
numeric codes utilized to identify any stratification. If a Tribe 
uses a non-stratified sample design or opts to provide data for its 
entire caseload even though it is eligible to sample, enter the same 
stratum code (any two-digit number) for each family.
    Instruction: Enter the two-digit stratum code.

Family-Level Data

    Definition: For reporting purposes, the TANF family means (a) 
all individuals receiving assistance as part of a family under the 
Tribe's TANF Program; and (b) the following additional persons 
living in the household, if not included under (a) above:
    (1) Parent(s) or caretaker relative(s) of any minor child 
receiving assistance;
    (2) Minor siblings (including unborn children) of any child 
receiving assistance; and
    (3) Any person whose income or resources would be counted in 
determining the family's eligibility for or amount of assistance.
    6. Case Number--TANF:
    Guidance: If the case number is less than the allowable eleven 
characters, a Tribe may use lead zeros to fill in the number.
    Instruction: Enter the number that was assigned by the Tribal 
grantee to uniquely identify the TANF family.
    7. ZIP Code: Enter the five-digit ZIP Code for the family's 
place of residence for the reporting month.
    8. Disposition: Enter one of the following codes for each TANF 
family.

1 = Data collection completed
2 = Not subject to data collection/listed in error

    9. Reason for Closure:
    Guidance: A closed case is a family whose assistance was 
terminated for the reporting month, but received assistance under 
the Tribe's TANF Program in the prior month. A temporally suspended 
case is not a closed case. If there is more than one applicable 
reason for closure, determine the principal (i.e., most relevant) 
reason. If two or more reasons are equally relevant, use the reason 
with the lowest numeric code.
    Instruction: Enter the one-digit code that indicates the reason 
for the TANF family no longer receiving assistance. Tribe's should 
not enter ``7''.
1 = Employment
2 = Marriage
3 = Time Limit
4 = Sanction
5 = Tribal policy
6 = Minor child absent from the home for a significant time period
7 = Transfer to Separate State MOE Program
8 = Other

    10. Number of Family Members: Enter two digits that represent 
the number of members in the family, which received assistance under 
the Tribe's TANF Program.
    11. Receives Subsidized Housing:
    Guidance: Subsidized housing refers to housing for which money 
was paid by the Federal, State, or Local government or through a 
private social service agency to the family or to the owner of the 
housing to assist the family in paying rent. Two families sharing 
living expenses does not constitute subsidized housing.
    Instruction: Enter the one-digit code that indicates whether or 
not the TANF family received subsidized housing for the reporting 
month.

1 = Public housing
2 = HUD rent subsidy
3 = Other rent subsidy
4 = No housing subsidy

    12. Receives Medical Assistance: Enter ``1'' if, for the 
reporting month, any TANF family member is eligible to receive 
(i.e., a certified recipient of) medical assistance under a State 
plan approved under Title XIX or ``2'' if no TANF family member is 
eligible to receive medical assistance under a State plan approved 
under Title XIX.

1 = Yes, is eligible to receive medical assistance
2 = No
    13. Receives Food Stamps: If the TANF family received Food 
Stamps for the sample month, enter the one-digit code indicating the 
type of Food Stamp assistance. Otherwise, enter ``4.''
1 = Yes, Food Stamp coupon allotment
2 = Yes, cash
3 = Yes, wage subsidy
4 = No

    14. Amount of Food Stamp Assistance:
    Guidance: For situations in which the Food Stamp household 
differs from the TANF family, code this element in a manner that 
most accurately reflects the resources available to the TANF family.
    Instruction: Enter the TANF family's authorized dollar amount of 
Food Stamp assistance for the reporting month.
    15. Receives Subsidized Child Care:
    Guidance: For the purpose of coding this data element, 
subsidized child care funded under the Child Care and Development 
Fund with funds that were transferred from the State TANF Program 
should be coded as ``2.''
    Instruction: If the TANF family receives subsidized child care 
for the reporting month, enter code ``1'', ``2'', ``3'', or ``4'', 
whichever is appropriate. Otherwise, enter code ``5.''

1 = Yes, funded under the Tribal TANF Program
2 = Yes, funded under the Child Care and Development Fund
3 = Yes, funded under another Federal program (e.g., SSBG)
4 = Yes, funded under a Tribal, State, or local program
5 = No
    16. No Amount of Subsidized Child Care:

    Guidance: Subsidized child care means a grant by the Federal, 
Tribal, State or local government to a parent (or care-taker 
relative) to support, in part or whole, the cost of child care 
services provided by an eligible provider to an eligible child. The 
grant may be paid directly to the parent (or care-taker relative) or 
to a child care provider on behalf of the parent (or care-taker 
relative).
    Instruction: Enter the dollar amount of subsidized child care 
that the TANF family has received for services in the reporting 
month. If the TANF family did not receive any subsidized child care 
for the reporting month, enter ``00.''

Person-Level Data

    Person-level data has two sections: the adult and minor child 
head-of-household characteristic section and the child 
characteristics section. Section 419 of the Act defines adult and 
minor child. An adult is an individual that is not a minor child. A 
minor child is an individual who (a) has not attained 18 years of 
age or (b) has not

[[Page 39417]]

attained 19 years of age and is a full-time student in a secondary 
school (or in the equivalent level of vocational or technical 
training.)

Adult and Minor Child Head-of-Household Characteristics

    This section allows for coding up to six adults (or a minor 
child head-of-household and up to five adults) in the TANF family. A 
minor child head-of-household should be coded as an adult. For each 
adult (or minor child head-of-household) in the TANF family, 
complete the adult characteristics section. If a noncustodial parent 
is participating in work activities funded under the Tribal TANF 
Program for the reporting month, the noncustodial parent must also 
be reported in this section as a member of the family receiving 
assistance.
    If there are more than six adults (or a minor child head-of-
household and five adults) in the TANF family, use the following 
order to identify the persons to be coded: (1) The head-of-
household; (2) parents in the eligible family receiving assistance; 
(3) other adults in the eligible family receiving assistance; (4) 
Parents not in the eligible family receiving assistance; (5) 
caretaker relatives not in the eligible family receiving assistance; 
and (6) other persons, whose income or resources count in 
determining eligibility for or amount of assistance of the eligible 
family receiving assistance, in descending order the person with the 
most income to the person with least income.
    17. Family Affiliation:
    Guidance: This data element is used both for (1) the adult or 
minor child head-of-household section and (2) the minor child 
section. The same coding schemes are used in both sections. Some of 
these codes may not be applicable for adults.
    Instruction: Enter the one-digit code that shows the adult's 
relation to the eligible family receiving assistance.

1 = Member of the eligible family receiving assistance

    Not in eligible family receiving assistance, but in the 
household.

2 = Parent of minor child in the eligible family receiving 
assistance
3 = Caretaker relative of minor child in the eligible family 
receiving assistance
4 = Minor sibling of child in the eligible family receiving 
assistance
5 = Person whose income or resources are considered in determining 
eligibility for or amount of assistance for the eligible family 
receiving assistance

    18. Date of Birth: Enter the eight-digit code for date of birth 
for this adult (or minor child head-of-household) under TANF in the 
format YYYYMMDD.
    19. Social Security Number: Enter the nine-digit Social Security 
Number for the adult (or minor child head-of-household) in the 
format nnnnnnnnn.
    20. Race: Enter the one-digit code for the race of the TANF 
adult (or minor child head-of-household).

1 = White, not of Hispanic origin
2 = Black, not of Hispanic origin
3 = Hispanic
4 = American Indian or Alaska Native
5 = Asian or Pacific Islander
6 = Other
9 = Unknown

    21. Gender: Enter the one-digit code that indicates the adult's 
(or minor child head-of-household's) gender.

1 = Male
2 = Female

Receives Disability Benefits

    The Act specifies five types of disability benefits. For each 
type of disability benefits, enter the one-digit code that indicates 
whether or not the adult (or minor child head-of-household) received 
the benefit.
    22. Receives Federal Disability Insurance Benefits: Enter the 
one-digit code that indicates the adult (or minor child head-of-
household) received Federal disability insurance benefits for the 
reporting month.

1 = Yes, received Federal disability insurance
2 = No

    23. Receives Benefits Based on Federal Disability Status: Enter 
the one-digit code that indicates the adult (or minor child head-of-
household) received benefits based on Federal disability status for 
the reporting month.

1 = Yes, received benefits based on Federal disability status
2 = No

    24. Receives Aid Under Title XIV-APDT: Enter the one-digit code 
that indicates the adult (or minor child head-of-household) received 
aid under a State plan approved under Title XIV for the reporting 
month.

1 = Yes, received aid under Title XIV-APDT
2 = No

    25. Receives Aid Under Title XVI-AABD: Enter the one-digit code 
that indicates the adult (or minor child head-of-household) received 
aid under a State plan approved under Title XVI-AABD for the 
reporting month.

1 = Yes, received aid under Title XVI-AABD
2 = No

    26. Receives Aid Under Title XVI-SSI: Enter the one-digit code 
that indicates the adult (or minor child head-of-household) received 
aid under a State plan approved under Title XVI-SSI for the 
reporting month.

1 = Yes, received aid under Title XVI-SSI
2 = No

    27. Marital Status: Enter the one-digit code for the marital 
status of the recipient.

1 = Single, never married
2 = Married, living together
3 = Married, but separated
4 = Widowed
5 = Divorced

    28. Relationship to Head-of-Household:
    Guidance: This data element is used both for (1) the adult or 
minor child head-of-household section and (2) the minor child 
section. The same coding schemes are used in both sections. Some of 
these codes may not be applicable for adults.
    Instruction: Enter the two-digit code that shows the adult's 
relationship (including by marriage) to the head of the household, 
as defined by the Food Stamp Program or as determined by the Tribe, 
(i.e., the relationship to the principal person of each person 
living in the household.) If a minor child head-of-household, enter 
code ``01.''

01 = Head of household
02 = Spouse
03 = Parent
04 = Daughter or son
05 = Stepdaughter or stepson
06 = Grandchild or great grandchild
07 = Other related person (brother, niece, cousin)
08 = Foster child
09 = Unrelated child
10 = Unrelated adult

    29. Teen Parent With Child In the Family:
    Guidance: A teen parent is a person who is under 20 years of age 
and that person's child is also a member of the TANF family.
    Instruction: Enter the one-digit code that indicates the adult's 
(or minor child head-of-household's) teen parent status.

1 = Yes, a teen parent
2 = No

Educational Level

    Educational level is divided into two parts: the highest level 
of education attained and the highest degree attained.
    30. Highest Level of Education Attained: Enter the two-digit 
code to indicate the highest level of education attained by the 
adult (or minor child head-of-household).

00 = No formal education
01-12 = Grade level completed in primary/secondary school including 
secondary level vocational school or adult high school

    31. Highest Degree Attained: If the adult (or minor child head-
of-household) has a degree(s), enter the one-digit code that 
indicates the adult's (or minor child head-of-household's) highest 
degree attained. Otherwise, leave the field blank.

0 = No degree
1 = High school diploma, GED, or National External Diploma Program
2 = Awarded Associate's Degree
3 = Awarded Bachelor's Degree
4 = Awarded graduate degree (Master's or higher)
5 = Other credentials (degree, certificate, diploma, etc.)

    32. Citizenship/Alienage:
    Guidance: As described in TANF-ACF-PA-97-1, States have the 
flexibility to: (1) Use State MOE funds to serve ``qualified'' 
aliens, including those who enter on or after August 22, 1996; (2) 
use Federal TANF funds to serve ``qualified'' aliens who arrived 
prior to the enactment of the PRWORA on August 22, 1996 (such aliens 
who arrived after enactment are barred from receiving Federal TANF 
funds for five years from the date of entry, except for certain 
aliens such as refugees and asylees); (3) use State MOE funds to 
serve legal aliens who are not ``qualified''; and (4) use, under 
section 411(d) of PRWORA, State MOE funds to serve aliens who are 
not lawfully present in the U.S., but only through enactment of a 
State law, after the date of PRWORA enactment, which ``affirmatively 
provides'' for such benefits.
    The citizenship/alienage is divided into four groups: 
individuals eligible (for the TANF Program based on citizenship/

[[Page 39418]]

alienage), individuals eligible at State option, individuals not 
eligible, and status unknown.
    Instruction: Enter the two-digit code that indicates the adult's 
(or minor child head-of-household's) citizenship/alienage.

Individuals Eligible for the TANF Program

01 = U.S. citizen, including naturalized citizens
02 = Permanent resident who has worked forty qualifying quarters; 
alien who is a veteran with an honorable discharge from the U.S. 
Armed Forces or is on active duty in the U.S. Armed Forces, or 
spouse or unmarried dependent children of such alien
03 = Qualified alien accorded refugee, Cuban or Haitian entrant, or 
Amerasian immigrant status (INS Form I-94) who has resided in the 
U.S. five years or less
04 = Qualified alien granted political asylum five or less years 
ago; qualified alien granted a withholding of deportation by INS 
(under sec. 243(h) or sec. 241(b)(3) of the INA) five or less years 
ago.

Individuals Eligible for the TANF Program at State Option

05 = Qualified alien, (including immigrant accorded permanent 
resident status (``green card''), parolee granted parole for at 
least one year under sec. 212(d)(5) of the INA, and certain battered 
aliens and their children who are determined to be qualified), who 
arrived in the U.S. prior to enactment (August 22, 1996) or who 
arrived in the U.S. on or after enactment and has resided in the 
U.S. more than five years
06 = Qualified alien accorded refugee, Cuban or Haitian entrant, or 
Amerasian immigrant status (INS Form I-94) who has resided in the 
U.S. more than five years
07 = Qualified alien granted political asylum or granted withholding 
of deportation by INS (under sec. 243(h) or sec. 241(b)(3) of the 
INA) more than five years ago;

Individuals Not Eligible for the TANF Program

08 = Qualified alien (other than a refugee, Cuban or Haitian 
entrant, Amerasian immigrant, asylee, or alien whose deportation has 
been withheld under sec. 243(h) or sec. 241(b)(3) of the INA) who 
arrived in the U.S. on or after enactment and has resided in the 
U.S. less than 5 years.
09 = Any alien who is not a qualified alien.

Status Unknown

99 = Unknown

    33. Number of Months Countable toward Tribe's Time Limit in Own 
Tribe: Enter the number of months countable toward the adult's (or 
minor child head-of-household's) Federal five-year time limit based 
on assistance received from the Tribe.
    Number of Months Countable toward Tribe's Time Limit in Other 
Tribes or States: Enter the number of months countable toward the 
adult's (or minor child head-of-household's) Tribal time limit based 
on assistance received from other Tribes or States.
    Number of Countable Months Remaining Under Tribe's Time Limit: 
Enter the number of months that remain countable toward the adult's 
(or minor child head-of-household's) Tribal time limit.
    36. Employment Status: Enter the one-digit code that indicates 
the adult's (or minor child head-of-household's) employment status.

1 = Employed
2 = Unemployed, looking for work
3 = Not in labor force (i.e, unemployed, not looking for work, 
includes discouraged workers)

Amount of Earned Income

    For each category of earned income, enter the amount of the 
adult's (or minor child head-of-household's) earned income.
    37. Earned Income Tax Credit (EITC):
    Guidance: Earned Income Tax Credit is a refundable tax credit 
for families and dependent children. EITC payments are received 
either monthly (as advance payment through the employer), annually 
(as a refund from IRS), or both.
    Instruction: Enter the total dollar amount of the earned income 
tax credit actually received, whether received as an advance payment 
or a single payment (e.g., tax refund), by the adult (minor child 
head-of-household) during the reporting month. If the Tribe counts 
the EITC as a resource, report it here as earned income in the month 
received. If the Tribe assumes an advance payment is applied for and 
obtained, only report what is actually received for this item.
    38. Wages, Salaries, and Other Earnings:

Amount of Unearned Income

    39. Unearned Income: Enter the amount of the adult's (or minor 
child head-of-household's) unearned income.

Child Characteristics

    This section allows for coding up to ten children in the TANF 
family. A minor child head-of-household should be coded as an adult, 
not as a child. The youngest child should be coded as the first 
child in the family, the second youngest child as the second child, 
and so on. If the needs of an unborn child are included in the 
amount of assistance provided to the family, code the unborn child 
as one of the children. Do this by entering the Date-of-Birth as 
``99999999'' and leave the other Child Characteristics fields blank.
    If there are more than ten children in the TANF family, use the 
following order to identify the persons to be coded: (1) Children in 
the eligible family receiving assistance in order from youngest to 
oldest; (2) minor siblings of child in the eligible family receiving 
assistance from youngest to oldest; and (3) any other children.
    40. Family Affiliation:
    Guidance: This data element is used both for (1) the adult or 
minor child head-of-household section and (2) the minor child 
section. The same coding schemes are used in both sections. Some of 
these codes may not be applicable for children.
    Instruction: Enter the one-digit code that shows the Child's 
relation to the eligible family receiving assistance.

1 = Member of the eligible family receiving assistance

    Not in eligible family receiving assistance, but in the 
household.

2 = Parent of minor child in the eligible family receiving 
assistance
3 = Caretaker relative of minor child in the eligible family 
receiving assistance
4 = Minor sibling of child in the eligible family receiving 
assistance
5 = Person whose income or resources are considered in determining 
eligibility for or amount of assistance for the eligible family 
receiving assistance

    41. Date of Birth: Enter the eight-digit code for date of birth 
for this child under TANF in the format YYYYMMDD.
    42. Social Security Number: Enter the nine-digit Social Security 
Number for the child in the format nnnnnnnnn.
    43. Race: Enter the one-digit code for the race of the TANF 
child.

1 = White, not of Hispanic origin
2 = Black, not of Hispanic origin
3 = Hispanic
4 = American Indian or Alaska Native
5 = Asian or Pacific Islander
6 = Other
9 = Unknown

    44. Gender: Enter the one-digit code that indicates the child's 
gender.

1 = Male
2 = Female

Receives Disability Benefits

    The Act specifies five types of disability benefits. Two of 
these types of disability benefits are applicable to children. For 
each type of disability benefits, enter the one-digit code that 
indicates whether or not the child received the benefit.
    45. Receives Benefits Based on Federal Disability Status: Enter 
the one-digit code that indicates the child received benefits based 
on Federal disability status for the reporting month.

1 = Yes, received benefits based on Federal disability status
2 = No

    46. Receives Aid Under Title XVI-SSI: Enter the one-digit code 
that indicates the child received aid under a State plan approved 
under Title XVI-SSI for the reporting month.
1 = Yes, received aid under Title XVI-SSI
2 = No

    47. Relationship to Head-of-Household:
    Guidance: This data element is used both for (1) the adult or 
minor child head-of-household section and (2) the minor child 
section. The same coding schemes are used in both sections. Some of 
these codes may not be applicable for children.
    Instruction: Enter the two-digit code that shows the child's 
relationship (including by marriage) to the head of the household, 
as defined by the Food Stamp Program or as determined by the Tribe, 
(i.e., the

[[Page 39419]]

relationship to the principal person of each person living in the 
household.)

01 = Head of household
02 = Spouse
03 = Parent
04 = Daughter or son
05 = Stepdaughter or stepson
06 = Grandchild or great grandchild
07 = Other related person (brother, niece, cousin)
08 = Foster child
09 = Unrelated child
10 = Unrelated adult

    48. Teen Parent With Child In the Family:
    Guidance: A teen parent is a person who is under 20 years of age 
and that person's child is also a member of the TANF family.
    Instruction: Enter the one-digit code that indicates the child's 
teen parent status.

1 = Yes, a teen parent
2 = No

Educational Level

    Educational level is divided into two parts: the highest level 
of education attained and the highest degree attained.
    49. Highest Level of Education Attained: Enter the two-digit 
code to indicate the highest level of education attained by the 
child.

00 = No formal education
01-12 = Grade level completed in primary/secondary school including 
secondary level vocational school or adult high school

    50. Highest Degree Attained:
    Guidance: This data element is used both for (1) the adult or 
minor child head-of-household section and (2) the minor child 
section. The same coding schemes are used in both sections. Some of 
these codes may not be applicable for children.
    Instruction: If the child has a degree(s), enter the one-digit 
code that indicates the child's highest degree attained. Otherwise, 
leave the field blank.

0 = No degree
1 = High school diploma, GED, or National External Diploma Program
2 = Awarded Associate's Degree
3 = Awarded Bachelor's Degree
4 = Awarded graduate degree (Master's or higher)
5 = Other credentials (degree, certificate, diploma, etc.)
9 = Not applicable

    51. Citizenship/Alienage: Enter the two-digit code that 
indicates the child's citizenship/alienage. The coding for this data 
element is the same as for item number 27, on page xxx.
    52. Cooperation with Child Support: Enter the one-digit code 
that indicates whether this child's parent has cooperated with child 
support for this child.

1 = Yes, child's parent has cooperated with child support
2 = No, child's parent has not cooperated with child support
3 = Not applicable

    53. Unearned Income: Enter the dollar amount of the child's 
unearned income.

Appendix C--Tribal TANF Data Report--Section Three Aggregated Data 
Collection for Families Applying for, Receiving, and No Longer 
Receiving Assistance Under the TANF Program

Instructions and Definitions

    1. State FIPS Code: Enter your two-digit State code. Tribal 
grantees should leave this field blank.
    2. Tribal Code: For Tribal grantees only, enter the three-digit 
Tribal code that represents your Tribe. (A complete listing of 
Tribal Codes will be furnished to Tribes.)
    3. Calendar Quarter: The four calendar quarters are as follows:

First quarter--January-March
Second quarter--April-June
Third quarter--July-September
Fourth quarter--October-December

    Enter the four-digit year and one-digit quarter code (in the format 
YYYYQ) that identifies the calendar year and quarter for which the data 
are being reported (e.g., first quarter of 1997 is entered as 
``19971'').

Applications

    Guidance: The term ``application'' means the action by which an 
individual indicates in writing to the agency administering the 
Tribal TANF Program his/her desire to receive assistance.
    Instruction: All counts of applications should be unduplicated 
monthly totals.
    4. Total Number of Applications: Enter the total number of 
approved and denied applications received for each month of the 
quarter. For each month in the quarter, the total in this item 
should equal the sum of the number of approved applications (in item 
#5) and the number of denied applications (in item #6).
      A. First Month:
      B. Second Month:
      C. Third Month:
    5. Total Number of Approved Applications: Enter the number of 
applications approved during each month of the quarter.
      A. First Month:
      B. Second Month:
      C. Third Month:
    6. Total Number of Denied Applications: Enter the number of 
applications denied (or otherwise disposed of) during each month of 
the quarter.
      A. First Month:
      B. Second Month:
      C. Third Month:

Active Cases

    For purposes of completing this report, include all TANF 
eligible cases receiving assistance (i.e., cases funded under the 
TANF block grant as cases receiving assistance under the Tribal TANF 
Program. All counts of families and recipients should be 
unduplicated monthly totals.
    7. Total Amount of Assistance: Enter the dollar value of all 
assistance (cash and non-cash) provided to TANF families under the 
Tribal TANF Program for each month of the quarter. Round the amount 
of assistance to the nearest dollar.
      A. First Month:
      B. Second Month:
      C. Third Month:
    8. Total Number of Families: Enter the number of families 
receiving assistance under the Tribal TANF Program for each month of 
the quarter. The total in this item should equal the sum of the 
number of two-parent families (in item #9), the number of one-parent 
families (in item #10) and the number of no-parent families (in item 
#11).
     A. First Month:
     B. Second Month:
     C. Third Month:
    9. Total Number of Two-parent Families: Enter the total number 
of 2-parent families receiving assistance under the Tribal TANF 
Program for each month of the quarter.
     A. First Month:
     B. Second Month:
     C. Third Month:
    10. Total Number of One-Parent Families: Enter the total number 
of one-parent families receiving assistance under the Tribal TANF 
Program for each month of the quarter.
     A. First Month:
     B. Second Month:
     C. Third Month:
    11. Total Number of No-Parent Families: Enter the total number 
of no-parent families receiving assistance under the Tribal TANF 
Program for each month of the quarter.
     A. First Month:
     B. Second Month:
     C. Third Month:
    12. Total Number of Recipients: Enter the total number of 
recipients receiving assistance under the Tribal TANF Program for 
each month of the quarter. The total in this item should equal the 
sum of the number of adult recipients (in item #13) and the number 
of child recipients (in item #14).
     A. First Month:
     B. Second Month:
     C. Third Month:
    13. Total Number of Adult Recipients: Enter the total number of 
adult recipients receiving assistance under the Tribal TANF Program 
for each month of the quarter.
     A. First Month:
     B. Second Month:
     C. Third Month:
    14. Total Number of Child Recipients: Enter the total number of 
child recipients receiving assistance under the Tribal TANF Program 
for each month of the quarter.
     A. First Month:
     B. Second Month:
     C. Third Month:
    15. Total Number of Non-Custodial Parents Participating in Work 
Activities: Enter the total number of non-custodial parents 
participating in work activities under the Tribal TANF Program for 
each month of the quarter.
     A. First Month:
     B. Second Month:
     C. Third Month:
    16. Total Number of Minor Child Heads-of-Household: Enter the 
total number of minor child head-of-household families receiving 
assistance under the Tribal TANF Program for each month of the 
quarter.
     A. First Month:
     B. Second Month:
     C. Third Month:
    17. Total Number of Births: Enter the total number of births for 
families receiving

[[Page 39420]]

assistance under the Tribal TANF Program for each month of the 
quarter.
     A. First Month:
     B. Second Month:
     C. Third Month:
    18. Total Number of Out-of-Wedlock Births: Enter the total 
number of out-of-wedlock births for families receiving assistance 
under the Tribal TANF Program for each month of the quarter.
     A. First Month:
     B. Second Month:
     C. Third Month:

Closed Cases

    19. Total Number of Closed Cases: Enter the total number of 
closed cases for each month of the quarter.
     A. First Month:
     B. Second Month:
     C. Third Month:

Appendix D--Sampling Specifications

1. Sample Methodology

    The sample methodology must conform to principles of probability 
sampling, i.e., each family in the population of interest must have 
a known, non-zero probability of selection and computational methods 
of estimation must lead to a unique estimate. The Tribe must 
construct a sample frame for each month in the annual sample period 
and must select approximately one-twelfth of the required minimum 
annual sample size from each monthly sample frame.
    The recommended method of sample selection is stratified 
systematic random sampling.

2. Sample Frame Requirements for

    a. families receiving assistance under the Tribal TANF Program 
(i.e., the active TANF sample) are:
    The monthly TANF sample frame must consist of an unduplicated 
list of all families who receive assistance under the Tribal TANF 
Program for the reporting month by the end of the reporting month. 
Only families with a minor child who resides with a custodial parent 
or other adult relative or a pregnant woman may receive assistance.
    b. families no longer receiving assistance under the Tribal TANF 
Program (i.e., the closed TANF sample) are:
    For closed cases, the monthly TANF sample frame must consist of 
an unduplicated list of all families who received assistance under 
the Tribal TANF Program who were terminated for the reporting month 
(do not include families whose assistance was temporarily 
suspended), but received assistance under the Tribe's TANF Program 
in the prior month.

3. Sample Size Requirement

    a. for families receiving assistance under the Tribe's TANF 
Program are:
    The minimum required annual sample size for families receiving 
assistance is 3000 families, of which 600 families must be newly, 
approved applicants. Of the 2400 families that have received ongoing 
assistance approximately 25% (600 families) must be two-parent TANF 
families. We established the minimum required sample sizes to 
provide reasonably precise estimates (e.g., a precision of about 
plus or minus 2 percentage points at a 95% confidence level) for 
such proportions as the work participation rates for all families 
and for two-parent families, as well as for demographic and case 
characteristics of newly, approved TANF families and all TANF 
families.
    b. for families no longer receiving assistance under the Tribe's 
TANF Program are:
    The minimum required annual sample size for the sample of 
families no longer receiving assistance (i.e., closed cases) is 800 
families.

What Must Tribes Submit to ACF?

    Each Tribe that meets the sampling criteria and opts to sample 
its caseloads must submit the following:
    a. Each Tribe must submit for approval its annual sampling plan 
or any changes to its currently approved sampling plan at least 
sixty (60) calendar days before the start of the annual period. If 
the Tribe's sampling plan is unchanged from the previous year, the 
Tribe is not required to resubmit the sampling plan. The sampling 
plan must satisfy the requirements for plan approval as specified in 
Section 1300 of the TANF Sampling and Statistical Methods Manual and 
includes the following:
    i. Documentation of methods for constructing and maintaining the 
sample frame(s), including assessment of frame completeness and any 
potential problems associated with using the sample frame(s);
    ii. Documentation of methods for selecting the sample cases from 
the sample frame(s); and
    iii. Documentation of methods for estimating case 
characteristics and their sampling errors, including the computation 
of weights, where appropriate.
    b. Each Tribe must submit the estimated average monthly caseload 
for the annual sample period and the computed sample interval (if 
applicable) to the ACF Regional Administrator thirty (30) calendar 
days before the beginning of the annual sample period, i.e., by 
September 1 for the October sample selection. Tribes must submit the 
monthly list of selected sample cases (including reserve pool cases, 
if applicable) within 10 days of the date of selection specified in 
the Tribe's sampling plan.
    c. Each Tribe must submit the total number of families receiving 
assistance under the Tribe's TANF Program by stratum for each month 
in the annual sample period and the total number of families no 
longer receiving assistance under the Tribe's TANF Program (if 
stratified, by stratum) for each month in the annual sample period. 
This data is required for weighting the sample results in order to 
produce estimates for the entire caseload.

          Appendix E.--Statutory Reference Table for Appendix A         
------------------------------------------------------------------------
           Data elements                        Justification           
------------------------------------------------------------------------
1. State FIPS Code.................  N/A for Tribal TANF programs.      
2. County FIPS Code................  411(a)(1)(A)(i).                   
3. Tribal Code.....................  Implicit in administering data     
                                      collection system.                
4. Reporting Month.................  Implicit in administering data     
                                      collection system.                
5. Stratum.........................  Implicit in administering data     
                                      collection system.                
Family Level Data..................  Items 6-44.                        
6. Case Number.....................  Implicit in administering data     
                                      collection system.                
7. ZIP Code........................  Needed for geographic coding (and  
                                      rural/urban analyses) and is      
                                      readily available.                
8. Funding Stream..................  411(a)(1)(A)(xii): Use in          
                                      calculation of participation rate.
9. Disposition.....................  Implicit in administering data     
                                      collection system.                
10. New Applicant..................  411(b), requires the Secretary to  
                                      report to Congress on families    
                                      applying for TANF assistance. This
                                      element identifies applicants that
                                      are newly approved families       
                                      receiving assistance.             
11. Number of Family Members.......  411(a)(1)(A)(iv).                  
12. Type of Family for Work          411(a)(1)(A)(xii): Use in          
 Participation.                       calculation of participation rate.
13. Receives Subsidized Housing....  411(a)(1)(A)(ix).                  
14. Receives Medical Assistance....  411(a)(1)(A)(ix).                  
15. Receives Food Stamps...........  411(a)(1)(A)(ix).                  
16. Amount of Food Stamp Assistance  411(a)(1)(A)(ix).                  
17. Receives Subsidized Child Care.  411(a)(1)(A)(ix).                  
18. Amount of Subsidized Child Care  411(a)(1)(A)(ix).                  

[[Page 39421]]

                                                                        
19. Amount of Child Care Disregard.  The CCDF sample will not capture   
                                      children whose child care is      
                                      funded by TANF. The data element  
                                      is collected here because it is   
                                      required under CCDF and this is   
                                      the most cost-effective way to    
                                      capture TANF Child Care           
                                      information. (See Sec. 658K       
                                      (a)(2)(C)).                       
20. Amount of Child Support........  411(a)(1)(A)(xiv): break-out of    
                                      unearned income.                  
21. Amount of the Families' Cash     411(b), requires the Secretary to  
 Resources.                           report to Congress on financial   
                                      circumstances of families         
                                      receiving TANF assistance.        
Amount of Assistance Received and    Items 22--31 are types of          
 Number of Months the Family          assistance.                       
 Received Assistance by Type under                                      
 the Tribal TANF Program.                                               
22. Cash and Cash Equivalents......  411(a)(1)(A)(x)&(xiii).            
23. Educational....................  411(a)(1)(A)(x)&(xiii).            
24. Employment Services............  411(a)(1)(A)(x)&(xiii).            
25. Work Subsidies.................  411(a)(1)(A)(x)&(xiii).            
26. TANF Child Care................  411(a)(1)(A)(x)&(xiii).            
27. Transportation.................  411(a)(1)(A)(x)&(xiii).            
28. Other Supportive Services and    411(a)(1)(A)(x)&(xiii).            
 Special Needs, Including                                               
 Assistance with Meeting Home                                           
 Heating and Air Conditioning Costs.                                    
29. Transitional Services..........  411(a)(1)(A)(x)&(xiii).            
30. Contributions to Individual      411(a)(1)(A)(x)&(xiii).            
 Development Accounts.                                                  
31. Other..........................  411(a)(1)(A)(x)&(xiii).            
Reason for and Amount of Reduction   Items 32-42 are the reasons for    
 in Assistance.                       reduction in assistance.          
32. Work Requirements Sanction.....  411(a)(1)(A)(xiii).                
33. Family Sanction for an Adult     411(a)(1)(A)(xiii).                
 with No High School Diploma or                                         
 Equivalent.                                                            
34. Sanction for Teen Parent Not     411(a)(1)(A)(xiii).                
 Attending School.                                                      
35. Non-Cooperation with Child       411(a)(1)(A)(xiii).                
 Support.                                                               
36. Failure to Comply with an        411(a)(1)(A)(xiii).                
 Individual Responsibility Plan.                                        
37. Other Sanction.................  411(a)(1)(A)(xiii).                
38. Recoupment of Prior Overpayment  411(a)(1)(A)(xiii).                
39. Family Cap.....................  411(a)(1)(A)(xiii).                
40. Reduction Based on Family        411(a)(1)(A)(xiii).                
 Moving into Tribe From Another                                         
 State or Tribal TANF Program.                                          
41. Reduction Based on Length of     411(a)(1)(A)(xiii).                
 Receipt of Assistance.                                                 
42. Other, Non-sanction............  411(a)(1)(A)(xiii).                
43. Waiver Evaluation Research       411(a)(1)(A)(xii): Use to calculate
 Group.                               the participation rate for States 
                                      with an ongoing waiver evaluation 
                                      for impact analysis purposes. N/A 
                                      to Tribal TANF programs.          
44. Is the TANF Family Exempt from   409(a)(9).                         
 the Federal Time Limit.                                                
 Adult Characteristics.............  Items 45-88.                       
45. Family Affiliation.............  411(a)(1)(A)(iv) and 411(b): Needed
                                      to identify persons in eligible   
                                      family receiving assistance and   
                                      other individuals living in the   
                                      household.                        
46. Noncustodial Parent Indicator..  411(a)(4): Report on Non-custodial 
                                      Parents requires the number of non-
                                      custodial Parents. To provide     
                                      assistance to non-custodial       
                                      parents under the Tribal TANF     
                                      Program, Tribes must include them 
                                      in the family. Data could be      
                                      collected under the element       
                                      Relationship to Head-of-Household.
                                      Element was broken out to make the
                                      coding cleaner and easier for     
                                      Tribes to report.                 
47. Date of Birth..................  411(a)(1)(A)(iii): Age--Date of    
                                      birth gives the same information  
                                      but is a constant.                
48. Social Security Number.........  This information is also readily   
                                      available. We need this           
                                      information also for research on  
                                      the circumstances of children and 
                                      families as required in section   
                                      413(g) of the Act (i.e., to track 
                                      individual members of the TANF    
                                      family).                          
49. Race...........................  411(a)(1)(A)(vii).                 
50. Gender.........................  Data could be collected under the  
                                      element Relationship to Head-of-  
                                      Household (e.g., husband, wife,   
                                      daughter, son, etc.). Element was 
                                      broken out to make the coding     
                                      cleaner and easier for Tribes to  
                                      report. Used the Secretary's      
                                      Report to the Congress.           
Receives Federal Disability          Items 51--55.                      
 Benefits.                                                              
51. Receives Federal Disability      411(a)(1)(A)(ii) as revised by P.L.
 Insurance Benefits.                  105-33.                           
52. Receives Benefits Based on       411(a)(1)(A)(ii) as revised by P.L.
 Federal Disability Status.           105-33.                           
53. Receives Aid Under Title XIV-    411(a)(1)(A)(ii) as revised by P.L.
 APDT.                                105-33.                           
54. Receives Aid Under Title XVI-    411(a)(1)(A)(ii) as revised by P.L.
 AABD.                                105-33.                           
55. Receives Aid Under Title XVI-    411(a)(1)(A)(ii) as revised by P.L.
 SSI.                                 105-33.                           
56. Marital Status.................  411(a)(1)(A)(vi).                  
57.Relationship to Head-of-          411(a)(1)(A)(iv) as revised by P.L.
 Household.                           105-33.                           
58. Teen Parent with Child in the    411(a)(1)(A)(xvii) as revised by   
 Family.                              P.L. 105-33.                      
Adult Educational Level............  Items 59 and 60.                   
59. Highest Level of Education       411(a)(1)(A)(vii).                 
 Attained.                                                              
60. Highest Degree Attained........  411(a)(1)(A)(vii).                 
61. Citizenship/Alienage...........  411(a)(1)(A)(xv): We have updated  
                                      our prior coding of citizenship   
                                      status to reflect the complexity  
                                      of TANF; also 409(a)(1).          

[[Page 39422]]

                                                                        
62. Number of Months Countable       409(a)(9).                         
 toward Federal Time Limit in Own                                       
 Tribe.                                                                 
63. Number of Months Countable       409(a)(9).                         
 toward Federal Time Limit in Other                                     
 States or Tribes.                                                      
64. Number of Countable Months       409(a)(9).                         
 Remaining Under Tribe's Time Limit.                                    
65. Is Current Month Exempt from     409(a)(9).                         
 the Tribe's Time Limit.                                                
66. Employment Status..............  411(a)(1)(A)(v).                   
67. Work Participation Status......  411(a)(1)(A)(xii): Needed to       
                                      calculate the work participation  
                                      rate.                             
Adult Work Participation Activities  Items 68--81 are the work          
                                      participation activities and are  
                                      needed to calculate the work      
                                      participation rate.               
68. Unsubsidized Employment........  411(a)(1)(A)(xi)(III).             
69. Subsidized Private Sector        411(a)(1)(A)(xi)(II).              
 Employment.                                                            
70. Subsidized Public Sector         411(a)(1)(A)(xi)(IV).              
 Employment.                                                            
71 Work Experience.................  411(a)(1)(A)(xi)(IV).              
72. On-the-job Training............  411(a)(1)(A)(xi)(VI).              
73. Job Search and Job Readiness     411(a)(1)(A)(xi)(V).               
 Assistance.                                                            
74. Community Service Programs.....  411(a)(1)(A)(xi)(IV).              
75. Vocational Educational Training  411(a)(1)(A)(xi)(VII).             
76. Job Skills Training Directly     411(a)(1)(A)(xi)(VI).              
 Related to Employment.                                                 
77. Education Directly Related to    411(a)(1)(A)(xi)(I).               
 Employment for Individuals with no                                     
 High School Diploma or Certificate                                     
 of High School Equivalency.                                            
78. Satisfactory School Attendance   411(a)(1)(A)(xi)(I).               
 for Individuals with no High                                           
 School Diploma or Certificate of                                       
 High School Equivalency.                                               
79. Providing Child Care Services    411(a)(1)(A)(xi).                  
 to an Individual who is                                                
 Participating in a Community                                           
 Service Program.                                                       
80. Additional Work Activities       411(a)(1)(A)(xii): Use to calculate
 Permitted Under Waiver.              work participation rate, when     
                                      approved 1115 waiver permits other
                                      work activities.                  
81. Other Work Activities..........  Related to 411(a)(1)(A)(xii) and   
                                      409(a)(3).                        
82. Required Hours of Work Under     411(a)(1)(A)(xii): Use to calculate
 Waiver.                              the Work participation rate, when 
                                      approved 1115 waiver permits a    
                                      different number of hours of work 
                                      participation to count as engaged 
                                      in work.                          
Adult Earned Income................  Items 83 and 84 break out earned   
                                      income.                           
83. Earned Income Tax Credit (EITC)  411(a)(1)(A)(v).                   
84. Wages, Salaries, and Other       411(a)(1)(A)(v).                   
 Earnings.                                                              
Adult Unearned Income..............  Items 85 and 88 break out Unearned 
                                      income.                           
85. Amount of Social Security......  411(a)(1)(A)(xiv).                 
86. Amount of SSI..................  411(a)(1)(A)(xiv).                 
87. Amount of Worker's Compensation  411(a)(1)(A)(xiv).                 
88. Amount of Other Unearned Income  411(a)(1)(A)(xiv).                 
Child Characteristics..............  Items 89-109.                      
89. Family Affiliation.............  411(a)(1)(A)(iv) and 411(b): Needed
                                      to identify persons in eligible   
                                      family receiving assistance and   
                                      other individuals living in the   
                                      household.                        
90. Date of Birth..................  411(a)(1)(A)(iii): Age--Date of    
                                      birth gives the same information  
                                      but is a constant.                
91. Social Security Number.........  This information is also readily   
                                      available. We need this           
                                      information also for research on  
                                      the circumstances of children and 
                                      families as required in section   
                                      413(g) of the Act (i.e., to track 
                                      individual members of the TANF    
                                      family).                          
92. Race...........................  411(a)(1)(A)(viii).                
93. Gender.........................  Data could be collected under the  
                                      element Relationship to Head-of-  
                                      Household (e.g., husband, wife,   
                                      daughter, son, etc.). Element was 
                                      broken out to make the coding     
                                      cleaner and easier for Tribes to  
                                      report. Used the Secretary's      
                                      Report to the Congress.           
Receives Federal Disability          ...................................
 Benefits.                                                              
94. Receives Benefits Based on       411(a)(1)(A)(ii) as revised by P.L.
 Federal Disability Status.           105-33.                           
95. Receives Aid Under Title XVI-    411(a)(1)(A)(ii) as revised by P.L.
 SSI.                                 105-33.                           
96. Relationship to Head-of-         411(a)(1)(A)(iv) as revised by P.L.
 household.                           105-33.                           
97. Teen Parent with Child in the    411(a)(1)(A)(xvii) as revised by   
 Family.                              P.L. 105-33.                      
Child Educational Level............  Items 101 and 102.                 
98. Highest Level of Education       411(a)(1)(A)(viii).                
 Attained.                                                              
99. Highest Degree Attained........  411(a)(1)(A)(viii).                
100. Citizenship/Alienage..........  411(a)(1)(A)(xv): We have updated  
                                      our prior coding of citizenship   
                                      status to reflect TANF; also      
                                      409(a)(1).                        
101. Cooperation with Child Support  409(a)(5).                         
Child Unearned Income..............  Items 105 and 106.                 
102. Amount of SSI.................  411(a)(1)(A)(xiv).                 
103. Amount of Other Unearned        411(a)(1)(A)(xiv)--rather than     
 Income.                              breaking out unearned income into 
                                      its parts, we ask for an indicator
                                      that the recipient has certain    
                                      types of unearned income.         
Child Care Reporting Section.......  Items 107-109.                     

[[Page 39423]]

                                                                        
104. Type of Child Care............  The CCDF sample will not capture   
                                      children whose child care is      
                                      funded by TANF. The data element  
                                      is collected here because it is   
                                      required under CCDF and this is   
                                      the most cost-effective way to    
                                      capture TANF Child Care           
                                      information. See Sec. 658K        
                                      (a)(2)(C).                        
105. Total Monthly Cost of Child     The CCDF sample will not capture   
 Care.                                children whose child care is      
                                      funded by TANF. The data element  
                                      is collected here because it is   
                                      required under CCDF and this is   
                                      the most cost-effective way to    
                                      capture TANF Child Care           
                                      information. (See Sec. 658K       
                                      (a)(2)(C)). The Total Amount of   
                                      the Child Care Subsidy (required  
                                      by 411 (a)) may be derived from   
                                      this item and the total Monthly   
                                      cost of child Care.               
106. Total Monthly Hours of Child    The CCDF sample will not capture   
 Care Provided During the Reporting   children whose child care is      
 Month.                               funded by TANF. The data element  
                                      is collected here because it is   
                                      required under CCDF and this is   
                                      the most cost-effective way to    
                                      capture TANF Child Care           
                                      information. See Sec. 658K        
                                      (a)(2)(C).                        
------------------------------------------------------------------------


          Appendix F--Statutory Reference Table for Appendix B          
------------------------------------------------------------------------
           Data elements                        Justification           
------------------------------------------------------------------------
1. State FIPS Code.................  N/A for Tribal TANF programs.      
2. County FIPS Code................  411(b): Use to construct comparable
                                      statistics based on 411 (a) (1)   
                                      (A), for families receiving       
                                      assistance.                       
3. Tribal Code.....................  Implicit in administering data     
                                      collection system.                
4. Reporting Month.................  Implicit in administering data     
                                      collection system.                
5. Stratum.........................  Implicit in administering data     
                                      collection system.                
Family Level Data..................  Items 6-16.                        
6. Case Number.....................  Implicit in administering data     
                                      collection system.                
7. ZIP Code........................  Needed for geographic coding (and  
                                      rural/urban analyses) and is      
                                      readily available.                
8. Disposition.....................  Implicit in administering data     
                                      collection system.                
9. Reason for Closure..............  411(a) (1) (A) (xvi).              
10. Number of Family Members.......  411(b): Use to construct comparable
                                      statistics based on 411 (a) (1)   
                                      (A), for families receiving       
                                      assistance.                       
11. Receives Subsidized Housing....  411(b): Use to construct comparable
                                      statistics based on 411 (a) (1)   
                                      (A), for families receiving       
                                      assistance.                       
12. Receives Medical Assistance....  411(b): Use to construct comparable
                                      statistics based on 411 (a) (1)   
                                      (A), for families receiving       
                                      assistance.                       
13. Receives Food Stamps...........  411(b): Use to construct comparable
                                      statistics based on 411 (a) (1)   
                                      (A), for families receiving       
                                      assistance.                       
14. Amount of Food Stamp Assistance  411(b): Use to construct comparable
                                      statistics based on 411 (a) (1)   
                                      (A), for families receiving       
                                      assistance.                       
15. Receives Subsidized Child Care.  411(b): Use to construct comparable
                                      statistics based on 411 (a) (1)   
                                      (A), for families receiving       
                                      assistance.                       
16. Amount of Subsidized Child Care  411(b): Use to construct comparable
                                      statistics based on 411 (a) (1)   
                                      (A), for families receiving       
                                      assistance.                       
Adult Characteristics..............  Items 17-39.                       
17. Family Affiliation.............  Needed to identify persons in Tribe-
                                      defined family and other          
                                      individuals living in the         
                                      household.                        
18. Date of Birth..................  411(b): Use to construct comparable
                                      statistics based on 411 (a) (1)   
                                      (A), for families receiving       
                                      assistance.                       
19. Social Security Number.........  This information is also readily   
                                      available. We need this           
                                      information also for research on  
                                      the circumstances of children and 
                                      families as required in section   
                                      413(g) of the Act (i.e., to track 
                                      individual members of the TANF    
                                      family).                          
20. Race...........................  411(b): Use to construct comparable
                                      statistics based on 411 (a) (1)   
                                      (A), for families receiving       
                                      assistance.                       
21. Gender.........................  Data could be collected under the  
                                      element Relationship to Head-of-  
                                      Household (e.g., husband, wife,   
                                      daughter, son, etc.). Element was 
                                      broken out to make the coding     
                                      cleaner and easier for Tribes to  
                                      report. Used the Secretary's      
                                      Report to the Congress.           
Receives Federal Disability          Items 22-26.                       
 Benefits.                                                              
22. Receives Federal Disability      411(b): Use to construct comparable
 Insurance Benefits.                  statistics based on 411(a)(1)(A), 
                                      for families receiving assistance.
23. Receives Benefits Based on       411(b): Use to construct comparable
 Federal Disability Status.           statistics based on 411(a)(1)(A), 
                                      for families receiving assistance.
24. Receives Aid Under Title XIV-    411(b): Use to construct comparable
 APDT.                                statistics based on 411(a)(1)(A), 
                                      for families receiving assistance.
25. Receives Aid Under Title XVI-    411(b): Use to construct comparable
 AABD.                                statistics based on 411(a)(1)(A), 
                                      for families receiving assistance.
26. Receives Aid Under Title XVI-    411(b): Use to construct comparable
 SSI.                                 statistics based on 411(a)(1)(A), 
                                      for families receiving assistance.

[[Page 39424]]

                                                                        
27. Marital Status.................  411(b): Use to construct comparable
                                      statistics based on 411(a)(1)(A), 
                                      for families receiving assistance.
28. Relationship to Head-of-         411(b): Use to construct comparable
 Household.                           statistics based on 411(a)(1)(A), 
                                      for families receiving assistance.
29. Teen Parent with Child in the    411(b): Use to construct comparable
 Family.                              statistics based on 411(a)(1)(A), 
                                      for families receiving assistance.
Adult Educational Level............  Items 30 and 31.                   
30. Highest Level of Education       411(b): Use to construct comparable
 Attained.                            statistics based on 411(a)(1)(A), 
                                      for families receiving assistance.
31. Highest Degree.................  411(b): Use to construct comparable
                                      statistics based on 411(a)(1)(A), 
                                      for families receiving assistance.
32. Citizenship/Alienage...........  411(b): Use to construct comparable
                                      statistics based on 411(a)(1)(A)  
                                      and 409(a)(1), for families       
                                      receiving assistance.             
33. Number of Months Countable       411(b): Use to construct comparable
 toward Federal Time Limit in Own     statistics based on 409(a)(9), for
 Tribe.                               families receiving assistance.    
34. Number of Months Countable       411(b): Use to construct comparable
 toward Federal Time Limit in Other   statistics based on 409(a)(9), for
 Tribes or States.                    families receiving assistance.    
35. Number of Countable Months       411(b): Use to construct comparable
 Remaining Under Tribe's Time Limit.  statistics based on 409(a)(9), for
                                      families receiving assistance.    
36. Employment Status..............  411(b): Use to construct comparable
                                      statistics based on 411(a)(1)(A), 
                                      for families receiving assistance.
Adult Earned Income................  Items 37 and 38 break out earned   
                                      income.                           
37. Earned Income Tax Credit (EITC)  411(b): Use to construct comparable
                                      statistics based on 411(a)(1)(A), 
                                      for families receiving assistance.
38. Wages, Salaries, and Other       411(b): Use to construct comparable
 Earnings.                            statistics based on 411(a)(1)(A), 
                                      for families receiving assistance.
39. Unearned Income................  411(b): Use to construct comparable
                                      statistics based on 411(a)(1)(A), 
                                      for families receiving assistance.
Child Characteristics..............  Items 40-52.                       
40. Family Affiliation.............  Needed to identify persons in Tribe-
                                      defined family and other          
                                      individuals living in the         
                                      household.                        
41. Date of Birth..................  411(b): Use to construct comparable
                                      statistics based on 411(a)(1)(A), 
                                      for families receiving assistance.
42. Social Security Number.........  This information is also readily   
                                      available. We need this           
                                      information also for research on  
                                      the circumstances of children and 
                                      families as required in section   
                                      413(g) of the Act (i.e., to track 
                                      individual members of the TANF    
                                      family).                          
43. Race...........................  411(b): Use to construct comparable
                                      statistics based on 411(a)(1)(A), 
                                      for families receiving assistance.
44. Gender.........................  Data could be collected under the  
                                      element Relationship to Head-of-  
                                      Household (e.g., husband, wife,   
                                      daughter, son, etc.). Element was 
                                      broken out to make the coding     
                                      cleaner and easier for Tribes to  
                                      report. Used the Secretary's      
                                      Report to the Congress.           
Receives Federal Disability          Items 45-49.                       
 Benefits.                                                              
45. Receives Benefits Based on       411(b): Use to construct comparable
 Federal Disability Status.           statistics based on 411(a)(1)(A), 
                                      for families receiving assistance.
46. Receives Aid Under Title XVI-    411(b): Use to construct comparable
 SSI.                                 statistics based on 411(a)(1)(A), 
                                      for families receiving assistance.
47. Relationship to Head-of-         411(b): Use to construct comparable
 Household.                           statistics based on 411(a)(1)(A), 
                                      for families receiving assistance.
48. Teen Parent with Child in the    411(b): Use to construct comparable
 Family.                              statistics based on 411(a)(1)(A), 
                                      for families receiving assistance.
Child Educational Level............  Items 52 and 53.                   
49. Highest Level of Education       411(b): Use to construct comparable
 Attained.                            statistics based on 411(a)(1)(A), 
                                      for families receiving assistance.
50. Highest Degree.................  411(b): Use to construct comparable
                                      statistics based on 411(a)(1)(A), 
                                      for families receiving assistance.
51. Citizenship/Alienage...........  411(b): Use to construct comparable
                                      statistics based on 411(a)(1)(A)  
                                      and 409(a)(1), for families       
                                      receiving assistance.             
52. Cooperation with Child Support.  411(b): Use to construct comparable
                                      statistics based on 409(a)(5), for
                                      families receiving assistance.    
53. Unearned Income................  411(b): Use to construct comparable
                                      statistics based on 411(a)(1)(A), 
                                      for families receiving assistance.
------------------------------------------------------------------------


          Appendix G.--Statutory Reference Table for Appendix C         
------------------------------------------------------------------------
           Data elements                       Statutory basis          
------------------------------------------------------------------------
1. State FIPS Code.................  N/A for Tribal TANF programs.      
2. Tribal Code.....................  Implicit in administering data     
                                      collection system.                
3. Calendar Quarter................  Implicit in administering data     
                                      collection system.                

[[Page 39425]]

                                                                        
4. Total Number of Applications....  411 (b): Use in Report to Congress.
5. Total Number of Approved          411 (a): Implicit in use of        
 Applications.                        samples. Needed to weight sample  
                                      data report for the newly,        
                                      approved applicants portion of the
                                      sample.                           
                                     411 (b): Use in Report to Congress.
6. Total Number of Denied            411 (b): Use in Report to Congress.
 Applications.                                                          
7. Total Amount of Assistance......  411 (a) (6) as revised by P.L. 105-
                                      33.                               
8. Total Number of Families........  411 (a) (6) as revised by P.L. 105-
                                      33.                               
                                     407 (b) (3): Use in calculation of 
                                      caseload reduction for adjusting  
                                      the participation rate standard.  
                                     411 (a): Implicit in use of samples
                                      to weight Tribe data to national  
                                      totals.                           
9. Total Number of Recipients......  411 (a) (6) as revised by P.L. 105-
                                      33.                               
10. Total Number of Adult            411 (a) (6) as revised by P.L. 105-
 Recipients.                          33.                               
11. Total Number of Child            411 (a) (6) as revised by P.L. 105-
 Recipients.                          33.                               
12. Total Number of Two-Parent       411 (a) (6) as revised by P.L. 105-
 Families.                            33.                               
                                     407 (b) (3): Use in calculation of 
                                      caseload reduction for adjusting  
                                      the participation rate standard.  
13. Total Number of One-Parent       411 (a) (6) as revised by P.L. 105-
 Families.                            33.                               
14. Total Number of No-Parent        411 (a) (6) as revised by P.L. 105-
 Families.                            33.                               
15. Total Number of Non-custodial    411 (a) (4).                       
 Parents Participating in Work                                          
 Activities.                                                            
16. Total Number of Minor Child      Used to test the reliability and   
 Heads-of-Household.                  representativeness of the sample. 
                                     411 (b): Use in Report to Congress.
17. Total Number of Births.........  413 (e): Needed to calculate the   
                                      Annual Ranking of States related  
                                      to Out-of-Wedlock Births. N/A for 
                                      Tribal TANF programs.             
18. Total Number of Out-of-Wedlock   413 (e): Needed to calculate the   
 Births.                              Annual Ranking of States related  
                                      to Out-of-Wedlock Births. N/A for 
                                      Tribal TANF programs.             
19. Total Number of Closed Cases...  411 (a): Implicit in use of        
                                      samples. Needed to weight sample  
                                      data report for families no longer
                                      receiving assistance.             
------------------------------------------------------------------------

PART 287--THE NATIVE EMPLOYMENT WORKS (NEW) PROGRAM

Subpart A--General NEW Provisions

Sec.
287.1  What does this part cover?
287.5  What is the purpose and scope of the NEW program?
287.10  What definitions apply to this part?

Subpart B--Eligible Tribes

287.15  Which Tribes are eligible to apply for NEW program grants?
287.20  May a Public Law 102-477 Tribe operate a NEW program?
287.25  May Tribes form a consortium to operate a NEW program?
287.30  If an eligible consortium breaks up, what happens to the NEW 
program grant?

Subpart C--NEW Program Funding

287.35  What grant amounts are available under the Personal 
Responsibility and Work Opportunity Reconciliation Act of 1996 
(PRWORA) for the NEW program?
287.40  Are there any matching funds requirements with the NEW 
program?
287.45  How can NEW program funds be used?
287.50  What are the funding periods for NEW program grants?
287.55  What time frames and guidelines apply regarding the 
obligation and liquidation periods for NEW program funds?
287.60  Are there additional financial reporting and auditing 
requirements?
287.65  What OMB circulars apply to the NEW program?

Subpart D--Plan Requirements

287.70  What are the plan requirements for the NEW program?
287.75  When does the plan become effective?
287.80  What is the process for plan review and approval?
287.85  How is a NEW plan amended?
287.90  Are Tribes required to complete any certifications?
287.95  May a Tribe operate both a NEW program and a Tribal TANF 
program?
287.100  Must a Tribe that operates both NEW and Tribal TANF 
programs submit two separate plans?

Subpart E--Program Design and Operations

287.105  What provisions of the Social Security Act govern the NEW 
program?
287.110  Who is eligible to receive assistance or services under a 
Tribe's NEW program?
287.115  When a NEW grantee serves TANF recipients, what 
coordination should take place with the State or Tribal TANF agency?
287.120  What work activities may be provided under the NEW program?
287.125  What supportive and job retention services may be provided 
under the NEW program?
287.130  Can NEW program activities include job market assessments, 
job creation and economic development activities?
287.135  Are bonuses, rewards and stipends allowed for participants 
in the NEW program?
287.140  With whom should the Tribe coordinate in the operation of 
its work activities and services?
287.145  What measures will be used to determine NEW program 
outcomes?

Subpart F--Data Collection and Reporting Requirements

287.150  Are there data collection requirements for Tribes who 
operate a NEW program?
287.155  What reports must a grantee file with the Department about 
its program operations?
287.160  What reports must a grantee file regarding financial 
operations?
287.165  What are the data collection and reporting requirements for 
Public Law 102-477 Tribes that consolidate a NEW program with other 
programs?
287.170  What are the data collection and reporting requirements for 
a Tribe that operates both the NEW program and a Tribal TANF 
program?

    Authority: 42 U.S.C. 612.

Subpart A--General NEW Provisions


Sec. 287.1  What does this part cover?

    (a) The regulations in this part prescribe the rules for 
implementing section 412(a)(2) of the Social Security Act, as amended 
by the Personal Responsibility and Work Opportunity Reconciliation Act 
of 1996 (PRWORA)

[[Page 39426]]

(Pub. L. 104-193) and the Balanced Budget Act of 1997 (Pub. L. 105-33).
    (b) Section 412(a)(2), as amended, authorizes the Secretary to 
issue grants to eligible Indian tribes to operate a program that makes 
work activities available to ``such population and such service area or 
areas as the tribe specifies.''
    (c) We call this Tribal work activities program the Native 
Employment Works (NEW) program.
    (d) These regulations specify the Tribes who are eligible to 
receive NEW program funding. They also prescribe requirements for: 
Funding; program plan development and approval; program design and 
operation; and data collection and reporting.


Sec. 287.5  What is the purpose and scope of the NEW program?

    (a) The purpose of the NEW program is to provide eligible Indian 
tribes, including Alaska Native organizations, the opportunity to 
provide work activities and services to their needy clients in a 
flexible manner.
    (b) The NEW programs will assist Indian tribes in achieving self-
sufficiency for their clients, and in reducing and ending dependency of 
Tribal families on government benefits.


Sec. 287.10  What definitions apply to this part?

    The following definitions apply to this part:
    ACF means the Administration for Children and Families;
    Act means the Social Security Act, unless we specify otherwise;
    Alaska Native organization means an Alaska Native village, or 
regional or village corporation, as defined in or established pursuant 
to the Alaska Native Claims Settlement Act (43 U.S.C. 1601 et seq.), 
that is eligible to operate a Federal program under the Indian Self-
Determination and Education Assistance Act (25 U.S.C. 450);
    Consortium means a group of Tribes working together for the same 
purpose and receiving consolidated NEW funding for that purpose.
    Department means the Department of Health and Human Services;
    Division of Tribal Services (DTS) means the unit in the Office of 
Community Services within the Department's Administration for Children 
and Families that has as its primary responsibility the administration 
of the Tribal family assistance program, called the Tribal Temporary 
Assistance for Needy Families (TANF) program, and the Tribal work 
program, called the Native Employment Works (NEW) program, as 
authorized by section 412(a);
    Eligible Indian tribe means an Indian tribe, a consortium of Indian 
tribes, or an Alaska Native organization that operated a Tribal Job 
Opportunities and Basic Skills Training (JOBS) program in fiscal year 
1995 under section 482(i), as in effect during that fiscal year;
    Fiscal year means the 12-month period beginning on October 1 of the 
preceding calendar year and ending on September 30;
    FY means fiscal year;
    Indian, Indian tribe, and Tribal organization--The terms 
``Indian'', ``Indian tribe'', and ``Tribal organization'' have the 
meaning given such terms by section 4 of the Indian Self-Determination 
and Education Assistance Act (25 U.S.C. 450b);
    Native Employment Works Program means the Tribal work program under 
section 412(a)(2) of the Act;
    NEW means the Native Employment Works Program;
    Program Year means, for the NEW program, the 12-month period 
beginning on July 1 of the calendar year and ending on June 30;
    PRWORA means the Personal Responsibility and Work Opportunity 
Reconciliation Act of 1996, Public Law 104-193;
    Public Law 102-477 refers to the Indian Employment, Training and 
Related Services Demonstration Act of 1992, whose purpose is to provide 
for the integration of employment, training and related services to 
improve the effectiveness of those services;
    Secretary means the Secretary of the Department of Health and Human 
Services;
    State means, except as otherwise specifically provided, the 50 
States of the United States, the District of Columbia, the Commonwealth 
of Puerto Rico, the United States Virgin Islands, Guam, and American 
Samoa;
    TANF means the Temporary Assistance for Needy Families Program;
    Temporary Assistance for Needy Families Program means a family 
assistance grant program operated either by a Tribe under section 
412(a)(1) of the Act or by a State under section 403 of the Act;
    Tribal TANF program means a Tribal program subject to the 
requirements of section 412 of the Act which is funded by TANF funds on 
behalf of eligible families;
    We (and any other first person plural pronouns) refers to The 
Secretary of Health and Human Services, or any of the following 
individuals or organizations acting in an official capacity on the 
Secretary's behalf: The Assistant Secretary for Children and Families, 
the Regional Administrators for Children and Families, the Department 
of Health and Human Services, and the Administration for Children and 
Families.

Subpart B--Eligible Tribes


Sec. 287.15  Which Tribes are eligible to apply for NEW program grants?

    To be considered for a NEW Program grant, a Tribe must be an 
``eligible Indian tribe.'' An eligible Indian tribe is an Indian tribe 
or Alaska Native organization that operated a Job Opportunities and 
Basic Skills Training (JOBS) program in FY 1995.


Sec. 287.20  May a Public Law 102-477 Tribe operate a NEW program?

    Yes, if the Tribe is an ``eligible Indian tribe.''


Sec. 287.25  May Tribes form a consortium to operate a NEW program?

    (a) Yes, as long as each Tribe forming the consortium is an 
``eligible Indian tribe.''
    (b) To apply for and conduct a NEW program, the consortium must 
submit a plan to ACF.
    (c) The plan must include a copy of a resolution from each Tribe 
indicating its membership in the consortium and authorizing the 
consortium to act on its behalf in regard to administering a NEW 
program.


Sec. 287.30  If an eligible consortium breaks up, what happens to the 
NEW program grant?

    (a) If a consortium should break up or any Tribe withdraws from a 
consortium, it will be necessary to allocate unobligated funds and 
future grants among the Tribes that were members of the consortium, if 
each individual Tribe obtains ACF approval to continue to operate a NEW 
program.
    (b) Each withdrawing Tribe must submit to ACF a copy of the Tribal 
resolution that confirms the Tribe's decision to withdraw from the 
consortium and indicates whether the Tribe elects to continue its 
participation in the program.
    (c) The allocation can be accomplished by any method that is 
recommended and agreed to by the leaders of those Tribes.
    (d) If no recommendation is made by the Tribal leaders or no 
agreement is reached, the Secretary will determine the allocation of 
funds based on the best available data.

[[Page 39427]]

Subpart C--NEW Program Funding


Sec. 287.35  What grant amounts are available under the Personal 
Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA) 
for the NEW program?

    Each Tribe shall receive a grant in an amount equal to the amount 
received by the Tribe in FY 1994 under section 482(i) (as in effect 
during FY 1994).


Sec. 287.40  Are there any matching funds requirements with the NEW 
program?

    No, Tribal grantees are not required to match NEW Federal funds.


Sec. 287.45  How can NEW program funds be used?

    (a) NEW grants are for making work activities available to such 
population as the Tribe specifies.
    (b) NEW funds can be used for work activities as defined by the 
Tribal grantee.
    (c) Work activities may include supportive services necessary for 
assisting NEW program participants in preparing for, obtaining and/or 
retaining employment.


Sec. 287.50  What are the funding periods for NEW program grants?

    NEW program funds are for operation of the NEW program for a 12-
month period from July 1 through June 30.


Sec. 287.55  What time frames and guidelines apply regarding the 
obligation and liquidation periods for NEW program funds?

    (a) NEW program funds provided for a FY are for use during the 
period July 1 through June 30 and must be obligated no later than June 
30. Carry forward of an unobligated balance of NEW funds is not 
permitted. An unobligated NEW fund balance as of June 30 will be 
returned to the Federal government through the issuance of a negative 
grant award. Unobligated funds are to be reported on the SF-269A which 
Tribes must submit within 30 days after the funding period, i.e., no 
later than July 30.
    (b) A Tribe must liquidate all obligations incurred under the New 
program grant awards not later than one year after the end of the 
obligation period, i.e., no later than June 30 of the following FY. An 
unliquidated balance at the close of the liquidation period will be 
returned to the Federal government through the issuance of a negative 
grant award. Unliquidated obligations are to be reported on the SF-269A 
which Tribes must submit within 90 days after the liquidation period, 
i.e., by September 28.


Sec. 287.60  Are there additional financial reporting and auditing 
requirements?

    (a) The reporting of expenditures are generally subject to the 
requirements of 45 CFR 92.41.
    (b) NEW program funds and activities are subject to the audit 
requirement of the Single Audit Act of 1984 (45 CFR 92.26).
    (c) A NEW program grantee must comply with all laws, regulations 
and Departmental policies that govern submission of financial reports 
by recipients of Federal grants.
    (d) Improper expenditure claims under this program are subject to 
disallowance.
    (e) If a grantee disagrees with the Agency's decision to disallow 
funds, the grantee may follow the appeal procedures at 45 CFR Part 16.


Sec. 287.65  What OMB circulars apply to the NEW program?

    NEW programs are subject to the following OMB circulars: A-87 
``Cost Principles for State, Local, and Indian Tribal Governments'' and 
A-133 ``Audits of States and Local Governments.''

Subpart D--Plan Requirements


Sec. 287.70  What are the plan requirements for the NEW program?

    (a) To apply for and conduct a NEW program, a Tribe must submit a 
plan to ACF.
    (b) The plan must identify the agency responsible for administering 
the NEW program and include a description of the following:
    (1) Population to be served;
    (2) Service area;
    (3) Client services to be provided;
    (4) Work activities to be provided;
    (5) Supportive and job retention services to be provided;
    (6) Anticipated program outcomes; and
    (7) Coordination activities conducted and expected to be conducted 
with other programs and agencies.
    (c) The plan must also describe how the Tribe will deliver work 
activities and services.
    (d) The format is left to the discretion of each NEW Tribal 
grantee.


Sec. 287.75  When does the plan become effective?

    (a) The Secretary required Tribes to submit an interim Tribal 
preprint, the ``Native Employment Works Program Abbreviated Preprint'', 
if they were offering NEW program services effective July 1, 1997. The 
preprint became operative July 1, 1997 and remained in effect to the 
end of the program year, June 30, 1998. Subsequent plans are three-year 
plans.
    (b) The three-year plans must be submitted to the Secretary by a 
deadline to be established.
    (c) The 1998 plan will cover program years 1998, 1999, and 2000. An 
approved plan for program year 1998 becomes operative on July 1, 1998, 
or upon approval by the Secretary, if later than July 1, 1998.


Sec. 287.80  What is the process for plan review and approval?

    (a) A Tribe must submit its plan to the ACF Regional Office, with a 
copy sent to the Division of Tribal Services, Office of Community 
Services, Administration for Children and Families, Attention: Native 
Employment Works Team.
    (b) To receive funding by the beginning of the NEW program year 
(July 1), a Tribe must submit its plan by the established due date.
    (c) ACF will complete its review of the plan within 45 days of 
receipt.
    (d) After the plan review has occurred, ACF will approve the plan, 
certifying that the plan meets all necessary requirements. If the plan 
is not approvable, the Regional Office will notify the Tribe regarding 
additional action needed for plan approval.


Sec. 287.85  How is a NEW plan amended?

    (a) If a Tribe makes substantial changes in its NEW program plan or 
operations, it must submit an amendment for the changed section(s) of 
the plan to the appropriate ACF Regional Office for review and 
approval, with a copy sent to the Division of Tribal Services, Office 
of Community Services, Administration of Children and Families, 
Attention: Native Employment Works Team. The review will verify 
consistency with section 412(a)(2) of the Act.
    (b) A substantial change is a change in the agency administering 
the NEW program, a change in the designated service area and/or 
population, or a change in work activities provided.
    (c) A substantial change in plan content or operations must be 
reported to us no later than 45 days prior to the proposed 
implementation date.
    (d) ACF will complete the review of the amended plan within 45 days 
of receipt.
    (e) An amended plan becomes effective when it is approved by the 
Secretary.


Sec. 287.90  Are Tribes required to complete any certifications?

    Yes. A Tribe must include in its NEW program plan any additional 
certifications that the Secretary prescribes in the planning guidance.

[[Page 39428]]

Sec. 287.95  May a Tribe operate both a NEW program and a Tribal TANF 
program?

    Yes. However, the Tribe must adhere to statutory and regulatory 
requirements of the individual programs.


Sec. 287.100  Must a Tribe that operates both NEW and Tribal TANF 
programs submit two separate plans?

    Yes. Separate plans are needed to reflect different program and 
plan requirements as specified in the statute and in plan guidance 
documents issued by the Secretary for each program.

Subpart E--Program Design and Operations


Sec. 287.105  What provisions of the Social Security Act govern the NEW 
program?

    NEW programs are subject only to those requirements at section 
412(a)(2) of the Act, as amended by PRWORA, ``Grants for Indian Tribes 
that Received JOBS Funds.''


Sec. 287.110  Who is eligible to receive assistance or services under a 
Tribe's NEW program?

    (a) A Tribe must specify in its NEW program plan the population and 
service area to be served. In cases where a Tribe designates a service 
area for its NEW program that is different from its Bureau of Indian 
Affairs (BIA) service area, an explanation must be provided.
    (b) A Tribe must include eligibility criteria in its plan and 
establish internal operating procedures that clearly specify the 
criteria to be used to establish an individual's eligibility for NEW 
services. The eligibility criteria must be equitable and defensible in 
event of a legal challenge.


Sec. 287.115  When a NEW grantee serves TANF recipients, what 
coordination should take place with the State or Tribal TANF agency?

    The Tribe should coordinate with the State or Tribal TANF agency 
on:
    (a) Eligibility criteria for TANF recipients to receive NEW program 
services;
    (b) Exchange of case file information;
    (c) Changes in client status that result in a loss of cash 
assistance, food stamps, Medicaid or other medical coverage;
    (d) Identification of work activities that may meet State work 
participation requirements;
    (e) Resources available from the State or Tribal TANF agency to 
ensure efficient delivery of benefits to the designated service 
population;
    (f) Policy for exclusions from the TANF program (e.g., criteria for 
exemptions and sanctions);
    (g) Termination of TANF assistance when time limits become 
effective;
    (h) Use of contracts in delivery of TANF services;
    (i) Prevention of duplication of services to assure the maximum 
level of services is available to participants;
    (j) Procedures to ensure that costs of other program services for 
which welfare recipients are eligible are not shifted to the NEW 
program; and
    (k) Reporting data for TANF quarterly and annual reports.


Sec. 287.120  What work activities may be provided under the NEW 
program?

    (a) The Tribe will determine what work activities are to be 
provided.
    (b) Examples of allowable activities include, but are not limited 
to: Educational activities, alternative education, post secondary 
education, job readiness activity, job search, job skills training, 
training and employment activities, job development and placement, on-
the-job training (OJT), employer work incentives related to OJT, 
community work experience, innovative approaches with the private 
sector, pre/post employment services, job retention services, 
unsubsidized employment, subsidized public or private sector 
employment, community service programs, entrepreneurial training, 
management training, job creation activities, economic development 
leading to job creation, and traditional subsistence activities.


Sec. 287.125  What supportive and job retention services may be 
provided under the NEW program?

    The NEW program grantee may provide, pay for or reimburse expenses 
for supportive services, including but not limited to transportation, 
child care, traditional or cultural work related services, and other 
work or family sufficiency related expenses that the Tribe determines 
are necessary to enable a client to participate in the program.


Sec. 287.130  Can NEW program activities include job market 
assessments, job creation and economic development activities?

    (a) A Tribe may conduct job market assessments within its NEW 
program. These might include the following:
    (1) Consultation with the Tribe's economic development staff or 
leadership that oversees the economic and employment planning for the 
Tribe;
    (2) Consultation with any local Job Training Partnership Act (JTPA) 
program, Private Industry Council or planning agencies that have 
undertaken economic and employment studies for the area in which the 
Tribe resides;
    (3) Communication with any training, research or educational 
agencies that have produced economic development plans for the area 
that may or may not include the Tribe; and
    (4) Coordination with any State or local governmental agency 
pursuing economic development options for the area.
    (b) The Tribe's NEW program may engage in activities and provide 
services to create jobs and economic opportunities for its 
participants. These services should be congruous with any available 
local job market assessments and may include the following:
    (1) Tribal Employment Rights Office (TERO) services;
    (2) Job creation projects and services;
    (3) Self-employment;
    (4) Self-initiated training that leads a client to improved job 
opportunities and employment;
    (5) Economic development projects that lead to jobs, improved 
employment opportunities, or self-sufficiency of program participants;
    (6) Surveys to collect information regarding client 
characteristics; and
    (7) Any other development and job creation activities that enable 
Tribal members to increase their economic independence and reduce their 
need for benefit assistance and supportive services.


Sec. 287.135  Are bonuses, rewards and stipends allowed for 
participants in the NEW program?

    Bonuses, stipends, and performance awards are allowed. However, 
such allowances may be counted as income in determining eligibility for 
some TANF or other need-based programs.


Sec. 287.140  With whom should the Tribe coordinate in the operation of 
its work activities and services?

    The administration of work activities and services provided under 
the NEW program must ensure that appropriate coordination and 
cooperation is maintained with the following entities operating in the 
same service areas as the Tribe's NEW program:
    (a) State, local and Tribal TANF agencies;
    (b) Any other agency whose programs impact the service population 
of the NEW program, including employment, training, placement, 
education, child care, and social programs.


Sec. 287.145  What measures will be used to determine NEW program 
outcomes?

    Each grantee will develop performance standards and measures to 
ensure accountability for its program results. A Tribe's program plan 
must identify planned program outcomes and the measures the Tribe will 
use to determine them. ACF will compare

[[Page 39429]]

planned outcomes against outcomes reported in the Tribe's annual 
reports.

Subpart F--Data Collection and Reporting Requirements


Sec. 287.150  Are there data collection requirements for Tribes that 
operate a NEW program?

    (a) Yes, the Tribal agency or organization responsible for 
operation of a NEW program must collect data and submit reports as 
specified by the Secretary.
    (b) A NEW program grantee must establish and maintain efficient and 
effective record-keeping systems to provide accurate and timely 
information regarding its service population.
    (c) Required reports will provide Tribes, the Secretary, Congress, 
and other interested parties with information to assess the success of 
the NEW program in meeting its goals. Also, the reports will provide 
the Secretary with information for monitoring program and financial 
operations.


Sec. 287.155  What reports must a grantee file with the Department 
about its NEW program operations?

    (a) Each eligible Tribe must submit an annual report that provides 
a summary of program operations.
    (b) The Secretary has developed an annual operations report, which 
is in OMB clearance. It will specify the data elements on which 
grantees must report, including elements that provide information 
regarding the number and characteristics of those served by the NEW 
program. This report will be in addition to any financial reports 
required by law, regulations, or Departmental policies.
    (c) The report form and instructions for its use will be 
distributed through ACF's program instruction system.
    (d) The program operations report will be due September 28, 90 days 
after the close of the NEW program year.


Sec. 287.160  What reports must a grantee file regarding financial 
operations?

    (a) Grantees will use SF-269A to make an annual financial report of 
expenditures for program activities and services.
    (b) Annual financial reports will be due to the appropriate 
Regional Office no later than September 28, 90 days after the end of 
the NEW program year.


Sec. 287.165  What are the data collection and reporting requirements 
for Public Law 102-477 Tribes that consolidate a NEW program with other 
programs?

    (a) Currently, there is a single reporting system for all programs 
operated by a Tribe under Public Law 102-477. This system includes a 
program report, consisting of a narrative report, a statistical form, 
and a financial report.
    (1) The program report is required annually and submitted to BIA, 
as the lead Federal agency and shared with DHHS and DOL.
    (2) The financial report is submitted on a SF-269A to BIA.
    (b) Information regarding program and financial operations of a NEW 
program administered by a Public Law 102-477 Tribe will be captured 
through the existing Public Law 102-477 reporting system.


Sec. 287.170  What are the data collection and reporting requirements 
for a Tribe that operates both the NEW program and a Tribal TANF 
program?

    Tribes operating both NEW and Tribal TANF programs must adhere to 
the separate reporting requirements for each program. NEW program 
reporting requirements are specified in Secs. 287.150--287.170.

[FR Doc. 98-19007 Filed 7-21-98; 8:45 am]
BILLING CODE 4184-01-U