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[Federal Register: February 25, 2010 (Volume 75, Number 37)]
[Rules and Regulations]               
[Page 8508-8524]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr25fe10-21]                         


[[Page 8508]]

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DEPARTMENT OF HEALTH AND HUMAN SERVICES

Administration for Children and Families

45 CFR Parts 309 and 310

RIN 0970-AC32

 
Computerized Tribal IV-D Systems and Office Automation

AGENCY: Office of Child Support Enforcement, Administration for 
Children and Families, Department of Health and Human Services (HHS).

ACTION: Final rule.

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SUMMARY: This rule enables Tribes and Tribal organizations currently 
operating comprehensive Tribal Child Support Enforcement programs under 
Title IV-D of the Social Security Act (the Act) to apply for and 
receive direct Federal funding for the costs of automated data 
processing. This rule addresses the Secretary's commitment to provide 
instructions and guidance to Tribes and Tribal organizations on 
requirements for applying for, and upon approval, securing Federal 
Financial Participation (FFP) in the costs of installing, operating, 
maintaining, and enhancing automated data processing systems.

DATES: Effective Date: This rule is effective February 25, 2010.

FOR FURTHER INFORMATION CONTACT: Paige Hausburg, OCSE Division of 
Policy, (202) 401-5635. Deaf and hearing impaired individuals may call 
the Federal Dual Party Relay Service at 1-800-877-8339 between 8 a.m. 
and 7 p.m. Eastern Time.

SUPPLEMENTARY INFORMATION:

Statutory Authority

    This final regulation is published under the authority granted to 
the Secretary (the Secretary) of the Department of Health and Human 
Services (the Department) by section 1102 of the Social Security Act 
(the Act), 42 U.S.C. 1302. Section 1102 of the Act authorizes the 
Secretary to publish regulations, not inconsistent with the Act, which 
may be necessary for the efficient administration of the Title IV-D 
program.
    This rule also is published in accordance with section 455(f) of 
the Act (42 U.S.C. 655(f)). Section 455(f) of the Act authorizes the 
Secretary to issue regulations governing grants to Tribes and Tribal 
organizations operating child support enforcement programs.

Background

    On March 30, 2004 the Tribal Child Support Enforcement Program 
final rule was published in the Federal Register (69 FR 16638). We 
stated in our response to comments to the final rule (69 FR at 16652) 
that we had begun consideration with stakeholders of appropriate 
minimum Tribal systems automation specifications in anticipation of 
Tribal IV-D programs moving toward high-speed automated data 
processing. A Federal/Tribal workgroup was convened and considered such 
automation issues as compatibility, scale, functionality and costs, 
with a goal of developing a Model Tribal IV-D System, designed by the 
Office of Child Support Enforcement (OCSE) to allow comprehensive 
Tribal IV-D agencies to effectively and efficiently automate Tribal 
child support enforcement operations.
    This regulation sets forth requirements for comprehensive Tribal 
IV-D programs that must be met in order for Tribes and Tribal 
organizations to receive direct funding under section 455(f) of the Act 
for automated data processing systems. This final regulation responds 
to public comments on the Notice of Proposed Rulemaking (NPRM) issued 
on June 11, 2008 (73 FR 33048).

Consultations/Public Comment Period on the Regulation

    To facilitate the communication and consultation process between 
the Federal government and Tribal governments, OCSE held one public 
informational meeting and three consultation sessions regarding the 
proposed rule on Computerized Tribal IV-D Systems and Office 
Automation. The informational meeting was held on June 11, 2008, when 
the NRPM was published, and the consultation sessions were held on June 
27, July 8, and July 9 of 2008. OCSE provided notice of open 
consultation regarding the proposed rule on Computerized Tribal IV-D 
Systems and Office Automation through informal and formal means. These 
included sending letters such as a Tribal Dear Colleague Letter (TDCL-
08-01: http://www.acf.hhs.gov/programs/cse/pol/TDCL/2008/tdcl-08-01.htm) to all Tribal IV-D Directors dated May 7, 2008, and a second 
letter addressing all Tribal leaders dated June 4, 2008 as well as 
publication of a notice of open consultation in the Federal Register on 
June 10, 2008 (73 FR 32668). The informational meeting and 
consultations were successful in eliciting questions and concerns.
    The government-to-government consultations were very useful in 
identifying key issues of Tribal concern including the Tribal 
consultation process, piloting the Model Tribal IV-D System, access to 
Federal resources for support enforcement, increased Federal funding of 
Tribal automation and Federal access to Tribal systems. These issues 
are discussed in the Response to Comments section of this rule.

Changes Made in Response to Comments

    We received 14 letters from 13 Tribal programs and one State, in 
addition to 12 comments from the participants in the three Tribal 
consultations on the NPRM. We made the following changes to the 
proposed regulation in response. We agreed with commenters' suggestion 
to increase FFP in the costs of installing the Model Tribal IV-D System 
to 90 percent matching of the pre-approved cost of installation by 
revising Sec.  309.130(c)(3). We also agreed with commenters that a 
Tribal IV-D agency seeking FFP in the operation and maintenance costs 
of a Tribally-funded system as described in Sec.  309.145(h)(5) should 
not be subject to all the license requirements in Sec.  310.25(c). 
Accordingly, we revised Sec.  309.145(h)(5) by narrowing the Software 
and Ownership Rights reference from Sec.  310.25(c) as stated in the 
NPRM to Sec.  310.25(c)(1) in this final rule. Under Sec.  
310.25(c)(1), a Tribal IV-D agency seeking FFP in operation and 
maintenance costs must ensure that all procurement and contract 
instruments include a clause that provides that the comprehensive 
Tribal IV-D agency will have all ownership rights to the Computerized 
Tribal IV-D System software or enhancements. The final rule does not 
require a Tribal IV-D agency to follow the licensing requirements in 
Sec.  310.25(c)(2) as a condition of receiving FFP in the costs of 
operation and maintenance of a Tribally-funded system. In addition, a 
technical change was made to Sec.  310.15(a) to clarify which 
safeguarding requirements a Tribal IV-D agency must include in written 
policies and procedures. These changes are discussed in more detail 
under the Response to Comments section of this preamble.

Provisions of the Regulation

Part 309--Tribal Child Support Enforcement (IV-D) Program

Section 309.130 How will Tribal IV-D programs be funded and what forms 
are required?
    This regulation revises paragraph (c) of Sec.  309.130 by 
referencing the Federal share of pre-approved installation costs for 
the Model Tribal IV-D System. As indicated earlier, in response to 
comments suggesting that FFP in the

[[Page 8509]]

costs of Tribal automation be increased from the applicable matching 
rate as defined in Sec.  309.130(c), we have added subparagraphs (i) 
and (ii) to Sec.  309.130(c)(3) of the final rule. Section 
309.130(c)(3)(i) provides that for all periods following the three-year 
period (a timeframe under which a Tribal IV-D agency may receive 90 
percent Federal funding as specified in paragraph (c)(2)), a Tribe or 
Tribal organization will receive Federal grant funds equal to 80 
percent of the total amount of approved and allowable expenditures made 
for the administration of the Tribal child support enforcement program, 
except as provided in paragraph (ii). Under Sec.  309.130(c)(3)(ii), a 
Tribe or Tribal organization will receive Federal grant funds equal to 
90 percent of pre-approved costs of installing the Model Tribal IV-D 
System. The comments requesting increased Federal funding for Tribal 
automation and changes to the applicable matching rate are discussed in 
more detail in the Response to Comments section.
Section 309.145 What costs are allowable for Tribal IV-D programs 
carried out under Sec.  309.65(a) of this part?
    Under Sec.  309.145, Federal funds are available for the costs of 
operating a Tribal IV-D program under an approved Tribal IV-D 
application carried out under Sec.  309.65(a), provided that such costs 
are determined by the Secretary to be reasonable, necessary, and 
allocable to the program. Allowable activities and costs for Tribal 
automated data processing computer systems, addressed in paragraph (h) 
of this section, include planning efforts in the identification, 
evaluation, and selection of an automated data processing computer 
system solution meeting the program requirements defined in a Tribal 
IV-D plan and the automated systems requirements in part 310; 
installation, operation, maintenance and enhancement of a Model Tribal 
IV-D System as defined in and meeting the requirements of part 310; 
procurement, installation, operation and maintenance of essential 
Office Automation capability; establishment of Intergovernmental 
Service Agreements with a State and another comprehensive Tribal IV-D 
agency for access to the State or other Tribe's existing automated data 
processing computer system to support Tribal IV-D program operations, 
and reasonable costs associated with use of such a system; operation 
and maintenance of a Tribal automated data processing system funded 
entirely with Tribal funds if the software ownership rights and license 
requirements in Sec.  310.25(c)(1) are met; and other automation and 
automated data processing computer system costs in accordance with 
instructions and guidance issued by the Secretary.

Part 310--Computerized Tribal IV-D Systems and Office Automation

Section 310.0 What does this part cover?
    This section addresses the conditions for Federal funding and 
requirements governing Computerized Tribal IV-D Systems and Office 
Automation. These include the automated systems options for 
comprehensive Tribal IV-D programs; the functional requirements for the 
Model Tribal IV-D System; the security and privacy requirements for 
Computerized Tribal IV-D Systems and Office Automation; the conditions 
for funding the installation, operation, maintenance, and enhancement 
of Computerized Tribal IV-D Systems and Office Automation; the 
conditions that apply to acquisitions of Computerized Tribal IV-D 
Systems; and the accountability and monitoring of Computerized Tribal 
IV-D Systems.
Section 310.1 What definitions apply to this part?
    Section 310.1(a) defines the following terms used in Part 310: 
Automated Data Processing Services (ADP Services); Comprehensive Tribal 
IV-D Agency; Computerized Tribal IV-D System; Installation; 
Maintenance; Model Tribal IV-D System; Office Automation; Reasonable 
Cost; Service Agreement; and Simplified Acquisition Threshold.
    Section 310.1(b) references the following terms defined in 45 CFR 
95.605, General Administration--Grant Programs, and applies these terms 
to Part 310: Acquisition; Advance Planning Document (APD); Automated 
Data Processing (ADP); Design or System Design; Development; 
Enhancement; Federal Financial Participation (FFP); Operation; Project; 
Software; and Total Acquisition Cost. These terms are the terms in Part 
95 that are appropriately applicable to Tribal IV-D programs and will 
ensure that a reasonably consistent approach will be maintained among 
State, Local and Tribal grantees with regard to ADP systems 
acquisitions, while still maintaining flexibility for Tribes and Tribal 
organizations to determine their own best solution to automating their 
comprehensive Tribal IV-D programs.
    Section Sec.  310.1(c) cross-references all definitions of terms 
that apply to Tribal IV-D programs in Sec.  309.05 because these terms 
are also applicable in Part 310. Similarly, the definitions in this 
rule should apply to Part 309.

Subpart B--Requirements for Computerized Tribal IV-D Systems

Section 310.5 What options are available for Computerized Tribal IV-D 
Systems and Office Automation?
    This section of the rule sets forth options available to 
comprehensive Tribal IV-D agencies for the purpose of automating Tribal 
IV-D activities. We recognize the importance and benefits of 
integrating automation in the daily operations of comprehensive Tribal 
IV-D programs. To that end, Sec.  310.5(a) allows a comprehensive 
Tribal IV-D agency to have in effect an operational computerized 
support enforcement system that meets Federal requirements under Part 
310.
    Section 310.5(b) requires that a Computerized Tribal IV-D System 
must be one of the design options discussed in paragraphs (b)(1) and 
(b)(2). This provision would not preclude a Tribe from proposing a 
hybrid solution as long as the functional components are not 
duplicative or unreasonable in cost. In addition, OCSE recognizes that 
there may be situations wherein multiple systems may be in use during a 
reasonable transition period from one automated system to another. 
Under paragraph (b)(1), a comprehensive Tribal IV-D program may 
automate its case processing and record-keeping processes through 
installation, operation, maintenance, or enhancement of the Model 
Tribal IV-D System designed by OCSE to address the program requirements 
defined in a Tribal IV-D plan in accordance with Sec.  309.65(a) and 
the functional requirements in proposed Sec.  310.10.
    Under Sec.  310.5(b)(2), a comprehensive Tribal IV-D program may 
elect to automate its case processing and record-keeping processes 
through the establishment of Intergovernmental Service Agreements with 
a State or another comprehensive Tribal IV-D agency for access to that 
agency's existing automated data processing computer system to support 
comprehensive Tribal IV-D program operations.
    In Sec.  310.5(c), a comprehensive Tribal IV-D agency may opt to 
conduct automated data processing and record-keeping activities through 
Office Automation. Allowable activities under this paragraph include 
procurement, installation, operation and maintenance of essential 
Office Automation capability as defined in Sec.  310.1.
    In full recognition of Tribal sovereignty, Sec.  310.5(d) affirms 
that a

[[Page 8510]]

comprehensive Tribal IV-D agency may design, develop, procure, or 
enhance an automated data processing system funded entirely with Tribal 
funds. An automated data processing system funded entirely with Tribal 
funds would not be obligated to meet the requirements detailed in this 
rule, although a comprehensive Tribal IV-D agency may adopt all or some 
of the system specifications laid-out in this rule in order to 
facilitate as much consistency in State and comprehensive Tribal IV-D 
automated data processing systems as possible.
Section 310.10 What are the functional requirements for the Model 
Tribal IV-D System?
    Section 310.10 identifies the minimum functional requirements which 
a comprehensive Tribal IV-D agency must meet in the operation of a 
Model Tribal IV-D System. Comprehensive Tribal IV-D agencies that have 
elected to automate case processing and recordkeeping activities 
through a manner other than the Model Tribal IV-D System, as defined in 
Sec.  310.1, will not be subject to the requirements presented in this 
section of the rule. All comprehensive Tribal IV-D agencies, regardless 
of automation choice, will continue to be responsible for meeting the 
programmatic requirements found in Part 309 titled Tribal Child Support 
Enforcement (IV-D) Program.
    The system requirements discussed in this section are based on the 
functional requirements for computerized support enforcement systems 
regulated in Sec. Sec.  307.10 and 307.11 for State IV-D programs. 
Determination of which functional requirements are mandatory in a Model 
Tribal IV-D System was based on careful examination of State automated 
systems, Tribal IV-D program regulations, and cost-effectiveness 
analyses, as well as strong consideration of which comprehensive Tribal 
IV-D activities would benefit most from automation, given the varying 
sizes of eligible Tribes and Tribal organizations.
    Under Sec.  310.10(a), a Model Tribal IV-D System must accept, 
maintain and process the actions in the child support collection and 
paternity determination processes under the Tribal IV-D plan, including 
identifying information; verifying information; maintaining 
information; and maintaining data. These are essential elements of 
automated case processing which are necessary to meet the fundamental 
objectives of the Tribal Child Support Enforcement program, including 
establishing paternity, establishing and enforcing support orders, and 
collecting child support payments.
    Under paragraph (b), a Model Tribal IV-D System must update, 
maintain and manage all IV-D cases under the Tribal IV-D plan from 
initial application or referral through collection and enforcement 
including any events, transactions, or actions taken therein. This 
requirement is especially critical in relation to Subpart D, Sec.  
310.40 which addresses accountability and monitoring procedures for 
Computerized Tribal IV-D Systems.
    Section 310.10(c) requires a Model Tribal IV-D System to record and 
report any fees collected, either directly or by interfacing with State 
or Tribal financial management and expenditure information. The Model 
Tribal IV-D System must have the capacity to record and report costs of 
any fees collected to help ensure accurate and complete accounting of 
expenditures under a Tribal IV-D program that are funded in part with 
Federal funds.
    Paragraph (d) requires that a Model Tribal IV-D System must have 
minimum system specifications which allow for the distribution of 
current support and arrearage collections in accordance with Federal 
regulations at Sec.  309.115 and Tribal laws. We consider distribution 
of collected child support payments to be one of the comprehensive 
Tribal IV-D activities that would benefit most from automation. 
Automated distribution of collections would ensure families receive the 
support owed to them and minimize the need for manual processing of 
child support payments, which can be a time-consuming and burdensome 
task for comprehensive Tribal IV-D programs. Additionally, automated 
distribution of collections would facilitate more efficient and cost-
effective communications in intra-tribal and intergovernmental case 
processing.
    Under paragraph (e)(1), the Model Tribal IV-D System must maintain, 
process and monitor accounts receivable on all amounts owed, collected, 
and distributed with regard to detailed payment histories that include 
the amount of each payment, date of each collection, method of payment, 
distribution of payments and date of each disbursement. Under paragraph 
(e)(2), the Model Tribal IV-D System must have the capacity to perform 
automated income withholding activities including recording and 
maintaining information on payment default, generating the Standard 
Federal Income Withholding Form and allocating amounts received by 
income withholding according to Sec. Sec.  309.110 and 309.115, which 
respectively cover procedures governing income withholding and 
distribution of child support collections as specified in each Tribal 
IV-D plan.
    Section Sec.  310.10(f) requires that a Model Tribal IV-D System 
maintain and automatically generate data necessary to meet Federal 
reporting requirements on a timely basis as prescribed by OCSE. At a 
minimum this includes (1) yearly notices on support collected, which 
are itemized by month of collection and provided to families receiving 
services under the comprehensive Tribal IV-D program as required in 
Sec.  309.75(c), to all case participants regarding support 
collections; and (2) reports submitted to OCSE for program monitoring 
and program performance as required in Sec.  309.170. Without the 
proposed Model Tribal IV-D System, comprehensive Tribal IV-D agencies 
would rely on manual systems or Office Automation to manage the Federal 
reporting requirements and payment records which require meticulous 
attention to detail.
    Under paragraph (g), a Model Tribal IV-D System will be required to 
provide automated processes to enable OCSE to monitor Tribal IV-D 
program operations and to assess program performance through the audit 
of financial and statistical data maintained by the system. This 
requirement is especially critical in relation to Subpart D, Sec.  
310.40 which addresses accountability and monitoring procedures for 
Computerized Tribal IV-D Systems.
    In paragraph (h), the Model Tribal IV-D System must provide 
security to prevent unauthorized access to, or use of, the data in the 
system as detailed in Sec.  310.15 discussed below. This requirement is 
necessary because comprehensive Tribal IV-D agencies may receive 
sensitive, personal information from Federal, State, or Tribal locate 
sources in inter-governmental cases or from parents seeking the Tribal 
IV-D program's assistance in securing support for children. This 
requirement compliments existing safeguarding requirements in Sec.  
309.80, What safeguarding procedures must a Tribe or Tribal 
organization include in a Tribal IV-D plan? which applies to all 
comprehensive Tribal IV-D agencies. Federal, State and Tribal programs 
are entrusted with personal information critical to accomplish program 
goals and it is imperative that personal data be safeguarded to ensure 
privacy and maintain the public trust. We also would emphasize that no 
Federal Tribal IV-D program requirement obligates comprehensive Tribal 
IV-D agencies to disclose, or otherwise make accessible, their Tribal

[[Page 8511]]

enrollment records for the purposes of providing child support 
enforcement services or automating child support enforcement 
activities.
Section 310.15 What are the safeguards and processes that comprehensive 
Tribal IV-D agencies must have in place to ensure the security and 
privacy of Computerized Tribal IV-D Systems and Office Automation?
    This section details the safeguarding requirements that a 
comprehensive Tribal IV-D agency, which is using a Computerized Tribal 
IV-D System or Office Automation, must have in place to ensure the 
security and confidentiality of information accessible through Federal, 
State, and Tribal sources. This section is taken from Sec.  307.13 
which addresses security and confidentiality for State computerized 
support enforcement systems and is revised to apply to automation for 
comprehensive Tribal IV-D programs. A comprehensive Tribal IV-D agency 
must also follow the safeguarding requirements under the Tribal Child 
Support Enforcement (IV-D) program rule found in Sec.  309.80.
    Under paragraph (a) of this section, the comprehensive Tribal IV-D 
agency must safeguard the integrity, accuracy, completeness, access to, 
and use of data in the Computerized Tribal IV-D System and Office 
Automation. The Tribal IV-D agency should ensure that the Computerized 
Tribal IV-D Systems and Office Automation comply with the requirements 
of the Federal Information Security Management Act and the Privacy Act. 
These safeguards must include written policies and procedures 
concerning: (1) Periodic evaluations of the system for risk of security 
and privacy breaches; (2) procedures to allow Tribal IV-D personnel 
controlled access and use of IV-D data including (i) specifying the 
data which may be used for particular IV-D program purposes and the 
personnel permitted access to such data and (ii) permitting access to 
and use of data for the purpose of exchanging information with State 
and Tribal agencies administering programs under titles IV-A, IV-E and 
XIX of the Act to the extent necessary to carry out the comprehensive 
Tribal IV-D agency's responsibilities with respect to such programs; 
(3) maintenance and control of application software program data; (4) 
mechanisms to back-up and otherwise protect hardware, software, 
documents, and other communications; and (5) mechanisms to report 
breaches or suspected breaches of personally identifiable information 
to the Department of Homeland Security and respond. We added the phrase 
``or suspected breaches'' to the regulatory language in paragraph 
(a)(5) of this section for clarification and consistency with the 
preamble language. We also note that in response to comments that the 
introductory language in Sec.  310.15(a) needed clarification as to 
which safeguarding requirements must be included in written policies 
and procedures, we replaced `some of the required safeguards' with `the 
required safeguards' for clarity.
    Paragraph (b) requires that the comprehensive Tribal IV-D agency 
monitor routine access to and use of the Computerized Tribal IV-D 
System and Office Automation through methods such as audit trails and 
feedback mechanisms to guard against, and promptly identify, 
unauthorized access or use. This safeguard is consistent with the 
security and privacy measures required in the State computerized 
support enforcement systems found in Sec.  307.13 and is an appropriate 
aspect of information security.
    Section 310.15(c) requires a comprehensive Tribal IV-D agency to 
have procedures to ensure that all personnel, including Tribal IV-D 
staff and contractors, who may have access to or be required to use 
confidential program data in the Computerized Tribal IV-D System and 
Office Automation are adequately trained in security procedures. This 
safeguarding requirement is consistent with the security and privacy 
measures required in the State computerized support enforcement systems 
in Sec.  307.13 and is equally critical to Tribal automated systems. 
Staff members and contractors of comprehensive Tribal IV-D agencies 
using the Computerized Tribal IV-D System or Office Automation should 
demonstrate knowledge of strategies that would ensure the security and 
privacy of sensitive information.
    In paragraph (d) of this section, the comprehensive Tribal IV-D 
agency must have administrative penalties, including dismissal from 
employment, for unauthorized access to, disclosure or use of 
confidential information. This aspect of the security and privacy 
safeguarding requirements reflects our position that security and 
privacy of child support enforcement-related information is paramount 
to the integrity of the system.

Subpart C--Funding for Computerized Tribal IV-D Systems and Office 
Automation

Section 310.20 What are the conditions for funding the installation, 
operation, maintenance and enhancement of Computerized Tribal IV-D 
Systems and Office Automation?
    This section of the rule establishes conditions that must be met in 
order for a comprehensive Tribal IV-D agency to obtain Federal funding 
in the costs of installation, operation, maintenance and enhancement of 
Computerized Tribal IV-D Systems and Office Automation. This section is 
derived from Sec. Sec.  307.15 and 307.20, governing State automated 
systems, and is appropriately revised to specifically apply to the 
needs of comprehensive Tribal IV-D programs. Sections 307.15 and 
307.20, respectively, address conditions for approval of Advance 
Planning Documents (APD) and submittal of APDs for State computerized 
support enforcement systems. Section 310.20 addresses procedures for 
submittal of an APD to the Department. OCSE uses the APD process to 
help meet its fiduciary responsibility to ensure that the costs 
associated with all automated data processing systems acquisitions, 
including Computerized Tribal IV-D Systems, are reasonable and 
necessary. Just as OCSE requires States to request funding in an APD 
for acquisition of a computerized child support enforcement system, 
documenting such factors as project cost, risk, resources, and 
schedule, those same factors equally apply to OCSE's review and 
approval of the installation, operation, maintenance and enhancement of 
Computerized Tribal IV-D Systems. For this reason, the APD process is 
incorporated into this rule as applicable and necessary to acquisitions 
of such systems in comprehensive Tribal IV-D programs.
    Section 310.20(a) lays out conditions that must be met for 90 
percent FFP in the costs of installation of the Model Tribal IV-D 
System and 80 or 90 percent FFP (referred to as the applicable matching 
rate), as appropriate, in the costs of operation, maintenance, and 
enhancement of a Computerized Tribal IV-D System. The applicable 
matching rate as defined in Sec.  309.130(c) refers to the total amount 
of approved and allowable expenditures for which a comprehensive Tribal 
IV-D program would be eligible to receive Federal grant funds in the 
costs of administering the Tribal IV-D program, including Computerized 
Tribal IV-D Systems and Office Automation. Except for the costs of 
installation of the Model

[[Page 8512]]

Tribal IV-D System described below, the applicable matching rate would 
be 90 percent for comprehensive Tribal IV-D programs that are operating 
within the first three-year period of Federal funding, and the 
applicable matching rate would be 80 percent for comprehensive Tribal 
IV-D programs operating in all periods following the first three-year 
period. As previously mentioned, paragraph Sec.  310.20(a) was revised 
in response to comments to reference 90 percent FFP for the pre-
approved costs of installation of the Model Tribal IV-D System under 
Sec.  309.130(c). This change is discussed in more detail under the 
Response to Comments section of the preamble.
    Paragraph (a)(1) states that a comprehensive Tribal IV-D agency 
must have submitted, and OCSE must have approved, an APD for the 
installation and enhancement of a Computerized Tribal IV-D System. 
Under paragraph (a)(2), an APD for installation of a Computerized 
Tribal IV-D System must: (i) Represent the sole systems effort being 
undertaken by the comprehensive Tribal IV-D agency under part 310; (ii) 
describe the projected resource requirements for staff, hardware, 
software, network connections and other needs and the resources 
available or expected to be available to meet the requirements; (iii) 
contain a proposed schedule of project milestones with detail 
sufficient to describe the tasks, activities, and complexity of the 
initial implementation project; (iv) contain a proposed budget 
including a description of expenditures by category and amount for 
items related to installing, operating, maintaining, and enhancing the 
Computerized Tribal IV-D System; and (v) contain a statement that the 
comprehensive Tribal IV-D agency agrees in writing to use the 
Computerized Tribal IV-D System for a minimum period of time. This last 
requirement, to agree in writing to use the Computerized Tribal IV-D 
System for a minimum period of time, is derived from 45 CFR 95.619. 
Under Sec.  95.619, automated data processing systems designed, 
developed, or installed with FFP shall be used for a period of time 
specified in the APD, unless the Department determines that a shorter 
period is justified. The requirement for the APD to contain an 
agreement by a Tribal IV-D program to use the Computerized Tribal IV-D 
System for a minimum period of time assures both the Federal and Tribal 
governments of a reasonable return on investment relative to the Total 
Acquisition Cost of the Computerized Tribal IV-D System.
    In addition to the above requirements, paragraph (a)(3) includes 
the following conditions which must be met to obtain FFP in the 
installation costs of access to a State or another comprehensive Tribal 
IV-D program's ADP system established under an Intergovernmental 
Service Agreement. The comprehensive Tribal IV-D agency must, under 
paragraph (i), maintain a copy of each intergovernmental cooperative 
agreement and Service Agreement in its files for Federal review. Under 
paragraph (ii), the comprehensive Tribal IV-D agency must ensure that: 
(A) The Service Agreement for which FFP is being sought meets the 
definition of a Service Agreement as defined in Sec.  310.1; (B) claims 
for FFP conform to the timely claim provisions of 45 CFR Part 95, 
Subpart A; and (C) the Service Agreement was not previously disapproved 
by the Department. In deriving from 45 CFR Part 95, Subpart A, the 
requirements to be met to obtain FFP in the cost of access to another 
State or Tribal IV-D program's ADP system, we are ensuring a common 
understanding and consistency of approach to securing, documenting and 
maintaining FFP approval of such intergovernmental cooperative 
agreements.
    Under paragraph (a)(4), the following conditions must be met in 
order for a comprehensive Tribal IV-D agency to obtain FFP in the costs 
of enhancements to its Computerized Tribal IV-D System: (i) the 
project's Total Acquisition Cost cannot exceed the comprehensive Tribal 
IV-D agency's total Tribal IV-D program grant award for the year in 
which the acquisition request is made; and (ii) the APD budget, 
schedule and commitment to use the Computerized Tribal IV-D System for 
a specified minimum period of time must be updated to reflect the 
enhancement project. These additional APD requirements to obtain FFP in 
the cost of enhancements to an existing Computerized Tribal IV-D System 
reflect the need to ensure both continued cost reasonableness and 
ongoing return on investment given a Computerized Tribal IV-D System's 
increased Total Acquisition Cost.
    Paragraph (a)(5) requires that to receive FFP in the costs of the 
operation and maintenance of a Computerized Tribal IV-D System 
installed under Sec.  310.20 or developed under Sec.  309.145(h)(5), 
which refers to a Tribal automated data processing system that is 
funded entirely with Tribal funds, the comprehensive Tribal IV-D agency 
must include operation and maintenance costs in its annual Title IV-D 
program budget submission in accordance with Sec.  309.15(c) wherein 
requirements for annual budget submissions are detailed.
    In addition, paragraph (a)(6) requires that in order to receive FFP 
in the costs of the installation, operation, and maintenance of 
essential Office Automation capabilities, the comprehensive Tribal IV-D 
agency must include such costs in its annual Title IV-D program budget 
submission in accordance with Sec.  309.15(c). Currently, States 
maintaining their computerized IV-D systems in an operation and 
maintenance-only mode may close their APD and thereafter request FFP 
for their operation and maintenance costs through specific line-item 
submissions in their ``Quarterly Report of Expenditures and 
Estimates,'' (OCSE Form 396A). Given the efficacy of this existing 
procedure used with States, and the predictability and general 
reasonableness of such costs, a similar process for Tribes to request 
FFP for operation and maintenance cost reimbursement is appropriate. 
Therefore, this rule allows Tribes to request FFP in the costs of 
installation, operation, and maintenance of essential Office Automation 
capabilities, an inherently operational activity, through a 
comprehensive Tribal IV-D agency's Title IV-D program budget 
submission, ``Budget Information--Non-Construction Programs,'' (OCSE 
Form SF 424A) in accordance with requirements listed at Sec.  
309.15(c).
    The gradated variation in conditions that must be met in order to 
obtain FFP in the costs of the activities under paragraph (a) are 
designed to reflect the varying automation levels of comprehensive 
Tribal IV-D agencies. For example, the conditions that a comprehensive 
Tribal IV-D agency will be required to meet in order to obtain FFP in 
the costs of installing Office Automation would be less involved than 
the conditions required for a comprehensive Tribal IV-D agency that is 
requesting FFP in the installation costs of accessing a State or 
another comprehensive Tribal IV-D program's ADP system. Section Sec.  
310.20 provides comprehensive Tribal IV-D agencies with the flexibility 
to determine which automation approaches and application procedures 
best suit the program-specific needs of that Tribe or Tribal 
organization. The provisions in Sec.  310.20 are consistent with Tribal 
IV-D program staff input to reduce the burden of the APD application 
process.
    Provisions under Sec.  310.20(b) describe the required procedures 
for submittal of an APD. Paragraph (b) states that the comprehensive 
Tribal IV-D agency must submit an APD for a Computerized Tribal IV-D 
System to the

[[Page 8513]]

Commissioner of OCSE, Attention: Division of State and Tribal Systems. 
The APD submitted by the comprehensive Tribal IV-D agency must be 
approved and signed by the comprehensive Tribal IV-D agency Director 
and the appropriate Tribal officials prior to submission to OCSE for 
approval. The above procedures for submitting an APD would ensure that 
the proper authorities representing the Tribe or Tribal organization 
agree with the details in the APD application documents and that the 
Program Director and appropriate Tribal officials are aware of the 
responsibilities in acquiring automation for the Tribal IV-D program.
Section 310.25 What conditions apply to acquisitions of Computerized 
Tribal IV-D Systems?
    This section details specific conditions that must be met in the 
acquisition process of Computerized Tribal IV-D Systems. This section 
is derived from and comparable to Sec.  307.31 and 45 CFR 95.617 which 
are respectively titled FFP at the 80 Percent Rate for Computerized 
[State] Support Enforcement Systems and Software and Ownership Rights. 
This section applies to Comprehensive Tribal IV-D agencies that have 
elected to automate program activities through the Model Tribal IV-D 
System or Intergovernmental Service Agreements. It does not apply to 
Comprehensive Tribal IV-D agencies that have elected to automate 
program activities through Office Automation or another alternative to 
Computerized Tribal IV-D Systems as discussed in Sec.  310.5.
    In paragraph (a), APD Approval, a comprehensive Tribal IV-D agency 
must have an approved APD in accordance with the applicable 
requirements of Sec.  310.20 prior to initiating acquisition of a 
Computerized Tribal IV-D System. This requirement safeguards all 
parties involved by ensuring that authorities from the Tribe or Tribal 
organization and the Department are in agreement about the use, 
funding, and parameters of each comprehensive Tribal IV-D agency's 
specific plan for automating case-processing and record-keeping program 
activities.
    Under Sec.  310.25(b), Procurements, Requests for Proposals (RFP) 
and similar procurement documents, contracts, and contract amendments 
involving costs eligible for FFP, must be submitted to OCSE for 
approval prior to release of the procurement document, and prior to the 
execution of the resultant contract when a procurement is anticipated 
to or will exceed the Simplified Acquisition Threshold. The Simplified 
Acquisition Threshold for ADP systems, equipment, and service 
acquisitions is defined in Sec.  310.1(a)(10) as a Tribe or Tribal 
organization's monetary threshold for determining whether competitive 
acquisition rules are required for a given procurement or $100,000, 
whichever is less. The Simplified Acquisition Threshold represents the 
maximum amount of monies that a comprehensive Tribal IV-D agency may 
expend without submitting the subject solicitation document (RFP, etc.) 
and resultant contract to OCSE for review and written approval prior to 
its execution. As previously stated in this rule, the Simplified 
Acquisition Threshold is derived from 45 CFR 92.36(d)(1), which 
references small purchase procedures as a procurement method for 
securing items of cost not exceeding the Simplified Acquisition 
Threshold fixed at 41 U.S.C. 403(11) (currently $100,000). This is 
appropriately adapted for this rule because of the need to ensure full 
and open competition in acquisitions in accordance with 45 CFR 
92.36(c), and to ensure consistency with regulations at 45 CFR 
95.611(b) governing State ADP acquisitions funded at enhanced FFP rates 
of reimbursement.
    Section 310.25(c) is titled Software and Ownership Rights. Under 
paragraph (c)(1) all procurement and contract instruments must include 
a clause that provides that the comprehensive Tribal IV-D agency will 
have all ownership rights to Computerized Tribal IV-D System software 
or enhancements thereof and all associated documentation designed, 
developed, or installed with FFP. Intergovernmental Service Agreements 
are not subject to this requirement. The exception for 
Intergovernmental Service Agreements ensures consistent application of 
current policy among all grantees, State and Tribal, and is derived 
from current Federal regulations at 45 CFR 95.613(b) that exempt 
Service Agreements from the procurement standards applicable to State 
acquisitions of ADP equipment and services. Paragraph (c)(2) states 
that OCSE reserves a royalty-free, nonexclusive, and irrevocable 
license to reproduce, publish, or otherwise use and to authorize others 
to use for Federal Government purposes, such software, modifications 
and documentation developed under this part. Under paragraph (c)(3) FFP 
is not available for the costs of rental or purchase of proprietary 
application software developed specifically for a Computerized Tribal 
IV-D System. Commercial-off-the-shelf (COTS) software packages that are 
sold or leased to the general public at established catalog or market 
prices are not subject to the ownership and license provisions of this 
requirement. These requirements are not unique to Child Support 
Enforcement regulations. Rather, these requirements are a restatement 
of current Departmental regulations that apply to all automated systems 
acquisitions. Federal policy in this area, as stated in Federal 
regulations at 45 CFR 92.34 and 95.617, and as restated in child 
support automation regulations for State IV-D programs at 45 CFR 307.30 
and 45 CFR 307.31, best protects Federal interest in IV-D and other 
Federal systems development efforts.
    Under paragraph (d) of this section, Requirements for acquisitions 
under the threshold amount, a comprehensive Tribal IV-D agency is not 
required to submit procurement documents, contracts, and contract 
amendments for acquisitions under the Simplified Acquisition Threshold, 
unless specifically requested to do so in writing by OCSE.
Section 310.30 Under what circumstances would FFP be suspended or 
disallowed in the costs of Computerized Tribal IV-D Systems?
    This section of the rule identifies circumstances under which OCSE 
would suspend or disallow FFP in the costs of Computerized Tribal IV-D 
Systems. The content of this section is derived from Sec.  307.40, 
which is titled Suspension of Approval of Advance Planning Documents 
for Computerized Support Enforcement Systems, and addresses suspension 
and disallowance of FFP in the costs of State computerized child 
support enforcement systems. This section applies to comprehensive 
Tribal IV-D agencies that have elected to automate program activities 
through the Model Tribal IV-D System or Intergovernmental Service 
Agreements. It does not apply to Office Automation enhancements or 
another alternative to Computerized Tribal IV-D Systems as discussed in 
Sec.  310.5.
    Paragraph (a) of this section, Suspension of APD approval, states 
that OCSE will suspend approval of the APD for a Computerized Tribal 
IV-D System approved under Part 310 as of the date that the system 
ceases to comply substantially with the criteria, requirements, and 
other provisions of the APD. OCSE will notify a Tribal IV-D agency in 
writing of a notice of suspension, with such suspension effective as of 
the date on which there is no longer substantial compliance. The intent 
of OCSE is to minimize the likelihood of suspension of a

[[Page 8514]]

comprehensive Tribal IV-D agency's APD by engaging in supportive 
efforts such as technical assistance, policy guidance, and on-going 
communication and collaboration between the comprehensive Tribal IV-D 
agency and OCSE. Such preventive efforts will likely facilitate early 
identification of difficulties associated with a Computerized Tribal 
IV-D System and the corresponding APD and thereby assist OCSE and the 
comprehensive Tribal IV-D agency in taking appropriate corrective 
action, before more serious measures, such as suspension of funding, 
become necessary.
    Paragraph (b), Suspension of FFP, states that if OCSE suspends 
approval of an APD in accordance with Part 310 during the installation, 
operation, or enhancement of a Computerized Tribal IV-D System, FFP 
will not be available in any expenditure incurred under the APD after 
the date of the suspension until the date OCSE determines that the 
comprehensive Tribal IV-D agency has taken the actions specified in the 
notice of suspension described in paragraph (a). OCSE will notify the 
comprehensive Tribal IV-D agency in writing upon making such a 
determination. This provision ensures that Federal funding is managed 
and distributed in the most productive, efficient and cost-effective 
manner possible, and that OCSE has the means necessary to enforce its 
fiduciary responsibilities.
Section 310.35 Under what circumstances would emergency FFP be 
available for Computerized Tribal IV-D Systems?
    Under this section, emergency FFP in the costs of Computerized 
Tribal IV-D Systems and Office Automation would be available for 
qualifying circumstances. This section is similar to 45 CFR 95.624, 
which is titled Consideration for FFP in Emergency Situations and which 
lays out procedures that must be followed in applying for emergency 
FFP.
    Under Sec.  310.35(a), Conditions that must be met for emergency 
FFP, OCSE will consider waiving the approval requirements for 
acquisitions in emergency situations, such as natural or man-made 
disasters, upon receipt of a written request from the comprehensive 
Tribal IV-D agency. In order for OCSE to consider waiving the approval 
requirements in Sec.  310.25 the comprehensive Tribal IV-D agency must 
submit a written request to OCSE prior to the acquisition of any ADP 
equipment or services. The written request must be sent by registered 
mail and include: (i) A brief description of the ADP equipment and/or 
services to be acquired and an estimate of their costs; (ii) a brief 
description of the circumstances which resulted in the comprehensive 
Tribal IV-D agency's need to proceed prior to obtaining approval from 
OCSE; and (iii) a description of the harm that will be caused if the 
comprehensive Tribal IV-D agency does not acquire immediately the ADP 
equipment and services.
    Under paragraph (a)(2), upon receipt of the information, OCSE will, 
within 14 working days of receipt, take one of the following actions: 
(i) Inform the comprehensive Tribal IV-D agency in writing that the 
request has been disapproved and the reason for disapproval; or (ii) 
inform the comprehensive Tribal IV-D agency in writing that OCSE 
recognizes that an emergency exists and that within 90 calendar days 
from the date of the initial written request under paragraph (a)(1) the 
comprehensive Tribal IV-D agency must submit a formal request for 
approval which includes the information specified at Sec.  310.25 in 
order for the ADP equipment or services acquisition to be considered 
for OCSE's approval.
    Paragraph (b) of this section, Effective date of emergency FFP, 
states that if OCSE approves the request submitted under paragraph 
(a)(2), FFP will be available from the date the comprehensive Tribal 
IV-D agency acquires the ADP equipment and services.

Subpart D--Accountability and Monitoring Procedures for Computerized 
Tribal IV-D Systems

Section 310.40 What requirements apply for accessing systems and 
records for monitoring Computerized Tribal IV-D Systems and Office 
Automation?
    Section 310.40 identifies requirements that would facilitate 
accountability and monitoring procedures of Computerized Tribal IV-D 
Systems and Office Automation, including accessing systems and records. 
This section of the rule is derived from 45 CFR 95.615, Access to 
Systems and Records, and addresses the Department's right to access 
State computerized support enforcement systems for the purposes of 
monitoring the conditions for approval, as well as the efficiency, 
economy and effectiveness of the State's automated system.
    Under Sec.  310.40 a comprehensive Tribal IV-D agency must allow 
OCSE access to the system in all of its aspects, including 
installation, operation, and cost records of contractors and 
subcontractors, and of Service Agreements at such intervals as are 
deemed necessary by OCSE to determine whether the conditions for FFP 
approval are being met and to determine the efficiency, effectiveness, 
reasonableness of the system and its cost.

Response to Comments

    Comments were received from 13 Tribes and Tribal organizations, 1 
State and the participants of three consultation sessions. A discussion 
of the comments received and our responses follows:

General Comments

    1. Comment: Three Tribal commenters stated that delaying this rule 
and release of the Model Tribal IV-D System would harm Tribes' 
progress.
    Response: We recognized from the initial consultations on the 
Tribal IV-D program that for Comprehensive Tribal IV-D programs, 
automation would eventually become necessary to accurately and 
efficiently process child support collections. However, Tribes would 
need adequate time to develop their IV-D programs and to determine 
appropriate approaches, levels of automation, and processes for 
delivering services before adequate information would be available to 
design a state-of-the art, culturally-appropriate automated system. We 
convened a Joint Federal/Tribal Workgroup (the Workgroup) and conducted 
market research, a feasibility study and the development of the Model 
Tribal IV-D System. We believe, based on our extensive consultation and 
work with Tribes over the past eight years, that publication of this 
final rule and making the Model Tribal IV-D System available to 
comprehensive Tribal IV-D programs is appropriate and timely.
    2. Comment: Five Tribal commenters requested that this rule be 
withdrawn because they believe OCSE did not comply with HHS Tribal 
consultation policy and offered to assist OCSE in better implementing 
Tribal consultation. Another seven commenters asserted that OCSE should 
better adhere to its own Tribal consultation policy, but did not 
request that this rule be withdrawn. One Tribal commenter stated that 
the consultation process was circumvented and should be addressed for 
future regulations and stressed that it is important to expedite 
release of the Model Tribal IV-D System.
    Response: OCSE followed Departmental policy on Tribal consultation. 
Three consultation sessions were held on June 27, July 8, and July 9 of 
2008 as well as an

[[Page 8515]]

informational meeting at the National Tribal Child Support Association 
conference on June 11, 2008. The input we received from the 
consultation sessions and other collaborative efforts helped to shape 
the final rule.
    3. Comment: Five Tribal commenters suggested that OCSE should 
proceed with pilot testing of the Model Tribal IV-D System so that 
Tribes will be able to assess whether it meets Tribal program needs. 
Six other Tribal commenters suggested that OCSE should proceed with the 
Model Tribal IV-D System pilot regardless of whether this final rule is 
published. Five Tribal commenters recommended that OCSE select at least 
three pilot sites and consult Tribes in the criteria for selection.
    Response: In response to comments, OCSE issued a Dear Colleague 
Letter (DCL-08-47: http://www.acf.hhs.gov/programs/cse/pol/DCL/2008/dcl-08-47.htm) to solicit interest in piloting the Model Tribal IV-D 
System from comprehensive Tribal IV-D programs. Based on the selection 
criteria outlined in the Dear Colleague Letter, OCSE selected Forest 
County Potawatomi as the pilot site. The pilot phase, once initiated, 
is expected to last two to three months. OCSE will provide training, 
technical assistance, operational oversight, and support during this 
critical testing process. Due to limited resources, additional pilots 
were not possible.

Subpart A--General Provisions

Section 310.0 What does this Part cover?
    1. Comment: Six Tribal commenters and one State requested that the 
scope of the regulation be expanded to include Tribes and Tribal 
organizations funded under start-up funding as specified in Sec.  
309.65(b) of this chapter, What must a Tribe or Tribal organization 
include in a Tribal IV-D plan in order to demonstrate capacity to 
operate a Tribal IV-D program?
    Response: We do not agree that it is appropriate to expand the 
scope of this regulation to include Tribal IV-D programs in the start-
up phase. Automated data processing is intended for comprehensive 
Tribal IV-D programs performing actions in the child support collection 
and paternity determination processes under the Tribal IV-D plan. 
Tribes receiving start-up funding are in the planning phase of 
developing an operational Tribal IV-D program and do not have adequate 
operational experience dealing with actual caseloads or case activities 
to determine the appropriate level or type of automation required for 
their specific comprehensive Tribal IV-D program. In addition, a start-
up Tribe's focus toward the end of its two-year development phase must 
be on preparing for and requesting approval to operate a comprehensive 
Tribal IV-D program. It would be premature for a start-up Tribe to 
anticipate approval of its application and divert the resources and 
time necessary to complete the automated system application process. 
However, once funding for a comprehensive Tribal IV-D program is 
approved, technical assistance is available to Tribal programs for 
developing and assessing the program's automation needs based on its 
caseload and developing the appropriate request for such automation 
funding.
    2. Comment: Three Tribal commenters stated that access to Federal 
Tax Refund Offset (FTRO), Multi-State Financial Institution Data Match 
(MSFIDM) and data from the Federal Parent Locator Service (FPLS) would 
enhance Tribal automation and should be addressed in this regulation.
    Response: We are aware that Tribal IV-D programs are interested in 
having access to FTRO, MSFIDM and the FPLS. However, Title IV-D of the 
Act does not currently authorize direct Tribal access to these 
enforcement tools, so expanding access to these systems cannot be 
addressed in this regulation.
    3. Comment: Six Tribal commenters criticized the proposed 
regulations as infringing on Tribal sovereignty and exceeding the 
Department's statutory authority under section 455(f) of the Act 
stating that the rule ``purports to regulate existing email, tribal 
computer networks and other office automation processes used in a 
Tribe's child support program.''
    Response: We do not believe this regulation, enabling Tribes to 
apply for and receive Federal funding for the costs of automated data 
processing, infringes on Tribal sovereignty. Office Automation is 
currently governed by existing regulations found in Sec.  309.145(h). 
This rule builds on the existing regulation to expand allowable 
activities and costs for Tribal IV-D program automation. Section 455(f) 
of the Act clearly states that the Secretary shall ``promulgate 
regulations establishing requirements which must be met by an Indian 
Tribe or Tribal organization to be eligible for a direct grant under 
title IV-D.'' The resulting regulation reflects the Federal 
government's determination of the minimum regulatory requirements 
necessary for the successful administration and operation of automated 
Tribal systems.
Section 310.1 What definitions apply to this Part?
    1. Comment: Five Tribal commenters stated that the terms Reasonable 
Cost, Essential Office Automation, Federal Financial Participation 
(FFP), Simplified Acquisition Threshold and the reference to Part 95 
titled General Administration--Grant Programs, should not be used in 
this regulation because they are inapplicable to Tribes.
    Response: The terms specified above are applicable to Tribes and 
Tribal organizations applying for Federal funding for Computerized 
Tribal IV-D Systems and Office Automation. Many of the terms such as 
Reasonable Cost, Essential Office Automation and FFP are familiar terms 
to the Tribal IV-D program and have been used in existing regulations 
and policy documents issued by OCSE. For example, Sec.  309.155 lists 
unallowable costs, including ``all other costs that are not reasonable, 
necessary, and allocable to Tribal IV-D programs under the costs 
principles of OMB Circular A-87.'' OMB Circular A-87 defines Reasonable 
Cost and applies to Tribes: ``This Circular establishes principles and 
standards for determining costs for Federal awards carried out through 
grants, cost reimbursement contracts, and other agreements with State 
and local governments and Federally-recognized Indian tribal 
governments (governmental units).''
    The term Essential Office Automation appears in Sec.  309.145 
titled, What costs are allowable for Tribal IV-D programs carried out 
under Sec.  309.65(a) of this part? as an allowable cost. In the final 
rule for the Tribal Child Support Enforcement program (69 FR 16638), 
the term Federal funding is used rather than FFP. However, we consider 
the two terms interchangeable.
    The term Simplified Acquisition Threshold is used in 45 CFR Part 92 
titled Uniform Administrative Requirements for Grants and Cooperative 
Agreements to State, Local and Tribal Governments which clearly applies 
to Tribes and Tribal organizations. The scope of 45 CFR Part 92 states 
that ``This part establishes uniform administrative rules for Federal 
grants and cooperative agreements and subawards to State, local and 
Indian tribal governments.'' The definition of Simplified Acquisition 
Threshold in this rule means ``a Tribe or Tribal organization's 
monetary threshold for determining whether competitive acquisition 
rules are required for a given procurement or $100,000, whichever is 
less.'' This provides flexibility in the definition of Simplified 
Acquisition

[[Page 8516]]

Threshold so that Tribes and Tribal organizations may apply their 
monetary threshold rather than the one defined in 41 U.S.C. (Public 
Contracts--Office of Federal Procurement Policy--Definitions), given 
that their threshold is the lesser of the two.
    With regard to Part 95, General Administration--Grant Programs, 
OCSE solicited comments in the proposed rule for the Tribal Child 
Support Enforcement program (65 FR 50800, 50825) stating that ``OCSE 
[the Office] is considering applying part 95 to Tribal child support 
systems efforts'' and that ``OCSE is, however, asking for comments on 
the appropriateness of applying 45 CFR part 95 to the Tribal child 
support program and on the modifications that might be necessary or 
desirable to adapt part 95 to the Tribal CSE program.'' In response to 
OCSE's request for feedback, one out of twenty-nine commenters opposed 
the application of 45 CFR Part 95 to Tribal IV-D programs. We took that 
commenter's suggestion into consideration in combination with comments 
from other stakeholders including members of the Federal/Tribal 
Workgroup. After careful deliberation, we determined that it would not 
be necessary to make all sections of Part 95 applicable to Tribal IV-D 
programs, but that certain terms identified in Subpart F of Part 95, 
Automated Data Processing Equipment and Services--Conditions for 
Federal Financial Participation (FFP), would be appropriately applied 
to this rule.
    2. Comment: One Tribal commenter expressed concern that Reasonable 
Cost may be interpreted differently and requested assurance that there 
would be consistency in the treatment for each Tribal IV-D agency.
    Response: This rule includes a very detailed definition of 
Reasonable Cost based on OMB Circular A-87, Cost Principles for State, 
Local, and Indian Tribal Governments which applies consistently to 
State, local and Federally-recognized Indian Tribal governments. A 
Tribal IV-D agency's systems or Office Automation expenditures will be 
assessed based on this measurable definition of Reasonable Cost.
    3. Comment: One Tribal commenter suggested revising the definition 
of Reasonable Cost by deleting the terms `ordinary', `arms-length 
bargaining', `market price' and `established practices'.
    Response: We did not revise the definition of Reasonable Cost under 
this regulation as each of the terms identified by the commenter is 
taken from the existing definition of Reasonable Cost under OMB 
Circular A-87, Cost Principles for State, Local and Indian Tribal 
Governments, which applies to Indian Tribal Governments.
    4. Comment: One Tribal commenter objected to the definition of 
Service Agreement stating that the Federal government cannot dictate 
how a Tribe executes contracts with outside agencies.
    Response: The definition recognizes the Federal government's 
fiduciary responsibility to ensure reasonable cost of services 
rendered, the effective and efficient use of Federally-funded 
resources, the safety and security of Federally-funded equipment, 
resources, and data, and the accurate accounting of the charges and 
expenditures under such a service agreement. Thus, we have not changed 
the definition in response to the comment.

Subpart B--Requirements for Computerized Tribal IV-D Systems and Office 
Automation

Section 310.5 What options are available for Computerized Tribal IV-D 
Systems and Office Automation?
    1. Comment: Eight Tribal commenters and one State commenter 
requested expanding Federal funding for the development of an 
alternative system designed, developed, procured or enhanced entirely 
with Tribal funds. One commenter suggested that Federal funding should 
be available for a Tribally-developed system, if the cost for that 
system is equal to or less than the highest cost of a Computerized 
Tribal IV-D System or Office Automation.
    Response: In our experience over many years with funding the 
development of automated systems in State IV-D programs, we are 
persuaded that the costs involved in the design and development of 
individual Tribal IV-D automated child support enforcement systems 
would be unreasonable relative to the size of the Tribal programs being 
served or compared to the costs of other automation options (i.e., 
installation costs of the Model Tribal IV-D System, Intergovernmental 
Service Agreement or Office Automation). To allow Federal funding in 
the cost of an alternative system would, therefore, be contrary to the 
funding prerequisite for cost reasonableness cited in OMB Circular A-
87.
    2. Comment: Two Tribal commenters questioned whether the Model 
Tribal IV-D System would be available as an option for Tribal IV-D 
automation since it is currently in the testing phase and has not been 
released to Tribes for their review.
    Response: OCSE completed development of the Model Tribal IV-D 
System in October 2008 and expects to complete the pilot phase in the 
fall of 2009. Many Tribes have reviewed the Model Tribal IV-D System by 
participating in one or more of the numerous live demonstrations of the 
system as it has been built. Additional demonstrations of the completed 
Model Tribal IV-D System are planned through 2009.
Section 310.10 What are the functional requirements for the Model 
Tribal IV-D System?
    1. Comment: Two Tribal commenters requested that the language in 
this section be revised to clarify that Tribes will not be required to 
interface with any other system.
    Response: This rule does not require Tribes to develop an automated 
interface with any other system. Section 310.10(c) refers to the Model 
Tribal IV-D System's capacity to add on an electronic interface with 
State or Tribal financial management and expenditure information at the 
Tribe's option versus manually reporting any fees. The requirement in 
Sec.  310.10(c) is that the Model Tribal IV-D System must record and 
report any fees collected. We have not made any changes to the 
regulatory language.
    2. Comment: Two Tribal commenters requested greater specificity as 
to the type of data OCSE would have access to based on Sec.  310.10(g), 
which states that a Model Tribal IV-D System must ``provide automated 
processes to enable the office to monitor Tribal IV-D program 
operations and to assess program performance through the audit of 
financial and statistical data maintained by the system.''
    Response: Section 310.10(g) requires access to any Tribal IV-D 
program's financial and statistical data maintained by the system.
    3. Comment: One commenter asked that language be added to indicate 
that Federal funding will be available if any new data elements are 
added to those in Sec.  310.10(a)(1) which requires that the Model 
Tribal IV-D System accept, maintain and process identifying information 
such as Social Security numbers, names, dates of birth and other data 
as required by OCSE.
    Response: The regulation already addresses funding for new systems 
requirements, including data elements, in Sec.  310.20(a)(4), governing 
the availability of Federal funding for enhancement of the Model Tribal 
IV-D System, should new data requirements be imposed by OCSE.

[[Page 8517]]

Section 310.15 What are the safeguards and processes that comprehensive 
Tribal IV-D agencies must have in place to ensure the security and 
privacy of Computerized Tribal IV-D Systems and Office Automation?
    1. Comment: Six Tribal commenters questioned whether the 
safeguarding requirement in Sec.  310.15(a) to ensure that the 
Computerized Tribal IV-D System and Office Automation complies with the 
requirements of the Federal Information Security Management Act and the 
Privacy Act apply to Tribal governments.
    Response: The Federal Information Security Management Act (FISMA) 
and the Privacy Act are Federal laws that apply to Federal agencies. 
These laws require Federal agencies to ensure that information and 
information systems used by the agency or other sources on behalf of 
the agency are safeguarded. The FISMA applies to both information and 
information systems used by a Federal agency and its contractors and 
grantees, which would include State and local governments and 
Federally-recognized Tribes. Although Tribal IV-D programs do not 
currently have direct access to Federal information systems, they may 
have indirect access through agreements with State IV-D agencies.
    Federal agencies must develop policies for information security 
oversight of contractors and other users with privileged access to 
Federal data. To that end, OCSE considers it imperative that Tribal IV-
D programs are aware of the requirements in FISMA and the Privacy Act 
and that Tribal IV-D agencies should ensure that the Computerized 
Tribal IV-D Systems and Office Automation comply with such 
requirements.
    2. Comment: Five Tribal commenters questioned the safeguarding 
requirement in Sec.  310.15(a)(5) for a Tribal IV-D agency to include 
written policies and procedures concerning mechanisms to report (to the 
Department of Homeland Security) and respond to breaches of personally 
identifiable information and stated that reporting to the Department of 
Homeland Security should not apply to Indian Tribes.
    Response: Federal agencies are required to report breaches or 
suspected breaches of Federal data to the U.S. Computer Emergency 
Readiness Team (US-CERT), which is part of the Department of Homeland 
Security (DHS) and is charged with the task of coordinating defense 
against and responses to cyber attacks across the nation.
    A Tribal IV-D program, as part of the overall child support 
enforcement information system, must have written policies and 
procedures concerning mechanisms to report breaches or suspected 
breaches of Federal data. The Tribal IV-D agency has the discretion to 
determine the mechanism used to report the breach as a part of its 
written policies and procedures. The procedure for a State IV-D agency 
that suspects compromised Federal data is to report the suspected 
breach to OCSE. OCSE would then notify the ACF Chief Information 
Security Officer (CISO), who in turn would notify the HHS Computer 
Security Incident Response Center. The HHS Computer Security Incident 
Response Center then notifies the US-CERT of the Department of Homeland 
Security. A Tribal IV-D agency may establish a similar procedure.
    3. Comment: One Tribal commenter encouraged that the preamble 
language stating ``We also would emphasize that no Federal Tribal IV-D 
program requirement obligates comprehensive Tribal IV-D agencies to 
disclose, or otherwise make accessible, their Tribal enrollment records 
for the purposes of providing child support enforcement services or 
automating child support enforcement activities'' be retained in the 
final rule.
    Response: We agree and retained the language in this preamble.
    4. Comment: One Tribal commenter referenced Sec.  310.15(a), which 
requires written procedures to allow Tribal IV-D personnel controlled 
access and use of IV-D data including ``permitting access to and use of 
data for the purpose of exchanging information with State and Tribal 
agencies administering programs under titles IV-A, IV-E and XIX of the 
Act'' and suggested adding language stating that ``no state or tribe 
can demand access to the information maintained in the tribal IV-D 
system without the express written consent of the Tribe.''
    Response: We agree that the section referenced by the commenter 
addresses procedures that must be put in place to safeguard access that 
Tribal IV-D personnel have to IV-D information and data from programs 
administered under titles IV-A, IV-E and XIX of the Act. This and other 
sections of this regulation do not imply that a State or Tribe could 
demand access to a Tribal IV-D agency's automated data processing 
system or Office Automation. For this reason, we do not find it 
necessary to revise or add language as suggested.
    5. Comment: One Tribal commenter referenced Sec.  310.15(a), which 
requires the comprehensive Tribal IV-D agency to have written policies 
and procedures to safeguard the access to and use of data in the 
Computerized Tribal IV-D System and Office Automation. The commenter 
suggested adding clarification as to which safeguards must be included 
in the Tribal IV-D agency's written policies and procedures.
    Response: The proposed regulatory language in Sec.  310.15(a) 
stating ``Some of the required safeguards must include written polices 
and procedures * * *'' has been revised deleting the words `some of' 
for clarity so that the sentence reads: ``The required safeguards must 
include written policies and procedures concerning the following:''. A 
list of required safeguards appears after the introductory phrase.

Subpart C--Funding for Computerized Tribal IV-D Systems and Office 
Automation

Section 310.20 What are the conditions for funding the installation, 
operation, maintenance and enhancement of Computerized Tribal IV-D 
Systems and Office Automation?
    1. Comment: One Tribal commenter recommended that a comprehensive 
Tribal IV-D agency be able to use more than one of the options for 
Computerized Tribal IV-D Systems and Office Automation as defined in 
Sec.  310.5 at one point in time to allow for transitions such as from 
a State system to the Model Tribal IV-D System.
    Response: The language in Sec.  310.20(a)(2)(i) which states that 
``an APD for installation of a Computerized Tribal IV-D System must 
represent the sole systems effort being undertaken by the comprehensive 
Tribal IV-D agency'' does not preclude situations wherein multiple 
systems may be in use during a reasonable transition period from one 
automated system solution to another. Clearly, any transition from one 
automated system to another includes tasks that will need to be 
performed concurrently, such as data conversion, training, testing, and 
installation. During the installation process, further guidance will be 
provided.
    2. Comment: Ten Tribal commenters and one State commenter suggested 
that the FFP rate in the costs of Tribal automation be increased from 
the applicable matching rate as defined in Sec.  309.130(c), How will 
Tribal IV-D programs be funded and what forms are required? (The 
applicable matching rate, as proposed, would have been 90 percent for 
comprehensive Tribal IV-D programs that are operating within the first 
three-year period of Federal

[[Page 8518]]

funding and 80 percent for comprehensive Tribal IV-D programs operating 
in all periods following the first three-year period.) A number of 
commenters and consultation participants suggested that FFP in the 
costs of Tribal automation be increased to 100 percent Federal funding. 
Five commenters stressed that the proposed funding scheme would 
penalize the more experienced Tribes. Two commenters suggested that 
Federal funding for Tribal automation should in no way penalize the 
more experienced Tribes.
    Response: We are persuaded that Tribes with comprehensive Tribal 
IV-D programs that have been in operation for over three years and are 
receiving 80 percent Federal funding should not be disadvantaged when 
funding for installing the Model Tribal IV-D System is available. 
Therefore, the final rule extends 90 percent FFP in the pre-approved 
costs of installing the Model Tribal IV-D System for all comprehensive 
Tribal IV-D programs. FFP in the costs of all other allowable 
activities will remain at the applicable matching rate. This includes 
the cost of access to State automated systems or Office Automation, for 
which Federal funding has been available to comprehensive Tribal IV-D 
programs since the inception of the program.
    3. Comment: One Tribal commenter asked if in-kind payments or 
services would be accepted towards the Tribal IV-D agency's share of 
automation costs.
    Response: Current regulations at Sec.  309.130(d)(3) allow in-kind 
payments and services as a Tribal IV-D agency's share of costs, 
including automation costs.
    4. Comment: One Tribal commenter referenced Sec.  310.20(a)(4), 
which sets forth conditions that must be met in order to obtain FFP in 
the costs of enhancements, and objected to the requirement that ``The 
project's Total Acquisition Cost cannot exceed the comprehensive Tribal 
IV-D agency's total Tribal IV-D program grant award for the year in 
which the acquisition request is made.'' The commenter explained such a 
provision would limit smaller Tribal programs.
    Response: Based on our experience with State automation efforts, 
this requirement is consistent with States' annual automation project 
expenditures and represents a sound, practical threshold to apply to 
ensure the cost reasonableness of Tribal automation efforts.
    5. Comment: One Tribal commenter stated that the proposed rule does 
not allocate Federal funds to be used in the development of a Model 
Tribal IV-D System.
    Response: This rule does not provide for Federal funds towards the 
development of a Model Tribal IV-D System because the Model Tribal IV-D 
System has already been designed and developed by OCSE for use by 
comprehensive Tribal IV-D programs electing to automate child support 
activities under this rule. There are no costs, including license fees 
or other charges, to Tribal IV-D programs to acquire a complete copy of 
the Model Tribal IV-D System from OCSE, and 90 percent Federal funding 
is available to Tribal IV-D programs for pre-approved costs of 
installing the Model Tribal IV-D System.
Section 310.25 What conditions apply to acquisitions of Computerized 
Tribal IV-D Systems?
    1. Comment: Six Tribal commenters questioned whether the Model 
Tribal IV-D System was developed through competitive contracting in 
accordance with the Competition in Contracting Act.
    Response: The Model Tribal IV-D System was developed under the 
direction of OCSE through the use of contractor resources from two 
competitively procured contracts. These two procurements adhered to all 
Federal acquisition regulations.
    2. Comment: One Tribal commenter stated that its ability to ensure 
full and open competition would be hampered because there are only two 
specialists in the area who are capable of enhancing their Tribe's 
Computerized Tribal IV-D System.
    Response: There are many ways to enable increased competition in 
procurements, including participating in consortia-based contracts with 
other Tribal IV-D programs, increasing the distance or range of the 
procurement search, and allowing successful offerors remote access to 
the Computerized Tribal IV-D System, thereby reducing contracted travel 
and similar costs. Remote access can increase interest in the vendor 
community to participate in a Tribe's procurement as it can have a 
leveling effect on the costs being proposed by all of the prospective 
offerors.
    3. Comment: One Tribal commenter requested clarification of the 
procurement process and asked if Tribes would need to solicit bids from 
other States.
    Response: There is no requirement that Tribal IV-D programs solicit 
bids from other States.
    4. Comment: Seven Tribal commenters questioned the intent of Sec.  
310.25(c) titled Software and Ownership Rights, as it relates to 
Tribally-funded systems; they suggested that the provisions of this 
section may inappropriately result in the Federal government reserving 
a license on property acquired with the Tribal funds. One commenter 
stated that provisions in Sec.  310.25(c)(2) that OCSE reserves a 
royalty-free, nonexclusive and irrevocable license to reproduce, 
publish, or otherwise use and to authorize others to use for Federal 
Government purposes would discourage Tribes or Tribal organizations 
from development of their own systems at their own expense.
    Response: In the preamble language to Sec.  310.25, we indicate 
that ``Comprehensive Tribal IV-D agencies that have elected to automate 
program activities through Office Automation or another alternative to 
Computerized Tribal IV-D Systems [such as an automated system funded 
entirely by a Tribe] as discussed in proposed Sec.  310.5, would not be 
subject to the requirements presented in proposed Sec.  310.25.'' A 
Tribal IV-D program's alternative system, one that was designed and 
developed as a fully Tribally-funded system, would only become subject 
to the Software and Ownership Rights clauses in Sec.  310.25(c) if the 
Tribal IV-D program later sought Federal funding in the costs to 
operate and maintain its alternative system. We agree with commenters 
that Sec.  310.25(c)(2), which states that OCSE reserves a royalty-
free, nonexclusive and irrevocable license to reproduce, publish, or 
otherwise use and to authorize others to use for Federal Government 
purposes, should not apply to a Tribally-funded system. We have revised 
this rule to limit the Software and Ownership Rights clause for a 
Tribally-funded system to Sec.  310.25(c)(1), which requires that all 
procurement and contract instruments must include a clause that 
provides that the comprehensive Tribal IV-D agency will have all 
ownership rights to Computerized Tribal IV-D System software or 
enhancements thereof and all associated documentation designed, 
developed or installed with FFP.

Subpart D--What requirements apply for accessing systems and records 
for monitoring Computerized Tribal IV-D Systems and Office Automation?

    1. Comment: Six Tribal commenters questioned the language in Sec.  
310.40 which states that ``In accordance with 45 CFR Part 95 of this 
title, under proposed Sec.  310.40 a comprehensive Tribal IV-D agency 
must allow OCSE access to the system in all of its aspects.'' The

[[Page 8519]]

commenters proposed restricting OCSE's access to financial and 
procurement information in the Tribe's automated system.
    Response: We do not agree that OCSE's access to information on the 
Tribe's automated system should be restricted. This requirement is 
critical for Federal oversight responsibility to ensure that Federal 
funds are expended appropriately and Federal grantees meet all 
requirements as a condition of receiving Federal funds.

Paperwork Reduction Act of 1995

    Under the Paperwork Reduction Act of 1995 (Pub. L. 104-13), all 
Departments are required to submit to the Office of Management and 
Budget (OMB) for review and approval any reporting or recordkeeping 
requirements inherent in a proposed or final rule. This final rule 
contains reporting requirements at 45 CFR Part 310. The Department has 
submitted these reporting requirements to OMB for review.
    Part 310 contains a regulatory requirement that, in order to 
receive funding for a Computerized Tribal IV-D System, a Tribe or 
Tribal organization must submit an Advanced Planning Document (APD) 
which represents the sole systems effort being undertaken by the 
comprehensive Tribal IV-D agency; describes the projected resource 
requirements for staff, hardware, software, network connections and 
other needs and resources available and expected to be available; 
contains a proposed schedule of project milestones; contains a proposed 
budget; and contains a statement that the comprehensive Tribal IV-D 
agency agrees in writing to use the Computerized Tribal IV-D System for 
a minimum period of time. Tribes and Tribal organizations must respond 
if they wish to operate a Federally-funded Computerized Tribal IV-D 
System. The potential respondents to these information collection 
requirements are approximately 40 Federally-recognized Tribes, and 
Tribal organizations, during Year 1; 5 additional Federally-recognized 
Tribes and Tribal organizations during Year 2; and 5 additional 
Federally-recognized Tribes and Tribal organizations during Year 3; for 
a three-year total of 50 grantees. This information collection 
requirement will impose the estimated total annual burden on the Tribes 
and Tribal organizations described in the table below:

----------------------------------------------------------------------------------------------------------------
                                                                                      Average
             Information collection                  Number of     Response per     burden per     Total annual
                                                    respondents     respondent       response         burden
----------------------------------------------------------------------------------------------------------------
                                                     Year 1
----------------------------------------------------------------------------------------------------------------
APD.............................................              40               2             108           8,640
Acquisitions (RFPs, Contracts, etc.)............               6               2              24             288
                                                 ---------------------------------------------------------------
    Total.......................................  ..............  ..............  ..............           8,928
----------------------------------------------------------------------------------------------------------------
                                                     Year 2
----------------------------------------------------------------------------------------------------------------
APD.............................................             *11               2             108           2,376
Acquisitions (RFPs, Contracts, etc.)............               6               2              24             288
                                                 ---------------------------------------------------------------
    Total.......................................  ..............  ..............  ..............           2,664
----------------------------------------------------------------------------------------------------------------
                                                     Year 3
----------------------------------------------------------------------------------------------------------------
APD.............................................              *8               2             108           1,728
Acquisitions (RFPs, Contracts, etc.)............               3               2              24             144
                                                 ---------------------------------------------------------------
    Total.......................................  ..............  ..............  ..............           1,872
----------------------------------------------------------------------------------------------------------------
* Figures reflect APDs from 5 additional Tribes in Year 2 and Year 3 as well as APD Updates from Tribes included
  in Year 1 and 2 respectively.

    Total Burden for 3 Years: 13,464.
    Total Annual Burden Averaged over 3 Years: 4,488 per year.

Regulatory Flexibility Analysis

    The Secretary certifies, under 5 U.S.C. 605(b), the Regulatory 
Flexibility Act (Pub. L. 96-354), that these regulations will not 
result in a significant impact on a substantial number of small 
entities because the primary impact of these regulations is on Tribal 
governments. Tribal governments are not considered small entities under 
the Act.

Regulatory Impact Analysis

    Executive Order 12866 requires that regulations be reviewed to 
ensure that they are consistent with the priorities and principles set 
forth in the Executive Order. The Department has determined that this 
final rule is consistent with these priorities and principles. 
Moreover, we have consulted with the Office of Management and Budget 
(OMB) and determined that these rules meet the criteria for a 
significant regulatory action under Executive Order 12866. Thus, they 
were subject to OMB review.
    We have determined that this final rule, including setting the FFP 
rate in the costs of installing the Model Tribal IV-D System at 90 
percent for all comprehensive Tribal IV-D agencies, is not an 
economically significant rule under Executive Order 12866 and will not 
result in the expenditure by State, local, and Tribal governments, in 
the aggregate, or by the private sector, of more than $100 million in 
any one year, adjusted for inflation from 1995 to 2008 using the GDP 
Price Deflator. The current threshold is $133 million. Therefore, we 
have not prepared a budgetary impact statement. We anticipate that the 
costs associated with this rule will be: FY 2010--$8m; FY 2011--$4m; FY 
2012--$2m; FY 2013--$3m; FY 2014--$3m.
    These regulations are authorized by 42 U.S.C. 655(f) and 42 U.S.C. 
1302 and represent the final regulations governing direct funding for 
computerized systems and Office Automation of Tribal IV-D agencies that 
demonstrate the capacity to operate a child support enforcement 
program, including establishment of paternity, establishment, 
modification and enforcement of support orders, and location of 
noncustodial parents.

[[Page 8520]]

    The Executive Order encourages agencies, as appropriate, to provide 
the public with meaningful participation in the regulatory process. As 
described elsewhere in the preamble, ACF consulted with Tribes and 
Tribal organizations and their representatives to obtain their views 
prior to the publication of this rule.

Executive Order 13175

    Executive Order 13175 sets forth principles to strengthen the 
United States' government-to-government relationships with Indian 
Tribes and to reduce the imposition of unfunded mandates upon Indian 
Tribes. In association with this rule, ACF held three consultation 
sessions on June 27, July 8 and July 9 of 2008. The consultations were 
held in Seattle, Washington; Catoosa, Oklahoma; and Milwaukee, 
Wisconsin during the summer and elicited a range of questions and 
suggestions which are discussed in detail throughout the preceding 
pages of this preamble.

Unfunded Mandates Reform Act of 1995

    Section 202 of the Unfunded Mandates Reform Act of 1995, Public Law 
104-4, requires that a covered agency prepare a budgetary impact 
statement before promulgating a rule that includes a Federal mandate 
that may result in the expenditure by State, local and Tribal 
governments, in the aggregate, or by the private sector, of $100 
million or more in any one year. As indicated above, we have determined 
this rule will not result in the expenditure by State, local and Tribal 
governments, in the aggregate, or by the private sector, of more than 
$100 million in any one year.

Congressional Review

    This final rule is not a major rule as defined in 5 U.S.C., Chapter 
8.

Assessment of Federal Regulations and Policies on Family Well-Being

    We certify that we have made an assessment of this rule's impact on 
the well-being of families, as required under sec. 654 of the Treasury 
and General Government Appropriations Act of 1999, Pub. L. 105-277. 
This final rule gives flexibility to Tribes and Tribal organizations to 
use technological advancements to meet program objectives that serve 
this purpose.

Executive Order 13132

    Executive Order 13132 prohibits an agency from publishing any rule 
that has federalism implications if the rule either imposes substantial 
direct compliance costs on State and local governments or is not 
required by statute, or the rule preempts State law, unless the agency 
meets the consultation and funding requirements of section 6 of the 
Executive Order. These regulations do not have federalism implications 
for State or local governments as defined in the Executive Order.

List of Subjects

45 CFR 309

    Child support, Grant programs--Social programs, Indians, Native 
Americans.

45 CFR 310

    Child support, Grant programs--Social programs, Indians, Native 
Americans.

(Catalogue of Federal Domestic Assistance Programs No. 93.563, Child 
Support Enforcement Program)


    Dated: October 28, 2009.
Carmen Nazario,
Assistant Secretary for Children and Families.

    Approved: November 16, 2009.
Kathleen Sebelius,
Secretary, Department of Health and Human Services.

0
For the reasons discussed in the preamble, title 45 chapter III of the 
Code of Federal Regulations is amended as follows:

PART 309--TRIBAL CHILD SUPPORT ENFORCEMENT (IV-D) PROGRAM

0
1. The authority citation for part 309 continues to read as follows:

    Authority:  42 U.S.C. 655(f), 1302.


0
2. In Sec.  309.130, revise paragraph (c)(3) to read as follows:


Sec.  309.130  How will Tribal IV-D programs be funded and what forms 
are required?

* * * * *
    (c) Federal share of program expenditures. * * *
    (3)(i) Except as provided in paragraph (c)(3)(ii) of this section, 
for all periods following the three-year period specified in paragraph 
(c)(2) of this section, a Tribe or Tribal organization will receive 
Federal grant funds equal to 80 percent of the total amount of approved 
and allowable expenditures made for the administration of the Tribal 
child support enforcement program.
    (ii) A Tribe or Tribal organization will receive Federal grant 
funds equal to 90 percent of pre-approved costs of installing the Model 
Tribal IV-D System.
* * * * *


0
3. In Sec.  309.145, revise paragraph (h) to read as follows:


Sec.  309.145  What costs are allowable for Tribal IV-D programs 
carried out under Sec.  309.65(a) of this part?

* * * * *
    (h) Automated data processing computer systems, including:
    (1) Planning efforts in the identification, evaluation, and 
selection of an automated data processing computer system solution 
meeting the program requirements defined in a Tribal IV-D plan and the 
automated systems requirements in part 310 of this chapter;
    (2) Installation, operation, maintenance, and enhancement of a 
Model Tribal IV-D System as defined in and meeting the requirements of 
part 310 of this title;
    (3) Procurement, installation, operation and maintenance of 
essential Office Automation capability;
    (4) Establishment of Intergovernmental Service Agreements with a 
State and another comprehensive Tribal IV-D agency for access to the 
State or other Tribe's existing automated data processing computer 
system to support Tribal IV-D program operations, and Reasonable Costs 
associated with use of such a system;
    (5) Operation and maintenance of a Tribal automated data processing 
system funded entirely with Tribal funds if the software ownership 
rights and license requirements in Sec.  310.25(c)(1) are met; and
    (6) Other automation and automated data processing computer system 
costs in accordance with instructions and guidance issued by the 
Secretary.
* * * * *

0
4. Revise part 310 to read as follows:

PART 310--COMPUTERIZED TRIBAL IV-D SYSTEMS AND OFFICE AUTOMATION

Subpart A--General Provisions
Sec.
310.0 What does this part cover?
310.1 What definitions apply to this part?
Subpart B--Requirements for Computerized Tribal IV-D Systems and Office 
Automation
310.5 What options are available for Computerized Tribal IV-D 
Systems and Office Automation?
310.10 What are the functional requirements for the Model Tribal IV-
D System?
310.15 What are the safeguards and processes that comprehensive 
Tribal IV-D agencies must have in place to ensure the security and 
privacy of Computerized Tribal IV-D Systems and Office Automation?

[[Page 8521]]

Subpart C--Funding for Computerized Tribal IV-D Systems and Office 
Automation
310.20 What are the conditions for funding the installation, 
operation, maintenance and enhancement of Computerized Tribal IV-D 
Systems and Office Automation?
310.25 What conditions apply to acquisitions of Computerized Tribal 
IV-D Systems?
310.30 Under what circumstances would FFP be suspended or disallowed 
in the costs of Computerized Tribal IV-D Systems?
310.35 Under what circumstances would emergency FFP be available for 
Computerized Tribal IV-D Systems?
Subpart D--Accountability and Monitoring Procedures for Computerized 
Tribal IV-D Systems
310.40 What requirements apply for accessing systems and records for 
monitoring Computerized Tribal IV-D Systems and Office Automation?

    Authority:  42 U.S.C. 655(f) and 1302.

Subpart A--General Provisions


Sec.  310.0  What does this part cover?

    This part addresses conditions for funding and requirements 
governing Computerized Tribal IV-D Systems and Office Automation 
including:
    (a) The automated systems options for comprehensive Tribal IV-D 
programs in Sec.  310.5 of this part;
    (b) The functional requirements for the Model Tribal IV-D Systems 
in Sec.  310.10 of this part;
    (c) The security and privacy requirements for Computerized Tribal 
IV-D Systems and Office Automation in Sec.  310.15 of this part;
    (d) The conditions for funding the installation, operation, 
maintenance, and enhancement of Computerized Tribal IV-D Systems and 
Office Automation in Sec.  310.20 of this part;
    (e) The conditions that apply to acquisitions of Computerized 
Tribal IV-D Systems in Sec.  310.25 of this part; and
    (f) The accountability and monitoring of Computerized Tribal IV-D 
Systems in Sec.  310.40 of this part.


Sec.  310.1  What definitions apply to this part?

    (a) The following definitions apply to this part and part 309:
    (1) Automated Data Processing Services (ADP Services) means 
services for installation, maintenance, operation, and enhancement of 
ADP equipment and software performed by a comprehensive Tribal IV-D 
agency or for that agency through a services agreement or other 
contractual relationship with a State, another Tribe or private sector 
entity.
    (2) Comprehensive Tribal IV-D agency means the organizational unit 
in the Tribe or Tribal organization that has the authority for 
administering or supervising a comprehensive Tribal IV-D program under 
section 455(f) of the Act and implementing regulations in part 309 of 
this chapter. This is an agency meeting all requirements of Sec.  
309.65(a) of this chapter which is not in the start-up phase under 
Sec.  309.65(b) of this chapter.
    (3) Computerized Tribal IV-D System means a comprehensive Tribal 
IV-D program's system of data processing that is performed by 
electronic or electrical machines so interconnected and interacting as 
to minimize the need for human assistance or intervention. A 
Computerized Tribal IV-D System is:
    (i) The Model Tribal IV-D System; or
    (ii) Access to a State or comprehensive Tribal IV-D agency's 
existing automated data processing computer system through an 
Intergovernmental Service Agreement;
    (4) Installation means the act of installing ADP equipment and 
software, performing data conversion, and turnover to operation status.
    (5) Maintenance is the totality of activities required to provide 
cost-effective support to an operational ADP system. Maintenance is 
generally routine in nature and can include activities such as: 
Upgrading ADP hardware, and revising/creating new reports, making 
limited data element/data base changes, minor data presentation 
changes, and other software corrections.
    (6) Model Tribal IV-D System means an ADP system designed and 
developed by OCSE for comprehensive Tribal IV-D programs to include 
system specifications and requirements as specified in this part. The 
Model Tribal IV-D System effectively and efficiently allows a 
comprehensive Tribal IV-D agency to monitor, account for, and control 
all child support enforcement services and activities pursuant to part 
309 of this chapter.
    (7) Office Automation means a generic adjunct component of a 
computer system that supports the routine administrative functions in 
an organization (e.g., electronic mail, word processing, internet 
access), as well as similar functions performed as part of an automated 
data processing system. Office Automation is not specifically designed 
to meet the programmatic and business-centric needs of an organization.
    (8) Reasonable Cost means a cost that is determined to be 
reasonable if, in its nature and amount, it does not exceed that which 
would be incurred by a prudent person under the circumstances 
prevailing at the time the decision was made to incur the cost. In 
determining reasonableness with regard to ADP systems cost, 
consideration shall be given to:
    (i) Whether the cost is of a type generally recognized as ordinary 
and necessary for the operation of a comprehensive Tribal IV-D agency;
    (ii) The restraints or requirements imposed by such factors as: 
Sound business practices; arms-length bargaining; Federal, Tribal laws 
and regulations; and terms and conditions of any direct Federal 
funding;
    (iii) Whether the individual concerned acted with prudence in the 
circumstances considering his or her responsibilities to the 
comprehensive Tribal IV-D agency, its employees, the public at large, 
and the Federal Government;
    (iv) Market prices for comparable goods or services;
    (v) Significant deviations from the established practices of the 
comprehensive Tribal IV-D agency which may unjustifiably increase the 
cost; and
    (vi) Whether a project's Total Acquisition Cost is in excess of the 
comprehensive Tribal IV-D agency's total Tribal IV-D program grant 
award for the year in which the request is made.
    (9) Service Agreement means a document signed by the Tribe or 
Tribal organization operating a comprehensive Tribal IV-D program under 
Sec.  309.65(a) and the State or other comprehensive Tribal IV-D 
program whenever the latter provides data processing services to the 
former and identifies those ADP services that the State or other 
comprehensive Tribal IV-D program will provide to the Tribe or Tribal 
organization. Additionally, a Service Agreement would include the 
following details:
    (i) Schedule of charges for each identified ADP service and a 
certification that these charges apply equally to all users;
    (ii) Description of the method(s) of accounting for the services 
rendered under the agreement and computing service charges;
    (iii) Assurances that services provided will be timely and 
satisfactory;
    (iv) Assurances that information in the computer system as well as 
access, use and disposal of ADP data will be safeguarded in accordance 
with proposed Sec.  310.15;
    (v) Beginning and ending dates of the period of time covered by the 
Service Agreement; and
    (vi) Schedule of expected total charges for the period of the 
Service Agreement.

[[Page 8522]]

    (10) Simplified Acquisition Threshold for ADP systems, equipment, 
and service acquisitions means a Tribe or Tribal organization's 
monetary threshold for determining whether competitive acquisition 
rules are required for a given procurement or $100,000, whichever is 
less.
    (b) The following terms apply to this part and are defined in Sec.  
95.605 of this title: ``Acquisition''; ``Advance Planning Document 
(APD)''; ``Design or System Design''; ``Development''; ``Enhancement''; 
``Federal Financial Participation (FFP)''; ``Operation''; ``Project''; 
``Software''; and ``Total Acquisition Cost''.
    (c) All of the terms defined in Sec.  309.05 of this chapter apply 
to this part.

Subpart B: Requirements for Computerized Tribal IV-D Systems and 
Office Automation


Sec.  310.5  What options are available for Computerized Tribal IV-D 
Systems and office automation?

    (a) Allowable computerized support enforcement systems for a 
Comprehensive Tribal IV-D agency. A comprehensive Tribal IV-D agency 
may have in effect an operational computerized support enforcement 
system that meets Federal requirements under this part.
    (b) Computerized Tribal IV-D Systems. A Computerized Tribal IV-D 
System must be one of the design options listed below. A comprehensive 
Tribal IV-D program may automate its case processing and recordkeeping 
processes through:
    (1) Installation, operation, maintenance, or enhancement of the 
Model Tribal IV-D System designed by OCSE to address the program 
requirements defined in a Tribal IV-D plan in accordance with Sec.  
309.65(a) of this chapter and the functional requirements in Sec.  
310.10 of this part;
    (2) Establishment of Intergovernmental Service Agreements with a 
State or another comprehensive Tribal IV-D agency for access to that 
agency's existing automated data processing computer system to support 
comprehensive Tribal IV-D program operations.
    (c) Office Automation. A comprehensive Tribal IV-D agency may opt 
to conduct automated data processing and recordkeeping activities 
through Office Automation. Allowable activities under this paragraph 
include procurement, installation, operation and maintenance of 
essential Office Automation capability as defined in Sec.  310.1 of 
this part.
    (d) Alternative to Computerized Tribal IV-D Systems and Office 
Automation. A comprehensive Tribal IV-D agency may design, develop, 
procure, or enhance an automated data processing system funded entirely 
with Tribal funds.


Sec.  310.10  What are the functional requirements for the Model Tribal 
IV-D System?

    A Model Tribal IV-D System must:
    (a) Accept, maintain and process the actions in the support 
collection and paternity determination processes under the Tribal IV-D 
plan, including:
    (1) Identifying information such as Social Security numbers, names, 
dates of birth, home addresses and mailing addresses (including postal 
zip codes) on individuals against whom paternity and support 
obligations are sought to be established or enforced and on individuals 
to whom support obligations are owed, and other data as may be 
requested by OCSE;
    (2) Verifying information on individuals referred to in paragraph 
(a)(1) of this section with Tribal, Federal, State and local agencies, 
both intra-tribal and intergovernmental;
    (3) Maintaining information pertaining to:
    (i) Applications and referrals for Tribal IV-D services, including:
    (A) Case record;
    (B) Referral to the appropriate processing unit (i.e., locate or 
paternity establishment);
    (C) Caseworker notification;
    (D) Case Identification Number; and
    (E) Participant Identification Number;
    (ii) Delinquency and enforcement activities;
    (iii) Intra-tribal, intergovernmental, and Federal location of the 
putative father and noncustodial parents;
    (iv) The establishment of paternity;
    (v) The establishment of support obligations;
    (vi) The payment and status of current support obligations;
    (vii) The payment and status of arrearage accounts;
    (4) Maintaining data on case actions administered by both the 
initiating and responding jurisdictions in intergovernmental cases;
    (b) Update, maintain and manage all IV-D cases under the Tribal IV-
D plan from initial application or referral through collection and 
enforcement, including any events, transactions, or actions taken 
therein;
    (c) Record and report any fees collected, either directly or by 
interfacing with State or Tribal financial management and expenditure 
information;
    (d) Distribute current support and arrearage collections in 
accordance with Federal regulations at Sec.  309.115 of this chapter 
and Tribal laws;
    (e) Maintain, process and monitor accounts receivable on all 
amounts owed, collected, and distributed with regard to:
    (1) Detailed payment histories that include the following:
    (i) Amount of each payment;
    (ii) Date of each collection;
    (iii) Method of payment;
    (iv) Distribution of payments; and
    (v) Date of each disbursement;
    (2) Automated income withholding activities such as:
    (i) Recording and maintaining any date the noncustodial parent 
defaults on payment of the support obligation in an amount equal to the 
support payable for one month;
    (ii) Generating the Standard Federal Income Withholding Form; and
    (iii) Allocating amounts received by income withholding according 
to Sec. Sec.  309.110 and 309.115 of this chapter.
    (f) Maintain and automatically generate data necessary to meet 
Federal reporting requirements on a timely basis as prescribed by OCSE. 
At a minimum this must include:
    (1) Yearly notices on support collected, which are itemized by 
month of collection and provided to families receiving services under 
the comprehensive Tribal IV-D program as required in Sec.  309.75(c) of 
this chapter, to all case participants regarding support collections; 
and
    (2) Reports submitted to OCSE for program monitoring and program 
performance as required in Sec.  309.170 of this chapter;
    (g) Provide automated processes to enable OCSE to monitor Tribal 
IV-D program operations and to assess program performance through the 
audit of financial and statistical data maintained by the system; and
    (h) Provide security to prevent unauthorized access to, or use of, 
the data in the system as detailed in Sec.  310.15 of this part.


Sec.  310.15  What are the safeguards and processes that comprehensive 
Tribal IV-D agencies must have in place to ensure the security and 
privacy of Computerized Tribal IV-D Systems and Office Automation?

    (a) Information integrity and security. The comprehensive Tribal 
IV-D agency must have safeguards on the integrity, accuracy, 
completeness, access to, and use of data in the Computerized Tribal IV-
D System and Office Automation. Computerized Tribal IV-D Systems and 
Office Automation should be compliant with the Federal Information 
Security Management Act, and the Privacy Act. The required safeguards 
must include written policies and procedures concerning the following:

[[Page 8523]]

    (1) Periodic evaluations of the system for risk of security and 
privacy breaches;
    (2) Procedures to allow Tribal IV-D personnel controlled access and 
use of IV-D data, including:
    (i) Specifying the data which may be used for particular IV-D 
program purposes, and the personnel permitted access to such data;
    (ii) Permitting access to and use of data for the purpose of 
exchanging information with State and Tribal agencies administering 
programs under titles IV-A, IV-E and XIX of the Act to the extent 
necessary to carry out the comprehensive Tribal IV-D agency's 
responsibilities with respect to such programs;
    (3) Maintenance and control of application software program data;
    (4) Mechanisms to back-up and otherwise protect hardware, software, 
documents, and other communications; and,
    (5) Mechanisms to report breaches or suspected breaches of 
personally identifiable information to the Department of Homeland 
Security, and to respond to those breaches.
    (b) Monitoring of access. The comprehensive Tribal IV-D agency must 
monitor routine access to and use of the Computerized Tribal IV-D 
System and Office Automation through methods such as audit trails and 
feedback mechanisms to guard against, and promptly identify, 
unauthorized access or use;
    (c) Training and information. The comprehensive Tribal IV-D agency 
must have procedures to ensure that all personnel, including Tribal IV-
D staff and contractors, who may have access to or be required to use 
confidential program data in the Computerized Tribal IV-D System and 
Office Automation are adequately trained in security procedures.
    (d) Penalties. The comprehensive Tribal IV-D agency must have 
administrative penalties, including dismissal from employment, for 
unauthorized access to, disclosure or use of confidential information.

Subpart C--Funding for Computerized Tribal IV-D Systems and Office 
Automation


Sec.  310.20  What are the conditions for funding the installation, 
operation, maintenance and enhancement of Computerized Tribal IV-D 
Systems and Office Automation?

    (a) Conditions that must be met for FFP at the applicable matching 
rate in Sec.  309.130(c) of this chapter for Computerized Tribal IV-D 
Systems. The following conditions must be met to obtain 90 percent FFP 
in the costs of installation of the Model Tribal IV-D System and FFP at 
the applicable matching rate under Sec.  309.130(c) of this chapter in 
the costs of operation, maintenance, and enhancement of a Computerized 
Tribal IV-D System:
    (1) A comprehensive Tribal IV-D agency must have submitted, and 
OCSE must have approved, an Advance Planning Document (APD) for the 
installation and enhancement of a Computerized Tribal IV-D System;
    (2) An APD for installation of a Computerized Tribal IV-D System 
must:
    (i) Represent the sole systems effort being undertaken by the 
comprehensive Tribal IV-D agency under this part;
    (ii) Describe the projected resource requirements for staff, 
hardware, software, network connections and other needs and the 
resources available or expected to be available to meet the 
requirements;
    (iii) Contain a proposed schedule of project milestones with detail 
sufficient to describe the tasks, activities, and complexity of the 
initial implementation project;
    (iv) Contain a proposed budget including a description of 
expenditures by category and amount for items related to installing, 
operating, maintaining, and enhancing the Computerized Tribal IV-D 
System; and
    (v) Contain a statement that the comprehensive Tribal IV-D agency 
agrees in writing to use the Computerized Tribal IV-D System for a 
minimum period of time;
    (3) The following conditions, in addition to those in paragraphs 
(a)(1) and (2) of this section, must be met to obtain FFP in the 
installation costs of access to a State or another comprehensive Tribal 
IV-D program's ADP system established under an Intergovernmental 
Service Agreement. The comprehensive Tribal IV-D agency must:
    (i) Maintain a copy of each intergovernmental cooperative agreement 
and Service Agreement in its files for Federal review; and
    (ii) Ensure that the:
    (A) Service Agreement for which FFP is being sought, meets the 
definition of a Service Agreement as defined in Sec.  310.1 of this 
title;
    (B) Claims for FFP conform to the timely claim provisions of part 
95 subpart A of this title; and
    (C) Service Agreement was not previously disapproved by the 
Department.
    (4) The following conditions, in addition to those in paragraphs 
(a)(1) through (3) of this section, must be met in order for a 
comprehensive Tribal IV-D agency to obtain FFP in the costs of 
enhancements to its Computerized Tribal IV-D System:
    (i) The project's Total Acquisition Cost cannot exceed the 
comprehensive Tribal IV-D agency's total Tribal IV-D program grant 
award for the year in which the acquisition request is made; and
    (ii) The APD budget, schedule and commitment to use the 
Computerized Tribal IV-D System for a specified minimum period of time 
must be updated to reflect the enhancement project.
    (5) To receive FFP in the costs of the operation and maintenance of 
a Computerized Tribal IV-D System installed under Sec.  310.20 or 
developed under Sec.  309.145(h)(5), which refers to a Tribal automated 
data processing system that is funded entirely with Tribal funds, the 
comprehensive Tribal IV-D agency must include operation and maintenance 
costs in its annual Title IV-D program budget submission in accordance 
with Sec.  309.15(c) of this chapter;
    (6) To receive FFP in the costs of the installation, operation, and 
maintenance of essential Office Automation capabilities, the 
comprehensive Tribal IV-D agency must include such costs in its annual 
Title IV-D program budget submission in accordance with Sec.  309.15(c) 
of this chapter;
    (b) Procedure for APD Submittal. The comprehensive Tribal IV-D 
agency must submit an APD for a Computerized Tribal IV-D System to the 
Commissioner of OCSE, Attention: Division of State and Tribal Systems. 
The APD submitted by the comprehensive Tribal IV-D agency must be 
approved and signed by the comprehensive Tribal IV-D agency Director 
and the appropriate Tribal officials prior to submission to OCSE for 
approval.


Sec.  310.25  What conditions apply to acquisitions of Computerized 
Tribal IV-D Systems?

    (a) APD Approval. A comprehensive Tribal IV-D agency must have an 
approved APD in accordance with the applicable requirements of Sec.  
310.20 of this part prior to initiating acquisition of a Computerized 
Tribal IV-D System.
    (b) Procurements. Requests for Proposals (RFP) and similar 
procurement documents, contracts, and contract amendments involving 
costs eligible for FFP, must be submitted to OCSE for approval prior to 
release of the procurement document, and prior to the execution of the 
resultant contract when a procurement is anticipated to or will

[[Page 8524]]

exceed the Simplified Acquisition Threshold;
    (c) Software and ownership rights. (1) All procurement and contract 
instruments must include a clause that provides that the comprehensive 
Tribal IV-D agency will have all ownership rights to Computerized 
Tribal IV-D System software or enhancements thereof and all associated 
documentation designed, developed or installed with FFP. 
Intergovernmental Service Agreements are not subject to this paragraph.
    (2) OCSE reserves a royalty-free, nonexclusive, and irrevocable 
license to reproduce, publish, or otherwise use and to authorize others 
to use for Federal Government purposes, such software, modifications 
and documentation.
    (3) FFP is not available for the costs of rental or purchase of 
proprietary application software developed specifically for a 
Computerized Tribal IV-D System. Commercial-off-the-shelf (COTS) 
software packages that are sold or leased to the general public at 
established catalog or market prices are not subject to the ownership 
and license provisions of this requirement.
    (d) Requirements for acquisitions under the threshold amount. A 
comprehensive Tribal IV-D agency is not required to submit procurement 
documents, contracts, and contract amendments for acquisitions under 
the Simplified Acquisition Threshold unless specifically requested to 
do so in writing by OCSE.


Sec.  310.30  Under what circumstances would FFP be suspended or 
disallowed in the costs of Computerized Tribal IV-D Systems?

    (a) Suspension of APD approval. OCSE will suspend approval of the 
APD for a Computerized Tribal IV-D System approved under this part as 
of the date that the system ceases to comply substantially with the 
criteria, requirements, and other provisions of the APD. OCSE will 
notify a Tribal IV-D agency in writing in a notice of suspension, with 
such suspension effective as of the date on which there is no longer 
substantial compliance.
    (b) Suspension of FFP. If OCSE suspends approval of an APD in 
accordance with this part during the installation, operation, or 
enhancement of a Computerized Tribal IV-D System, FFP will not be 
available in any expenditure incurred under the APD after the date of 
the suspension until the date OCSE determines that the comprehensive 
Tribal IV-D agency has taken the actions specified in the notice of 
suspension described in paragraph (a) of this section. OCSE will notify 
the comprehensive Tribal IV-D agency in writing upon making such a 
determination.


Sec.  310.35  Under what circumstances would emergency FFP be available 
for Computerized Tribal IV-D Systems?

    (a) Conditions that must be met for emergency FFP. OCSE will 
consider waiving the approval requirements for acquisitions in 
emergency situations, such as natural or man-made disasters, upon 
receipt of a written request from the comprehensive Tribal IV-D agency. 
In order for OCSE to consider waiving the approval requirements in 
Sec.  310.25 of this part, the following conditions must be met:
    (1) The comprehensive Tribal IV-D agency must submit a written 
request to OCSE prior to the acquisition of any ADP equipment or 
services. The written request must be sent by registered mail and 
include:
    (i) A brief description of the ADP equipment and/or services to be 
acquired and an estimate of their costs;
    (ii) A brief description of the circumstances which resulted in the 
comprehensive Tribal IV-D agency's need to proceed prior to obtaining 
approval from OCSE; and
    (iii) A description of the harm that will be caused if the 
comprehensive Tribal IV-D agency does not acquire immediately the ADP 
equipment and services.
    (2) Upon receipt of the information, OCSE will, within 14 working 
days of receipt, take one of the following actions:
    (i) Inform the comprehensive Tribal IV-D agency in writing that the 
request has been disapproved and the reason for disapproval; or
    (ii) Inform the comprehensive Tribal IV-D agency in writing that 
OCSE recognizes that an emergency exists and that within 90 calendar 
days from the date of the initial written request under paragraph 
(a)(1) of this section the comprehensive Tribal IV-D agency must submit 
a formal request for approval which includes the information specified 
at Sec.  310.25 of this title in order for the ADP equipment or 
services acquisition to be considered for OCSE's approval.
    (b) Effective date of emergency FFP. If OCSE approves the request 
submitted under paragraph (a)(2) of this section, FFP will be available 
from the date the comprehensive Tribal IV-D agency acquires the ADP 
equipment and services.

Subpart D--Accountability and Monitoring Procedures for 
Computerized Tribal IV-D Systems


Sec.  310.40  What requirements apply for accessing systems and records 
for monitoring Computerized Tribal IV-D Systems and Office Automation?

    In accordance with Part 95 of this title, a comprehensive Tribal 
IV-D agency must allow OCSE access to the system in all of its aspects, 
including installation, operation, and cost records of contractors and 
subcontractors, and of Service Agreements at such intervals as are 
deemed necessary by OCSE to determine whether the conditions for FFP 
approval are being met and to determine the efficiency, effectiveness, 
reasonableness of the system and its cost.

[FR Doc. 2010-3572 Filed 2-24-10; 8:45 am]
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