39366 Federal Register / Vol. 63, No. 140 /Wednesday, July 22, 1998 / Proposed Rules

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 handdeliver 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:

• Be specific;

• Address issues raised by the

proposed rule;

• Where appropriate, propose

alternatives;

• Explain reasons for any objections

or recommended changes; and

• 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:

• Welfare programs should be

designed to help move people from

welfare to work.

• Welfare should be a short-term,

transitional experience, not a way of

life.

• Parents should receive the child

care and the health care they need to

protect their children as they move from

welfare to work.

• Child support programs should

become tougher and more effective in

securing support from absent parents.

• 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.

• The Federal government should

place more emphasis on program

results.

The new law provides federallyrecognized 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
Federal Register / Vol. 63, No. 140 /Wednesday, July 22, 1998 / Proposed Rules 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 Welfareto-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.
39368 Federal Register / Vol. 63, No. 140 /Wednesday, July 22, 1998 / Proposed Rules

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 selfsufficiency. 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? (§ 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 federallyrecognized 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?

(§ 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 nonIndians 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 § 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
Federal Register / Vol. 63, No. 140 /Wednesday, July 22, 1998 / Proposed Rules 39369

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 § 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, crisisoriented 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 onetime, 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, shortterm’’ 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
39370 Federal Register / Vol. 63, No. 140 /Wednesday, July 22, 1998 / Proposed Rules

collection and reporting. Please refer to

§ 286.150 for more information on the

Alaska comparability requirement.

Finally, we would like to note that

§ 286.5 contains a definition of

‘‘administrative costs.’’ This definition

is important because we are proposing,

at § 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? (§ 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? (§ 286.15)

How will we resolve disagreements

over the State-submitted data used to

determine the amount of a Tribal

Family Assistance Grant? (§ 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 nonIndians, 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 Statesubmitted 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 nonconcurrence 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 Statesubmitted data. In the absence of Statesubmitted 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?

(§ 286.25)

As defined at § 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
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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 § 286.170 for the discussion on

penalties.

What are proper uses of Tribal Family

Assistance Grant funds? (§ 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 § 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 welfarerelated 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? (§ 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 § 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 § 286.5.

Individuals who do not meet the criteria

at § 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
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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?

§ 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 § 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 § 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? (§ 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 § 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
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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?

(§ 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? (§ 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 § 286.140 for

information on this).

Who submits a Tribal Family

Assistance Plan? (§ 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 decisionmaking 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

§ 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

§ 286.65 and the time frames specified

at § 286.140.

What must be included in the Tribal

Family Assistance Plan? (§ 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
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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 nondiscrimination 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
Federal Register / Vol. 63, No. 140 /Wednesday, July 22, 1998 / Proposed Rules 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 § 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 nonIndian 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 nonenrolled 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
39376 Federal Register / Vol. 63, No. 140 /Wednesday, July 22, 1998 / Proposed Rules

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 § 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 ablebodied 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 welfarerelated 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

§§ 286.70–105 of the proposed

regulation. The proposed rules at

§§ 286.110–120 contain additional

information on time limits. Information

on penalties against individuals is

outlined at §§ 286.125–135.

What information on minimum work

participation requirements must a Tribe

include in its Tribal Family Assistance

Plan? (§ 286.70)
Federal Register / Vol. 63, No. 140 /Wednesday, July 22, 1998 / Proposed Rules 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 selfsufficient. 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 § 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

§ 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? (§ 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

§ 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 twoparent families (the two rates States are

subject to); or two separate rates for oneparent 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 § 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 § 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

§ 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? (§ 286.80)
39378 Federal Register / Vol. 63, No. 140 /Wednesday, July 22, 1998 / Proposed Rules

Similar to the calculations for State

participation rates, the proposed

regulations at § 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-ofhousehold 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 twoparent 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 § 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 noncompliance with the work participation

requirements from the denominator if

the families have been sanctioned for

more than three months out of a twelvemonth 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

§ 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 caseby-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 § 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? (§ 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 § 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? (§ 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 twoparent 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 § 286.90

indicates that Tribal TANF programs

will also be able to apply this policy.

What activities count towards the

work participation rate? (§ 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 § 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 selfsufficiency. For example, a Tribe may

identify subsistence activities or

substance abuse treatment as activities

the Tribe believes necessary to help

families achieve self-sufficiency.
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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?

(§ 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 § 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 § 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

§ 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?

(§ 286.105)

Section 407(f)(2) of the Act contains

two safeguards to ensure that in helping

welfare recipients become selfsufficient, 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 selfsufficiency 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? (§ 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
39380 Federal Register / Vol. 63, No. 140 /Wednesday, July 22, 1998 / Proposed Rules

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?

(§ 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? (§ 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 ablebodied 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? (§ 286.125)

What is the penalty if an individual

refuses to engage in work activities?

(§ 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? (§ 286.135)

This proposed rule combines the

discussions of these three sections of

this part because of the interrelationship 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
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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:

• Appropriate child care within a

reasonable distance from the

individual’s home or work site is

unavailable;

• Informal child care by a relative or

under other arrangements is unavailable

or unsuitable; or

• 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 headof-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? (§ 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 § 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

§ 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-
39382 Federal Register / Vol. 63, No. 140 /Wednesday, July 22, 1998 / Proposed Rules

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

§ 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 § 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 § 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 § 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? (§ 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

§ 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? (§ 286.150)

What is the process for developing the

comparability criteria that are required

in Alaska? (§ 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?

(§ 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? (§ 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
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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?

(§ 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 antifraud 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

§ 286.170(a)(4) and § 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 § 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
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subject Tribes to a penalty that is so

severe that services to recipients are

jeopardized. Therefore, we propose at

§ 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?

(§ 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 § 286.170(a)(1) and

§ 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 SelfDetermination 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 organizationwide 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

§ 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 noncompliance 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 § 286.170(a)(3),

not the dollar-for-dollar penalty at

§ 286.170(a)(1) for misuse of funds.

The single audit may also reveal

Tribal non-compliance with the

negotiated time limit requirements (see

§ 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)? (§ 286.180)

Tribal compliance with the minimum

work participation rates under § 286.80

will be primarily monitored through the

information required by section 411(a)

of the Act. The proposed rule at § 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
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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?

(§ 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 § 286.200 of this

chapter nor the corrective compliance

plan provisions at § 286.205 of this

chapter apply when a Tribe fails to

repay a Federal loan. Please refer to

§ 286.210 for more information on this

penalty.

When are the TANF penalty

provisions applicable? (§ 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? (§ 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 § 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? (§ 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
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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 § 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 § 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 § 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 § 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? (§ 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 § 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 § 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.
Federal Register / Vol. 63, No. 140 /Wednesday, July 22, 1998 / Proposed Rules 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?

(§ 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? (§ 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
39388 Federal Register / Vol. 63, No. 140 /Wednesday, July 22, 1998 / Proposed Rules

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 selfsufficiency 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—

• 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.

• Collect and report information to

monitor compliance with the work

requirements in section 407, as

authorized by section 411(a)(1)(A)(xii).

• 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.

• 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.)

• Collect and report a minimum

number of data elements related to child

care.

• Collect and report monthly

aggregate data on non-custodial parents

participating in work activities as

required by section 411(a)(4) of the Act.

• 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—

• 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.

• Requiring Tribes to report only on

the demographic and financial

characteristics of families applying for

assistance whose applications are

approved; and

• 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.
Federal Register / Vol. 63, No. 140 /Wednesday, July 22, 1998 / Proposed Rules 39389

What data collection and reporting

requirements apply to Tribal TANF

programs? (§ 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-ofeffort (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

§ 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? (§ 286.225)

The data collection and reporting

regulations rely on the general TANF

definitions at § 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 noncustodial 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.

• 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.

• We need information on minor

siblings in order to understand the

impact of ‘‘family cap’’ provisions.

• 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? (§ 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
39390 Federal Register / Vol. 63, No. 140 /Wednesday, July 22, 1998 / Proposed Rules

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-ofhousehold 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
Federal Register / Vol. 63, No. 140 /Wednesday, July 22, 1998 / Proposed Rules 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? (§ 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 pcbased 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?

(§ 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 AFDCtype 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—

Tribe implements TANF Data collection reporting 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? (§ 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.
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However, in the proposed § 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? (§ 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?

(§ 286.255)

We propose at § 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 § 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? (§ 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

§ 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,

§ 286.260(b) clarifies that Pub. L. 102–

477 Tribes must continue to submit the

specified data of the Act.

However, in § 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
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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
39394 Federal Register / Vol. 63, No. 140 /Wednesday, July 22, 1998 / Proposed Rules

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 nonTANF clients. The decisions are left to
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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’ selfsufficiency 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
39396 Federal Register / Vol. 63, No. 140 /Wednesday, July 22, 1998 / Proposed Rules

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 needbased 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 § 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 § 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.
Federal Register / Vol. 63, No. 140 /Wednesday, July 22, 1998 / Proposed Rules 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 federallyrecognized 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
39398 Federal Register / Vol. 63, No. 140 /Wednesday, July 22, 1998 / Proposed Rules

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 OMBapproved data collections in our

inventory and consulted with

knowledgeable Federal officials.

The annual burden estimates for these

Tribal TANF data collections are:

Instrument or requirement Number of

respondents

Number of responses per

respondent

Average burden hours per

response

Total burden

hours

Tribal TANF Data Report-§ 286.230(b) ............................................................ 1 18 4 451 32,472

Tribal TANF Annual Report-§ 286.255 ............................................................. 2 18 1 40 720

Reasonable Cause/Corrective Action Documentation-§ 286.200 ................. 3 18 1 60 1,080

1We estimate that there will be 18 Tribes with approved Tribal TANF plans and that these Tribes will be respondents.

2We estimate that the Tribes with approved Tribal TANF plans will be respondents.

3We 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:

• Evaluating whether the proposed

collections are necessary for the proper

performance of our functions, including

whether the information will have

practical utility;

• 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;

• Enhancing the quality, usefulness,

and clarity of the information to be

collected; and

• 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
Federal Register / Vol. 63, No. 140 /Wednesday, July 22, 1998 / Proposed Rules 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
39400 Federal Register / Vol. 63, No. 140 /Wednesday, July 22, 1998 / Proposed Rules

Appendix G—Statutory Reference Table for

Appendix C

Authority: 42 U.S.C. 612.

§ 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.

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

§ 286.10 Who is eligible to operate a Tribal

TANF program?

(a) An Indian tribe that meets the

definition of Indian tribe given in

§ 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

§ 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.
39402 Federal Register / Vol. 63, No. 140 /Wednesday, July 22, 1998 / Proposed Rules

§ 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 § 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]

§ 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.

§ 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]

§ 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

§ 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.

§ 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.

§ 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

§ 286.5 are subject to the limit at

§ 286.40.

(b) Information technology and

computerization for tracking and

monitoring are not administrative costs

for this purpose.

§ 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

§ 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.

§ 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
Federal Register / Vol. 63, No. 140 /Wednesday, July 22, 1998 / Proposed Rules 39403

program, the Tribe needs to submit a

Tribal TANF plan that follows the

requirements at § 286.65 and § 286.140.

§ 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 federallyrecognized 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 SelfDetermination and Education

Assistance Act (25 U.S.C. 450c(f)(1)),

relating to the submission of a singleagency audit report required by chapter

75 of title 31, United States Code.

§ 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 oneparent 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 § 286.95 for the

work activities applicable to State TANF

programs).

(i) The rationale must address how

the proposed work requirements are
39404 Federal Register / Vol. 63, No. 140 /Wednesday, July 22, 1998 / Proposed Rules

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.

§ 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.

§ 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-ofhousehold 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.

§ 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.

§ 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.

§ 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 § 286.100)

(7) Community service programs;

(8) Vocational educational training;

(see § 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]

§ 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.

§ 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-ofhousehold taking part in a work activity

outlined in § 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.

§ 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.
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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-ofhousehold or married to the head-ofhousehold; 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 § 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.

§ 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]

§ 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.

§ 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 § 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.

§ 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.

§ 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.

§ 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.
39406 Federal Register / Vol. 63, No. 140 /Wednesday, July 22, 1998 / Proposed Rules

(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.

§ 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.

§ 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.

§ 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.

§ 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.

§ 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

§ 286.140.

Subpart D—Accountability and

Penalties

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

§ 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 § 286.170(a)(1) or

intentionally misusing Tribal Family

Assistance Grant funds under

§ 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 § 286.30) and the provisions

listed in § 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 § 286.110, the amount

of the penalty for misuse will be limited

to five percent of the TFAG amount.

§ 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 § 286.230 to

determine if we will assess the penalty

under § 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 § 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

§ 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

§ 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 § 286.170(a)(1).

§ 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 § 286.200 nor the

corrective compliance plan provisions

at § 286.205 apply when a Tribe fails to

repay a Federal loan.

§ 286.190 When are the TANF penalty

provisions applicable?

(a) A Tribe may be subject to

penalties, as described in

§ 286.170(a)(1), § 286.170(a)(2) and

§ 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

§ 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 § 286.200.

§ 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 § 286.200 and/or a

corrective compliance plan under

§ 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 § 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.

§ 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

§ 286.170(a)(1), § 286.170(a)(2) or

§ 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.
39408 Federal Register / Vol. 63, No. 140 /Wednesday, July 22, 1998 / Proposed Rules

(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 § 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]

§ 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 § 286.170(a)(1),

§ 286.170(a)(2) or § 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

§ 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

§ 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.

§ 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]

§ 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 §§ 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

§ 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.
Federal Register / Vol. 63, No. 140 /Wednesday, July 22, 1998 / Proposed Rules 39409

1 See Appendices A and B to this part for the

specific data elements we are proposing.

2 See Appendix C to this part for the specific data

elements we are proposing.

(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.

§ 286.225 What definitions apply to this

subpart?

(a) Except as provided in paragraph

(b) of this section, the general TANF

definitions at § 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.

§ 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). 1 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.

(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. 2 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.

(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 § 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.

§ 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.

§ 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.

§ 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 § 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 § 286.175—use of TANF

funds in violation of part IV–A of the

Act.

(b) [Reserved]

§ 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 §§ 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
39410 Federal Register / Vol. 63, No. 140 /Wednesday, July 22, 1998 / Proposed Rules

may also include a description of any

unique features, accomplishments,

innovations, or additional information

appropriate for the Department’s annual

report to Congress.

§ 286.255 When are annual reports due?

(a) The annual report of Tribal

definitions and expenditures required

by § 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.

§ 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 noncustodial 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, caretaker relatives, or minor child heads-ofhousehold)

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
Federal Register / Vol. 63, No. 140 /Wednesday, July 22, 1998 / Proposed Rules 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-ofhousehold) 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 headof-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.
39412 Federal Register / Vol. 63, No. 140 /Wednesday, July 22, 1998 / Proposed Rules

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-ofhousehold’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 headof-household or married to the head-ofhousehold and up to five adults) in the TANF

family. A minor child who is either a headof-household or married to the head-ofhousehold 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-ofhousehold 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-ofhousehold’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-ofhousehold’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-ofhousehold) 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-ofhousehold’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-ofhousehold) 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 headof-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-ofhousehold’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-
Federal Register / Vol. 63, No. 140 /Wednesday, July 22, 1998 / Proposed Rules 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-ofhousehold’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-ofhousehold’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-ofhousehold’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-ofhousehold’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-ofhousehold’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-ofhousehold’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-ofhousehold) 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-ofhousehold’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)
39414 Federal Register / Vol. 63, No. 140 /Wednesday, July 22, 1998 / Proposed Rules

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-ofhousehold 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-ofhousehold) 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-ofhousehold) 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-inkind, 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
Federal Register / Vol. 63, No. 140 /Wednesday, July 22, 1998 / Proposed Rules 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-ofhousehold 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 ninedigit 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-ofhousehold 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-ofhousehold 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 twodigit 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) inhome child care provided by a nonrelative

06 = Legally operating (no license category

available in Tribe, State or locality) inhome child care provided by a relative

07 = Legally operating (no license category

available in Tribe, State or locality)

family child care provided by a nonrelative.

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 nonrelative

10 = Legally operating (no license category

available in Tribe, State or locality)

group child care provided by a relative
39416 Federal Register / Vol. 63, No. 140 /Wednesday, July 22, 1998 / Proposed Rules

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
Federal Register / Vol. 63, No. 140 /Wednesday, July 22, 1998 / Proposed Rules 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-ofhousehold 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 ninedigit 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 headof-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-ofhousehold’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-ofhousehold) 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 headof-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-ofhousehold 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-ofhousehold’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-ofhousehold’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/
39418 Federal Register / Vol. 63, No. 140 /Wednesday, July 22, 1998 / Proposed Rules

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-ofhousehold’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-ofhousehold’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-ofhousehold) 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-ofhousehold’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-ofhousehold 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 ninedigit 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-ofhousehold 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
Federal Register / Vol. 63, No. 140 /Wednesday, July 22, 1998 / Proposed Rules 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-ofhousehold 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 twodigit 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 noncash) 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 twoparent 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-ofHousehold: 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
39420 Federal Register / Vol. 63, No. 140 /Wednesday, July 22, 1998 / Proposed Rules

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-ofwedlock 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 Participation ................................................ 411(a)(1)(A)(xii): Use in 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).
Federal Register / Vol. 63, No. 140 /Wednesday, July 22, 1998 / Proposed Rules 39421

APPENDIX E.—STATUTORY REFERENCE TABLE FOR APPENDIX A—Continued

Data elements Justification

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 Resources .......................................... 411(b), requires the Secretary to report to Congress on financial circumstances of families receiving TANF assistance.

Amount of Assistance Received and Number of Months the Family Received Assistance by Type under the Tribal TANF Program.Items 22—31 are types of assistance.

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 Special Needs, Including Assistance

with Meeting Home Heating and Air Conditioning Costs.

411(a)(1)(A)(x)&(xiii).

29. Transitional Services ........................................................................... 411(a)(1)(A)(x)&(xiii).

30. Contributions to Individual Development Accounts ............................ 411(a)(1)(A)(x)&(xiii).

31. Other ................................................................................................... 411(a)(1)(A)(x)&(xiii).

Reason for and Amount of Reduction in Assistance ................................ Items 32–42 are the reasons for reduction in assistance.

32. Work Requirements Sanction ............................................................. 411(a)(1)(A)(xiii).

33. Family Sanction for an Adult with No High School Diploma or

Equivalent.

411(a)(1)(A)(xiii).

34. Sanction for Teen Parent Not Attending School ................................ 411(a)(1)(A)(xiii).

35. Non-Cooperation with Child Support .................................................. 411(a)(1)(A)(xiii).

36. Failure to Comply with an Individual Responsibility Plan ................... 411(a)(1)(A)(xiii).

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 Moving into Tribe From Another State

or Tribal TANF Program.

411(a)(1)(A)(xiii).

41. Reduction Based on Length of Receipt of Assistance ....................... 411(a)(1)(A)(xiii).

42. Other, Non-sanction ............................................................................ 411(a)(1)(A)(xiii).

43. Waiver Evaluation Research Group ................................................... 411(a)(1)(A)(xii): Use to calculate 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 the Federal Time Limit .................. 409(a)(9).

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-ofHousehold (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 ........................................................ Items 51—55.

51. Receives Federal Disability Insurance Benefits ................................. 411(a)(1)(A)(ii) as revised by P.L. 105–33.

52. Receives Benefits Based on Federal Disability Status ...................... 411(a)(1)(A)(ii) as revised by P.L. 105–33.

53. Receives Aid Under Title XIV-APDT .................................................. 411(a)(1)(A)(ii) as revised by P.L. 105–33.

54. Receives Aid Under Title XVI-AABD .................................................. 411(a)(1)(A)(ii) as revised by P.L. 105–33.

55. Receives Aid Under Title XVI-SSI ...................................................... 411(a)(1)(A)(ii) as revised by P.L. 105–33.

56. Marital Status ...................................................................................... 411(a)(1)(A)(vi).

57.Relationship to Head-of-Household ..................................................... 411(a)(1)(A)(iv) as revised by P.L. 105–33.

58. Teen Parent with Child in the Family ................................................. 411(a)(1)(A)(xvii) as revised by P.L. 105–33.

Adult Educational Level ............................................................................ Items 59 and 60.

59. Highest Level of Education Attained .................................................. 411(a)(1)(A)(vii).

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).
39422 Federal Register / Vol. 63, No. 140 /Wednesday, July 22, 1998 / Proposed Rules

APPENDIX E.—STATUTORY REFERENCE TABLE FOR APPENDIX A—Continued

Data elements Justification

62. Number of Months Countable toward Federal Time Limit in Own

Tribe.

409(a)(9).

63. Number of Months Countable toward Federal Time Limit in Other

States or Tribes.

409(a)(9).

64. Number of Countable Months Remaining Under Tribe’s Time Limit 409(a)(9).

65. Is Current Month Exempt from the Tribe’s Time Limit ....................... 409(a)(9).

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 Employment ............................................. 411(a)(1)(A)(xi)(II).

70. Subsidized Public Sector Employment ............................................... 411(a)(1)(A)(xi)(IV).

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 Assistance ....................................... 411(a)(1)(A)(xi)(V).

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 Related to Employment .......................... 411(a)(1)(A)(xi)(VI).

77. Education Directly Related to Employment for Individuals with no

High School Diploma or Certificate of High School Equivalency.

411(a)(1)(A)(xi)(I).

78. Satisfactory School Attendance for Individuals with no High School

Diploma or Certificate of High School Equivalency.

411(a)(1)(A)(xi)(I).

79. Providing Child Care Services to an Individual who is Participating

in a Community Service Program.

411(a)(1)(A)(xi).

80. Additional Work Activities Permitted Under Waiver ........................... 411(a)(1)(A)(xii): Use to calculate 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 Waiver .............................................. 411(a)(1)(A)(xii): Use to calculate 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 Earnings ................................................ 411(a)(1)(A)(v).

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-ofHousehold (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 Federal Disability Status ...................... 411(a)(1)(A)(ii) as revised by P.L. 105–33.

95. Receives Aid Under Title XVI–SSI ..................................................... 411(a)(1)(A)(ii) as revised by P.L. 105–33.

96. Relationship to Head-of-household .................................................... 411(a)(1)(A)(iv) as revised by P.L. 105–33.

97. Teen Parent with Child in the Family ................................................. 411(a)(1)(A)(xvii) as revised by P.L. 105–33.

Child Educational Level ............................................................................ Items 101 and 102.

98. Highest Level of Education Attained .................................................. 411(a)(1)(A)(viii).

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 Income ................................................. 411(a)(1)(A)(xiv)—rather than 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.
Federal Register / Vol. 63, No. 140 /Wednesday, July 22, 1998 / Proposed Rules 39423

APPENDIX E.—STATUTORY REFERENCE TABLE FOR APPENDIX A—Continued

Data elements Justification

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 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)). 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 Care Provided During the Reporting

Month.

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).

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-ofHousehold (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 ........................................................ Items 22–26.

22. Receives Federal Disability Insurance Benefits ................................. 411(b): Use to construct comparable statistics based on 411(a)(1)(A),

for families receiving assistance.

23. Receives Benefits Based on Federal Disability Status ...................... 411(b): Use to construct comparable statistics based on 411(a)(1)(A),

for families receiving assistance.

24. Receives Aid Under Title XIV–APDT ................................................. 411(b): Use to construct comparable statistics based on 411(a)(1)(A),

for families receiving assistance.

25. Receives Aid Under Title XVI–AABD ................................................. 411(b): Use to construct comparable statistics based on 411(a)(1)(A),

for families receiving assistance.

26. Receives Aid Under Title XVI–SSI ..................................................... 411(b): Use to construct comparable statistics based on 411(a)(1)(A),

for families receiving assistance.
39424 Federal Register / Vol. 63, No. 140 /Wednesday, July 22, 1998 / Proposed Rules

APPENDIX F—STATUTORY REFERENCE TABLE FOR APPENDIX B—Continued

Data elements Justification

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-Household .................................................... 411(b): Use to construct comparable statistics based on 411(a)(1)(A),

for families receiving assistance.

29. Teen Parent with Child in the Family ................................................. 411(b): Use to construct comparable statistics based on 411(a)(1)(A),

for families receiving assistance.

Adult Educational Level ............................................................................ Items 30 and 31.

30. Highest Level of Education Attained .................................................. 411(b): Use to construct comparable 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 toward Federal Time Limit in Own

Tribe.

411(b): Use to construct comparable statistics based on 409(a)(9), for

families receiving assistance.

34. Number of Months Countable toward Federal Time Limit in Other

Tribes or States.

411(b): Use to construct comparable statistics based on 409(a)(9), for

families receiving assistance.

35. Number of Countable Months Remaining Under Tribe’s Time Limit 411(b): Use to construct comparable 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 Earnings ................................................ 411(b): Use to construct comparable 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-ofHousehold (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 ........................................................ Items 45–49.

45. Receives Benefits Based on Federal Disability Status ...................... 411(b): Use to construct comparable statistics based on 411(a)(1)(A),

for families receiving assistance.

46. Receives Aid Under Title XVI–SSI ..................................................... 411(b): Use to construct comparable statistics based on 411(a)(1)(A),

for families receiving assistance.

47. Relationship to Head-of-Household .................................................... 411(b): Use to construct comparable statistics based on 411(a)(1)(A),

for families receiving assistance.

48. Teen Parent with Child in the Family ................................................. 411(b): Use to construct comparable statistics based on 411(a)(1)(A),

for families receiving assistance.

Child Educational Level ............................................................................ Items 52 and 53.

49. Highest Level of Education Attained .................................................. 411(b): Use to construct comparable 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.
Federal Register / Vol. 63, No. 140 /Wednesday, July 22, 1998 / Proposed Rules 39425

APPENDIX G.—STATUTORY REFERENCE TABLE FOR APPENDIX C—Continued

Data elements Statutory basis

4. Total Number of Applications ............................................................... 411 (b): Use in Report to Congress.

5. Total Number of Approved Applications ............................................... 411 (a): Implicit in use of 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 Applications ................................................... 411 (b): Use in Report to Congress.

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 Recipients ....................................................... 411 (a) (6) as revised by P.L. 105–33.

11. Total Number of Child Recipients ....................................................... 411 (a) (6) as revised by P.L. 105–33.

12. Total Number of Two-Parent 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.

13. Total Number of One-Parent Families ................................................ 411 (a) (6) as revised by P.L. 105–33.

14. Total Number of No-Parent Families .................................................. 411 (a) (6) as revised by P.L. 105–33.

15. Total Number of Non-custodial Parents Participating in Work Activities.411 (a) (4).

16. Total Number of Minor Child Heads-of-Household ............................ Used to test the reliability and 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 Births ............................................. 413 (e): Needed to calculate the 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

§ 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)
39426 Federal Register / Vol. 63, No. 140 /Wednesday, July 22, 1998 / Proposed Rules

(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.

§ 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 selfsufficiency for their clients, and in

reducing and ending dependency of

Tribal families on government benefits.

§ 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

§ 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.

§ 287.20 May a Public Law 102–477 Tribe

operate a NEW program?

Yes, if the Tribe is an ‘‘eligible Indian

tribe.’’

§ 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.

§ 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.
Federal Register / Vol. 63, No. 140 /Wednesday, July 22, 1998 / Proposed Rules 39427

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?

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).

§ 287.40 Are there any matching funds

requirements with the NEW program?

No, Tribal grantees are not required to

match NEW Federal funds.

§ 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.

§ 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.

§ 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.

§ 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.

§ 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

§ 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.

§ 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.

§ 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.

§ 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.

§ 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.
39428 Federal Register / Vol. 63, No. 140 /Wednesday, July 22, 1998 / Proposed Rules

§ 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.

§ 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

§ 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.’’

§ 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.

§ 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.

§ 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.

§ 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.

§ 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.

§ 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.

§ 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.

§ 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
Federal Register / Vol. 63, No. 140 /Wednesday, July 22, 1998 / Proposed Rules 39429

planned outcomes against outcomes

reported in the Tribe’s annual reports.

Subpart F—Data Collection and

Reporting Requirements

§ 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.

§ 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.

§ 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.

§ 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.

§ 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

§§ 287.150—287.170.

[FR Doc. 98–19007 Filed 7–21–98; 8:45 am]

BILLING CODE 4184–01–U