Department of Health and Human Services may call the Federal Dual Party Relay Service at...

Friday,

February 18, 2000

Part II

Department ofHealth and HumanServicesAdministration for Children and Families

45 CFR Parts 286 and 287Tribal Temporary Assistance for NeedyFamilies Program (Tribal TANF) andNative Employment Works (NEW)Program; Final Rule

VerDate 16<FEB>2000 14:56 Feb 17, 2000 Jkt 190000 PO 00000 Frm 00001 Fmt 4717 Sfmt 4717 E:\FR\FM\18FER2.SGM pfrm02 PsN: 18FER2

8478 Federal Register / Vol. 65, No. 34 / Friday, February 18, 2000 / Rules and Regulations

DEPARTMENT OF HEALTH ANDHUMAN SERVICES

Administration for Children andFamilies

45 CFR Parts 286 and 287

RIN 0970–AB78

Tribal Temporary Assistance for NeedyFamilies Program (Tribal TANF) andNative Employment Works (NEW)Program

AGENCY: Administration for Childrenand Families, HHS.ACTION: Final rule.

SUMMARY: The Administration forChildren and Families is issuing finalregulations to implement key tribalprovisions of the new welfare blockgrant program enacted in 1996—theTemporary Assistance for NeedyFamilies, or TANF program and the newtribal work activities program—theNative Employment Works, or NEWProgram. The Personal Responsibilityand Work Opportunity ReconciliationAct of 1996 (PRWORA), Public Law104–193, established the Tribal TANFand NEW Programs. Subsequenttechnical changes were enacted by theBalanced Budget Act of 1997, PublicLaw 105–33. The TANF block grantprogram replaces the national welfareprogram known as Aid to Families withDependent Children (AFDC) and therelated programs known as the JobOpportunities and Basic Skills TrainingProgram (JOBS) and the EmergencyAssistance (EA) program.

These Final Rules reflect new Federal,Tribal, and State relationships in theadministration of welfare programs; anew focus on moving TANF recipientsinto work; and a new emphasis onprogram information, measurement, andperformance. They also reflect theAdministration’s commitment toregulatory reform.EFFECTIVE DATE: These Final Rules areeffective June 19, 2000.FOR FURTHER INFORMATION CONTACT: JohnBushman, Director, Division of TribalServices, Office of Community Services,Administration for Children andFamilies (ACF), at 202–401–2418,Raymond Apodaca, Tribal TANF TeamLeader, at 202–401–5020, or Ja-NaOliver-Bordes, NEW Team Leader, at202–401–5713.

Deaf and hearing impairedindividuals may call the Federal DualParty Relay Service at 1–800–877–8339between 8 a.m. and 7 p.m. eastern time.SUPPLEMENTARY INFORMATION: On July22, 1998, ACF published in the Federal

Register (63 FR 39365–39429) a Noticeof Proposed Rulemaking (NPRM) thatcovered key Tribal TANF provisions ofthe new welfare block grant program,known as Temporary Assistance forNeedy Families, or TANF. In addition,the NPRM covered key provisions of theNative Employment Works (NEW)program. We provided an extended 120-day comment period which ended onNovember 20, 1998. We offeredcommenters the opportunity to submitcomments by mail or electronically viaour web site. A number of commenterstook advantage of this electronic access,but the majority of the comments wereceived were through the mail.

Comment OverviewWe received an estimated 400

comments on the NPRM from 46separate commenters. The largestnumber of comments came from tribalgovernments, followed by stateagencies, and tribal organizations. Forseveral reasons, we decided not toattempt precise numerical counts of thecomments received. First, severalcomments had multiple signatories andothers provided general endorsementsof the comments of other parties. Also,commenters presented their views ofoverlapping and cross-cutting issues inmany different ways; for example, somecommented generically about majorprovisions of the proposed rule, whileothers provided specific suggestionsabout alternative approaches, words,and phrases. The diversity in theapproach of commenters made precisionin tallying comments impossible.Nevertheless, we are confident that thispreamble accurately conveys the scopeand nature of the comments received.

In the preamble to the proposed rulewe discussed our general approach tosome of the major cross-cutting issuesup front, prior to the section-by-sectionanalysis. Many of the commentersorganized their comments in the sameway, addressing the issues thematicallyinstead of following the specificstructure of the rule. This preamblefollows that same basic format,presenting a separate discussion ofcross-cutting issues apart from theseparate section-by-section analysis(e.g., consultation, child support, planformat).

The discussion of data collection andreporting issues is presented in severalplaces—the preambles for part 286(Tribal TANF) and part 287 (NEW), andthe preamble discussion entitled the‘‘Paperwork Reduction Act’’ in the‘‘Regulatory Impact Analyses’’ section ofthe preamble.

We believe that structuring thepreamble this way enables us to provide

a clearer framework for the specificregulatory provisions and to representthe commenters’ concerns mostaccurately.

We appreciate the time and attentionthat commenters gave to reviewing theNPRM and preparing their comments,and we have reviewed and consideredeach. As a result of their efforts, we havebeen able to resolve certain technicaland administrative issues, incorporatenumerous substantive revisions to theproposed rule, make key clarificationsof policy goals, and consider alternativeregulatory approaches.

Table of ContentsI. Overview: The Personal Responsibility and

Work Opportunity Reconciliation Act of1996

II. Regulatory FrameworkA. Pre-NPRM Consultation ProcessB. Related RegulationsC. Statutory ContextD. Regulatory ReformE. Scope of This RulemakingF. Federal Programs to Assist Families to

Achieve Self SufficiencyG. Applicability of the Rules

III. Principles Governing RegulatoryDevelopment

A. Tribal FlexibilityB. Regulatory AuthorityC. Accountability for Meeting Program

Requirements and GoalsIV. Discussion of Cross-Cutting Issues

A. Child SupportB. Plan FormatC. Approved Plans Which Do Not Meet the

Terms of the Final RuleD. Other General Issues

V. Part 286 Tribal TANF Program ProvisionsA. General Tribal TANF ProvisionsB. Tribal TANF FundingC. Tribal TANF Plan Content and

ProcessingD. Accountability and PenaltiesE. Data Collection and Reporting

RequirementsVI. Part 287—Native Employment Works

(NEW) Program ProvisionsA. General NEW ProvisionsB. Eligible TribesC. NEW Program FundingD. Plan RequirementsE. Program Design and OperationsF. Data Collection and Reporting

RequirementsVII. Regulatory Impact Analyses

A. Executive Order 12866B. Regulatory Flexibility AnalysisC. Family Impact AssessmentD. Paperwork Reduction ActE. Unfunded Mandates Reform Act of 1995F. Congressional Review of RegulationsG. Executive Order 13132

I. Overview: The PersonalResponsibility and Work OpportunityReconciliation Act of 1996

On August 22, 1996, PresidentClinton signed ‘‘The PersonalResponsibility and Work OpportunityReconciliation Act of 1996’’ (PRWORA)


8479Federal Register / Vol. 65, No. 34 / Friday, February 18, 2000 / Rules and Regulations

into law. The first title of this new law(Pub. L. 104–193) establishes acomprehensive welfare reform programthat is designed to change the nation’swelfare system. The new program iscalled Temporary Assistance for NeedyFamilies, or TANF, in recognition of itsfocus on moving recipients into workand time-limiting assistance.

PRWORA repeals the existing welfareprogram known as Aid to Families withDependent Children (AFDC), whichprovided cash assistance to needyfamilies on an entitlement basis. It alsorepeals the related programs known asthe Job Opportunities and Basic SkillsTraining program (JOBS) andEmergency Assistance (EA).

The new law reflects widespread,bipartisan agreement on a number ofkey principles:

• Welfare programs should bedesigned to help move people fromWelfare-to-Work.

• Welfare should be a short-term,transitional experience, not a way oflife.

• Parents should receive the childcare and the health care they need toprotect their children as they move fromWelfare-to-Work.

• Child support programs shouldbecome tougher and more effective insecuring support from absent parents.

• Because many factors contribute topoverty and dependency, solutions tothese problems should not be ‘‘one sizefits all.’’ The system should allowStates, Indian tribes, and localities todevelop diverse and creative responsesto their own problems.

• The Federal government shouldfocus less attention on eligibilitydeterminations and place moreemphasis on program results.

After more than two years ofdiscussion and negotiation, PRWORAemerged as a bipartisan vehicle forcomprehensive welfare reform. AsPresident Clinton stated in his remarksas he signed the bill, ‘‘* * * legislationprovides an historic opportunity to endwelfare as we know it and transform ourbroken welfare system by promoting thefundamental values of work,responsibility, and family.’’ Under thenew statute, TANF funding andassistance for families comes with newexpectations and responsibilities.Adults receiving assistance are expectedto engage in work activities and developthe capability to support themselves andtheir families before their time-limitedassistance runs out.

The new law provides federally-recognized Indian tribes, or consortia ofsuch Tribes, the opportunity to applyfor funding under section 412 of theSocial Security Act (or the Act), as

amended by PRWORA, to operate theirown TANF programs beginning July 1,1997.

The law gives States and federallyrecognized Indian tribes the authority touse Federal welfare funds ‘‘in anymanner that is reasonably calculated toaccomplish the purposes’’ of the newprogram. Those purposes are: (1) Toprovide assistance to needy families sothat children may be cared for in theirown homes or in the homes of relatives;(2) to end the dependence of needyparents on government benefits bypromoting job preparation, work, andmarriage; (3) to prevent and reduce theincidence of out-of-wedlock pregnanciesand establish annual numerical goals forpreventing and reducing the incidenceof these pregnancies; and (4) toencourage the formation andmaintenance of two-parent families.

Indian tribes that choose toadminister a Tribal TANF program havebeen given broad flexibility to set TANFeligibility rules and to decide whatbenefits are most appropriate for theirservice areas and populations. Tribeswho take on the responsibility foradministering a TANF program will beexpected to assist recipients making thetransition to employment. Tribal TANFgrantees also will be expected to meetwork participation rates and othercritical program requirements in orderto avoid penalties and maintain theirFederal funding. In meeting theseexpectations, Tribes need to examinethe needs of their service areas andservice populations, identify the causesof long-term underemployment anddependency, and work with families,communities, businesses, and othersocial service agencies in resolvingemployment barriers. TANF givesTribes the flexibility they need torespond to such individual familyneeds. However, in return, it expectsTribes to move towards a strategy thatprovides appropriate services for needyfamilies. PRWORA offers States andTribes an opportunity to try new, far-reaching changes that can respond moreeffectively to the needs of familieswithin their own unique environments.PRWORA also redefines the Federal rolein administration of the nation’s welfaresystem. It limits Federal regulatory andenforcement authority, but gives theFederal government newresponsibilities for tracking theperformance of States and Tribes.

In addition to establishing the TribalTANF program, PRWORA authorizesfunding, to the former Tribal JOBSgrantees, for a tribal program ‘‘to makework activities available.’’ Based upontribal recommendations, we havedesignated this tribal work activities

program as the Native EmploymentWorks (NEW) program. Tribes areencouraged to focus the NEW Programon work activities and on serviceswhich support participation in workactivities. In addition, Tribes areencouraged to create and expandemployment opportunities whenpossible.

This new welfare reform legislationnot only gives Tribes new opportunities,as in the case of the TANF program, andcontinued responsibilities, as in the caseof the NEW Program, but it alsodramatically affects intergovernmentalrelationships. It challenges Federal,Tribal, State and local governments tofoster positive changes in the culture ofthe welfare system. It transforms theway agencies do business, requiring thatthey engage in genuine partnershipswith each other, communityorganizations, businesses, and needyfamilies.

II. Regulatory Framework

A. Pre-NPRM Consultation Process

In the spirit of both regulatory reformand the government-to-governmentrelationship between Tribes and thefederal government, we implemented abroad consultation strategy prior to thedrafting of the Notice of ProposedRulemaking (NPRM). In the preamble tothe NPRM we briefly discussed thisconsultation strategy. However, wereceived many comments from Tribesquestioning whether we had engaged ineffective or meaningful Tribalconsultation in the drafting of theproposed regulations. We are thereforetaking this opportunity to furtherexplain our consultation strategy.

In May 1998 President Clinton signedExecutive Order 13084, which providesfor ‘‘an effective process to permitelected officials and otherrepresentatives of Indian Tribalgovernments to provide meaningful andtimely input in the development ofregulatory policies on matters thatsignificantly or uniquely affect theircommunities.’’ In recognizing theunique relationship which the federalgovernment and Tribal governmentsshare, this consultation process allowsagencies to develop meaningfulconsultation opportunities with theTribes in the development of regulatorypolicies which directly affect them.

Accordingly, when PRWORA wassigned on August 22, 1996 we beganinternal discussions on how best toobtain input from Tribes on the contentof the regulations. We decided to take amulti-pronged approach, which wasdesigned to ensure that Tribes would beprovided opportunities at various times



throughout the regulation-draftingprocess to comment and provide inputinto the proposed regulations.

In early 1997, ACF Regional Officessent letters out to all eligible tribalgovernments seeking comments andinput on the TANF and NEWregulations. These offices then began toconduct regional Pre-NPRM TribalTANF/NEW consultation meetings.These Regional meetings were held todiscuss the PRWORA law and itspotential impact on the Tribes, and toobtain specific information on whatshould be in the proposed regulations.Representatives from many Tribesattended these on-site consultations,providing us with much usefulinformation. Concurrent with thosemeetings, we mailed a questionnaire toall federally recognized Tribes in thelower forty-eight states, as well as allAlaska Native entities eligible to operatea TANF and/or NEW Program, askingthem to respond to specific questions inthe areas of TANF and/or NEWimplementation, plan content, penalties,work participation requirements, timelimits, data reporting, and specialprovisions. We received many lettersback from Tribes that provided valuableinformation and insights to us as webegan to draft the regulations.

As we drafted the regulations wecontinued to seek tribal input aboutpotential tribal TANF operations.Several meetings were held inWashington, D.C. with advocates, tribalrepresentatives, national tribalorganizations, and other stakeholders.Although these meetings includedagenda items in addition to TANF, wetook every available opportunity toinclude separate sessions whereindividuals were specifically invited todiscuss what should be in the proposedrule. Similarly, Regional Officesincluded TANF discussions in meetingsand discussions which they heldthroughout their regions. Finally,Tribes, tribal organizations, and otherstakeholders had the opportunity toprovide specific written comments inresponse to the published NPRM. Thecomments received were both valuableand appreciated.

Although we were unable to meetindividually with every Tribe and tribalorganization, we believe that we madeour best and concerted effort ofconsulting with and involving theTribes in the development of theseregulations. We provided an effectiveprocess for the provision of meaningfuland timely input into both thedevelopment and revision of theregulations. As you review the finalTribal TANF regulation, you will see thefruits of that consultation—many of

these comments have brought aboutsubstantive changes to the Final Rule,changes which we believe will have apositive effect on the provision of TribalTANF services in Indian country.

B. Related Regulations

There is an important relationshipbetween this rulemaking and the FinalTANF Rule (64 FR 17720, April 12,1999) generally applicable to StateTANF programs. Tribal decisions onwhether to elect to administer a TribalTANF program will depend on anumber of factors, including the natureof services and benefits that will beavailable to tribal members under theState TANF program. Thus, Tribes havea direct interest in the regulationsgoverning State TANF programs.

Tribes also have an interest in theseregulations because, while the statuteallows Tribes to negotiate certainprogram requirements, such as workparticipation rates and time limits, itsubjects tribal programs to the same datacollection and reporting requirements asStates. These requirements are found atpart 265 of the Final TANF Rule (64 FR17900) and appendices.

A number of States and Tribes haveinquired whether a State can countcontributions made to an Indian tribewith an approved Tribal FamilyAssistance Plan toward the State’s MOErequirement. On June 2, 1997, the Officeof Community Services and the Office ofFamily Assistance jointly issued aPolicy Announcement, TANF–ACF–PA–2 in this regard. This policyannouncement provides that State fundspaid to an Indian tribe with an approvedTribal Family Assistance Plan may meetthe definition of a qualified Stateexpenditure for the purpose of a State’srequired MOE, if the funds areexpended for: (1) ‘‘Eligible families,’’families who meet the income andresource standards established by theState; and (2) cash assistance, child careassistance, certain educationalactivities, or any other use of fundsallowable under section 404(a)(1) of theAct, i.e., any use that is reasonablycalculated to accomplish the purpose ofthe TANF program. The requirementscontained in TANF–ACF–PA–2 remainin effect and fit within the provisions of45 CFR 263.2 relating to the kind ofexpenditures that count toward meetinga State’s basic MOE requirement, andfunds spent accordingly would beallowable to satisfy the MOErequirements. In addition, the definitionof ‘‘eligible families’’ limits MOEexpenditures to families that include achild living with a parent or other adultcare relative or to pregnant women.

In order for welfare reform to succeedin Indian country, it is important forState and Tribal governments to worktogether on a number of key issues,including data exchange andcoordination of services. We remindStates that Tribes have a right under lawto operate their own programs. Statesshould cooperate in providing theinformation necessary for Tribes to doso. Likewise, Tribes should cooperatewith States in identifying tribalmembers and tracking receipt ofassistance.

PRWORA also changed other majorprograms administered by ACF, theDepartment, and other Federal agenciesthat may significantly affect a State orTribe’s success in implementing welfarereform. For example, title VI ofPRWORA repealed the child careprograms that were previouslyauthorized under title IV–A of theSocial Security Act. In their place, itprovided two new sources of child carefunding (which we refer to collectivelyas the Child Care and DevelopmentFund). These funds go to the LeadAgency that administers the Child Careand Development Block Grant program.A major purpose of the increases inchild care funding provided underPRWORA is to assist low-incomefamilies in their efforts toward self-sufficiency. We issued Final Rulescovering the Child Care andDevelopment Fund on July 24, 1998 (see63 FR 39935).

In 1998, the Office of Child SupportEnforcement (OCSE), Native AmericanProgram, conducted a series of sixNation-to-Nation consultations withIndian tribes, tribal organizations andother interested parties to obtain tribalinput prior to drafting the regulationsfor direct funding to Tribes and tribalorganizations as authorized by section455(f) of the Social Security Act. OCSEis drafting those regulations and expectsthat the NPRM will be published in theFederal Register by late summer.

The Secretary of Labor issued interimFinal Rules on section 5001(c) of PublicLaw 105–33, regarding Welfare-to-Work(WtW) grants for Tribes, on November18, 1997. A copy of these rules isavailable on the Internet at http://www.wdsc.org/dinap/dinapw2w/ta.html. General information on theDepartment of Labor’s Indian andNative American WtW program isavailable at http://www.wdsc.org/dinap/dinapw2w/index.html.

We encourage you to look in theFederal Register for actions on theserelated rules in order to understand theimportant relationships among theseprograms in developing acomprehensive strategy that can provide



support to all families that are workingto maintain their family structure andbecome self-sufficient.

C. Statutory Context

These Final Rules reflect PRWORA, asenacted, and amended by Pub. L. 105–33 and Pub. L. 105–200. Pub. L. 105–33created the new Welfare-to-Work (WtW)program, made a few substantivechanges to the TANF program, andmade numerous technical corrections tothe TANF statute. Under section 403 ofThe Child Support Performance andIncentives Act of 1998, Pub. L. 105–200,Congress added a ‘‘rule ofinterpretation’’ to section 404(k)(3) ofthe Social Security Act, which indicatesthat the provision of transportationbenefits under section 3037 of theTransportation Equity Act to anindividual who is not otherwisereceiving TANF assistance would not beconsidered assistance. We have made aconforming change to our definition ofassistance at § 286.10 to reflect thispolicy.

D. Regulatory Reform

In its latest Document DraftingHandbook, the Office of the FederalRegister supports the efforts of theNational Partnership for ReinventingGovernment and encourages Federalagencies to produce more reader-friendly regulations. In drafting theproposed and Final Rules, we paid closeattention to this guidance and worked toproduce a more readable rule.Individuals who are familiar with ourprevious welfare regulations shouldnotice that this package incorporates adistinctly different, more readable style.We also provided electronic access tothe document and gave readers theoption to submit their commentselectronically. We received a number ofpositive comments about how theNPRM was written and the electronicaccess.

Based in part on the positive reactionto the proposed rule, and in the spiritof facilitating understanding, wedecided to retain much of the NPRMpreamble discussion. We believe it willbe useful for some readers in providingthe overall context for the finalregulations. However, where we arechanging our policy in the Final Rule,or the context has changed since weissued the NPRM, we have madeappropriate changes to the preamble.We also exercised some editorialdiscretion to make the discussion moresuccinct or clearer in places. Whereverwe made significant changes in policy,the preamble notes and explains thosechanges.

In the spirit of providing access toinformation, we included draft datacollection and reporting forms asappendices to the proposed rules eventhough we did not intend to publish theforms as part of the Final Rule. Wethought that the inclusion of the draftforms would expand public access tothis information and make it easier tocomment on our data collection andreporting plans.

E. Scope of This Rulemaking

Because there are no existing TribalTANF or NEW regulations, this packageis intended to cover the Final Rules asthey relate to the provisions of theTribal TANF and NEW Programs(including definitions of common andfrequently used terms). While thisdecision has resulted in a large rule, wethink it has enabled us to develop amore coherent regulatory frameworkand provide readers an opportunity tolook at the many interconnected piecesat one time.

F. Federal Programs To Assist FamiliesTo Achieve Self-Sufficiency

Child Care

Federal Child Care and DevelopmentFund (CCDF) grants enable Tribes toprovide child care subsidies to low-income Indian families so they canwork, attend training or return toschool. The importance of providingFederal support for child care stemsfrom increased emphasis ontransitioning welfare recipients to workand enabling low-income workingfamilies to remain in the workforce.Obtaining affordable and safe child careis widely recognized as a major barrierthat keeps families on welfare and outof the workforce. Parents are more likelyto obtain work and remain in theworkforce if child care is affordable,stable, conveniently located and of goodquality. Child care helps parents reachand maintain economic self-sufficiency.Quality child care also plays animportant role in children’s healthydevelopment and preparation forschool.

The Child Care and DevelopmentFund (CCDF), as authorized by thePersonal Responsibility and WorkOpportunity Reconciliation Act of 1996(PRWORA), assists low-income familiesand those transitioning off welfare toobtain child care so they can work orattend training/education.

The CCDF brings together fourFederal child care subsidy programs andallows States and Tribes to design acomprehensive, integrated servicedelivery system to meet the needs oflow-income working families. The Child

Care and Development Block Grant Act(CCDBG), as amended by PRWORA,now permits tribal grantees to directlyadminister child care funds related tothe now repealed Title IV–A programs(At-Risk, Transitional and AFDC childcare), in addition to operating CCDBGprograms. The amended CCDBG Actalso permits tribal grantees to use fundsfor construction and renovationpurposes.

The Administration for Children andFamilies (ACF) Child Care Bureau isresponsible for oversight of the CCDF.Two percent of CCDF funding isearmarked for tribal child careprograms. In fiscal year (FY) 1999,Tribes received over $62 million fromthe CCDF, more than doubling previousFederal grant amounts made directly toTribes for child care prior to PRWORA.(See http://www.acf.dhhs.gov/programs/ccb for more information.)

Programs Promoting WorkThis Administration has repeatedly

shown its commitment to promoting thework objectives of this new law. Beforeand since the legislation was passed, thePresident and the Administration haveworked very hard to ensure thatCongress passed strong work provisionsand provided adequate child carefunding and other program supports tohelp families making the transition fromWelfare-to-Work. These include, theWelfare-to-Work program (WtW),administered by the Department ofLabor, the Welfare-to-Work Tax Creditenacted in the Balanced Budget Act,Welfare-to-Work housing vouchersincluded in the Fiscal Year 1999 budgetfor the Department of Housing andUrban Development, and Job Accesstransportation grants.

WtW provides grants to Indian tribes,States, localities, and other grantees tohelp them move long-term welfarerecipients and certain noncustodialparents into lasting, unsubsidized jobs.The Welfare-to-Work Tax Creditprovides a credit equal to 35 percent ofthe first $10,000 in wages in the firstyear of employment, and 50 percent ofthe first $10,000 in wages in the secondyear, to encourage the hiring andretention of long-term recipients. (Itcomplements the Work Opportunity TaxCredit, which provides a credit of up to$2,400 for the first year of wages toemployers who hire long-term welfarerecipients.)

The Welfare-to-Work HousingVoucher Program provides tenant-basedSection 8 housing assistance to helpeligible families make the transitionfrom welfare to work. In FY 1999, HUDawarded 50,280 vouchers tocommunities, including two Tribes, that



created cooperative efforts among theirhousing, welfare and employmentagencies. (Only Tribes with Section 8housing programs were eligible toapply. You can find additionalinformation on this initiative at http://www.hud.gov/native.)

The Transportation Equity Act for the21st Century (TEA–21) authorizes $750million over five years for competitivegrants to communities to developinnovative transportation activities tohelp welfare recipients and other low-income workers (i.e., those with incomeup to 150 percent of poverty) get towork. For FY 1999, the Department ofTransportation awarded 171 grantstotaling $71 million, including grants toseveral Tribes. You can find additionalinformation at http://www.fta.dot.gov/.You can find more information aboutthe Administration’s initiatives at http://www. whitehouse.gov/WH/Welfare.

The President has also challengedAmerica’s businesses, its large nonprofitsector, and the executive branch of theFederal government to help welfarerecipients go to work and succeed in theworkplace.

In May 1997, the President helped tolaunch a new private-sector initiative topromote the hiring of welfare recipientsby private-sector employers. TheWelfare-to-Work Partnership, whichstarted with 105 participatingbusinesses, now includes over 12,000businesses that have hired over 410,000welfare recipients. This partnership hasproduced a variety of materials tosupport businesses in these efforts,including the ‘‘Blueprint for Business’’hiring manual and ‘‘The Road toRetention,’’ a report of companies thathave achieved higher retention rates forformer welfare recipients. You can findinformation about the Welfare-to-WorkPartnership at http://www.welfaretowork.org.

The Small Business Administration(SBA) is addressing the unique and vitalrole of small businesses, which accountfor over one-half of all private-sectoremployment. It is helping smallbusinesses make connections to jobtraining organizations and job-readywelfare recipients. SBA is alsoproviding training and assistance toTribal welfare recipients who wish tostart their own businesses through itsTribal Business Information Centers.Businesses can receive assistancethrough SBA’s 1–800–U–ASK–SBA andthrough its network of one-stop centers,one-stop capital shops, and districtoffices. Information on SBA’s Welfare-to-Work initiative (WtW) and otheractivities are available through the SBAhome page at http://www.sba.gov.

In addition, the Vice President hasdeveloped a coalition of national civic,service, and faith-based groupscommitted to helping former welfarerecipients succeed in the workforce—byproviding mentoring, job training, childcare, and other supports. On March 8,1997, the President directed all Federalagencies to submit plans describing theefforts they would make to respond tothis challenge. Under the VicePresident’s leadership, Federal agenciescommitted to hiring at least 10,000welfare recipients over the next fouryears. Agencies have already fulfilledthis commitment—nearly two yearsahead of schedule. (You can findadditional information on this effort athttp://www.welfaretowork.fed.gov.)

G. Applicability of the Rules

As we indicated in the NPRM, a Tribemay operate its TANF and/or NEWProgram under a reasonableinterpretation of the statute prior topublication of the Final Rules. Thus, indetermining whether a Tribe is subjectto a penalty under TANF or adisallowance under the NEW Program,we would not apply regulatoryinterpretations retroactively. We haveretained this basic policy, but modify itto clarify that the ‘‘reasonableinterpretation’’ standard applies untilthe effective date of these Final Rules.Tribes remain bound by any PolicyAnnouncements issued by ACF,including those issued in advance of thefinal regulations, both prior to and afterthe effective date of these regulations.You can find additional discussion ofthis policy at Part IV.C below, as wellas in § 286.215 of the preamble.

III. Principles Governing RegulatoryDevelopment

A. Tribal Flexibility

In the conference report to PRWORA,Congress stated that the best welfaresolutions come from those closest to theproblems, not from the Federalgovernment. Thus, the legislationprovides Tribes with the opportunity toreform welfare in ways that work best toserve the needs of their service areasand service populations. It gives Tribesthe flexibility to design their ownprograms, define who will be eligible,establish what benefits and services willbe available, and develop their ownstrategies for achieving program goals,including how to help recipients moveinto the work force.

To ensure that our rules support thelegislative goals of PRWORA, we arealso committed to gathering informationon how Tribes are responding to thenew opportunities available to them. We

reserve the right to revisit some issues,either through proposed legislation orregulation, if we identify situationswhere these rules are not furthering theobjectives of the Act.

B. Regulatory AuthorityEarly input from the consultations

with Indian tribes suggested that,consistent with the intent of Congress toprovide for program flexibility, weshould limit the extent to which weregulate Tribal TANF and NEWPrograms. However, Congress gave usmore authority to regulate the TribalTANF and NEW Programs than StateTANF programs. Unlike the process forreviewing and accepting plans for StateTANF, the statute requires us to approveTribal TANF plans. While we proposemaximum flexibility in program designand procedure, we believe it isimportant for us to set forth, inregulations, the process for thesubmission and approval of plans andother program requirements.

Tribal TANF programs must meetminimum work participation rates, andTribal TANF recipients are subject tomaximum time limits for the receipt ofassistance as well as penalties for failureto meet program requirements. Whilethese requirements are specified inPRWORA for State TANF programs,they are not specified for Tribal TANFprograms, and we will negotiate thesewith each tribal program. Although theproposed rules suggested flexibility inhow these requirements could beestablished, we believe that it isimportant for us to lay out, inregulations, the criteria that we will use.

Although Tribes that operate TANFprograms are subject to some of thesame statutory requirements as areStates, there are some requirements thatdo not apply to Tribes, such as theprohibitions in section 408. Since thestatute does not always treat Tribes andStates in the same way, we believe theTribal TANF regulations should reflectthe distinctions where appropriate.

C. Accountability for Meeting ProgramRequirements and Goals

The new law gives Tribes flexibility todesign their TANF programs in waysthat strengthen families and promotework, responsibility, and self-sufficiency. At the same time, however,TANF reflects a bipartisan commitmentto ensuring that State and Tribalprograms support the goals of welfarereform. To this end, the statutoryprovisions on data collection andpenalties are crucial because they giveus the authority we need to track whatis happening to needy families andchildren under the new law, measure



program outcomes, and promote keyobjectives.

IV. Discussion of Cross-Cutting Issues

A. Child Support

One of TANF’s purposes is to provideassistance to needy families so thatchildren may be cared for in their ownhomes or the homes of relatives.Another is to end the dependence ofneedy parents on government benefitsby promoting job preparation, work,marriage, and parental responsibility. Athird is to prevent and reduce theincidence of out-of-wedlock pregnanciesand to encourage the formation andmaintenance of two-parent families.Child support enforcement provides animportant means of achieving all ofthese goals for Indian families andchildren. In the NPRM, we solicitedcomments on the subject ofconditioning eligibility for receipt ofTribal TANF assistance on cooperationwith child support enforcement efforts.We received very few comments on thisissue. The comments we receivedindicated that the decision onconditioning eligibility for Tribal TANFassistance on either cooperation orassignment of child support to the Tribeshould be left to the individual Tribesor to tribal-state negotiations.

We have considered all commentsreceived on the issue and believe thatconditioning Tribal TANF eligibility oncooperation with child supportenforcement agencies is consistent withassisting needy families achieve self-sufficiency. Section 286.75(a)(8)provides that, at their option, TribalTANF programs may requirecooperation with IV–D agencies as aprerequisite to receipt of TANFassistance. Good cause and otherexceptions to cooperation shall bedefined by the Tribal TANF program.

In addition, at § 286.155 we establishthe rule that Tribal TANF programsmay, at their option, conditioneligibility for TANF assistance onassignment of child support to theTribe. The statute does not addressconditioning eligibility for Tribal TANFon the assignment of child support andwe have determined that Tribes mayrequire assignment as a condition ofeligibility for Tribal TANF. If a Tribeelects this option, it may be approvedonly if the TFAP addresses thefollowing to the satisfaction of theSecretary: (1) how the Tribe will useassigned support to further their TANFprograms and, (2) procedures by whichthe Tribe will pay to the family anyamount of child support collected andassigned to the Tribe that is in excess of

the amount of TANF assistanceprovided to that family.

Section 286.155(b)(1) means that aTribe may not retain assigned support inexcess of TANF assistance. Any suchexcess must be passed on to the family.Section 286.155(b)(2) requires thatassigned child support retained by theTribe be used for TANF purposes underthe TFAP. The TFAP should specifyhow assigned support will be used.

Until ACF issues regulationsregarding the direct funding of Tribalchild support enforcement programs,most child support will continue to becollected by States. States will continueto distribute amounts collected inaccordance with Federal requirementsand may, consistent with thoserequirements, retain amounts assignedto the State as a condition of receipt ofAFDC and/or State TANF assistance.Amounts in excess of the amount thatmay be retained by the State wouldnormally be passed through to thefamily. However, States may remit suchamounts, if assigned to a Tribe withrespect to Tribal TANF, to the Tribewithin the required disbursement timeframes.

As we stated above, to ensure that ourrules support the legislative goals ofPRWORA, we are committed togathering information on how Tribes areresponding to the new opportunitiesavailable to them to promote self-sufficiency. We intend to revisit theissue of child support enforcement as itrelates to Tribal TANF programs, eitherthrough proposed legislation orregulation, if we identify situationswhere the Final Tribal TANF rules arenot furthering the objectives of the Act.

Implementation of child supportenforcement in Indian country is key toachieving self-sufficiency. The Federalgovernment has a major role in childsupport enforcement (particularly withregard to the operation of the FederalCase Registry, National New HireDirectory and the expanded FederalParent Locator Service), the continuingFederal interest in the effectiveness ofchild support collections, and thecontinued Federal financialcommitment, under TANF, for needyfamilies whose children do not haveaccess to parental support.

B. Plan FormatIn the NPRM, we solicited comments

on the subject of whether ACF shoulddevelop a format or preprint for TANF.We received few comments on thisissue. We have decided that, althoughall plans have common requiredelements, there is no need to prescribethe format which a Tribe should use todevelop its plan. A Tribe may therefore

use a format of its choosing, as long asall required statutory and regulatoryelements are addressed.

C. Approved Plans Which Do Not Meetthe Terms of the Final Rule

The Supreme Court has held that theAdministrative Procedures Act (5 U.S.C.551 et seq.) prohibits regulations fromhaving retroactive effect because section551 defines a rule as agency actionhaving ‘‘future effect.’’ We acknowledgethat there will inevitably be TribalTANF programs that are currentlyoperating in a manner that isinconsistent with the Final Rule andthat will need time to amend their plansand their operations to bring programsin line with the final regulations.Between publication of the final TribalTANF and NEW regulations and theeffective date of the regulations, we willpermit Tribal TANF and NEW Programsto continue to operate under a‘‘reasonable interpretation’’ of thestatute and applicable PolicyAnnouncements, with theunderstanding that as of the effectivedate ALL Tribal TANF and Newprograms must comply with the finalregulations or face penalties for non-compliance. The time frames forsubmitting amendments at § 286.165applies; any amendments must besubmitted at least 30 days prior to theeffective date of the final regulations(i.e., 90 days from the date ofpublication of the Final Rule).

D. Other General IssuesThe following is a discussion of all

the comments we received regarding theproposed rule, as well as a discussion ofall the regulatory provisions which wehave changed. In most cases thediscussion follows the order of theregulatory text, addressing each part andsection in turn. However, weincorporated the discussion regardingany changes to the ‘‘definitions’’ sectionin the appropriate topic area discussionsection. For areas where we received nocomments, and where no changes havebeen made to the draft language, wehave included the preamble discussionfrom the NPRM. The entire regulatorytext is included in the Final Rule.

V. Part 286—Tribal TANF ProgramProvisions

Subpart A—General Tribal TANFProvisions (§§ 286.1–286.15)

Section 286.1 What Does This PartCover?

This part contains our Final Rule forthe implementation of section 412 of theSocial Security Act, except for section412(a)(2) which is covered in part 287.



Section 412 allows federally-recognizedIndian tribes, certain specified AlaskaNative organizations and Tribalconsortia to submit plans for theadministration of a TemporaryAssistance for Needy Families (TANF)program.

In this Final Rule, we have tried toretain the flexibility provided by thestatute to the Tribal Family Assistanceprogram. At the same time, werecognize the need to set forth thegeneral rules that will govern theprogram.

In addition, in recognition of theunique legal relationship the UnitedStates has with Tribal governments,these regulations will be applied in amanner that respects and promotes agovernment-to-government relationshipbetween Tribal governments and theUnited States government, Tribalsovereignty, and the realization ofIndian self-governance.

In this Final Rule the terms ‘‘TribalFamily Assistance program’’ or ‘‘TFAP’’and ‘‘Tribal TANF program’’ are usedinterchangeably.

Section 286.5 What Definitions Applyto This Part?

This section of the Final Ruleincludes definitions of the terms used inPart 286. Where appropriate, it alsoincludes cross-references which directthe reader to other sections or subpartsof the Final Rule for additionalinformation.

In drafting this section of the FinalRule, we chose not to define every termused in the statute and in these finalregulations. We understand thatexcessive definitions may unduly andunintentionally limit Tribal flexibilityin designing programs that best servetheir needs.

For example, we have not defined‘‘Indian family’’ or ‘‘servicepopulation.’’ Each Tribe administeringits own Tribal TANF program ispermitted by the statute to define itsservice population. Because funding forthe Tribal TANF program is based onState expenditures of Federal funds onIndian families during fiscal year 1994,we believe the Tribal TANF programwas intended to serve primarily Indianfamilies. However, in order to provideflexibility to Tribes and States, Tribesmay define service population and havethe option of including only a portionof the Tribal enrollment, only Tribalmembers, all Indians, or even non-Indians residing in the service area. Itwill be up to each Tribe submitting aTANF plan to define the servicepopulation that the plan covers. Theservice population definition providedby a Tribe in turn determines what data

the State would be asked to provide tocalculate the amount of the Tribal TANFgrant. Note that at § 286.75(d)(2) if aTribe chooses to include non-Indianfamilies in its service populationdefinition, the Tribe is required todemonstrate State agreement with theinclusion of that portion of the Tribe’sservice population.

We also have not defined theindividual work activities that count forthe purpose of calculating a Tribe’swork participation rate. These are termsthe Tribe should define in designing itsTribal TANF program. We believeTribes should have maximum flexibilityto define these terms as appropriate fortheir program design.

Readers will note that we use the term‘‘we’’ throughout the regulation andpreamble. The term ‘‘we’’ means theSecretary of the Department of Healthand Human Services or any of thefollowing individuals or agencies actingon the Secretary’s behalf: the AssistantSecretary for Children and Families, theRegional Administrators for Childrenand Families, the Department of Healthand Human Services, and theAdministration for Children andFamilies.

Readers should also note that we usethe term ‘‘Tribe’’ throughout theregulation and preamble. The term‘‘Tribe’’ means federally-recognizedIndian tribes, consortia of such Indiantribes, and the 13 entities in the State ofAlaska that are eligible to administer aTribal Family Assistance program,under an approved plan. It also refers tothe Indian tribes and the Alaska Nativeorganizations that are eligible toadminister a NEW Program because theyoperated a Tribal JOBS Program in fiscalyear 1995.

We have provided necessarydefinitions from PRWORA for thereaders’ convenience. However, we havechosen not to augment these statutorydefinitions.

We also have provided clarifying,operational and administrativedefinitions in the interest of developingclearer, more coherent and succinctregulations. These include commonacronyms and definitions we believe areneeded in order to understand thenature and scope of the provisions inthis Final Rule. Some of these termshave commonly understood meanings;others are consistent with definitionsincluded in the State TANF Final Rule.We advise readers to review all theterms in this section carefully becausemany of them determine the applicationof substantive requirements.

Federal requirements related to theexpenditures of Federal grant fundsnecessitate the use of precise

definitions. An example of such adefinition is that used for the term‘‘administrative costs,’’ which triggersparticular Federal grant requirements(see § 286.50). This definition isimportant because we have established,at § 286.50, a graduated cap over thefirst three years of operation which willultimately limit to 25 percent theamount of Tribal TANF funds that aTribe may use for administrative costs.

The terms ‘‘assistance’’ and ‘‘familiesreceiving assistance’’ are used in thePRWORA in many critical places thataffect the Tribal TANF program. For thepurposes of the Tribal TANF program,we are adopting the same definition ofassistance as developed and included inthe Final Rule for the State TANFprogram. Please refer to § 286.10 for adetailed discussion of this definition.

Section 286.10 What Does the Term‘‘Assistance’’ Mean? (New Section)

This is a new section in the FinalRule. In the NPRM we noted that theterm ‘‘assistance’’ was a key term thataffected Tribal TANF programs in theareas of calculating work participationrates and time limits, data collectionand reporting, and consistency withlegislative mandates for TANF programoperations. The proposed rule includedthe definition of assistance in § 286.5,with the other Tribal TANF definitions.However, because of the length andsignificance of this term, we decided togive it its own section in the Final Rule.

BackgroundThe legislative history for title IV–A

of the Act makes clear that Congress didnot intend ‘‘assistance’’ to meansomething different in the Tribal TANFcontext than it does in the generalTANF context. In addition, while thelegislative history indicates thatCongress intended ‘‘assistance’’ toencompass more than cash payments, itdoes not provide specific guidance (seeH.R. Rep. No. 725, 104th Cong., 2dSession). Insofar as the legislativehistory circumscribes the developmentof a Final Rule on the definition of‘‘assistance,’’ we determined that thestatute requires a single definition of theterm regardless of whether a State or aTribe is administering the TANFprogram. Both the NPRM applicable toState TANF programs and the NPRMapplicable to Tribal TANF programsproposed the same definition ofassistance. For reference, please refer to64 FR 17755 for an overview ofcomments received on the definition ofassistance proposed in the NPRMapplicable to State TANF programspublished by ACF on November 20,1997.



Overview of Comments

We received multiple comments inresponse to the Tribal TANF NPRM onthis definition. Several commentersindicated that individual Tribes shoulddetermine what they consider shortterm/emergency assistance. Otherswanted to narrow the possible benefitsthat could be considered within thedefinition of assistance. Commentersalso requested that we expand thedefinition of one-time short-termassistance.

As a result of consideration of allcomments received on this key concept,we have made substantial modificationsto the definition of assistance as in theproposed Tribal TANF rule. Themodifications address concerns with thescope of benefits treated as assistance,the treatment of work supports and theexclusion from the definition of ‘‘one-time, short-term’’ assistance.

Appropriateness of a Single FederalDefinition of Assistance

Comment: Several commenters arguedthat Tribes should be able to determinefor themselves how assistance would bedefined in the TANF program ratherthan having a single Federal definitionof TANF assistance.

Response: There are several reasonswhy we do not believe that this afeasible option. The definition ofassistance is central to theaccountability provisions in the statute.There must be a single definition of thisterm in order to insure that key TANFprovisions are implemented asintended. Having various definitions ofassistance rather than a single, uniformdefinition would raise questions aboutthe consistency and comparability ofTANF data reports, programinformation, work participation rates,time limits, and application of penalties.It would also make it very difficult tounderstand whether or how the TANFprogram is contributing to themovement of needy families to self-sufficiency.

We have established one uniformdefinition of assistance at § 286.10. Weemphasize that this definition does notsubstantially impede the flexibility ofStates and Tribes to set eligibility rulesor to expend funds on a broad range ofbenefits and services for needy families.The definition of assistance does notlimit the types of allowable benefits orservices which State and Tribal TANFprograms may provide. Rather, themajor effect of the definition is todetermine the applicability of key TANFrequirements to the benefits that a Stateor Tribe elects to provide.

Scope of Benefits Treated as Assistance

Comments: Several comments werereceived to the effect that the scope ofwhat is considered assistance should benarrow and should exclude a variety ofsupports for working families such aschild care, transportation and work-based assistance such as wage subsidies.

Response: We have made significantmodifications to the definition ofassistance with the effect that the scopeof benefits deemed assistance isnarrower than proposed in thepublished NPRMs. We agree that thereare sound reasons for narrowing thedefinition of assistance to exclude somework supports. While neither the statutenor the legislative history specificallyindicate that a particular subset ofbenefits under a TANF program shouldbe excluded from the definition ofassistance, there is also little directevidence that Congress intended fortime limits and data collection to applyto every conceivable array of newbenefits or to working families that havenot traditionally been part of the welfaresystem.

Clearly, in reforming the welfareprogram, Congress was trying tofacilitate the ability of families to workand become self-sufficient. Two of themain effects of defining a TANF benefitas ‘‘assistance’’ are to require that afamily work so that it can become self-sufficient and to time limit that benefit.However, the need to time limit worksupports is mitigated where the familyis already moving toward self-sufficiency.

At § 286.10(b) the definition of‘‘assistance’’ provides that supports forworking families (such as child care andtransportation) are excluded. Thisexclusion covers supportive servicesneeded to address employment-relatedneeds and time spent by an employedindividual in education and trainingneeded for job retention and careeradvancement.

Except as provided in § 286.10(b), theexclusion does not cover supportiveservices related to participation ineducation, training, job search andrelated employment activities fornonworking families. Supportiveservices provided in this situation (tononworking families) look more liketraditional welfare rather than worksupports. In addition, the same rationalefor excluding nonworking families fromthe TANF work requirements, includingwork participation and time limits, doesnot exist for these families as exists forfamilies that are already working.Educational and training activities aregenerally excluded under § 286.10(b)(6).The one exception is if education or

training benefits include allowances orstipends designed to provide incomesupport. These particular types ofeducation and training benefits areconsidered assistance.

While our definition excludes someforms of support as ‘‘assistance,’’ theexclusions do not apply to the eligibleAlaska Tribal entities and the State ofAlaska in determining whether theAlaska Tribal entities’ Tribal TANFprograms are comparable to Alaska’sState TANF program. For example, anAlaska Tribal entity that implements aTribal TANF program may choose toinclude ‘‘direct services’’ as part of theirbenefit level definition, and these‘‘direct services’’ would trigger theTANF requirements, i.e., workrequirements, time limits, and datacollection and reporting. Please refer to§ 286.175 for more information on theAlaska comparability requirement.

Exclusion of Contribution To andDistributions From IndividualDevelopment Accounts

The definition at § 286.10(b)(5)excludes contributions to, anddistributions from IndividualDevelopment Accounts (IDAs). Whilecommenters did not raise concerns withthe treatment of IDA benefits under thedefinition of assistance, enactment ofthe Assets for Independence Act (AFIA)(under title IV of Pub. L. 105–285)subsequent to publication of the TribalTANF NPRM justify a specificdiscussion here of the impact of IDAs onTribal TANF programs. Please note thatwe have added a new section, § 286.40and ask that you refer to the discussionof § 286.40 in the Preamble foradditional information about Tribalcontributions to IDAs and the extent towhich such contributions are allowableTANF expenditures.

Contributions to and distributionsfrom IDAs are excluded from thedefinition of assistance for severalreasons. First, many of the assets in IDAaccounts represent deposits from theearnings of low-income families and theinterest on those deposits. These sorts ofassets do not represent assistance fromTANF or any other governmentalsource. Second, when contributions aremade into IDA accounts from the TribalTANF agency or other third parties, theyonly represent potential assistance atthat point. The individuals whose fundsare in the account are potentialbeneficiaries, but have very limitedaccess to the funds in the account.These funds are unavailable to meettheir basic needs. Furthermore, thedistributions from IDA accounts wouldnormally be excluded under otherprovisions of our definition (e.g. as



emergency benefits, for education, andas nonrecurring, short-term benefits).Because the residual cases are likelyinsignificant in terms of the amount ofassistance involved and the tracking ofsuch amounts might create significantadministrative burdens, we believe it isappropriate to provide an umbrellaexclusion for IDA benefits.

Employment-related ServicesThe ‘‘employment-related services’’

exclusion at § 286.10(b)(6) generallycovers on-the-job training, subsidizedemployment, and most education andtraining activities since most do notrepresent income support. Thisexclusion also covers payments toemployers and third parties forsupervision and training and paymentsunder performance-based contracts forsuccess in achieving job placements andjob retention. As discussed above, theremay be types of education and trainingbenefits (e.g. stipends or allowances)that fall within the definition ofassistance. The definition of assistanceincludes payments to individualsparticipating in work experience orcommunity service. It also includesneed-based payments to individuals inany work activity whose purpose is tosupplement the money they receive forparticipating in the activity.

The distinction we make betweenwork subsidies paid to employers andpayments to participants in workexperience and community service issimilar to distinctions made under taxlaw. For example, we refer you to Notice93–3, issued by the Internal RevenueService on December 17, 1998. ThisNotice explains that TANF paymentsthat meet certain conditions would notbe considered income, earned income,or wages for Federal income taxpurposes. The Notice provides that:‘‘Payments by a governmental unit to anindividual under a legislativelyprovided social benefit for thepromotion of the general welfare thatare not basically for services renderedare not includable in the individual’sgross income and are not wages foremployment tax purposes, even if theindividual is required to perform certainactivities to remain eligible for thepayments. * * * Similarly, thesepayments are not earned income forEarned Income Credit (EIC) purposes.’’Our definition of assistancedistinguishes between work subsidiespaid to employers and communityservice and work experience on asimilar basis. We believe that paymentsto participants in work experience andcommunity service are closelyassociated with traditional welfarebenefits and are designed primarily to

meet basic needs rather than ascompensation for services performed.This view is also reflected in theConference Report, H. Rep. 105–34,which added the Welfare-to-Work(WtW) program. In discussing thetreatment of WtW cash assistance fortime-limit purposes, it indicates thatwage subsidies are indirect cashassistance. (See discussion in thepreamble for § 286.130).

Nonrecurring, Short-Term BenefitsComment: We received comments

asking that short-term, episodicassistance for families in discretecircumstances and encompassingnonrecurring, short-term payments thatcould occur more than once in a 12month period be excluded from thedefinition of assistance. Concerns wereraised about the negative impact oninnovation by TANF agencies unless theexclusion were expanded.

Response: In part, the narrowerlanguage in the proposed rule reflectedour determination that it would not beappropriate to exempt families thatreceived a substantial amount ofassistance, assistance over a significantamount of time, or assistance providedon a recurring basis from workrequirements and time limits. At thesame time, we did not intend ourdefinition to undermine State and Tribalefforts to divert families from thewelfare rolls by providing short-termrelief that could resolve discrete familyproblems. Based on comments receivedon the proposed rule as well as othersources of information, we realize thatdiversion activities are an importantpart of State and Tribal strategies toreduce dependency and encourage self-sufficiency. Restrictive Federal rules inthis area could inadvertently stifle theability of States and Tribes to respondeffectively to discrete family problems.We also understand that subjectingfamilies in diversion programs to all theTANF administrative and programmaticrequirements would not represent aneffective use of limited TANF resources.

Thus, the Final Rules include arevised definition that excludes morethan one payment a year, so long assuch payments provide only short-termrelief to families, are meant to addressa discrete crisis situation rather than tomeet ongoing or recurrent needs, andwill not provide for needs extendingbeyond four months. The reviseddefinition uses the term ‘‘nonrecurring’’rather than ‘‘one-time’’ because theformer term is more consistent with theintended policy. A family may receivesuch benefits more than once. However,the expectation at the time such benefitsare granted is that the situation will not

occur again, and such benefits are not tobe provided on a regular basis. Webelieve the revised exclusion is limitedenough in nature and scope not toundermine the statutory provisions ofthe TANF program, while giving Tribesthe flexibility to design effectivediversion strategies.

The definition also excludes supportsprovided to individuals participating inapplicant job search. Applicant jobsearch is a common form of diversionthat clearly fits within the goals ofTANF and within this exclusion’s viewof a ‘‘short-term’’ benefit.

Similarly, the definition excludessupports for families that were recentlyemployed, during periods of temporaryunemployment, in order to enable themto maintain continuity in their servicearrangements. Unnecessary disruptionsin these arrangements could negativelyaffect the family’s ability to re-enter thelabor force quickly and, in the case ofchild care, could negatively affect thechildren in the family.

The four-month limitation reflects ourbelief that we could not maintain theintegrity of the short-term exclusionwithout providing some regulatoryframework. As written, the four-monthlimitation does not restrict the amountof accrued debts or liabilities (such asoverdue rent) that a Tribe may cover orimpose a specific monetary limit on theamount of benefits that the Tribe mayprovide. The exclusion at § 286.10(b)(1)is more flexible with respect to pastdebts or liabilities; it merely limits theextent to which payments for futureneeds can be excluded from thedefinition of assistance. The limitationreflects the period of time for whichfuture needs can be addressed by asingle ‘‘nonrecurrent, short-term’’benefit. It is not appropriate for Tribesmerely to condense the time period overwhich they pay assistance to needyfamilies so they can categorize thebenefits as ‘‘nonassistance’’ and avoidTANF requirements. Also, if a family’semergency is not resolvable within areasonably short period of time, theTribe should not keep the case inemergency status, but should convert itto a TANF assistance case.

At the same time, if a family receivesaid in one month that falls under thenonrecurring, short-term exclusion, butsuffers a major setback later in the yearand develops a need for ongoingassistance, we do not want to requirethe Tribe to redefine the month of initialaid as assistance and retroactivelysubject the family to TANFrequirements.

We note that diverting individualsfrom programs where they have anentitlement to benefits or to prompt



action on a request for assistance couldrepresent a violation of rules in theother programs. Because of thetremendous importance of food stampsand Medicaid as supports for workingfamilies, we strongly encourage Tribesto maintain critical linkages with Stateswith regard to these programs becauseaccessing these other program benefitscould further the goals of TANF. Pleaserefer to 64 FR 17760 for a full discussionof State responsibilities under the FoodStamp and Medicaid programs.

Transitional services

To the extent that Tribes providesupports for working families, such aschild care and transportation or worksubsidies, or work-related services suchas counseling, coaching, referrals, andjob retention and advancement servicesunder their transitional servicesprograms, we exclude those servicesfrom the definition of assistance. Inaddition, short-term benefits such ascash assistance to stabilize a housingsituation are excluded as ‘‘nonrecurring,short-term’’ assistance.

Tribes wanting to provide ongoingtransitional payments that meet thedefinition of assistance to formerrecipients have two options. They mayfund those programs under TANF asassistance, but use different needstandards than they do for other formsof TANF assistance, or Tribes may fundongoing transitional benefits with non-Federal Tribal funds.

Section 286.15 (§ 286.10 in the NPRM)Who Is Eligible To Operate a TribalTANF Program?

This section of the Final Rulespecifies which Indian tribes are eligibleto submit Tribal Family AssistancePlans (TFAPs).

In general, any federally-recognizedIndian tribe is eligible to submit a TribalFamily Assistance Plan. However, withrespect to the State of Alaska, only the12 Alaska Native regional nonprofitcorporations specified at section 419 ofthe Act, plus the Metlakatla IndianCommunity of the Annette IslandsReserve may submit a TFAP.

In addition, a consortium of eligibleIndian tribes may develop and submit asingle TFAP.

Subpart B—Tribal TANF Funding(§§ 286.20–286.60)

Section 286.20 (§ 286.15 in the NPRM)How Is the Amount of a Tribal FamilyAssistance Grant (TFAG) Determined?,and

Section 286.25 (§ 286.20 in the NPRM)How Will We Resolve DisagreementsOver the State-submitted Data Used toDetermine the Amount of a TribalFamily Assistance Grant?

We have combined the discussions forthese two sections of the Final Rulebecause they are interrelated. Thesesections of the Final Rule discuss howthe amount of a Tribal FamilyAssistance Grant (TFAG) will bedetermined and the actions we believewill be necessary to resolvedisagreements over the data receivedfrom a State.

PRWORA requires the Secretary topay TFAGs to federally-recognizedIndian tribes with approved 3-yearTribal Family Assistance Plans. Todetermine the amount of a TFAG, wemust use data submitted by the State orStates in which the Indian tribe islocated. Section 412(a)(1)(B) specifiesthe data that we will use. The statuteprovides that, for each fiscal year 1997–2002, an Indian tribe that has anapproved Tribal Family Assistance Planwill receive an amount equal to theFederal share (including administrativeexpenditures, which would includesystems costs) of all expenditures (otherthan child care expenditures) by theState or States under the AFDC andEmergency Assistance (title IV–A)programs, and the JOBS (title IV–F)program for fiscal year (FY) 1994 forIndian families residing in the servicearea(s) identified in the Tribal FamilyAssistance Plan. For Tribes thatoperated a Tribal JOBS Program in FY1994, the State title IV–F expenditures(including administrative costs) used inthe calculation of the TFAG would befor expenditures made by the State onbehalf of non-member Indians and non-Indians, if either or both are included inthe Tribal TANF population and areliving in the designated Tribal TANFservice area(s). Any expenditures by theState for Tribal members who wereserved by the State JOBS program willalso be included in the determination.

Section 412(a)(1)(B)(ii)(II) of thestatute allows Tribes the opportunity todisagree with State-submitted data andto submit additional informationrelevant to our determination of theTFAG amount. We believe Tribesshould have an opportunity to submitrelevant information in instances inwhich the State has failed to submit

requested data on a timely basis.However, we believe the lack of State-submitted data will be a very rareoccurrence.

We will request State data based onthe Tribe’s identified service area andpopulation, which may include areasoutside the reservation and non-Indianfamilies. We will allow States 30 daysfrom the date of our request to submitthe requested data before notifying theaffected Tribe of its option undersection 412(a)(1)(B)(ii)(II) of PRWORAto submit its own data. This time frameshould allow States adequate time togather and submit the data. However, inorder for us to notify the State of anyreduction in its grant not later thanthree months before payment of anyquarterly installment, as specified bysection 405(b), we will use the bestavailable data to determine the amountof the TFAG, if the State has notsubmitted the specified data at the endof the 30-day period. Our experience todate has shown that we need time toresolve any issues related todetermining the amount of a TFAG inorder to meet the statutory requirementfor notification to the State of thereduction in the amount of their StateTANF grant.

We also believe a Tribe should havea reasonable period of time in which toreview the State-submitted data andmake a determination as to whether ornot it concurs with the data. We havedetermined that a forty-five (45) dayperiod should be sufficient for thisactivity. Therefore, we will allow aTribe 45 days from when it receives theState-submitted data from us to notifyus of its concurrence or non-concurrence with the data.

Once we receive State data, we willshare it with the Tribe. We will alsofacilitate any meeting or discussionsbetween the Tribe and the State toanswer any questions the Tribe hasabout the submitted data. Any meetingsor discussions to answer the Tribe’squestions about the data need to be heldwithin the 45-day period for Tribalconcurrence. We believe it is in the bestinterests of both the Tribe and the Stateto reach a consensus on the State data.However, if the Tribe finds it cannotconcur with the State data and hasnotified us to this effect, we willprovide the Tribe an additional 45 daysto submit additional relevantinformation. It will then be ourresponsibility under section412(a)(1)(B)(ii)(II) to make the finaldetermination as to the amount of theTFAG after review of the informationsubmitted by the Tribe.

In instances in which the State hasnot submitted the requested data within



the time period given, we will notify theTribe. We will give the Tribe 45 daysfrom the date of our notification tosubmit relevant data. This 45-day timeframe is the same time frame we haveestablished for Tribes to submitinformation if they disagree with State-submitted data. In the absence of State-submitted data, we propose to userelevant Tribe-submitted data todetermine the amount of the TFAG.

If a Tribe disagrees with the datasubmitted by the State, we will use theState-submitted data and any additionalrelevant information submitted by theTribe to determine the amount of theTFAG. Relevant Tribal data mayinclude, but are not limited to, CensusBureau data, data from the Bureau ofIndian Affairs, data from other Federalprograms, and tribal records.

Once the amount of the TFAG isofficially determined, we will notifyboth the Tribe and the State of theSecretary’s decision. Our goal will be toresolve any data issues at least twoweeks prior to when we are required tonotify the State. We will make officialnotification of the amount of the StateFamily Assistance Grant reduction tothe appropriate State(s) no later than 90days before the payment of the State’snext quarterly SFAG installment.

Comments: Tribal commenters raisedthe issue of the sufficiency of fiscal year1994 figures to determine the amount ofthe TFAG.

Response: ACF recognizes that thestatutory TFAG funding formula fails toaccount for the State portion of fundsexpended for Indian families in fiscalyear 1994. Without agreements withStates to provide State matching funds,Tribes must absorb this funding gap.While ACF is committed to facilitatingTribes and States agreements on theprovision of State matching funds,under the current statute, the amount ofthe TFAG is limited by the statutoryformula specified at section 412(a)(1)(B)of the Act, and this formula does notallow for any adjustment to make up forthe missing State portion of fundsexpended for Indian families in fiscalyear 1994.

Comments: Commenters suggestedthat we clarify that the TFAG amountdetermined under section 412(a)(1)(B) isan amount equal to the total amount ofFederal payments to the State for fiscalyear 1994 attributable to expendituresunder the former AFDC, JOBS andEmergency Assistance programs forIndian families, and that this amountincludes not only expendituresattributable to direct family assistance,but also expenditures for administrativecosts.

Response: The statute is clear that theTFAG amount is determined based ontotal Federal expenditures, and allexpenditures for administrative costsmust be included in the data that Statessubmit under section 412(a)(1)(B)(ii)(I).

Comments: We received severalcomments calling for us to clarify thatdetermination of the TFAG is not basedupon the Tribe’s definition of servicepopulation.

Response: We agree that, under thelaw, there is no nexus between a Tribe’sdefinition of its service population andthe formula under which the TFAG isdetermined. The TFAG funding formulamust take into account ALL Indianfamilies residing in the geographicservice area or areas defined by theTribe, but there is no requirement thatthe Indian families residing in a Tribe’sgeographic service area coincide withthe Tribe’s service population. Section412(b)(1)(C) of the Act makes a cleardistinction between a Tribe’s servicepopulation and its service area or areas.The statute bases TFAG funding levelson ALL Indian families residing in thegeographic service area determined bythe Tribe. The statute leaves it to theTribe to determine its servicepopulation and this service populationmay, but does not have to, include allIndian families residing in the Tribe’sservice area.

Comments: Several commenterssuggested that we define the term‘‘Indian Family’’ for the limited purposeof determining the amount of the TFAG.One commenter argued that a definitionof Indian Family was critical indetermining the amount of the TFAG.This commenter suggested that whenwe request the necessary data from thestate to determine the TFAG, we shouldinclude in our letter to the state thedefinition of the Indian Family beingproposed by the Tribe.

Response: In drafting the proposedrule, we chose not to define ‘‘Indianfamily’’ or ‘‘service population.’’ ACFwill not define the term ‘‘Indian family’’in recognition of the fact that like anysovereign government, Tribes determinetheir own membership criteria. EachTribe administering its own TribalTANF program is permitted by thestatute to define its service population.As we noted in the preamble, in orderto provide maximum flexibility to theTribe, each Tribe may define its servicepopulation and it has the option ofincluding only a portion of the tribalenrollment, only tribal members, allIndians, or even non-Indians residing inthe service area. It will be up to eachTribe submitting a TANF plan to definethe population that the plan will serve.

We continue to believe that excessivedefinitions may in fact unduly andunintentionally limit tribal flexibility indesigning programs that best meet theirservice population needs. We are notpersuaded that defining the term Indianfamily is critical to determination of theTFAG.

However, because States need toknow what data to submit under section412(a)(1)(B)(ii)(I), we will require aTribe to declare its definition of ‘‘Indianfamily’’ in its Tribal Family AssistancePlan. We therefore adopt the suggestionthat, when we request the necessarydata from the state to determine theTFAG, we include in our letter thedefinition of Indian family and adescription of the proposed service areaproposed by the Tribe (§ 286.20). Webelieve this information will aid theState in determining the amount equalto the Federal expenditures (other thanchild care expenditures) spent by theState or States under the AFDC andEmergency Assistance Programs(including administrative costs), and theJOBS programs for fiscal year 1994 forIndian families residing in the servicearea(s) identified in the TFAP.

Comments: A significant number ofcommenters requested that we extendthe time frames for State submission ofexpenditure data used to determine theTFAG amount, and the time frame forthe Tribe to notify us of either theirconcurrence or non-concurrence withthe State expenditure data. Allcommenters were unanimous in theirview that the proposed time frames of21 days for the state to respond to ourdata request and the amount of timeprovided to the Tribe to determinewhether or not it concurs with the statedata were insufficient. All commentersrecommended the proposed time framesof 21 days be extended. Somecommenters recommended the timeframes be extended to 30 days, whileothers recommended the time frames beextended to anywhere from 45 days to90 days.

Response: We have determined that itwould be helpful to allow the State totake up to 30 days from the date of ourletter to submit its data, 45 days for theTribe to concur or nonconcur, and 45days for the Tribe to submit alternativedata, prior to our making adetermination of the TFAG amount. Ourexperience to date has shown that thiswill allow sufficient time for the Stateto gather the expenditure data, andsufficient time for the Tribe to eitherconcur or not concur with the Stateexpenditure data.

Comment: One commenter suggestedthat States be given the opportunity toreview and rebut data submitted by



Tribes under section 412(a)(1)(B)(ii)(II)of the Act. Section 412(a)(1)(B)(ii)(II)specifies that if Tribes disagree withdata States are required to submit undersection 412(a)(1)(B)(ii)(I) in order todetermine the TFAG, Tribes may submitto the Secretary such additionalinformation as may be relevant tomaking the determination and theSecretary may consider suchinformation before making suchdetermination.

Response: We agree with tribalcommenters that the statutecontemplates only that States submit thedata described in section 412(a)(1)(B)(i)of the Act. The law requires States tosubmit data indicating the total amountof the Federal payments to a State orStates * * * attributable toexpenditures by the State or Statesunder parts A and F (as so in effect) forfiscal year 1994 for Indian familiesresiding in the service area or areasidentified by the Indian tribe. Thestatute clearly indicates the parametersfor State-submitted data. Once Statessubmit the data described in section412(a)(1)(B)(i) of the Act, only Tribes areafforded the opportunity to rebut orsupplement such data by submittingadditional information as may berelevant to the Secretary. Where thereare inconsistencies in the data, follow-up discussions with the Tribe and theState will ensue.

Comments: Regarding the finalregulation at § 286.25(a)(2), severalcomments were received proposing thatwe require a Tribe’s agreement beforethe TFAG amount is determined.

Response: We have considered thisand decided not to adopt this proposal.We have determined that the law doesnot envision conditioning determinationof the TFAG amount on a Tribe’sagreement. The statute specifies the dataupon which the Secretary mustdetermine the TFAG amount andprovides for Tribes to submit additionalrelevant data in the event ofdisagreement with such data. Theproposed scheme would frustrate clearCongressional intent as to how theTFAG is to be determined.

Section 286.30 (286.25 in the NPRM)What Is the Process for Retrocession ofa Tribal Family Assistance Grant?

As defined at § 286.5, retrocession isa voluntary termination of a TribalTANF program. Section 412 of the Actdoes not include a provision forretrocession. However, we recognizethat Tribes voluntarily implement aTANF program for their needy familiesand should, therefore, be afforded theopportunity to withdraw theiragreement to operate the program. For

example, a Tribe may lose a State’scommitment to provide State funds forTribal TANF, which could significantlyimpact the Tribe’s financial ability tooperate the program. Based onoverwhelming support and commentsby both Tribes and States, wedetermined the necessity of aretrocession provision in theseregulations.

In providing a retrocession provisionin the regulations, we developed a timeframe which we believed ensured that:(1) There would be minimal disruptionof services to families in need ofassistance; (2) a Tribe made an informeddecision in determining whether or notto cease operating the Tribal TANFprogram; and (3) a State was providedadequate notice to ensure continuity ofprogram services.

A Tribe that retrocedes a Tribal TANFprogram is responsible for complyingwith the data collection and reportingrequirements and all other programrequirements for the period before theretrocession is effective. In addition, theTribe is liable for any applicablepenalties (see subpart D); and it issubject to the provisions of 45 CFR part92 and OMB Circulars A–87 and A–133,and other Federal statutes andregulations applicable to the TANFprogram. The Tribe also will beresponsible for any penalties resultingfrom audits covering the period up tothe effective date of retrocession. Pleaserefer to § 286.195 for the discussion onpenalties.

Overview of CommentsWe received substantial comments

regarding the proposed retrocessionprocess. Most of these comments camefrom Tribes, but we also received anumber of comments from States,advocacy groups, and other communityorganizations. All commenters agreedthat a Tribe should be allowed torelinquish the program, but mostquestioned both the time frame fornotification as well as the time frame forretrocession itself.

To deal with the large number ofcomments on this issue, we decided tocluster the comments into the followinggeneral categories: (1) When a Tribeshould be allowed to relinquish theprogram; (2) how much advance noticeis adequate; (3) conditions for return ofa program to a Tribe who has retrocededits grant; and (4) other concerns.

Timing for RelinquishmentComment: The draft regulation

required that the effective date of aretrocession coincide with the end ofthe grant period. Virtually allcommenters took exception to this

limitation, noting that a Tribe should beallowed to relinquish the program (uponadequate notice) at any point in theyear. These commenters argued thatTribes unable to adequately administera program should be permitted toretrocede as soon as the state is able tobegin providing services to the TribalTANF service population. To require aTribe to keep operating a program afterthe proposed effective date of theretrocession could result in a programdiminished by a lack of resources orstaff, an increased chance of tribalpenalties, and the possibility of negativefiscal impacts occurring to otherprograms operated by the Tribe as theresults of the Tribe’s effort to meet theprogrammatic responsibilities under itstribal TANF plan.

Response: Regarding retrocession, weacknowledge that our proposal may nothave been adequately responsive to theneeds of Tribes operating a Tribal TANFprogram or to the families receivingservices under the TANF program.However, that language was proposedbecause we believe that with approvalof a plan to operate a Tribal TANFprogram comes both the Tribe’scommitment and its responsibility toutilize funds specifically awarded underthe TFAG to provide the approvedservices to its identified servicepopulation throughout the duration ofthe plan.

We agree with the commenters thatTribal TANF grantees should be giventhe opportunity to retrocede more thanone day per year. It was never our intentto place tribal programs in the positionof continuing operations beyond areasonable time frame from when theysought to terminate Tribal TANFoperations. Therefore, we have includedspecific language in the regulatory textwhich permits a Tribe to retrocede atany time, with the effective date of theretrocession the last day of any month,as mutually agreed upon by ACF, theTribe, and the affected State.

Adequate Advance NoticeComments: There were no consistent

comments in this area. Although mostTribes and States agreed with theproposed 120-day time frame fornotification, several Tribes commentedthat a time frame of 60 or 90 days wasmore than adequate for a state, in orderto assure that a program failing toprovide services would not be forcedinto a situation it could not handle. Onthe other hand, one state voiced concernthat it would need a minimum of 180days advance notice in order to developthe necessary infrastructure for servicedelivery and to minimize disruption ofservices.



Response: Since States are currentlyoperating TANF programs, and sincemany States are already coordinatingwith Tribes, we believe that 120 daysformal advance notice will give theState ample time to begin to implementservices to those individuals previouslyserved by the Tribal TANF program.However, in order to be responsive tounforeseen emergency circumstanceswhich may require a more expeditiousretrocession of a Tribal TANF programback to the state, the revised regulationwill provide for an emergency waiverfrom the 120-day notice, upon mutualagreement by the Tribe and the affectedState.

Comments: In many casescommenters recommended that theTribe provide simultaneous notice toACF and the state of its intent toterminate operation of the TANFprogram, thereby enabling the Tribe andstate to begin discussions early, ratherthan waiting for ACF to formally notifythe state of the Tribe’s intent.

Response: In the writing of thissection of the regulation we neverintended to function as the intermediarybetween the Tribe and the State. Rather,our expectation has always been that theTribe and State will work together toensure that the families served underthe Tribal TANF plan receive thenecessary services. We believe it may bereasonably implied from section 405(b)of the Act that it is our responsibility tonotify a State at least 90 days prior tothe effective date of a Tribe’sretrocession of the TANF program.However, we see no reason why thestate, which will be responsible fortaking over provision of TANF servicesto persons formerly served by the tribalprogram, should have less notice thanACF. We have revised the language inthe final regulation to indicate that theTribe should simultaneously notify ACFand the state of its intent to retrocedethe TANF program.

Conditions for Return of a Program toa Tribe Who Had Retroceded its Grant

Comments: The draft regulationsdelineated two conditions for return ofa TANF program to a Tribe that hadpreviously retroceded. These conditionsare that ‘‘the reasons for the retrocessionare no longer applicable, and alloutstanding funds and penalty amounts[are] repaid.’’ Several commentersexpressed their views that theseconditions were unfair and exceededthe Secretary’s authority under thestatute.

Response: Section 412(e) of the Actgrants the Secretary broad authority to‘‘maintain program fundingaccountability.’’ It is a reasonable

exercise of that authority to take intoaccount the circumstances of a Tribe’sprevious retrocession when consideringthe approval of a subsequent TribalTANF plan. We have rewritten theregulation to emphasize that § 286.30(e)(previously § 286.25(d)) is intended toimplement the Secretary’s fiscaloversight authority.

Comment: Several commentersreferred to a retroceded Tribe’smotivation for deciding to ‘‘renew’’ itsTANF program operation, asdistinguished from a ‘‘continuingprogram context.’’ They pointed out thatan unauthorized penalty would beimposed on a Tribe in this ‘‘renewalcontext,’’ and that there is no regulatoryauthority to deny a Tribe the right tooperate a program.

Response: If a Tribe submits a TFAPsubsequent to its retrocession of itsTANF program back to the State, it isinaccurate to characterize this as a‘‘renewal.’’ Rather, it is an application tooperate a TANF program by an entitythat was not able to complete itsapproved three-year TANF program. If aTribe retrocedes its TANF program tothe State, there are significantadministrative, financial, and technicalissues that must be addressed intransferring the Tribal TANF caseload tothe State TANF program. It is anappropriate exercise of the Secretary’sauthority to ‘‘maintain program fundingaccountability’’ to require that a Tribedemonstrate that the circumstances thatled to retrocession are no longer present.However, the Secretary may considerthe extent to which the Tribe hascontrol over such circumstances andthose circumstances are related to fiscalaccountability.

It is inaccurate to characterize§ 286.25(d) as presented in the proposedrule as a ‘‘penalty.’’ It is not. Rather, itis a reasonable inquiry that only ariseswhen triggered by a particular objectivefact: Namely, tribal retrocession. Tribesthat retrocede are not ‘‘penalized’’; theyare merely required to rebut thepresumption that they cannot completea three-year TANF plan which is basedon the fact that the Tribe retroceded apreviously approved three-year TANFplan. If the ‘‘reason’’ for retrocession isbeyond the control of the Tribe, or is notreasonably related to fiscalaccountability, then the fact that a Triberetroceded is irrelevant to its subsequentapplication to operate a TANF program.

Other ConcernsComments: One Tribe commented

that rather than return all unobligatedfunds to the Federal government, Tribeswho retrocede a program should beallowed to retain a pro-rated amount of

funds based on the amount of time theyoperated the TANF program. Thesefunds could be used in a variety of otherwelfare-related programs that the Tribeis involved with.

Response: Tribal TANF funds areawarded to provide specific welfare-related services and assistance underthe Tribal TANF program, as specifiedin §§ 286.35–286.45. Tribes who are nolonger operating a TANF program haveno authority to expend Tribal TANFfunds beyond those that were obligatedfor the purposes of the TANF programprior to the effective date of theretrocession. Upon retrocession, theyare therefore unable to retain any fundsother than those which were previouslyobligated.

Comments: Several states requestedthat the regulations devote moreattention to the potential problems thata state may encounter after aretrocession. One state indicated that ifa Tribe runs out of funds before itretrocedes the program, the state maynot have sufficient funds to absorb thereturning caseload. They requested thatadequate federal funds be madeavailable until state appropriationscould be provided by the statelegislature. Similarly, one stateorganization requested guidance on howstates and Tribes should proceed if thetribal grant is exhausted before the endof the fiscal year.

Response: If a Tribe is makingexpenditures for purposes which arereasonably calculated to accomplish thepurpose of the statute, suchexpenditures are within the authority ofthe Tribe to determine. If a Tribeexpends all of its TANF grant before itretrocedes the program and suchexpenditures are not otherwiseimproper, there is no general authorityunder which the federal governmentmay augment State TANF funds toabsorb any returning caseloadsubsequent to retrocession.

We take seriously the concerns raisedabout potential problems that a Statemay encounter subsequent toretrocession. In fact, this is a majorreason why we would permitretrocession during a grant period onlyupon agreement of the state. In thecurrent environment we should notpresume that this situation would createa financial hardship for the State. Somestates have surplus funds because ofcaseload reductions. In addition, stateshave access to some supplementalfunding sources that are not accessibleto the Tribes—including the Bonus toReward Decrease in Illegitimacy Ratio(section 403(a)(2)), Supplemental Grantfor Population Increases (section403(a)(3)), the High Performance Bonus



(section 403(a)(4)), and the ContingencyFund (section 403(b)).

In order for welfare reform to work inIndian country, it is important for Stateand Tribal governments to worktogether. To avoid some of the potentialproblems that may arise subsequent toretrocession, we encourage States toplan for such contingencies as well asto work with tribal partners to minimizeits occurrence.

It is the responsibility of the Tribe tocarefully manage funds in order tominimize potential problems in thisarea. The federal government has theauthority to monitor TANFexpenditures on the mandated quarterlyreports to ensure the Tribe ismaintaining a viable TANF program andwe will provide technical assistance tothe extent necessary to preventretrocession where that is possible.

Comment: One state objected thatunobligated funds would be returned bythe Tribe to the federal governmentrather than the State, indicating that theregulation was unclear as to whetherthese funds would be returned to theStates’ SFAG account for drawdownavailability. The return of funds wouldpromote service continuity and easefinancial constraints that may bebrought about as a result of theretrocession.

Response: We have clarified theregulation to specify that the SFAG willbe increased by the amount of the TFAGavailable for the subsequent quarterlyinstallment.

Comments: Several states indicatedthat the regulations should incorporateongoing budgetary oversight of the tribalprograms and provide HHS with theability to intervene if a tribal program islosing financial viability. Theyrequested that the regulations beamended to include criteria and aprocess for a federal decision toterminate a tribal program if tribalmembers are not able to gain access tothe services specified in the TFAP aswell as provisions for early notificationto the state of possible financialproblems with a Tribal TANF program,and for early notification to clients andother involved parties prior toretrocession.

Response: The United States has aunique legal relationship with Indiantribal governments. The federalgovernment has guaranteed the right ofIndian tribes to self-government, and theTribes exercise sovereign powers overtheir members and territory. Just asstates, Tribes must be provided theopportunity to develop and administertheir own TANF programs within theconfines of the statue and regulations.Adequate budgetary oversight is

provided through the mandatedsubmission of the quarterly reports.

Comments: Several states appealed fora ‘‘grace period’’ in meeting workparticipation requirements when thereis a retrocession, and that they shouldbe able to increase the percentage thatcan be exempted from time limits ifadversely affected by a retrocession.

Response: The statute does notprovide for a grace period, nor can werevise state TANF requirements in theTribal TANF regulation. However,Regional Offices are available to providetechnical assistance if a State is havingdifficulty incorporating former TribalTANF recipients into the State program.

Comment: One state requested thatthe draft regulations be amended toinclude provisions allowing for ‘‘partialretrocession,’’ such as when aconsortium member drops out, or aTribe changes its service area or servicepopulation in a way which changes theamount of the allocation.

Response: We have considered thesuggestion and determined that § 286.30of these rules adequately accommodatethese situations.

Section 286.35 (Section 286.30 in theNPRM) What are Proper Uses ofTribal Family Assistance Grant Funds?

Section 412 of the Act does notspecify the particular purposes forwhich a TFAG may be used. However,under these Final Rules any such usemust be consistent with section 401(a)of the Act. We believe the Tribes shouldhave the same flexibility as the States intheir use of TANF funds. Therefore, weindicate at § 286.35 that the TribalTANF grantees will be able to use theirTFAGs for the same purposes as Statesmay use their TANF funds as specifiedin section 404(a) of the Act.

Thus, a Tribe may use its TFAG inany reasonable manner to accomplishthe purposes of part A of title IV of theAct. This may include the provision oflow-income households with assistancein meeting home heating and coolingcosts. In addition, we believe that Tribesshould be able to use their TFAGs inany manner that was an authorized useof funds under the AFDC and JOBSprograms, as those programs were ineffect on September 30, 1995.

In determining whether a welfare-related service or activity may befunded with its TFAG, a Tribe shouldrefer to the purposes of TANF, asdescribed in section 401 of the Act, aswell as to section 404(a). Tribes shouldbe aware that TANF funds may be usedfor activities reasonably calculated toaccomplish the purposes of part IV–A ofthe Act. As specified in section 401(a),those purposes are: (1) To provide

assistance to needy families so thatchildren may be cared for in their ownhomes or in the homes of relatives; (2)to end the dependence of needy parentson government benefits by promotingjob preparation, work, and marriage; (3)to prevent and reduce the incidence ofout-of-wedlock pregnancies; and (4) toencourage the formation andmaintenance of two-parent families.TANF funds are not authorized to beused to contribute to or otherwisesupport non-TANF programs. Use ofTANF funds to support non-TANFprograms or other unauthorized purposeshall give rise to penalties under section409(a)(1) of the Act (made applicable toTribes by section 412(g).

Comments: Several commentersraised concerns with perceivedrestrictions on the use of TFAG fundsfor economic development and jobcreation activities.

Response: We will considerexpenditures for economic developmentand job creation activities, and forsupportive services to assist needyfamilies to prepare for, obtain and retainemployment to be permissible uses ofTANF grant funds and will revise theregulatory language accordingly.

Comment: One commenter suggestedthat the language of § 286.30(a)(1) in theproposed rule be amended with theinsertion of the words ‘‘but not limitedto’’ after the word ‘‘including’’ on line2 to clarify the fact that ‘‘reasonablyrelated purposes’’ is not limited to homeheating and cooling.

Response: The suggestion isappropriate, and we amended thelanguage of § 286.35(a)(1) to insureclarity.

Comment: Regarding the proposedregulation at § 286.30(b), onecommenter observed that in theproposed rule we had reserved thissubsection, and presumed that we hadintended to use it to define an appealsprocess when there was disagreementwith the Secretary’s determination ofthe TFAG amount. The commenterfurther suggested that § 286.30(b)specify that the appeals proceduresfound in 25 CFR part 900, subpart L,apply where the Tribe disagrees withthe Secretary’s determination of theTFAG amount.

Response: The commenter’spresumption was incorrect on twocounts. First, it is standard regulatorypractice in order to preserve the futurestructural integrity of the provision toreserve a subsequent subsection whenonly one element in a sequence is used.Secondly, the appeals procedures foundin 25 CFR part 900, subpart L, do notapply to the TANF program. Theappeals procedures found in 25 CFR



part 900, subpart L, apply only tocontracts by the Department of Healthand Human Services (DHHS) and theDepartment of the Interior (DOI) inimplementing title I of the Indian Self-Determination and EducationAssistance Act or to programsadministered by the DHHS or DOI forthe benefit of Indians. The Departmenthas determined that the TANF programis not contractible under the Indian Self-Determination and EducationAssistance Act, nor is it a programadministered by DHHS for the benefit ofIndians. The TANF program is not oneunder which the federal governmentprovides benefits or services directly toIndian tribes nor is TANF a programdesigned to benefit Indians based ontheir status as Indians, but rather it is aprogram designed to provide timelimited assistance to needy families.

Section 286.40 May a Tribe Use theTribal Family Assistance Grant To FundIDAs ? (New Section)

Comment: Comments were raisedabout the extent to which the IndividualDevelopment Account (IDA) provisionat section 404(h) of the Act was anoptional program that Tribes couldchoose to implement.

Response: We addressed in thePreamble discussion at § 286.10 thequestion of the extent to whichcontributions to or distributions fromIDAs were excluded from the definitionof assistance. Here, we discuss theextent to which such contributions areallowable Tribal TANF expenditures.Section 404(h) of the Act expressly givesStates the option to fund IDAs withTANF funds for individuals who areeligible for TANF assistance. The statuteis silent with regard to whether Tribeshave the same option to fund IDAs withTANF funds for individuals who areeligible for Tribal TANF assistance.However, in the subsequently enactedAssets for Independence Act (Pub. L.105–285, or AFIA), there is strongevidence that Congress intended Tribesto have the same option to fund IDAswith TANF funds as is expresslyprovided to States. For example, section412 of AFIA requires each qualifiedentity (including tribal governments) toprepare an annual report on the progressof the demonstration project includinginformation on ‘‘the number andcharacteristics of individuals making adeposit into an individual developmentaccount, the amounts withdrawn fromthe individual development accountsand the purposes for which suchamounts were withdrawn, and thebalances remaining in the individualdevelopment accounts.’’ This legislativerequirement would not make sense

unless Congress intended to authorizeTribes as well as States to fund IDAswith TANF funds. It is not necessary fora Tribal government to have applied forAFIA funding in order for a TribalTANF program to fund IDAs with TANFfunds. Rather, it is the authorization atsection 404(7) of AFIA which indicatesthat Congress intended to permit TribalTANF programs to fund IDAs on thesame basis as State TANF programs mayfund IDAs.

The IDA provision in the Act createsan optional program which is subject tospecific statutory requirements. IDAsare similar to savings accounts andenable recipients to save earned incomefor certain specified, significant items.IDAs are subject to special statutoryrestrictions on TANF recipient deposits,who can match recipient contributions,and how recipients may spend IDAfunds.

Funds in an IDA account do not affecta recipient’s eligibility for TANFassistance. Withdrawals from the IDAmust be paid directly to a college oruniversity, a bank, savings and loaninstitution, an individual selling ahome, or a special account (if therecipient is starting a business). Section404(h)(2)(D) authorizes the Secretary toestablish regulations to ensure thatindividuals do not withdraw funds heldin an IDA except for one or more of thequalified purposes. Post secondaryeducation expenses, first homepurchase, and business capitalizationspecifically are allowed qualifiedwithdrawals. With this in mind, we didnot feel it was necessary to be overlyprescriptive in mandating how Tribeswould ensure that individuals do notmake unauthorized withdrawals fromIDA accounts. We have given States andTribes broad flexibility to establishprocedures that ensure that onlyqualified withdrawals are made.

Section 286.45 (Section 286.35 in theNPRM) What Uses of Tribal FamilyAssistance Grant Funds Are Improper?

Just as section 412 of the Act does notspecify the particular purposes forwhich Tribal Family Assistance Grantfunds may be used, it does not specifyany prohibitions or restrictions on theuse of TFAG funds in a Tribal TANFprogram. However, we believe it isimportant to indicate in this Final Rulewhat would not be a proper use of aTFAG. TFAG funds must be used for theoperation and administration of theTANF program. Tribal TFAG funds maynot be used to contribute to or tosubsidize non-TANF programs. Any useof TFAG funds to contribute to orotherwise support non-TANF programswill be considered an improper use of

TANF funds and subject to penaltiesunder § 286.195.

TFAG funds must be used to provideassistance to families and individualsthat meet the eligibility criteriacontained in the TFAP. We have revisedthe language in the final rule to clarifythat funds must be used only forfamilies or individuals meeting theTribe’s eligibility criteria. In addition,we propose that a TFAG may be usedto provide assistance for no more thanthe number of months specified in aTribe’s approved TFAP.

OMB Circular A–87 includesrestrictions and prohibitions that limitthe use of a TFAG. In addition, allprovisions in 45 CFR part 92 and OMBCircular A–133 apply to the TribalTANF program. TANF is not one of theBlock Grant programs exempt from therequirement of part 92 because OMB hasdetermined that TANF should besubject to part 92.

Non-CitizensTitle IV of PRWORA establishes

restrictions on the use of TANF funds toprovide assistance to certain individualswho are not citizens of the UnitedStates. These restrictions are part of thedefinition of eligible family at § 286.5.Individuals who do not meet the criteriaat § 286.5 may not receive TANFassistance paid with Tribal FamilyAssistance Grant funds.

Construction and Purchase of FacilitiesThe Comptroller General of the

United States has prohibited the use ofFederal funds for the construction orpurchase of facilities or buildings unlessthere is explicit statutory authoritypermitting such use. Since the statute issilent on this, a Tribe may not use itsTFAG for construction or for thepurchase of facilities or buildings.

Program IncomeWe have received inquiries as to

whether TANF funds may be used togenerate program income. An exampleof program income is the income a Tribeearns if it sells a product (e.g., asoftware program) developed, in wholeor mostly with TANF funds.

Tribes may generate program incometo defray costs of the program. Under 45CFR 92.25, there are several options forhow this program income may betreated. To give Tribes flexibility in theuse of TFAGs, we are proposing topermit Tribes to add to their TribalFamily Assistance Grant programincome that has been earned by theTribe. Tribes must use such programincome for the purposes of the TANFprogram and for allowable TANFservices, activities and assistance. We



will not require Tribes to report on theamount of program income earned, butthey must keep on file financial recordson program income earned and thepurposes for which it is used in theevent of an audit or review.

Comment: One comment relating to§ 286.35(f) as proposed in the NPRMsuggests that the proposed rulerequiring that, ‘‘Tribes must useprogram income generated by the TribalFamily Assistance Grant foradministrative costs during the grantperiod’’ needs to be clarified or deleted.

Response: There is no language orproposed rule in this section thatrequires that a Tribe use programincome for administrative costs.

Comment: One comment relating to§ 286.35(f) as proposed in the NPRMquestions the statutory authority for thissubsection, which requires that, ‘‘Tribesmust use program income generated bythe Tribal Family Assistance Grant forthe purposes of the TANF program andfor allowable TANF services, activities,and assistance,’’ and suggests that thisprovision be clarified or deleted.

Response: The authority for thisrequirement is found in 45 CFR Part92.25(g)(2), which governs the use ofprogram income for Federal grants andcooperative agreements and subawardsto State, local and Indian tribalgovernments.

Use of FundsComment: A commenter suggests that

§ 286.35(a)(3) as proposed in the NPRMshould be amended by includingqualified aliens in the language, toclarify that TFAG fund cannot be usedto provide services to individuals whoare not qualified aliens and who do notmeet the definition of eligible families.

Response: The suggested amendmentis in order, and we have incorporated itin the regulatory text at § 286.45(a)(3).However, for Tribes that receive Statefunds (which the State can count forMOE purposes) and those funds are notcommingled with Federal TANF funds,a Tribe may use these funds to providea State or local public benefit as definedin PRWORA title IV, section 411(c) tomembers of eligible families as definedin § 263.2(b) of the TANF Final Ruleapplicable to State TANF programs. (64FR 17894, April 12, 1999) A State orlocal public benefit may be provided toqualified aliens and some non-qualifiedaliens (non-immigrants under theImmigration and Nationality Act oraliens paroled into this country undersection 212(d)(5) of such Act for lessthan one year). State or local publicbenefits may also be provided to illegalaliens if the State enacts a law afterAugust 22, 1996 that affirmatively

provides that illegal aliens are eligible toreceive all or particular State or localpublic benefits (per 411(d) ofPRWORA).

If the benefit is not a State or localpublic benefit or if the Federal or Stateor local public benefit is a non-cashbenefit that is included on the AttorneyGeneral’s Notice dated August 23, 1996as necessary for the protection of life orsafety, then the Tribe may help the alienfamily members—qualified and non-qualified. (See discussion in thepreamble to the State TANF Final Rule(64 FR 17817–819, April 12, 1999).

Comment: With reference to§ 286.35(b) as proposed, a commentersuggests that the * * * (p)rohibition onusing TANF funds to contribute to orsubsidize non-TANF programs is overlyrestrictive.’’

Response: We disagree with thesuggestion that the prohibition is overlyrestrictive. TANF funds may only beexpended to further the purposes andgoals for which the TANF program wascreated. The authority for thisprohibition is clearly established in 45CFR 92.25(g)(2).

Section 286.50 (Section 286.40 in theNPRM) Is There a Limit on thePercentage of a Tribal FamilyAssistance Grant That Can Be Used forAdministrative Costs?

Under section 404(b) of the Act nomore than 15 percent of a State’s SFAGmay be spent on administrativeexpenditures. Expenditures by a Statefor information technology andcomputerization needed for tracking ormonitoring cases covered by the TANFprogram are excluded from the 15percent limit. Because section 404(b) isnot applicable to Tribal TANFprograms, we asked in our discussionswith Tribes and States, what limit, ifany, should be placed on administrativeexpenditures under the Tribal TANFprogram. Many respondents indicatedthat a limit on administrativeexpenditures should not be applied toTribal TANF programs. Otherrespondents indicated that Tribes do nothave the same level of experience inoperating this kind of welfare programas do States, and, that if a limit had tobe set, any limit should be higher thanthe State TANF limit. Respondents alsocited both the additional start-upexpenses that Tribes will experienceand the new requirements of the TANFprogram as a reason to set a higher limitfor Tribal TANF programs.

In our deliberations on whether topropose a limit on administrativeexpenditures, we considered variousoptions. One was to follow the statuteand be silent on the issue. The second

option was to apply the same limitplaced on States. The third option wasto set a limit that recognizes the specialneeds of Tribes mentioned above. Inwhatever option we chose, we felt itnecessary to ensure that most of a TribalTANF grant would be available to carryout the primary objective of the TANFstatute.

We understand the reason why manyof the respondents said that anadministrative expenditure limit shouldnot be placed on Tribal TANF programs.However, not placing a limit couldresult in depriving needy families of theprogram benefits Congress intendedfamilies to receive. We believe setting alimit on administrative expenditures ismore consistent with the purposes ofthe Act. Placing a limit onadministrative expenditures guaranteesthat the major portion of a Tribal TANFgrant goes to assisting needy families.

We have responded to the fact thatTribes do not have the same level ofexperience operating welfare programsas do the States. In addition, werecognize that Tribes will need toexpend a larger portion of their grantfunds on administration than Statesbecause they cannot take advantage ofeconomies of scale. Therefore, as thediscussion below details, we revisedthis section to provide for a graduatedcap over the first three years ofoperation which will ultimately limit to25 percent the amount of Tribal TANFfunds that a Tribe may use foradministrative expenditures during anygrant period. Thus, after the first twoyears of operation each Tribal TANFgrantee will be required to expend atleast 75 percent of its grant on directprogram services (and technology)during the grant period.

Because expenditures for informationtechnology and computerization neededfor tracking and monitoring of casesunder the TANF program by the Stateswill be excluded from theadministrative expenditure limit, thesesame expenditures by Tribes will alsobe excluded from the Tribal limit.

Tribes must allocate costs to properprograms. Under the FederalAppropriations Law, grantees must usefunds in accordance with the purposefor which they were appropriated. Inaddition, as stated previously, the grantsadministration regulations at part 92,and OMB Circular A–87, ‘‘CostPrinciples for State, Local, and IndianTribal Governments’’, apply to theTANF program. OMB Circular A–87, inparticular, establishes the proceduresand rules applicable to the allocation ofcosts among programs and theallowability of costs under Federal grantprograms such as TANF.




We received numerous commentsregarding the proposed administrativecost provisions. A substantial majorityof these comments came from Tribesand tribal organizations, but we alsoreceived comments from States,advocacy groups, and other communityorganizations.

To deal with the number of responseson this issue, we decided to cluster thecomments into the following generalcategories: (1) The imposition of anadministrative cost cap, includingwhether or not there is authority toimpose such a cap; (2) the proposed 20percent administrative cost limitation;(3) the treatment of eligibilitydetermination and verification costs, aswell as data entry costs, in thedefinition; (4) the relationship ofindirect costs to administrative costs;and (5) identifying the base to be usedto determine the cap (that is, whetherthe appropriate base for computing theFederal cap includes State matchingfunds). The first two categories will bedealt with in this section; the remainingthree will be addressed in § 286.55.

Imposition of an Administrative CostCap

Comments: We received multiplecomments questioning whether ACFhad statutory authority to impose a cap.Comments from a number of Tribesindicated their belief that the cap goesbeyond the authority of Public Law 93–638, the Indian Self-Determination Act.These respondents asked that the entiresection be deleted.

Response: There is legal support forimposition of an administrative cap.Although the statute only requires anadministrative cost cap for States,Federal law does not preclude theSecretary from establishing a cap for theTribal TANF program. Both the statuteand legislative history make it clear thatCongress intended that a substantialmajority of TFAG funds be available toprovide time-limited program assistanceand/or services to needy Indianfamilies. Section 412(b), which specifiesTribal Family Assistance planrequirements, clearly contemplates thatthe TFAG be used to support theprovision of ‘‘assistance’’ and ‘‘welfare-related services.’’

While we believe in granting Tribesbroad flexibility to design theirprograms and have left key definitionsup to the discretion of the Tribes, webelieve there is a need for Federalguidance on the definition of‘‘administrative costs.’’ The approach inthis rule is a compromise between aFederal and tribal definition. It sets a

Federal framework that specifies someitems that must be considered‘‘administrative costs,’’ but does notattempt to fully define the term.

We believe this framework isimportant. First, as the comments wereceived demonstrate, there is nocommon view of the meaning of thisterm. If we left this matter entirely totribal discretion, we could expect adiversity of approaches, and Tribesmight be subject to widely differentpenalty standards. Also, some Tribesmight define the term so narrowly as tosubstantially undermine the intent ofthe administrative cost cap provisions.The philosophy underlying theadministrative cost cap is clear: in orderto protect needy families and children,it is critical that the substantial majorityof TANF funds go towards helpingneedy families.

The Amount of the Administrative CostCap

Comments: Almost all respondentsrequested the flexibility to negotiate ahigher administrative cap either overthe course of the entire three-year grantor for the initial start-up year(s). Therewere widespread comments attesting tothe fact that although states haveoperated similar programs in the pastand have invested heavily in aninfrastructure to support the program,no such opportunity has existed forTribes. Tribes will initially haveextensive administrative costs whilethey develop the required infrastructureand data systems to manage theprogram, and some small Tribes mayalso experience economy of scaleproblems. Tribes believe that the 20percent limitation provided for in theNPRM is overly restrictive andunrealistic, and they furthermoremaintain that any cap should not haveas its basis the state cap.

Response: Although we do not believethat the administrative cap proposed inthe draft regulations was either arbitraryor paternalistic, we believe that anegotiated and graduated administrativecost cap would recognize that Indiantribes do not have the same sorts ofresources as are available to States andtherefore should be allowed to claimmore administrative costs, especially inthe initial operation and administrationof a TANF program. There is noprovision for start-up funds in thelegislation, which compels Tribes to usefunds from their Tribal FamilyAssistance Grant for that purpose.

It is critical to the establishment andeffective and efficient operation of anyviable social service program that asolid infrastructure be developed fromthe beginning. TANF is the first

comprehensive social services programthat Tribes will operate. Therefore,Tribes with little or no infrastructurewill need to create or strengthen theirinfrastructure in order to ensure a viableoperating base for the program. Due tothe uniqueness of TANF, even thoseTribes with more sophisticatedinfrastructures will need to enhanceand/or make substantial changes in theirinfrastructures to allow for the changesnecessary to operate the TANF programeffectively.

In most grant and contract programsTribes are provided funds for planning,setup costs, contract support funds, andindirect costs to offset the lack of a taxbase and other sources of funding tosupport Tribal programs. PRWORAprovides no funding for Tribes todevelop the necessary infrastructure tooperate a TANF program.

Furthermore, program developmentand administrative activities (e.g.,conference travel, home visits,procurement of goods and services,meetings with state and local TANFstaff, etc.) are generally more expensivefor Tribes than for state or localgovernments because of the distancefrom urban centers for most tribes, aswell as the lack of transportation andpublic services.

Recognizing the uniqueadministrative burdens on Tribes whohave never been in the position ofoperating these programs, and who needto build an infrastructure capable ofoperating the Tribal TANF program, wehave revised this section to allow ACFto negotiate with each Tribal TANFapplicant individually for each year ofa program’s operation, a negotiatedadministrative cap for the first year notto exceed 35 percent, a negotiatedadministrative cap for the second yearnot to exceed 30 percent, and anegotiated administrative cap for allsubsequent years of operation (that is,any and all years of program operationafter the first two years) not to exceed25 percent. Our negotiations will bebased on, but not limited to, a Tribe’sTANF funding level, the economicconditions and resources available tothe Tribe, the relationship of the Tribe’sadministrative cost allocation proposalto the overall purposes of TANF, and ademonstration of the Tribe’sadministrative capability.

We believe that this graduated capmeets the intent of the law, yet providesTribal TANF programs with additionalfunds to develop the necessaryinfrastructure to be successful inoperating the Tribal TANF program.After the first two years of funding, eachTribal TANF grantee will be required to



expend at least 75 percent of its grant ondirect service and benefits.

If a Tribe’s administrative costsexceed the 25 percent limit (or 35percent in the first year or 30 percent inthe second year of operations), thepenalty for misuse of funds (refer to§ 286.195) will apply. The penalty willbe in the amount spent onadministrative costs in excess of theadministrative cap for that particularyear of operation. We will take anadditional penalty in the amount of fivepercent of the TFAG if we find that aTribe has intentionally exceeded theadministrative cap limit. See discussionof § 286.200.

Section 286.55 (Section 286.45 in theNPRM) What Types of Costs AreSubject to the Administrative Cost Limiton Tribal Family Assistance Grants?

Just as with the State TANF program,we considered not proposing a Federaldefinition of ‘‘administrative costs.’’That option had appeal because: (1) It isconsistent with the philosophy of ablock grant; (2) we took a similarapproach in some other policy areas (i.e.,in not defining individual workactivities); (3) we support the idea thatwe should focus on outcomes, ratherthan process; and (4) the samedefinition might not work for eachTribe. Also, we were concerned wecould exacerbate consistency problemsif we created a Federal definition.Because of the wide variety ofdefinitions in other related Federalprograms, adoption of a single nationaldefinition could create variances inoperational procedures within Tribalagencies and add to the complexitiesadministrators would face in operatingthese programs.

At the same time, we were hesitant todefer totally to Tribal definitions. Thephilosophy underlying this provision isvery important; in the interest ofprotecting needy families and children,it is critical that the substantial majorityof Federal TANF funds go towardshelping needy families. If we did notprovide some definition, it would beimpossible to ensure that the limit hadmeaning. Also, we felt that it would bebetter to give general guidance to Tribesthan to get into disputes with individualTribes about whether their definitionsrepresented a ‘‘reasonable interpretationof the statute.’’

We thought that it was very importantthat any definition be flexible enoughnot to unnecessarily constrain Tribalchoices on how they deliver services.We believe a traditional definition ofadministrative costs would beinappropriate because the TANFprogram is unique, and we expect TANF

to evolve into something significantlydifferent from its predecessors and fromother welfare-related programs.Specifically, we expect TANF to be amore service-oriented program, withsubstantially more resources devoted tocase management and fewer distinctionsbetween administrative activities andservices provided to recipients.

The definition we have establisheddoes not directly address casemanagement or eligibilitydetermination. We understand that,especially for Tribal programs, the sameindividuals may be performing bothactivities. In such cases, to the extentthat a worker’s activities are essentiallyadministrative in nature (e.g., traditionaleligibility determinations orverifications), the portion of theworker’s time spent on such activitiesmust be treated as administrative costs.However, to the extent that a worker’stime is spent on case-managementfunctions or delivering services toclients, that portion of the worker’s timecan be charged as program costs.

We believe that the definition in theFinal Rule will not create a significantnew administrative burden on Tribes.We believe that it is flexible enough tofacilitate effective case management,accommodate evolving TANF programdesigns, and support innovation anddiversity among Tribal TANF programs.It also has the significant advantage ofbeing closely related to the definition ineffect under the Job TrainingPartnership Act (JTPA). Thus, it shouldfacilitate the coordination of Welfare-to-Work and TANF activities and supportthe transition of hard-to-employ TANFrecipients into the work force.

Under §§ 286.40–45 of the TribalTANF proposed regulations, Tribescould not spend more than 20 percentof their Federal TANF funds onadministrative costs. The proposedregulation excluded expenditures for‘‘information technology andcomputerization needed for tracking ormonitoring’’ from the administrativecost cap, and the definition ofadministrative cost in § 286.5 providedadditional information on what costs areboth included and excluded from thedefinition of administrative costs andthe cap.

The proposed definition at § 286.5stated: ‘‘Administrative costs meanscosts necessary for the properadministration of the TANF program. Itincludes the costs for generaladministration and coordination of thisprogram, including overhead costs.’’ Italso provided examples of eleven typesof activities that would be classified as‘‘administrative costs,’’ such as salariesand benefits not associated with

providing program services, plan andbudget preparation, procurement,accounting, and payroll. In developingthis definition, our intention was that itwould be flexible enough to facilitateeffective case management,accommodate evolving Tribal TANFprogram designs, and supportinnovation and diversity among theTribal TANF programs. We expectedthat our final definition would supportthe evolution of Tribal TANF into amore service-oriented program, withsubstantially more resources devoted tocase management and fewer distinctionsbetween administrative activities andservices provided to recipients.

We have not included specificlanguage in the Final Rule abouttreatment of costs incurred bysubgrantees, contractors, communityservice providers, and other thirdparties, and we received no commentsin this area. Neither the statute nor thefinal regulation make any provision forspecial treatment of such costs. Thus,the expectation is that administrativecosts incurred by these entities wouldbe part of the total administrative costcap. In other words, it is immaterialwhether costs are incurred by the TribalTANF agency directly or by otherparties.

We realize this policy may createadditional administrative burdens forthe Tribe and do not want tounnecessarily divert resources toadministrative activities. At the sametime, we do not want to distort agencyincentives to contract for administrativeor program services. In seeking possiblesolutions for this problem, we looked atthe JTPA approach (which allowsexpenditures on services that areavailable ‘‘off-the-shelf’’ to be treatedentirely as program costs), but did notthink that it provided an adequatesolution. We thought that too few of theservice contracts under TANF wouldqualify for simplified treatment on thatbasis.

The Treatment of Certain CostsComments: We received a number of

comments requesting that we specifythat the list of examples delineated in§ 286.5 is for guidance only. There is agreat deal of concern that this list willbe seen as all-inclusive, rather than asa list of examples of activities which areconsidered as administrative costs.

Response: Although we believe ourlanguage is clear in this regard, we willclarify in the regulation that this listprovides examples of costs that areconsidered administrative in nature, butis not all-inclusive.

Comments: Many of thosecommenting on this issue (and on the



definition of administrative costs foundin § 286.5) wanted us to clarify thateligibility determinations andverifications are more closely aligned toprogram costs than to administrativecosts. Some argued that eligibilitydetermination was not an administrativeactivity and was not easily or logicallyseparable from case management. Stillothers commented on the burdenassociated with our proposal and thegeneral need for tribal flexibility in thisarea. They argued that becauseeligibility determination andverification is part of the overall casemanagement function, it would moreappropriately be categorized as aprogram or service function thanadministration. They further argued thatthe differentiation between eligibilityand service delivery would be virtuallyimpossible, because a case manager maycollect information for the purpose ofproviding or arranging supportiveservices, but use that same informationto determine the family’s eligibility.

Response: While we understand thatTribes with limited resources do notwant to direct those limited resources toprorating the expenses of front-lineworkers who are simultaneouslyengaged in eligibility determination,case management, and service provisionto Tribal TANF beneficiaries, we do notbelieve it would be consistent with theintent of the administrative cost capprovisions for Tribes to be spendinglarge amounts of money on eligibilitydeterminations rather than programservices. We have a statutoryresponsibility for protecting againstmisuse of funds, and we know thatmoney diverted to administrativeactivities could decrease the availabilityof benefits and services for needyfamilies. We also believe that a clearpolicy on eligibility determinationsmight produce more consistent penaltydeterminations and reduce auditdisputes, appeals, and litigationregarding application of the misuse offunds penalty.

We do not agree that Tribes mustincur a significant administrativeburden in order to identify the costsassociated with eligibility determinationactivities. We recognize that the natureof staff responsibilities is changing andthe line between case management andeligibility determination is blurring.Thus, it may be more difficult todevelop rules for allocating the time ofworkers between administrative andprogram activities. However, once aTribe develops its allocation rules, theprocess of allocating staff time isstraightforward and no more difficultthan the current cost allocation process.

We also recognize that the TribalTANF program offers the possibility forTribes to administer programs in newways. We understand that Tribes aredeveloping program structures withblended functions, and we support suchefforts. These Final Rules do not in anysense require Tribes to have separateadministrative and program staff. Theymerely require that Tribes provide areasonable method for determining andallocating administrative and programcosts.

Based on these considerations, wehave decided to add eligibilitydeterminations to the list ofadministrative activities at § 286.5. Morespecifically, this rule reflects the basicdefinition that was in the proposedregulation (with the same basicexamples of administrative costactivities), but adds the NPRM preamblepolicy that required eligibilitydetermination to be treated as anadministrative cost. We recognize thatthis is a significant policy decision thatmerits inclusion directly in theregulatory text.

Under the Final Rule, Tribes maydevelop their own definitions ofadministrative costs, consistent withthis regulatory framework. Nevertheless,we want to remind them that they mustproperly allocate costs; that is, theymust attribute administrative, program,and systems costs to benefittingprograms and appropriate costcategories, in accordance with anapproved cost allocation plan and thecost principles in part 92 and OMBCircular A–87, ‘‘Cost Principles forState, Local, and Indian TribalGovernments.’’

Comments: A number of commentssuggested that the proposed language in§ 286.5, the definition of administrativecosts, was not sufficiently clear.

Response: We never intended todevelop a regulation that fully definedthe term administrative costs. Forexample, we believed that, by inference,readers would understand the languageproposed at § 286.5 to mean that costsrelated to delivery of program serviceswere not administrative costs. However,comments received suggest that theproposed rule was not sufficiently clear,and we have revised § 286.5 to makethis point more clearly. Morespecifically, we have added a newparagraph, to exclude costs of providingservices from the definition ofadministrative costs. The definitionmore directly states that costs ofproviding services are outside thedefinition of administrative costs, and itexplicitly provides that casemanagement, diversion and assessmentactivities are both program service costs

and not considered administrative costs.(Note: Here, we would make adistinction between assessmentactivities designed to identify needs anddevelop appropriate service strategiesversus assessing income, resources, anddocumentation for eligibilitydetermination purposes; the latter areadministrative costs). Further, itexplains that items that would normallybe administrative costs, but are systems-related and needed for monitoring ortracking purposes under Tribal TANF,fall under a systems exclusion. In otherwords, we will not consider those costsin determining whether a Tribe hasexceeded its cap.

The Relationship of Indirect Costs toAdministrative Costs

Indirect Costs negotiated by BIA, theDepartment’s Division of CostAllocation, or another federal agency areconsidered to be part of the totaladministrative costs. This is becausesuch indirect costs are generallyadministrative, reflecting the prorationof common administrative costs andoverhead charges which are not readilyidentifiable as program costs. They musttherefore be calculated as part of theadministrative cost cap.

Comments: A number of respondentswere adamant that we should useindirect cost rates that have alreadybeen negotiated with HHS or BIA,stating that negotiated indirect cost rateagreements with Federal agencies mustbe honored.

Response: In response to thecomments that previously negotiatedindirect cost rate caps be used, weemphasize that although most indirectcosts are administrative in nature, thereis no immediate relationship betweenadministrative and indirect costs.Administrative costs might be classifiedas either direct or indirect costs,depending on how they are identified inthe program. Indirect costs are costs(both administrative and programmatic)incurred for common or joint objectivesacross all programs, which cannot beidentified readily or specifically butwhich are nevertheless necessary to theoperations of the organization. Anegotiated indirect cost rate is based ona specific direct cost base which ismuch smaller than the entire TFAGbase. Tribal TANF programs whoseactual administrative costs do not reachthe imposed cap may be able to recoveradditional indirect costs in accordancewith their agreements, as long as thetotal amount recovered does not exceedthe approved indirect cost rate.



Base for Computing the Cap

Comments: Several commentersargued that we should allow for thecombining of program funding sourcesunder a single cost pool for the purposesof determining administrative costsassociated with program operations. Theinclusion of any state ‘‘match’’ funds inthe base would streamline accountingfunctions by allowing a Tribe tonegotiate one administrative cost ratefor multiple funding sources. Theyasked that TFAG funding and statefunding be considered as one programfor purposes of determiningadministrative costs.

Response: In most cases state ‘‘match’’is comprised of additional state fundsthat a state pays to tribal grantees onbehalf of Indian families residing in theState. There is no requirement that astate provide such funds to Tribes.Since these are state, and not federalfunds, we are not regulating the use ofthe funds in this rule. Notwithstandingthe fact that we know states use thesefunds toward their required MOEamount, and would rather have allfunds used toward service provision,states should understand that someadministrative activities are a necessarypart of service provision. It is thereforein the interest of the Tribe, whennegotiating with a state over the receiptand use of any additional state funds, toensure that a portion of those funds beallowable for administrative activities.However, we decline to make therequested change in the final regulation.

Comments: Several respondents,including one Federal agency, notedthat Tribes have insufficient funds todevelop the necessary infrastructure,and will be unable to purchase thehardware and software required tosupport an automated system whetherthey are charged as administrative orprogram costs. They recommended thatfederal start-up costs be providedoutside of the cap for this purpose.

Response: We acknowledge the factthat states have been operatingassistance programs for many years, andhave had many opportunities to developthe essential infrastructures. However,additional funds were not appropriatedby Congress to provide funds to Tribesseparate from their TFAG in order todevelop such systems. No additionalsources of funding are available for thispurpose.

Section 286.60 (Section 286.50 in theNPRM) Must Tribes Obligate All TribalFamily Assistance Grant Funds by theEnd of the Fiscal Year in Which TheyAre Awarded?

BackgroundSection 404(e) of the Act, entitled

‘‘Authority to Reserve Certain Amountsfor Assistance,’’ allows States to reserveFederal TANF funds that they receive‘‘for any fiscal year for the purpose ofproviding, without fiscal yearlimitation, assistance under the Stateprogram funded under this part.’’

This section initially did not apply toTribal TANF or NEW Programs. Ouroriginal interpretation of the statute wasthat it precluded us granting to Tribesthe authority to reserve TFAGs grantspaid to them without fiscal yearlimitation. Therefore, the NPRMindicated that Tribes must obligate theirTFAGs by the end of the fiscal year inwhich they are awarded.

Comments: Every Tribe commentingon this provision of the proposed rulevoiced opposition, indicating that theproposed rule would frustratecontingency budgeting, prevent Tribesfrom coping with volatile and increasingcaseloads, and generally hamper Tribes’efforts to achieve the objectives of theTANF program.

Response: The proposed rule wasbased on fact that States are permittedto reserve TANF funds with no fiscalyear limitation under section 404(e) ofthe Act which, at that time, did notapply to Tribal TANF programs. Since404(e) did not apply to Tribal TANFprograms, our proposed rule requiredTribal TANF programs to obligate theirTANF funds no later than the end of thefiscal year in which the TANF grantfunds were awarded.

In response to comments raised to thisproposed rule, we reconsidered anddetermined that there was statutoryauthority for limited carry forward ofTribal TANF funds beyond what we hadinitially proposed in the NPRM.However, the Foster Care IndependenceAct of 1999 (Pub. L. 106–169), signed bythe President on December 14, 1999,included a number of technicalcorrections to PRWORA which madeour reconsideration of this rule moot.Included in those amendments is aprovision which makes section 404(e) ofPRWORA applicable to Tribes. Pursuantto amended section 404(e), a Tribe mayreserve amounts awarded to the Tribeunder section 412, without fiscal yearlimitation, to provide assistance underthe Tribal TANF program. Federalunobligated balances carried forwardfrom previous fiscal years may only beexpended on assistance and related

administrative costs associated withproviding such assistance. The relatedadministrative costs to provide thatassistance will be reported against thenegotiated administrative cost cap forthe fiscal year in which the Federalfunds were originally awarded.

The statute limits a Tribe’s ability tospend reserved money in one veryimportant way. A Tribe may expendfunds only on benefits that meet thedefinition of assistance at § 286.10 or onthe administrative costs directlyassociated with providing suchassistance. It may not expend reservedfunds on benefits specifically excludedfrom the definition of assistance or onactivities generally directed at servingthe goals of the program, but outside thescope of the definition of assistance.

The Tribe must obligate by September30 of the current fiscal year any fundsfor expenditures on non-assistance. TheTribe must liquidate these obligationsby September 30 of the immediatesucceeding Federal fiscal year for whichthe funds were awarded. If the finalliquidation amounts are lower than theoriginal amount obligated, these fundsmust be reported as an unobligatedbalance for the year in which they wereawarded. As mentioned in the previousparagraph, unobligated balances fromprevious fiscal years may only beexpended on assistance and theadministrative costs related to providingthat assistance.

Subpart C—Tribal TANF Plan Contentand Processing (§§ 286.65–286.190)

Section 286.65 (Section 286.55 in theNPRM) How Can a Tribe Apply ToAdminister a Tribal TemporaryAssistance for Needy Families (TANF)Program?

Any eligible Indian tribe or AlaskaNative regional non-profit corporationor intertribal consortium that wishes toadminister a Tribal TANF program mustsubmit a three-year Tribal FamilyAssistance Plan to the Secretary of theDepartment of Health and HumanServices. This requirement extends tothose Tribes that are operating a Pub. L.102–477 employment and trainingprogram (please refer to § 286.160 forinformation on this).

Comment: One State commented thatthe regulation should address whathappens at the end of the three-yeargrant cycle, including a notificationdeadline for a Tribe to declare to ACFand the state an intent to continue ordiscontinue Tribal TANF operations.

Response: The statute requires that aneligible Tribe, Alaska Nativeorganization or intertribal consortiumwishing to administer a Tribal TANF



program submit a three-year TFAP.Although section 412(a)(1)(A)authorizes Tribal TANF funding formore than three years, the statute issilent as to the required procedures forTribes which intend to continueoperating a Tribal TANF programbeyond the initial three-year period.

We have added regulatory language to§ 286.65 to indicate that, 120 days priorto the end of the three-year grant period,current Tribal TANF grantees mustnotify the appropriate Regional Office,the Central Office, and the affected Stateor States of their intentions for thefollowing grant cycle. They must do oneof the following:

(1) If they do not intend to continueoperating the Tribal TANF programbeyond the three years, they shouldsubmit a letter of intent that so specifies;

(2) If they intend to continue programoperations with no changes to thegeographic service area or servicepopulation, they should submit a letterof intent that so specifies. A currentTribal TANF grantee that intends tocontinue TANF program operationswith no changes in service area orservice population must submit a three-year TANF plan for approval no laterthan 60 days before the end of thecurrent grant cycle;

(3) If they intend to continue programoperations, but are proposing a changein the geographic service area and/orservice population that will require newdata from the state or a renegotiation ofthe grant amount, then they mustsubmit a new three-year plan forapproval at that time.

We believe that this process willprovide all parties with sufficient timeto ensure that there is no disruption inservice to the Tribal TANF families.

Section 286.70 (Section 286.60 in theNPRM) Who Submits a Tribal FamilyAssistance Plan?

The chief executive officer of theTribe, eligible Alaska Tribal entity, orTribal consortium must sign and submitthe TFAP. This is generally the TribalChairperson. The TFAP must also beaccompanied by a Tribal resolutionindicating Tribal Council support forthe proposed Tribal TANF program. Inthe case of a Tribal consortium, theTFAP must be accompanied by Tribalresolutions from all members of theconsortium. These Tribal Councilresolutions must demonstrate eachindividual Tribe’s support of theconsortium, the delegation of decision-making authority to the consortium’sgoverning board, and the Tribe’srecognition that matters involvingrelationships between the Tribal TANFconsortia and the State and/or Federal

government on TANF matters are theexpress responsibility of theconsortium’s governing board.

We recognize that changes in theleadership of a Tribe or some otherevent may cause a participating Tribe torethink its participation in theconsortium and/or in Tribal TANF. If,for example, a subsequently electedCouncil decided to terminateparticipation in the consortium and inTANF, that decision might create a needfor time to reintegrate a Tribal programor a part of the Tribal program into theState program. Thus, we specify at§ 286.70(c) that, when one of theparticipating Tribes in a consortiumwishes to withdraw from theconsortium for purposes of eitherwithdrawing from Tribal TANFaltogether or to operate its own TribalTANF program, that the Tribe needs tonotify both the consortium and us ofthis fact at least 120 days prior to theplanned effective date. This notificationtime frame is especially applicable if theTribe is withdrawing from Tribal TANFaltogether and the Tribe’s withdrawalwill cause a change to the service areaor population of the consortium.

A Tribe withdrawing from aconsortium for purposes of operating itsown program must, in addition to thenotification specified in the previousparagraph, submit its own Tribal TANFplan that meets the plan requirements at§ 286.75 and the time frames specifiedat § 286.160.

Section 286.75 (Section 286.65 in theNPRM) What Must Be Included in theTribal Family Assistance Plan?

Background

The TANF program concerns work,responsibility, and self-sufficiency forfamilies. To that end, section 412(b) ofthe Act lists six features of a TribalFamily Assistance Plan.

Approach to Providing Welfare-RelatedServices

The TFAP must outline the Tribe’sstrategy for providing welfare-relatedservices. The Act does not specify whatthis outline must entail; however, webelieve it is important that it includesinformation necessary for anyone tounderstand what services will beprovided and to whom the services willbe provided.

To that end, the Tribal FamilyAssistance Plan must include, but is notlimited to, information such as generaleligibility criteria and specialpopulations to be served, a descriptionof the assistance and services to beoffered, and the means by which theywill be offered using TANF funds.

The description of general eligibilityrequirements consists of the Tribe’sdefinition of ‘‘eligible family,’’including income and resource limitsthat make a family ‘‘needy,’’ and theTribe’s definition of ‘‘Tribal memberfamily’’ or ‘‘Indian family.’’ Thedescription of the services andassistance to be provided includeswhether the Tribe will provide cashassistance, and what other assistanceand services will be provided.

The PRWORA discusses a variety ofspecial populations who can benefitfrom a TANF program. While the statutedoes not require a Tribal TANF programto provide specific or targeted servicesto these populations, if the Tribe opts todo so, it must include a discussion ofthose services in the TFAP. Forexample, teen parents without asecondary degree are a special targetpopulation for State TANF-relatedservices. If a Tribe wants to providespecific services to teen parents, itneeds to describe the specific services inthe plan.

We are also requiring information inthe Tribal TANF plan regarding whetherservices will be provided to familieswho are transitioning off TANFassistance due to employment. Section411(a)(5) of the Act requires Tribes toreport, on a quarterly basis, the totalamount of TANF funds expended toprovide transitional services to familiesthat have ceased to receive assistancebecause of employment, along with adescription of such services. Therefore,we believe it prudent for ACF and thepublic to know whether the Tribe’sTANF program provides transitionalservices and, if so, what types ofservices will be offered.

Questions have been raised about thepotential dual eligibility of Indians forState and Tribal TANF programs. It isthe position of the Department thatsection 417 of the Act precludes ourregulating the conduct of States in thisarea. Nonetheless, we note that the issueof the dual eligibility of Indians raisesconstitutional concerns about the denialof state citizenship rights under thefourteenth amendment. We also notethat, under section 408(c) of the Act,State TANF programs are subject to titleVI of the Civil Rights Act of 1964 andcertain other Federal non-discrimination provisions.

As TANF focuses on outcomes, webelieve a TFAP needs to identify theTribe’s goals for its TANF program andindicate how it will measure progresstowards those goals. We believe thiswill help focus efforts on achievingpositive outcomes for families. Progresscan be measured longitudinally overtime or over the short term, but should



be clearly targeted on those being servedby the Tribal TANF program. Forexample: the incidence of teenpregnancy will be reduced byapproximately X % over the three-yearperiod of the TFAP, or educationalachievement by teen parents receivingTANF assistance will experience anoverall gain of at least one grade levelover the three-year-period of the TFAP.

Sections 402(a)(4)(A) and (B) of theAct require States to certify that localgovernments and private sectororganizations have been consultedregarding the State TANF plan anddesign of welfare services and have hadat least 45 days to submit comments onthe plan. We have included similarrequirements as part of the Tribal TANFplan process. We have incorporated apublic comment period as a means ofsoliciting input into the design of theTribal TANF program and providing ameans through which Tribes may designa program which truly meets thecommunity’s needs. This publiccomment period should afford affectedparties the opportunity to review andcomment on a Tribe’s TFAP. While theAct does not specifically require Tribesto conduct a public comment periodprior to submission of the TFAP,previous experience demonstrates thevalue of such a comment period towardstailoring the program to meet theindividual circumstances of those whowill be affected by the program and itsfar-reaching impact on Tribal childrenand families. Furthermore, we discernCongressional recognition in the Act ofthe value of public comment on thecontent of TANF plans and the designof welfare services. We believe that thisis equally applicable to Tribal TANFplans.

Finally, it is important thatindividuals who apply for and/orreceive TANF are afforded due processshould the Tribe take an adverse actionagainst them. Therefore, the TFAP mustinclude an assurance that the Tribe hasdeveloped a specific TANF disputeresolution process. This process must beused when individuals or familiesdispute the Tribe’s decision to deny,reduce, suspend, sanction or terminateassistance.

Child Support EnforcementJust as the enactment of PRWORA

created opportunities for Tribes tooperate their own TANF programs, itprovided new opportunities to ensurethat Tribal families receive childsupport from responsible parents. Therelationship between TANF and childsupport enforcement programs isimportant, regardless of whether theState or Tribe operates one or both of

these programs. In addition, therelationship between self-sufficiencyand child support becomes extremelyimportant for TANF families because ofthe time-limited nature of TANFassistance.

Under PRWORA, in order to receivea TANF block grant, a State must certifythat it operates a child supportenforcement program meetingrequirements under title IV–D of theAct. A State child support enforcementprogram must provide the followingservices to TANF and former TANFrecipients and to others who apply forservices: location of parents,establishment of paternity and supportorders and enforcement of orders. Inorder to receive TANF assistance froma State, a TANF applicant or recipientmust assign any rights to support to theState and cooperate with the childsupport enforcement program inestablishing paternity and securingsupport. Collections of assigned supportare used to reduce State and Federalcosts of the TANF program.

PRWORA does not place similarrequirements on Tribes or familiesreceiving Tribal TANF assistance.Tribes are not required to certify thatthey are operating a child supportenforcement program as a condition ofreceiving a Tribal TANF grant. Nor isthere any requirement that Tribal TANFapplicants and recipients assign allrights to support as a condition ofreceipt of Tribal TANF. There are,therefore, no penalties to the Tribe forfailing to operate a child supportenforcement program nor to a TribalTANF recipient for failing to cooperatewith child support efforts. However,several Tribes with approved TribalTANF plans are requiring Tribal TANFrecipients to cooperate with childsupport efforts.

Prior to enactment of PRWORA, titleIV–D of the Act placed responsibility forthe delivery of child supportenforcement services with the States.Consequently, States have attempted toprovide child support services on Triballands but have generally beenconstrained in their abilities to establishpaternity, or establish or enforce childsupport orders with respect tononcustodial parents who reside withinthe jurisdiction of a Tribe because ofsovereignty and jurisdictional issues.Therefore, arrangements for childsupport services on Tribal lands mayinvolve a specific agreement torecognize State or county jurisdiction onTribal lands for the narrow purpose ofchild support enforcement. In suchagreements, Tribes agree to allow thechild support agency to extend Stateprogram procedures to the reservation.

Alternatively, some States and Tribeshave entered into cooperativeagreements under which a Tribal entityprovides child support services onTribal lands and receives funding fromthe State.

Under PRWORA, requirements forState/Tribal cooperative agreements, aswell as direct Federal funding of Tribesfor operating child support enforcementprograms, were addressed for the firsttime in title IV–D of the Act. Section5546 of the Balanced Budget Act of 1997made technical amendments to thecooperative agreements language insection 454(33) of the Act and to directfunding of Tribal child supportenforcement programs under section455(f) of the Act.

Issues relating to responsibilities forproviding child support enforcementservices for Tribal TANF assistancecases and distribution of supportcollections in such cases have alreadybeen raised in several States. States andTribes must work together to determinehow Tribal TANF and State childsupport programs will work best forTribal families. More than ever before,this collaboration is critical.

Since child support is a criticalcomponent of self-sufficiency for manysingle parent families, Tribes need todetermine whether they want tocondition a family’s eligibility for TribalTANF assistance on cooperation withthe State child support enforcementprogram. If the Tribe will so conditioneligibility, the TFAP should so specify.

Tribes that have entered into, or willenter into, cooperative agreements withtheir States on child support mattershave decided that child support is acritical issue for families. Likewise,Tribes that will decide, after regulationshave been issued, to operate their ownchild support enforcement programsknow the importance of child support.

Provision of ServicesAs required by section 412(b)(1)(B),

the TFAP must indicate whether thewelfare-related services provided underthis plan will be provided by the Indiantribe or through agreements, contracts orcompacts with inter-Tribal consortia,States, or other entities. The Tribedetermines which Tribal agency willhave the lead responsibility for theoverall administration of the TribalTANF program. The designated leadagency plans, directs and operates theTribal TANF Program on behalf of theTribe. While it has the flexibility tocontract many portions of the TribalTANF program with public and/orprivate entities, the lead agency mustmaintain overall administrative controlof the program. The lead agency is



required to submit and administer theTribal TANF plans, coordinate TribalTANF services with other Tribal andState programs, and collect and submitrequired data. Although not required bystatute, we are requiring at § 286.75(b)that Tribes identify the lead agency inthe TFAP because of its importance inthe overall administration of andresponsibility for the Tribal TANFprogram. The plan must also include adescription of the administrativestructure for supervision of the TribalTANF program, including thedesignated unit responsible for theprogram and its location within theTribal government.

For lead agencies that wish to enterinto agreements or contracts with otherentities, the TFAP needs to specify howthe welfare-related services will beprovided, e.g., through sub-contracts. Inthe instance of Tribal consortia, the leadagency fulfills the same responsibility asthe designated unit discussed above.

Population/Service AreaSection 412(b)(1)(C) of the Act

requires that a TFAP identify thepopulation and service area or areas tobe served by the plan. Yet the statutedefines neither of these terms.

In our consultation with Tribes onhow service area and population shouldbe defined, we heard from Tribes thatthey should be given flexibility to definetheir own Tribal TANF service area andpopulation. We have also heard that, atleast in the case of Oklahoma, we mightexpect disagreements between Tribes toarise if service area parameters were notestablished for Tribes in that State. Thisconcern was due to the fact that none ofthe Tribes in Oklahoma, except for one,have reservations. Our intent in thisFinal Rule is to balance Tribal flexibilitywith the need to afford consideration toTribes who disagree with anotherTribe’s proposed service area orpopulation.

Therefore, with regards to servicepopulation, Tribes have the flexibility todecide whether their TFAP will serveall Indian families within the servicearea or solely the enrolled members ofthe Tribe. A Tribe would convey itsdecision in the TFAP. If the TFAPprovides for services to all Indianfamilies within the service area, thenthe Tribe agrees to provide suchservices. If the TFAP provides forservices solely to families of enrolledmembers of the Tribe, then the Tribedoes not agree to provide services to thefamilies of non-enrolled Indiansresiding in the service area of the Tribe.

Regardless of the decision reached bythe Tribe in this matter, theresponsibility for TANF services to non-

Indian families in the Tribal service arearesides with the State TANF program,unless the Tribe has negotiated anagreement with the State to allow theTribe to serve non-Indian familieswithin the Tribal service area. If such anagreement has been reached, the Tribemust include a copy of the agreement orother such documentation of Stateconcurrence, such as a letter from theState, with the TFAP.

There may be various reasons whyboth a Tribe and the State would wantthe Tribe to provide TANF assistance toall needy families in its service area (forexample, there are very few non-Indianfamilies in the service area). We believethis flexibility to allow a Tribe toinclude non-Indians in its servicepopulation, with State agreement,benefits both Tribes and States.

In those instances where non-enrolledIndians or non-Indians are served by theTribal TANF Program, the Tribal TANFprogram is the final authority on theservices to be provided. The non-enrolled member’s Tribe or the State(s)cannot decide on the nature of theservices to be provided by the TribalTANF program.

With regards to service area, a TribalTANF service area could include theTribe’s reservation or just portions ofthe reservation. It could also include‘‘near reservation areas’’ meeting BIArequirements as outlined at 25 CFR20.1(r). For Tribes without land bases,the service area could include all or partof the Tribe’s service area as defined byBIA.

In the case of claimed service areasextending beyond the Tribe’s ‘‘nearreservation area’’ or BIA-defined servicearea, we are concerned about possiblecomplications resulting frommisunderstandings on the scope of theservice area. Therefore, if a Tribe claimsan alternative service area, the TFAPshould clearly define the demographicextent of such areas and include amemorandum of understanding with theappropriate State(s) agency or Tribalgovernment reflecting State(s) or Tribalagreement to the servicing of the TribalTANF service population by the TribalTANF Program in the extended area.

Likewise, for Tribes in Oklahoma, ifthe Tribe defines its service area asother than just its ‘‘tribal jurisdictionstatistical area’’ (TJSA), the Tribe mustinclude an agreement with theappropriate Tribal governmentreflecting that Tribe’s agreement to theservice area. TJSAs are areas delineatedfor each federally-recognized Tribe inOklahoma without a reservation by theCensus Bureau.

Duplicative Assistance

Section 412(b)(1)(D) indicates that anindividual receiving assistance from aTribal TANF program may not receiveassistance from another State or TribalTANF program for the same purpose.The TFAP must contain an assurancethat families receiving assistance underthe Tribal TANF plan will not receiveduplicative services under any otherState or Tribal TANF plan. The Tribemust develop a process to ensure thatduplication does not occur and mustinclude a description of that process inthe TFAP. We believe any process theTribe develops should include a mutualinformation exchange between the Tribeand State(s) and other nearby TribalTANF grantees.

Employment Opportunities

Section 412(b)(1)(E) requires thatTribes identify in their TFAPs theemployment opportunities in and nearthe service area or areas of the Indiantribe. Section 286.75(g) of the Final Rulereiterates this requirement. Theemployment opportunities within andnear the Tribal TANF service area willgreatly impact the service population’sability to obtain and maintainemployment. In designing the TribalTANF program, Tribes should considercurrent unemployment rates, public andprivate sector employmentopportunities, and education andtraining resources. These factors shouldprovide a basis for the Tribe’s proposedwork activities, work participationrequirements, penalties againstindividuals, and time limits.

Section 412(b)(1)(D) of the Act alsorequires that TFAPs identify the mannerin which the Indian tribe will cooperateand participate in enhancingemployment opportunities for TANFrecipients consistent with anyapplicable State standards. At§ 286.75(g)(2) we reiterate the statutoryrequirement that the TFAPs describehow the Tribe will enhanceemployment opportunities for theirTANF recipients. Tribes shouldconsider the best means by which theycan work with other Tribal or Stateagencies, and other private and publicsector entities on or near thereservation, to enhance employmentopportunities. These efforts may bethrough memoranda of understanding orother public-private partnerships. Theseactivities should also be consistent withany State employment standards (forexample, a State minimum wagerequirement).



Fiscal Accountability

As required by section 412(b)(1)(F) ofthe Act, the TFAP must provide anassurance that the Tribe applies thefiscal accountability provisions ofsection 5(f)(1) of the Indian Self-Determination and EducationAssistance Act (25 U.S.C. 450c(f)(1)),relating to the submission of a single-agency audit report required by chapter75 of title 31, United States Code.

Establishing Minimum WorkParticipation Requirements, TimeLimits for the Receipt of Assistance andPenalties Against Individuals

PRWORA promotes self-sufficiencyand independence while holdingindividuals to a higher standard ofpersonal responsibility for the supportof their children than prior law. Thelegislation expands the concept ofmutual responsibility, introduced underthe Family Support Act of 1988, thatincome assistance to families with able-bodied adults should be transitional andconditioned upon their efforts tobecome self-sufficient. These goals arereflected in the State TANF provisionsrequiring individuals to participate inwork activities, limiting the number ofmonths that assistance will be provided,and penalizing individuals for failure toparticipate in work activities asrequired.

Minimum work participationrequirements, time limits for the receiptof assistance and penalties againstindividuals who refuse to participate inwork activities as required are explicitlystated for the State TANF programs inthe statute. For the Tribal TANFprograms, these three components arenot specified. Instead, section 412(c) ofthe Act provides that for each TribalTANF grantee Tribal TANF minimumwork participation requirements, timelimits for the receipt of assistance, andpenalties against individuals are to beestablished by the Secretary with theparticipation of the Tribes.

The statute further specifies thatTribal TANF work participationrequirements and time limits are to beconsistent with the purposes of TANFand consistent with the economicconditions and resources available toeach Tribe. In addition, penaltiesagainst individuals are to be similar tothose found in section 407(e) of thestatute. However, the statute does notspecify a process or procedure to beused to establish minimum workparticipation requirements, appropriatetime limits for the receipt of assistance,and penalties against individuals foreach Tribal TANF grantee.

During discussions with Tribes andStates as to what process should be usedto establish these requirements for eachTribal TANF grantee, many suggestedthat we use the proposal a Tribeincludes in its Tribal TANF plan as thebasis for negotiating and establishingthese requirements. We agree that itwould be prudent to establish theserequirements as part of the TANF planprocess so that Tribes will know inadvance of accepting the TANF programgrant the requirements to which they arecommitting and for which they will beheld accountable.

Thus, we are requiring that each Tribespecify its proposal for minimum workparticipation requirements, time limitsfor the receipt of assistance, penaltiesagainst individuals who refuse toparticipate in work activities asrequired, and related policies in itsTribal TANF plan. In addition, the Tribemust include a rationale for itsproposals and related policies in theplan. The rationale should address howthe Tribe’s proposal is consistent withthe purposes of TANF and is consistentwith the economic conditions andresources available to the Tribe.

Examples of the information that wewould expect to be included to illustratethe Tribe’s proposal include, but are notlimited to: Poverty, unemployment,jobless and job surplus rates; educationlevels of adults in the service area;availability of and/or accessibility toresources (educational facilities,transportation) to help families becomeemployable and find employment; andemployment opportunities on and nearthe service area.

We will review and evaluate a Tribe’sproposal for these components as part ofthe review and approval process for theentire plan. Additional information ordiscussion about a Tribe’s proposal maybe necessary before we approve theplan.

Minimum work participationrequirements are further detailed at§§ 286.80–110 of the Final Rule. TheFinal Rule at §§ 286.115–130 containsadditional information on time limits.Information on penalties againstindividuals is outlined at §§ 286.135–150.

Comments: We received a number ofcomments regarding the definition of‘‘service population.’’ One commenterconcurred that a Tribe should define itsown service area and servicepopulation. Another commenter askedthat the TFAP include information onhow other entities would serve groupsexcluded from the definition of ‘‘servicepopulation.’’ Yet another commenterindicated that a Tribe should bemandated to provide services to all

individuals living within its boundariesand precluded from consideringenrolled members who are located near-reservation.

Response: Section 412(b)(1)(C) of theAct requires a Tribe to identify theservice area or areas to be served by theTFAP, yet does not define the term. Thepreamble of the proposed rule includeda lengthy discussion on our intent andexpectations in this area, and we haverestated that discussion above. Webelieve that all comments have alreadybeen answered.

Comment: One commenter asked thatthe final regulations encourage a mutualeffort between the state and the Tribe asthe Tribe defines its service area.

Response: For welfare reform tosucceed in Indian country, Tribes andStates need to work together inaddressing various issues. Throughoutthis rule we encourage coordination andcooperation between Tribes and States,as well as between Tribes.

Section 286.80 (Section 286.70 in theNPRM) What Information onMinimum Work ParticipationRequirements Must a Tribe Include inIts Tribal Family Assistance Plan?

Background

As Tribes focus on assisting adults inobtaining work and earning paychecksquickly, parents receiving assistancefrom a Tribal TANF program are alsoexpected to meet new and morestringent work requirements.

Section 401(a)(2) of the Act states thatone of the purposes of TANF is topromote job preparation and work tohelp needy families become self-sufficient. The statute, at section 407,provides specific individual workparticipation requirements andparticipation rate goals to ensure thispurpose is carried out under StateTANF programs. For State TANFprograms, work participationrequirements encompass (1) theproportion of TANF familiesparticipating in the activities(participation rate targets); (2) theactivity level to be required of families,e.g., average number of hours of workper week; (3) the activities that familiesmust be engaged in, e.g., subsidizedemployment, vocational training, etc.;and (4) exemptions, limitations andspecial rules related to workrequirements.

In providing flexibility in establishingwork participation requirements,Congress recognized that Tribaleconomies and resources will vary andaffect a Tribal TANF family’s andprogram’s ability to meet the workrequirements imposed upon State TANF



recipients and State TANF programs.Since the statutory language requiresthat the work requirements take intoconsideration the economic conditionsand resources available to each Tribe,we cannot establish across-the-boardminimum work requirements thatwould be applied to all Tribes.Additionally, written and verbalfeedback from Tribes indicatedoverwhelming support for negotiatingon a case-by-case basis with eachindividual Tribe (as opposed toapplying an across-the-board minimum)that will reflect the differences amongTribal economies and resources.

In order to have the informationneeded to establish minimum workparticipation requirements for eachTribal grantee, we specify at § 286.80that each Tribe specify in its TFAP: (1)The targeted participation rates for eachof the fiscal years covered by the plan;(2) the minimum number of hoursfamilies will be required to participatein work activities for each of the fiscalyears covered by the plan; (3) the workactivities that count towards the workrequirement; (4) any limitations andspecial rules related to workrequirements; and (5) the rationale forthe Tribe’s proposed work requirements,including how they are consistent withthe purposes of TANF and with theeconomic conditions and resourcesavailable to the Tribe.

Considering that many Tribal familiesreside in remote areas and lack ofadequate transportation is a majorconcern, the final regulation at§ 286.80(b)(2)(i) allows a Tribe toinclude reasonable transportation timeto and from the activity site indetermining the number of hours ofparticipation. Counting transportationtime may be indicative of the economicconditions and resources available to aTribe, and transportation is an economicresource.

Therefore, if a Tribe proposes to countreasonable transportation time towardsthe minimum number of hoursindividuals participate, the Tribe’sTFAP will need to so specify. TheTribe’s definition of ‘‘reasonable’’ wouldalso have to be included in the plan.However, we would also expect Tribesproposing to include reasonabletransportation time in determining thenumber of hours of work participation,to demonstrate that their overallproposal for number of hours isconsistent with the purposes of TANF.

As discussed above, the Tribe’srationale for its proposed workparticipation requirements couldinclude, but is not limited to: Poverty,unemployment, jobless and job surplusrates; education levels of adults in the

service area; availability and/oraccessibility to resources (educationalfacilities, transportation) to helpfamilies become employable and findemployment; and employmentopportunities on and near the servicearea.

As noted above, any Tribe proposingto include reasonable transportationtime as part of its proposal on minimumhours of participation will also have toinclude a rationale for this decision.

Comments: Several commenterssupport the overall flexibility affordedTribes in defining work and negotiatingparticipation rates proposed in § 286.70of the NPRM. They indicate that theprovisions of the section appearreasonable. They also support providingthe Tribes the opportunity to reviserates in subsequent years.

However, one commenter, inaddressing this section, suggested thatthe work participation rates should becapped at 15 percent.

Response: The statute at Section412(c) provides that work participationrates shall be established consistentwith the purposes of the Act, consistentwith the economic conditions andresources available to each Tribe, and ina manner similar to comparableprovisions in Section 407(e). Thisclearly provides for a negotiated rateand not for any type of general cap.

Comment: One commenter suggeststhat in § 286.70(a) of the NPRM thewords ‘‘negotiate with us’’ be removedand replaced with ‘‘provide ACF’’.

Response: The statute at section 412provides that ‘‘The Secretary, with theparticipation of the Indian tribes, shallestablish for each Indian tribe * * *minimum work requirements. * * *This clearly provides for a negotiationprocess.

Comments: Several commentersstrongly endorsed the provisions of§ 286.70(b)(1) as proposed in the NPRM,which allows the Tribes the option toestablish different participation rates,i.e. one for all families, a rate for allfamilies and two-parent families, or twoseparate rates for one-parent and two-parent families.

Several commenters agreed with§ 286.70(b)(2)(i) as proposed, whichallows ‘‘reasonable’’ transportation timeto be counted toward determining thehours of work participation andencourage its retention. However, onecommenter objected to the Tribeshaving to explain how counting thistime is consistent with the purposes ofTANF.

Response: We agree with thedesirability of retaining this provision.However, just as a basic rationale isrequired to explain or ‘‘justify’’ work

requirements and participation rates ona plan by plan basis, so too should abasic rationale be provided to establishthe ‘‘reasonableness’’ of the allowance,and to explain how it contributes to theneeds of the Tribe and is thereforeconsistent with the purposes of TANF.

Comments: Several commenterspointed out that there is no reason orjustification for the requirement foundin § 286.70(b)(5) of the proposed rule,that if a Tribe’s TFAP differs from thatrequired of the State for participationrates and work activities, it must bejustified in comparison to the Staterequirements. Commenters point outthat while justification for participationrates and work activities is necessaryand proper, it should be based on tribalcriteria and established needs, and notbe measured against or compared withthe State’s.

Response: We agree. We have revisedthe first paragraph of § 286.80(b)(5)accordingly.

(Section 286.75 in the NPRM) WhatAdditional Information on MinimumWork Participation Rates Must BeIncluded in a Tribal Family AssistancePlan? (Deleted)

Upon review of the proposed rule, wedetermined that this section wasunnecessary, as it repeated informationfound in other sections as well. Wetherefore removed it from the FinalRule, and renumbered the ruleaccordingly.

Section 286.85 (Section 286.80 in theNPRM) How Will We Calculate theWork Participation Rates?

Commenters addressing this sectionagreed with its provisions as writtenand endorsed their retention.

Similar to the calculations for Stateparticipation rates, the final regulationsat § 286.85 indicate that the yearlyparticipation rate will be the average ofthe monthly participation rates.Monthly rates, for each rate approved inthe Tribe’s TANF plan, will bedetermined by a ratio with thenumerator and denominator defined asfollows:

Numerator: The number of familieswith an adult or minor head-of-household receiving TANF assistancefrom the Tribe engaged in workactivities as defined in the Tribe’sapproved TANF plan for the requirednumber of hours.

Denominator: The number of familieswith an adult or minor head-of-household receiving TANF assistancefrom the Tribe.

This calculation will be appropriatelymodified depending upon whether theTribe chooses to target (1) an all-family



rate, (2) an all-family rate and a two-parent rate, or (3) a one-parent rate anda two-parent rate.

We have also made it clear in thisFinal Rule that a Tribe may count as amonth of participation any partialmonths of assistance, if an adult in thefamily is engaged in work activities forthe minimum average number of hoursin each full week that the familyreceives assistance in that month. Thesefamilies are already included in thedenominator since they are recipients ofassistance in that month.

Exclusions From Work ParticipationRate Calculations

The PRWORA does not specifyexclusions from the participation ratecalculations for Tribal TANF programs.However, consistent with the flexibilityprovided State TANF programs, in§ 286.85(c)(2) we allow Tribes toexclude from the total number of TANFfamilies (the denominator): (1) Thosefamilies who have a child under the ageof one if the Tribe opts to exempt thesefamilies from participating in activities(and so specified in the Tribe’s TANFplan); and (2) on a limited basis, thosefamilies who are sanctioned for non-compliance.

The statute at section407(b)(1)(B)(i)(II) precludes States fromexcluding families sanctioned for non-compliance with the work participationrequirements from the denominator ifthe families have been sanctioned formore than three months out of a twelve-month period. We considered whetherto apply the same restriction to TribalTANF work participation ratecalculations. We were concerned that ifwe did not apply the same restrictionand allowed Tribes to excludesanctioned families indefinitely, thenwe would be inadvertently encouragingTribes to discontinue their efforts inbringing those families into complianceand working towards self-sufficiency.Therefore, we decided at§ 286.85(c)(2)(i) that families sanctionedfor non-compliance with the workparticipation requirements are to beexcluded from the denominator only ifthey have not been sanctioned for morethan three months (whether or notconsecutively) out of the last twelvemonths.

The final regulations do not providefor any other exclusions in calculatingthe Tribal TANF participation rate.

We considered whether we shouldnegotiate exclusions from the workparticipation rate calculations on a case-by-case basis with each individualTribe. We rejected this approachbecause we believe a uniform methodfor calculating Tribal TANF work

participation rates will help ensure thatpenalties are applied equitably acrossTribes administering a TANF program.Additionally, since the rates themselveswill be negotiated with each individualTribe, such negotiations will alreadytake into account unique circumstanceswhich may make it difficult for certainfamilies to participate in work activities.

Two-Parent Families

Section 407(b)(2) of the Act, asamended by the Balanced Budget Act of1997, requires a State to not consider asa two-parent family a family in whichone of the parents is disabled forpurposes of the work participation rate.Thus, a two-parent family in which oneof the parents is disabled will be treatedas a single-parent family for purposes ofcalculating the work participation rate.In § 286.85(e) this provision is madeapplicable to Tribal TANF programs aswell.

Section 286.90 (Section 286.85 in theNPRM) How Many Hours Per WeekMust an Adult or Minor Head-of-Household Participate in Work-RelatedActivities To Count in the Numerator ofthe Work Participation Rate?, and

Section 286.95 (Section 286.90 in theNPRM) What, if Any, Are the SpecialRules Concerning Counting Work forTwo-Parent Families?

For Tribal TANF programs the statutedoes not specify the minimum numberof hours individuals must participate inorder to be counted for participationrate calculations. The Act gives us theauthority to negotiate theserequirements with Tribes. The finalregulation at § 286.95 indicates that theminimum average number of hours perweek for State TANF familiespresumptuously applies to Tribal TANFfamilies as well. However, unlike theState requirements, we have providedTribes the opportunity to rebut thispresumption. Tribes will be permittedto establish fewer minimally requiredhours for families if a Tribe providesappropriate justification in its TANFplan. For example, the availability andaccessibility of resources may notenable Tribal individuals to participateat the minimum number of hours perweek required of State TANF recipients.

Section 407(c)(2)(B) of the Act enablesStates to consider as engaged in work acustodial parent or caretaker relativewith a child under age 6, who is theonly parent or caretaker relative in thefamily, if s(he) participates for anaverage of 20 hours per week. We haveextended this provision to Tribal TANFprograms.

The Balanced Budget Act of 1997amended section 407(c)(1)(B)(i) of theAct to allow both parents in a two-parent family to share the number ofhours required to be considered asengaged in work for purposes of meetingState TANF work requirements. Thefinal regulation at § 286.95 indicatesthat Tribal TANF programs will also beable to apply this policy.

Comments: Several commenterspointed out that (as indicated in theproposed rule) § 286.85, or at least§ 286.85(a), appeared to be in conflictwith proposed § 286.80 and § 286.90.They pointed out that § 286.80 allowedfor a Tribe to establish minimum workparticipation rates for all cases, while§ 286.90 provided only that an adult orminor caretaker must participate inwork activities for at least the minimumaverage number of hours per weekspecified in the Tribe’s approved TFAG.On the other hand, § 286.90(a)established a mandatory 20 hours perweek minimum for a single custodialparent or caretaker relative with a childunder six years of age. Additionally,§ 286.90(b) provided that in a two-parent family the number of work hoursrequired could be shared. Commenterssuggested that § 286.90 should bedeleted in its entirety.

Response: We agree there was aconflict between what is now§ 286.95(a) and §§ 286.70 and 286.80,and that § 286.95(a) should be deleted.The Tribe should be allowed to setminimum work requirements forparents or caretakers of children undersix as part of their general establishmentof work requirements in its TFAG.However, we have determined thatpermitting two-parent families to sharehours encourages and supports themaintenance of such families.Therefore, § 286.95 is justified undersection 401 of the Act.

Section 286.100 (Section 286.95 in theNPRM) What Activities Count Towardsthe Work Participation Rates?

Comments: Commenters supportedthe flexibility this section allowed theTribes in identifying work activities.

PRWORA does not specify the workactivities required of Tribal TANFrecipients but instead authorizes theestablishment of minimum workparticipation requirements, whichinclude work activities, for each Tribalgrantee. The overwhelming feedback wereceived in discussions with Tribessuggested that the work activitiesidentified for States in the statute beconsidered activities that count towarda Tribal TANF participation rate withtwo caveats: (1) That they not be limitedto those activities; and (2) that they not



be further defined in the regulations.Therefore, at § 286.100 we listed thesame activities found at section 407(b)of the Act. In addition, we are providingTribes further flexibility to identifyadditional activities that they wouldconsider acceptable and necessary inhelping families work towards self-sufficiency. For example, a Tribe mayidentify subsistence activities orsubstance abuse treatment as activitiesthe Tribe believes necessary to helpfamilies achieve self-sufficiency.

Furthermore, since we are notdefining the work activities in the finalregulations for States, but are insteadasking States to define them, we feel itis appropriate to afford Tribes the samedefinition flexibility.

Section 286.105 (Section 286.100 in theNPRM) What Limitations ConcerningVocational Education, Job Search andJob Readiness Assistance Exist withRespect to the Work Participation Rate?

Tribal TANF work activities shouldnot be subject to the same restrictionson vocational training as are placed onState TANF programs by statute (i.e.,not be limited to 12 months). BecauseTribal families may have minimal workskills and experience, and Tribal workopportunities may be much morelimited, Tribes should have theflexibility to engage Tribal families inmore extensive training. Therefore, thefinal regulation at § 286.105(a) does notimpose the same limitation that isimposed upon States.

However, with respect to the jobsearch/job readiness limitation requiredof State TANF programs, we believe thatTribal TANF families should also notsimply be asked to job search orparticipate in job readiness activities astheir sole activity for lengthy periods oftime. Therefore, the Final Rule at§ 286.105(b) is similar to the provisionfound at section 407(c)(2)(A)(i) of theAct that limits to six weeks in a fiscalyear the length of time that a State canconsider participation in job search/jobreadiness in a fiscal year by anyindividual to be considered engaged inwork.

We are also affording Tribes theoption afforded to States that if theunemployment rate in a Tribal TANFservice area is at least 50 percent greaterthan the United States’ totalunemployment rate for the fiscal year,then job search and job readinessassistance can be counted for up totwelve weeks during that fiscal year.

However, unlike for State TANFprograms, we indicate at § 286.105(c)that if job search is conducted on anancillary basis as part of anotheractivity, then time spent in job search

activities can count without limitation.We believe that as long as a family isengaging in activities in addition to jobsearching, then including hours spent injob search as part of their other activitiesis consistent with the intent of the law,to help families reach their goal ofachieving self-sufficiency as soon aspossible.

Comments: Several commentersstrongly supported the provisions of thissection. Three commenters objected tothe limitation in proposed§ 286.100(b)(1) on job search and jobreadiness activities, arguing that thissection was not supported by section412 of the Act. They suggested that thesix week limitation on job search andjob readiness activities should bedeleted and that any limitations shouldbe negotiated by the Tribes.

Response: Given that all TANFassistance is time-limited and the factthat the statute specifically limits theamount of time that job search and jobreadiness may be counted as workactivities under State programs, wedetermined that permitting Tribes tonegotiate limitations on job search andjob readiness on a case-by-case basiscould not be justified under the statute.Therefore, we have not changed thelanguage in this section.

Section 286.110 (Section 286.105 in theNPRM) What Safeguards Are There ToEnsure That Participants in TribalTANF Work Activities Do Not DisplaceOther Workers?

Section 407(f)(2) of the Act containstwo safeguards to ensure that in helpingwelfare recipients become self-sufficient, we do not jeopardize theeconomic well-being of non-TANFfamilies through displacement. First, arecipient may not be assigned to avacant position if the employer hasplaced other individuals on layoff fromthe same or equivalent job. Second, anemployer may not terminate theemployment of any regular employee inorder to create a vacancy for theemployment of a TANF recipient. Webelieve these safeguards provideimportant protection for all workers andneed to be in place under both Tribaland State TANF programs. Furthermore,we do not intend for these provisions topreempt or supersede any Tribal lawsproviding greater protection foremployees.

Time LimitsIn addition to promoting self-

sufficiency and independence throughemployment, PRWORA stresses thetemporary nature of welfare and limitsthe number of months that assistancecan be provided with TANF funds.

PRWORA provides a 60-month (or less,at State option) time limit for the receiptof TANF assistance under State TANFprograms. The time limit provisionsinclude not only the length of time thatassistance can be provided, but alsowhat months of assistance will counttoward the time limit and whether anycategories of recipients are exempt fromthe time limit rules. We have theauthority, under section 412(c) of theAct, to establish for each Tribe, with theparticipation of the Tribe, appropriatetime limits for receipt of assistance.Once established for each Tribe, theTribe may not use its TFAG to provideassistance to a family that includes anadult beyond the established time limit.

Section 412(c)(2) of the statute furtherprovides that the time limits establishedfor Tribal TANF programs must beconsistent with the purposes of TANFand consistent with the economicconditions and resources available toeach Tribe. This principle has beenechoed in our on-going consultationwith Tribes and Tribal organizations.The comments we have receivedstrongly suggest that the Tribal TANFtime limits should reflect the uniquecircumstances of each service area andservice population.

Comments: Several commentersobjected to proposed § 286.105, whichrequires safeguards to ensure thatparticipants in tribal TANF workactivities do not displace other workers.Their objections were based on thepremise that these provisions sought toimpose a rule on Tribes that the Act, atsection 407(f)(2), applies only to thestates. They further argued that, asproposed in § 286.105(2)(b), it wouldimpose on the Tribes requirements forinternal grievance procedures, in directviolation of their sovereignty. Theyargue that while the Tribes should havethe option to adopt such rules on avoluntary basis and that while theyprobably would do so, they should notbe imposed on them as mandatoryrequirements. On this basis, theyrecommended that this section bedeleted entirely.

Response: The requirement that eachTribal TANF program createnondisplacement procedures reflectsour concern about the possibility thatplacement of Tribal TANF recipients atwork sites could displace other workersfrom their jobs. When workers aredisplaced by Tribal TANF recipients,there is the danger that the displacedworkers may be forced to become thenext generation of TANF recipients,which would be contrary to thepurposes of the TANF program. Inaddition, this requirement is consistentwith section 412 (a)(3)(B) of the Act that



applies to Tribal Welfare-to-Workprograms and that incorporate anondisplacement requirement. Through§ 286.110, we want to encourage Tribesto exercise due care as they promotework and implement new jobdevelopment, placement, and referralactivities in a manner that is consistentwith the proper use of TANF funds andthat does not unintentionally frustratethe goals of the TANF program. Section286.110(2)(b) merely requires thatTribes establish and maintain internalgrievance procedures to resolvecomplaints that workers have beendisplaced. We agree that it is anessential exercise of tribal sovereigntyfor Tribes to determine for themselvesthe substance of these grievanceprocedures and to take whatever actionthe Tribe deems appropriate to resolvecomplaints concerning displacementunder those procedures.

Section 286.115 (Section 286.110 in theNPRM) What Information on TimeLimits for the Receipt of AssistanceMust a Tribe Include in Its TribalFamily Assistance Plan?

As part of its plan, a Tribe willpropose a time limit for receipt of TribalTANF assistance that will apply to itsservice population and provide arationale for its proposal. By ‘‘timelimit,’’ we mean the maximum numberof months (whether or not consecutive)that federally funded assistance will beprovided to a Tribal TANF family thatincludes an adult. The proposed timelimit should reflect the intent ofCongress that welfare should betemporary and not a way of life. Theproposal should also take intoconsideration those factors that mayimpact on the length of time that aTANF family might be expected to needin order to find employment andbecome self-sufficient.

To allow for maximum flexibility, weare not requiring that the same timelimit apply throughout the Tribal TANFservice area. A Tribe should have theoption to decide that because economicconditions and the availability andaccessibility of services vary, it isappropriate to establish different timelimits by geographic area. For example,a Tribe could choose to establish ashorter time limit for a part of theservice area that has many employmentopportunities than for another part ofthe service area with highunemployment.

If the Tribe proposes to provideassistance for longer than 60 months, itshould explain how that time limit wasdetermined and provide a rationale forits determination. As mentioned earlier,examples of the information that we

would expect to be included to illustratethe Tribe’s proposal include, but are notlimited to: Poverty, unemployment,jobless and job surplus rates; educationlevels of adults in the service area;availability of and/or accessibility toresources (educational facilities,transportation) to help families becomeemployable and find employment; andemployment opportunities on and nearthe service area.

As part of the negotiation process, wemay ask for additional information and/or further discussion before theproposed time limits are approved. Thiswould ensure that all factors areconsidered in establishing appropriatetime limits for a Tribal TANF program.

Determining if the Time Limit Has BeenExceeded

Section 408(a)(7) of the Act providesthat States may not use Federal funds toprovide assistance to a family thatincludes an adult who has receivedassistance for more than five years. Inother words, if a family does not includeany adults who are receiving assistance(i.e., only the children receiveassistance), then the time limit does notapply. We have made the Tribal TANFrequirements consistent with the Staterequirements in this area. The intent ofCongress is that families should achieveself-sufficiency through employment. Itdoes not seem reasonable to apply thetime limit requirement to cases whereonly children are receiving assistance,and employment is not an option.

Section 408(a)(7)(B) of the Actrequires States to disregard certainmonths of assistance in determining ifthe 60-month time limit has beenexceeded. Specifically, State TANFprograms do not count any monthduring which a minor who was not headof the household or married to the headof the household received assistance.For the reasons explained below, wepropose to apply this disregardprovision to Tribes.

The decision as to whether a familyhas met the time limit is based on howlong the adults have received assistance.Therefore, it does not seem reasonableto include months when an individualreceived assistance as a minor.However, Tribes, like States, wouldcount months when a minor receivedassistance as the head of a household oras the spouse of the head of thehousehold. The reason is that minorheads of households and minors whoare married to heads of household aregenerally treated as adults in terms ofother program requirements under theAct.

Section 407(a)(7)(D) of the Act, asamended by the Balanced Budget Act of

1997, requires that Tribes and Statesdisregard as a month of assistance anymonth during which an adult lived inIndian country or an Alaskan Nativevillage in which at least 50 percent ofthe adults were not employed. Todetermine whether 50 percent of theadults were not employed, the statuteallows the use of any reliable data withrespect to the month. This would allowthe use of the Labor Force Report, whichis issued every two years by the Bureauof Indian Affairs, Department of LaborUnemployment Data, or any otherreliable data source or combination ofdata sources.

Comments: Several comments werereceived supporting maximumflexibility for Tribes in accommodatingthe unique characteristics of theirservice populations.

Comments were also received notingthat, while the regulations provide fortime limits to be negotiated by Tribesbeyond the 60-month limit imposed onstates by statute, ‘‘* * * no clearguidance has been provided on the typeof information that will be considered inapproving extended time limits,’’ andsuggesting that factors that would beconsidered be enumerated in the FinalRule.

Response: Section 286.115(b)(1) doesprovide examples of the types ofinformation that will be considered.However, this list is not intended to beexhaustive. In acknowledgment of thedifferences of geographical, social, andeconomical conditions affecting eachTribe, each Tribe must have theopportunity to justify its proposed timelimit based on its unique needs, andwhere appropriate, even to justifydifferent time limits for differentgeographic areas based on specialconditions.

Comment: Comments were receivedsupporting the flexibility provided inproposed § 286.110(d)(2) which allowedTribes a very wide range in the data thatcould be used to establish and supportthe invocation of the ‘‘50 percent notemployed exception.’’ However, thesecommenters also suggested that, ‘‘(i)fTribes are expected and required tocollect and collate this data, adequateresources for comprehensive datacollection should be made available.’’

Response: While we do not disagreeon the need for adequate resources, thestatute makes no provision for fundingto Tribes for data collection.

Comment: With regard to proposed§ 286.110(e), one commenter suggestedthat additional language should beinserted at the beginning of this sectionmaking more specific reference toproposed §§ 286.110(a)(2) and (3);§ 286.110(d); and § 286.115 as



exceptions to the requirement to countprevious assistance received toward thetotal lifetime restriction.

Response: We believe the language in§§ 286.115(a) and 286.120 is sufficientand that additional language would beredundant and unnecessary.

Comment: One commenterrecommended including the definitionof ‘‘adult’’ for the purposes of the 50percent unemployment disregard.

Response: There is no qualifier in thestatute, so we have chosen not to furtherdefine this term in the regulation.

Section 286.120 (Section 286.115 in theNPRM) Can Tribes Make Exceptions tothe Established Time Limit for Families?

For State TANF programs, section408(a)(7)(C) of the Act allows for twohardship exceptions from the 60-monthtime limit: (1) Families that meet theState’s definition of ‘‘hardship’’; and (2)families that include an individual whohas been battered or subjected toextreme cruelty. A State may exempt nomore than 20 percent of its averagemonthly caseload under theseexceptions.

Section 412(c) of the Act does notmention a similar exception for TribalTANF programs. However, because thetime limit provisions include not onlyhow long a family may receive TribalTANF benefits, but also who is subjectto the time limits, it is reasonable thatTribes should have the option toprovide for similar exceptions fromtheir established time limits. The finalregulations provide that we willnegotiate the maximum percentage ofcases in the Tribe’s caseload which maybe exempted from the established timelimits.

Comment: One commenterrecommended the addition of languagein proposed § 286.115 for exemptionfrom the time limit to be made for‘‘(f)amilies who are determined by theTribe to be directly impacted by adeclared economic disaster in their area* * *.’’

Response: Section 286.120(a)(1)provides that exemptions may beprovided for ‘‘hardship, as defined bythe Tribe * * *.’’ This allows for theTribe to make provision for such anexemption in their plan if it chooses todo so.

Comment: One commenter suggestedthat due to the nature of domesticviolence and the resulting length of timeoften needed to assist a victim inbecoming job ready, Tribes shoulddefine exceptions on an individualbasis.

Response: This section provides nostandard for the length of exemptions.Each Tribe may define these based on

its client and program needs if itchooses to do so.

Section 286.125 (Section 286.120 in theNPRM) Does the Receipt of TANFBenefits Under a State or Other TribalTANF Program Count Towards a Tribe’sTANF Time Limit?

Under section 408(a)(7) of the Act, aState must consider receipt of TANFbenefits under other State programs indetermining if the 60-month time limithas been exceeded. Although section412 of the Act does not include a similarrequirement for Tribal TANF programs,we believe that prior receipt of TANFmust also be counted by Tribes whendetermining if the time limit has beenexceeded. We do not believe the intentof Congress was otherwise. Thus, aTribe must count towards an adult’stime limit all prior months of TANFassistance funded with TANF blockgrant funds, except for any month thatwas exempt or disregarded by statute orregulation.

As stated earlier, the PRWORApromotes self-sufficiency andindependence by providing people withmore work opportunities while holdingindividuals to a higher standard ofpersonal responsibility for the supportof their children. The legislationexpands the concept of mutualresponsibility, introduced under theFamily Support Act of 1988, thatincome assistance to families with able-bodied adults should be transitional andconditioned upon their efforts tobecome self-sufficient. As Tribes focuson helping adults get work and earnpaychecks quickly, parents are alsoexpected to meet new, tougher workrequirements. We will expect Tribes toensure that parents understand what isrequired of them, and to developproposals for penalties againstindividuals that reflect the importanceof those requirements.

Comments: Commenters pointed tothe difficulty in complying with therequirements of proposed § 286.120 thata participant’s prior months of TANFassistance received outside of their ownprogram must be counted toward theindividual’s total eligibilitydetermination. The difficulty is basedon the lack of reliable informationexchange systems between Tribes andbetween Tribes and states or other localgovernments administering TANF. Itwas suggested that language be addedrelieving the Tribe of this need tocomply if information is not available or‘‘* * * where compliance is notrequired under an approved tribalTANF plan.’’

Response: While we recognize thedifficulty for Tribes in determining prior

receipt of TANF assistance, we believethat Congress was clear that TANFassistance must be time-limited.Therefore, it is necessary to documentall assistance provided to an individualregardless of source.

We also recognize that if theinformation necessary to determinelength of assistance from other sources,i.e. a state or another Tribe, cannot beaccessed or if an individual commitsfraud at the time of enrollment inidentifying prior assistance, the Tribecannot be held responsible. However,TFAPs do include provisions forrecourse against individuals ininstances of misrepresentation andfraud.

Section 286.130 Does the Receipt ofWelfare-to-Work (WtW) Cash AssistanceCount Towards a Tribe’s Time Limit?(New Section)

Comment: A couple of commenterssuggested that we address the impact ofWtW cash assistance on the time limitfor receipt of Tribal TANF assistance.We believe that discussion of this issueis especially important in light ofamendments to the Act dealing withWtW assistance which were enactedsubsequent to publication of the TribalTANF NPRM.

Response: This is a new section in theFinal Rule. Here we have clarified thecircumstances under which benefitsreceived by a family under WtW countagainst the time limit for receipt ofTANF assistance. We do not believe thatthe statute permits a broad exclusion ofWtW cash assistance from the definitionof assistance applicable to Tribal TANFoperations. Section 408(a)(7)(G) of theAct provides that ‘‘noncash [WtW]assistance’’ shall not be consideredassistance for purposes of the TANFprogram time limit. This specific andlimited exclusion strongly suggests thatcash WtW assistance should generallybe considered assistance. If a WtWbenefit falls within the definition ofassistance at § 286.130, it must counttoward the TANF time limit.

In defining ‘‘WtW cash assistance,’’ (i.e.,what counts towards the time limit forreceipt of TANF assistance), we startedwith the presumption that to beconsidered ‘‘WtW cash assistance’’ abenefit must fall within the generaldefinition of assistance at § 286.10.Therefore, services, work supports, andnonrecurring, short-term benefits thatare excluded from the definition ofassistance at § 286.10(b) may not be‘‘WtW cash assistance.’’ Also excludedare supportive services for nonworkingfamilies. Although these may be thoughtof as assistance, these benefits areservices designed to meet specific



nonbasic needs and should not becharacterized like cash.

‘‘WtW cash assistance’’ includesassistance designed to meet a family’songoing, basic needs. It also includessuch benefits as cash assistance to thefamily, even when provided toparticipants in community service orwork experience (or other workactivities) and conditioned on work.Conference Report (H.Rpt. 105–217)specifically mentions ‘‘wage subsidies’’as an example of ‘‘WtW cashassistance.’’

We want to make it clear that thedefinition of ‘‘WtW cash assistance’’ inno way limits the types of WtW benefitsfor which families that have exhaustedreceipt of TANF assistance are eligibleor may receive. States, Tribes, and localagencies may provide cash and noncashWtW assistance and other benefits tosuch families beyond the TANF-relatedtime limit on assistance.

Section 286.135 (Section 286.125 in theNPRM) What Information on PenaltiesAgainst Individuals Must Be Included ina Tribal Family Assistance Plan?;

Section 286.140 What SpecialProvisions Apply to Victims of DomesticViolence? (New Section);

Section 286.145 (Section 286.130 in theNPRM) What Is the Penalty if anIndividual Refuses to Engage in WorkActivities?; and

Section 286.150 (Section 286.135 in theNPRM) Can a Family, With a ChildUnder Age 6, Be Penalized Because aParent Refuses To Work Because (S)HeCannot Find Child Care?

Similar to our handling of these threesections in the NPRM, this Final Rulecombines the discussions of thesebecause of the inter-relationship amongthem.

As mentioned above, section 412(c) ofthe Act gives flexibility to establishpenalties against individuals, andrelated policies, for each Tribal TANFgrantee. Section 412(c)(3) specifies thatpenalties against individuals establishedfor each Tribal TANF grantee must besimilar to comparable provisions insection 407(e). However, the statutedoes not specify a process or procedureto accomplish this.

As discussed earlier, we will use theTribal TANF plan process to establishthe requirements related to penaltiesagainst individuals and related policiesthat will become a part of the TribalTANF program. In addition, the Tribemust include a rationale for its proposaland related policies in the plan. Therationale needs to address how theTribe’s proposal is: consistent with thepurposes of section 412 of the Act;

consistent with the economic conditionsand resources available to the Tribe; andsimilar to the requirements applicable toStates as specified at section 407(e) ofthe Act.

States are required to reduce theamount of assistance otherwise payableto the family pro rata (or more at Stateoption) for the period during the monthin which the individual refused toengage in work as required, subject togood cause and other exceptionsdetermined by the State. The States alsoare given, by the statute at section407(e)(1)(B), the option to terminate thecase.

In addition, a State may establish,pursuant to section 407(e)(1) of the Act,good cause exceptions to penalties forfailure to engage in work as required.We believe that Tribes must also be ableto establish reasonable good causeexceptions because penalties againstindividuals established for each TribalTANF grantee must be comparable tothose specified at section 407(e). ATribe must include a rationale for itsgood cause exceptions. The rationaleshould address how the good causeexceptions are reasonable and how theyrelate to the goals of the Tribe’s TANFprogram.

As specified in the statute at section407(e)(2), a State may not reduce orterminate assistance to a singlecustodial parent caring for a child underage six for refusing to engage in work asrequired, if the parent demonstrates aninability (as determined by the State) toobtain needed child care. The parent’sdemonstrated inability must be for oneof the following reasons:

• Appropriate child care within areasonable distance from theindividual’s home or work site isunavailable;

• Informal child care by a relative orunder other arrangements is unavailableor unsuitable; or

• Appropriate and affordable formalchild care arrangements are unavailable.

We believe a comparable provisionshould apply to Tribal TANF programsas the lack of child care may be evenmore acute on remote Indianreservations.

Refusal to work when the Tribedetermines an acceptable form of childcare is available is not protected fromsanctioning.

Because each Tribe has the authorityto determine whether the individual hasadequately demonstrated an inability toobtain needed child care, we expect theTribe to define the terms ‘‘appropriatechild care,’’ ‘‘reasonable distance,’’‘‘unsuitability of informal care,’’ and‘‘affordable child care arrangements.’’The Tribe must also provide families

with the criteria (including thedefinitions) that it applies inimplementing the exception and themeans by which a parent candemonstrate an inability to obtainneeded child care.

To keep families moving toward self-sufficiency and to promote Tribalcompliance with this penalty exception,our rules provide that Tribes must haveprocedures in place that: (1) Enable afamily to demonstrate its inability toobtain needed child care; (2) informparents that the family’s benefits cannotbe reduced or terminated when theydemonstrate that they are unable towork due to the lack of needed childcare for a child under the age of six; and(3) advise parents that the time duringwhich they are excepted from thepenalty will still count toward the timelimit on Federal benefits at section408(a)(7) of the Act, if applicable.

The regulations for the Child Care andDevelopment Fund (CCDF) reinforce theimportance of providing this vitalinformation to parents by also requiringthe child care lead agency, as part of itsconsumer education efforts, to informTANF parents seeking child care in theCCDF system of the existence of thechild care exception and how todemonstrate an inability to obtainneeded child care. Further, the CCDFrule requires the lead agency for childcare to coordinate with the TANFagency in order to understand how theTANF agency defines and applies theterms of the statute regarding thepenalty exception and to include thedefinitions of any appropriate terms orcriteria in the CCDF plan.

Under section 402(a)(7) of the ActStates may opt to establish and enforcestandards and procedures foridentifying and helping victims ofdomestic violence. If the State haschosen to establish these standards, itmay waive certain programrequirements, including workrequirements, in cases wherecompliance would make it moredifficult for an individual receivingassistance to escape domestic violenceor would unfairly penalize victims orindividuals who are at risk of furtherviolence. The State must determine thatthe individual receiving the programwaiver has good cause for failing tocomply with the requirements. Tribesmay also wish to consider whether toestablish their own standards andprocedures related to victims ofdomestic violence.

There may be other reasons a Tribemay want to impose a penalty on anindividual who refuses to cooperatewith program requirements other thanwork activity requirements. For



example, a Tribe may want to impose apenalty on a custodial parent whorefuses to cooperate with a childsupport enforcement program.

Based on the above information, webelieve the Tribe’s TANF plan mustaddress the following questions:

(1) Will the Tribe impose a pro ratareduction, or more at Tribal option, orwill it terminate assistance to a familywhich includes an adult or minor head-of-household that refuses to engage inwork as required?

(2) What will be the proposed Tribalpolicies with respect to a singlecustodial parent, with a child under theage of 6, who refuses to engage in workactivities because of a demonstratedinability to obtain child care?

(3) What good cause exceptions, ifany, does the Tribe propose which willallow individuals to avoid penalties forfailure to engage in work activities?What is the rationale for theseexceptions?

(4) What other rules governingpenalties does the Tribe propose?

(5) What, if any, will be the Tribe’spolicies in relation to victims ofdomestic violence?

With respect to the prohibition onpenalizing single custodial parents witha child under age 6, we want tounderscore the pivotal role of child carein supporting work and that the lack ofappropriate, affordable child care cancreate unacceptable hardships onchildren and families. To keep familiesmoving toward self-sufficiency, Tribesmay want to consider adopting aprocess or procedure that enables afamily to demonstrate its inability toobtain needed child care. Just as Statesmust have policies for continuingbenefits to a single-parent family whenit demonstrates that it is unable to workdue to the lack of child care for a childunder the age of six, it is important forTribes to have policies too. Like States,Tribes should inform eligible parentsthat the time during which they areexcepted from the penalty will counttowards the time limit on benefits,unless the Tribe’s approved time limitproposal provides for an exception.

The regulations for the Child Care andDevelopment Fund (CCDF) reinforce theimportance of providing this vitalinformation to parents by requiring thechild care Lead Agency, as part of itsconsumer education efforts, to informparents about the penalty exception tothe TANF work requirement. It mustalso provide parents with theinformation outlined above concerningthe process or procedures fordemonstrating an inability to obtainneeded child care.

As the role of child care is pivotal insupporting work activities, it isimportant for the Tribal and State CCDFprograms to coordinate fully with theTribal TANF program. Coordinationbetween CCDF and TANF is critical tothe success of both programs.

In addressing the economicconditions and available resources insupport of its proposal for penaltiesagainst individuals, the Tribe may referback to the information alreadyprovided in the plan in relation to theTribe’s proposal for minimum workparticipation requirements and timelimits. It may also offer additionalinformation in support of its proposal.

Comment: One commenter objectedto§ 286.125 as proposed on the basisthat it ‘‘* * * proposes to establishcriteria which must be included in aTribal TANF plan for penalizingindividuals who refuse to engage inwork activities.’’

Response: We believe that thecommenter has misread this section.The specific subsection to which webelieve reference is made,§ 286.125(a)(1) as proposed, does notpropose to establish any criteria. Itrequires that the Tribe respond to thequestion of whether it plans to imposea pro rata reduction or some otheralternative, without imposing either.

When coupled with § 286.145, thissection clearly provides that penalties,and the methodology for imposingthem, can be established in their TFAPby each Tribe.

Comment: One commenter objected tothe entire § 286.135 as proposed,arguing that it ‘‘describes special rulesto be imposed by ACF on Tribes,’’ andthat ‘‘(t)he law does not require specialconsideration in these areas.’’

Response: We believe the rulerecognizes that child care helps parentsreach and maintain economic self-sufficiency and is consistent with thelaw. Obtaining appropriate, affordableand safe child care is widely recognizedas a major barrier that keeps families onwelfare and out of the workforce. Thissection recognizes that parents are morelikely to obtain work and remain in theworkforce if appropriate child care isavailable while also recognizing thatTribes must define for themselves thecriteria which families must satisfy inorder to avoid work participationpenalties due to unavailability of childcare.

Comment: Commenters suggested thatwhile child care may be available, itmay not always be appropriate, andtherefore recommends that the work‘‘appropriate’’ be inserted before thewords ‘‘child care.’’

Response: We have revised theregulatory language accordingly.

Section 286.155 May a Tribe ConditionEligibility for Tribal TANF Assistanceon Assignment of Child Support to theTribe? (New Section)

A thorough discussion of this sectioncan be found earlier in the preamble,under IV.A Discussion of Cross-CuttingIssues—Child Support.

Tribal TANF Plan Processing

Section 286.160 (Section 286.140 in theNPRM) What Are the Applicable TimeFrames and Procedures for Submitting aTribal Family Assistance Plan?

The PRWORA does not give a date bywhich a Tribe must submit a TribalFamily Assistance Plan. In establishingthe time frame within which a Tribemust submit the TFAP, we consideredtwo factors. The first was therequirement found at section 405(b) ofthe Act that we provide to a State timelynotice of the amount of the reduction toits State Family Assistance Grant(SFAG) that results from the operationof a Tribal TANF program. The statuterequires this notice to be made three (3)months before we take the reduction inthe State’s SFAG quarterly installment.The second consideration is theauthority at section 412 (b)(2) of the Actwhich provides for Secretarial approvalof each Tribal Family Assistance Plan.

As mentioned in the discussion ondetermining the amount of a TribalFamily Assistance Grant, our experienceto date has indicated that we needsufficient time to request data from theState, receive and process it, and resolveany issues, prior to making officialnotice to the State. We have outlinedtime frames at § 286.20 for requestingState data and resolving any issuesconcerning the data. In order to meetthese time frames and meet therequirement for a three-month notice tothe State, the Final Rule at § 286.160requires a Tribe to submit to us a letterof intent, unless the Tribe has alreadyrequested, received and resolved anyissues regarding the State-supplied data.We will use the letter of intent torequest the data from the State and thuswill need to specify the Tribe’sproposed implementation date andproposed service area and population.We have specified time frames for thesubmission of the letter of intent at§ 286.160(a).

In order to meet the approvalrequirement, including review,discussion, and where appropriate,modification of the TFAP inconsultation with the Tribe, we havedetermined that we will need a



minimum of 120 days to accomplishthese actions for Tribes who propose toimplement a program on the first day ofa calendar quarter. Therefore, the finalregulation at § 286.160(a) requires theformal submission of a Tribal TANFplan to us based on the dates specifiedin the table below.

A Tribe will be able to implement aTribal TANF program on the first day of

any month. However, due to therequirement for a three-monthnotification to the State of its adjustedquarterly SFAG amount, a Tribe whowishes to implement a TANF programon other than the first day of a calendarquarter, i.e., January 1, April 1, July 1or October 1, will need to submit bothits letter of intent and its formal plan as

if the proposed implementation datewas the first day of a calendar quarter.The following table illustrates, based onimplementation dates, when a Tribeneeds to submit its letter of intent andformal plan in order for us to meet thestatutory requirement for notification tothe State.

If proposed implementation date is: The letter of intent is due: The formal plan is due: And we must notify the State by:

January 1, February 1 or March 1 July 1 of previous year ................. September 1 of previous year ...... October 1 of previous year.April 1, May 1 or June 1 ................ October 1 of previous year ........... December 1 of previous year ....... January 1 of same year.July 1, August 1 or September 1 ... January 1 of same year ............... March 1 of same year .................. April 1 of same year.October 1, November 1 or Decem-

ber 1.April 1 of same year ..................... June 1 of same year .................... July 1 of same year.

As noted above, the Secretary hasexplicit authority to approve TribalTANF plans. In exercising thisauthority, we plan to work with eachTribe that submits a TFAP to ensure thatplans contain the information requiredby statute and regulation. A Tribe maymake revisions to its plan during thereview process. In instances where wedisapprove a plan, the final regulation at§ 286.165(e) provides an appeal process.

Public Law 102–477

Public Law 102–477, the IndianEmployment, Training and RelatedServices Demonstration Act of 1992,allows Tribes to integrate certainfederally funded employment, trainingand related services programs into asingle plan. The purpose of this publiclaw is to improve the effectiveness ofthese programs and services.

The PRWORA requires the Secretaryto review and approve all TFAPs forTribes seeking to operate a Tribal TANFProgram. Those requirements are foundat section 412(a). Section 5 of PublicLaw 102–477 states ‘‘the programs thatmay be integrated in a demonstrationproject * * * shall include any programunder which an Indian tribe is eligiblefor receipt of funds.’’ In order to receivea Tribal Family Assistance Grant, Tribesmust first have approved Tribal TANFplans. Therefore, the final regulation at§ 286.160(f) indicates that a Tribe musthave separate approval of its TFAP fromthe Secretary before it can integrate theTribal TANF program into a Public Law102–477 plan.


Comments were received from severalTribes, consortia, inter-tribalorganizations, and states regarding thisrequirement. All the commentersquestioned the need for a separatestand-alone plan and recommended thatthis requirement be dropped. The

commenters supported this position bynoting that the intent of Pub.L. 102–477is to facilitate integration of labor-related social service programs. Theyalso noted that such integration would‘‘* * * provide a more comprehensiveview’’ and ‘‘give * * * ACF staff greaterunderstanding of how the Tribe(s) willprovide services to meet TANF workrequirements.’’ Finally, the commentersargued that, ‘‘there is no reason why anannual integrated plan cannot * * *include the required items (elements)’’of a TANF plan.

Response: The rationale cited in theproposed rule and related discussionsfor requiring approval of a stand-aloneTANF plan prior to integration into aPub.L. 102–477 plan is that the statutespecifically requires the Secretary toapprove a tribal TANF plan as opposedto just acknowledging the plan ascomplete, as is done with state plans.Just as the review, negotiation, andapproval process(es) that must takeplace between the Tribe and HHS toarrive at an approved plan cannot bedelegated to any other agency ordepartment, neither can it be subject toany conditions that might be imposedby the Department of Interior relating toapproval of a Pub.L. 102–477 program.

Furthermore, in addition to therequirement for approval of the planand the process that it necessitates,there are important programmaticconsiderations that must be taken intoconsideration:

First, the development of the tribalTANF plans, at least initially, can anddoes often entail developmentalactivities and negotiation processesinvolving the Tribe, State, and HHS,that are unique to the TANF programand clearly beyond the scope of what isallowed or required of other programsthat could be included in a Pub.L. 477plan. These include such things as:Establishing service area and

population; determining level offunding entitlement; establishingeligibility criteria, tenure of service andprogram duration; negotiating the natureand scope of state support; anddevelopment of state and tribalcollaboration.

Second, at the time of renewal or inthe case of an amendment to a TANFplan, there is a requirement forrenegotiation with, and subsequentreview and approval by the Secretarythat requires the plan to be consideredon its own merit.

Finally, Pub. L. 102–477 gives theDepartment of Interior completeauthority to approve or disapprovePub.L. 102–477 plans, while PRWORAgives the Secretary sole authority toapprove or disapprove TANF plans.These two functions and the processeswhich they entail are unique, distinctprocesses and of necessity must remainso between the two Departments.

Section 286.165 (Section 286.145 in theNPRM) How Is a Tribal FamilyAssistance Plan Amended?

Section 412 of the statute does notaddress amendments to Tribal TANFplans. We believe that Tribes need tohave an opportunity, during the periodcovered by a plan, to amend the plan.Thus, the final regulation at § 286.165allows Tribes to amend TFAPs.

In addition, the final regulationestablishes the procedure for thesubmission, review and implementationof a Tribal TANF plan amendment. Werequire the submission to the Secretaryof a plan amendment no later than thirty(30) days prior to the implementation ofthe amendment. The implementationdate for an approved amendment will bethe first day of any month. We will takeprompt action to approve or disapprovethe proposed amendment. If wedisapprove a plan amendment, the Tribewill be given an opportunity to appeal



the decision. Use of TANF funds forservices or activities under anamendment cannot be made until theimplementation date of the approvedamendment.

Section 286.170 How May a TribePetition for Administrative Review ofDisapproval of a TFAP or Amendment?(New Section)

We received a comment that the FinalRule should outline an appeals processto be used by Tribes when a TFAP orplan amendment is not approved. Weconcur and, accordingly, have includedthis new section in the Final Rule.

Specials Provisions for Alaska

Section 286.175 (Section 286.150 in theNPRM) What Special Provisions Applyto Alaska?;

Section 286.180 (Section 286.155 in theNPRM) What is the Process forDeveloping the Comparability CriteriaThat Are Required in Alaska?;

Section 286.185 (Section 286.160 in theNPRM) What Happens When aDispute Arises Between the State ofAlaska and the Tribal TANF EligibleEntities in the State Related to theComparability Criteria?; and

Section 286.190 (Section 286.165 in theNPRM) If the Secretary, the State ofAlaska, or Any of the Tribal TANFEligible Entities in the State of AlaskaWant to Amend the ComparabilityCriteria, What is the Process for DoingSo?

Comment: One commenter expressedconcern that the comparabilityrequirement places an unfair burden toTribes in Alaska and has been a majordeterrent toTribes wishing to operate aTribal TANF program in Alaska.

Response: Section 412(i) of the statuterequires the Tribal TANF eligibleentities in the State of Alaska to operatea program in accordance withrequirements comparable to the State ofAlaska’s TANF program. Given therequirements of the statute, we provideda framework for Tribes to work togetherwith the state toward developingcomparability criteria. As we indicatedin the Preamble to the proposed rule, inNovember 1996 we sponsored a meetingduring which a ‘‘Single Points ofContact (SPOC)’’ group was formed todevelop an initial comparability criteriadocument. These representatives of the13 eligible Tribal TANF eligible entities,the State, and ACF continued to meetand further refine the document untilsuch time as the first eligible entitysubmitted a Tribal TANF plan. Becauseof the ongoing collaboration andcoordination among all affected parties,

this process allowed the greatest level offlexibility possible given the mandatoryrequirements of the statute. All eligibleentities have agreed to the comparabilitycriteria document which was developedas a result of this process.

Subpart D—Accountability andPenalties (Sections 286.195–286.240)

It is clear that, in enacting theapplicable penalties at section 409(a) ofthe Act, Congress intended for Tribalflexibility to be balanced with Tribalaccountability. To assure that Tribesfulfil their new responsibilities underthe TANF program, Congressestablished a number of penalties andrequirements under section 409. Thepenalty areas indicate the areas ofperformance that Congress found mostsignificant and appropriate for Tribalprograms. Through specific sanctions,Congress provided the Secretaryauthority to enforce particularprovisions in the law.

As referenced in section 412 of theAct, section 409(a) includes fourpenalties that can be imposed on Tribes.This subpart of the Final Rule coversthese penalties.

Comment: One commenter points outthe inequity found in the fact that whileTribes can be penalized for not meetingthe participation rates, they areexcluded from the bonus rewards forachieving certain levels of performance.

Response: These provisions are set bythe statute and cannot be affected byregulation.

Section 286.195 (Section 286.170 in theNPRM) What Penalties Will Apply toTribes?

The four penalties that apply to Tribesare as follows:

(1) A penalty of the amount by whicha Tribe’s grant was used in violation ofpart IV–A of the Act;

(2) A penalty of five percent of theTFAG as a result of findings whichshow that the Tribe intended to violatea provision of the Act;

(3) A penalty in the amount of theoutstanding loan plus the interest owedon the outstanding amount for failure torepay a Federal loan; and

(4) A penalty for failure to satisfy theminimum work participation rates.

As specified in section 409(a)(3) of theAct, the participation rate penaltyamount will depend on whether theTribe was under a penalty for thisreason in the preceding fiscal year. If apenalty was not imposed on the Tribein the preceding year, the penaltyreduction will be a maximum of fivepercent of the TFAG in the followingyear. If a penalty was imposed in thepreceding year, the penalty reduction

will be increased by 2 percent per year,up to a maximum of 21 percent. We willtake into consideration the severity ofthe failure in determining the amount ofthe penalty. In our consultation withTribes, we have been advised that it willbe difficult to satisfy the participationrates because of economic conditions(e.g., high unemployment rates) inTribal service areas. Although theseconditions will be considered inestablishing the minimum participationrates for each TFAG program, werecognize that it may still be difficult forTribes to meet this requirement. For thisreason, we will take into considerationthe following two factors in determiningthe amount of the penalty: (1) Increasesin the unemployment rate in the Tribe’sservice area, and (2) changes in TFAGcaseload (e.g., increases in the numberof families receiving services).

If we impose a penalty on a Tribe, thefollowing fiscal year’s TFAG will bereduced. In calculating the amount ofthe penalty, all applicable penaltypercentages will be added together andthe total will be applied to the amountof the TFAG that would have beenpayable if no penalties were assessedagainst the Tribe. As a final step, other(non-percentage) penalty amounts willbe subtracted. If this calculation wouldresult in the TFAG being reduced bymore than 25 percent, we will apply theState TANF limitation in section 409(d)of the Act. In applying the penaltiesagainst a State TANF program, wecannot reduce the State’s block grant bymore than 25 percent in any quarter. Ifwe are unable to collect the entirepenalty in a fiscal year, any excesspenalty amounts will be applied againstthe grants for succeeding years. Weintend to treat Tribes like States in thisarea, and limit the amount of TFAGreduction due to penalties to 25 percentin any given fiscal year.

Failure To Repay a Federal Loan

Section 406 of the Act permits Tribesto borrow funds to operate their TANFprograms. Tribes must use these loanfunds for the same purposes as apply toother Federal TANF funds. In addition,the statute also specifically providesthat Tribes may use such loans forwelfare anti-fraud activities and for theprovision of assistance to Indianfamilies that have moved from theservice area of a State or other Tribeoperating a Tribal TANF program.Tribes have three years to repay loansand must pay interest on any loansreceived. We will be issuing a programinstruction notifying Tribes and Statesof the application process and theinformation needed for the application.



Section 409(a)(6) of the Actestablishes a penalty for Tribes that donot repay loans provided under section406. We will penalize Tribes for failingto repay a loan provided under section406 (see § 286.195(a)(4) and § 286.210).A specific vehicle for determining aTribe’s compliance with thisrequirement is unnecessary. In our loanagreements with Tribes, we will specifydue dates for the repayment of the loansand will know if payments are notmade.

Outstanding Penalties and RetrocessionIn developing the proposed rules, a

question arose concerning how we willtreat situations where a Tribe decides toretrocede the TANF program. Since theTribe will no longer receive a TFAG, wewould be unable to collect any penaltyby withholding or offsetting in thesucceeding fiscal year. However, westipulate in the final regulation that aTribe that retrocedes a Tribal TANFprogram is responsible for the paymentof any penalty that may be assessed forthe period the program was in effect.

Replacement of Penalty AmountsSection 409(a)(12) of the Act requires

a State to expend its own funds toreplace any reduction in its SFAG dueto the imposition of a penalty. This isto prevent recipients from also beingpenalized for the State’s failure toadminister its program in accordancewith the requirements of the Act. Webelieve that a similar failure by a Tribeshould not cause Tribal TANFrecipients to be penalized. For thisreason, in the same fiscal year as apenalty is imposed, at § 286.195(c)(1)we require a Tribe to expend Tribalfunds to replace any reduction in theTFAG resulting from penalties that havebeen imposed. The Tribe mustdocument compliance with thisprovision on its TANF Financial Report.

As amended by the Balanced BudgetAct of 1997, section 409(a)(12) statesthat failure of a State to replace anyreduction in its SFAG amount due topenalties may result in a penalty of notmore than 2 percent of the SFAG, plusthe amount that was required to bereplaced. However, we do not want tosubject Tribes to a penalty that is sosevere that services to recipients arejeopardized. Therefore, at§ 286.195(c)(2) we impose a similar, butnot the same, penalty on Tribes. Westipulate in the Final Rule that we mayimpose a penalty of not more than 2percent of the TFAG if a Tribe fails toexpend its own funds to replace anyreduction in the TFAG due to penalties.

Comments: Two commenterssuggested that there is no statutory basis

for this section and that it should bedeleted.

Response: The statutory basis for thissection is found at sections 412(g)(1)and (a)(2) which clearly make theprovisions of subsections (a)(1), (a)(3),(a)(6), (b), and (c) of section 409applicable to tribal grants.

Comment: One commenter suggestedthat ‘‘(t)he Tribes need to havemeaningful involvement * * *’’ in theprocess of determining whetherviolations have occurred and whetherpenalties should be assessed.’’

Response: We believe that this isprovided by the very nature of theprocess as set forth in § 286.220, whichprovides opportunity for the Tribe torespond to and dispute any findings.

Comment: One commenter objectedspecifically to proposed § 286.170(a)(3),which imposes penalties for failure tomeet minimum work requirements.

Response: As noted in the previousresponse to the general objections to thissection, these penalties are specified bythe statute.

Comment: Several commentersobjected to the provisions of subsections(c)(1) and (c)(2), which provide that theTribe must expend additional tribalfunds to replace any reduction due topenalties and provide for additionalpenalties for failure to do so.

Response: Although section 409(a)(12)of the statute only requires states toprovide ‘‘replacement funds’’ for fundslost due to penalties, and additionalpenalties for failure to provide them,Federal law does not preclude theSecretary from establishing thisrequirement for Tribes. A Tribe’s failureto administer its program in accordancewith the requirements of the Act shouldnot cause Tribal TANF recipients to bepenalized. Thus we have made nochanges to this section.

Section 286.200 (Section 286.175 in theNPRM) How Will We Determine ifTribal Family Assistance Grant FundsWere Misused or Intentionally Misused?

It is clear that in establishing themany penalties at section 409(a) of theAct, Congress expressed its intent thatboth States and Tribes balanceflexibility with accountability. Becauseof the differences in the requirementsfor State and Tribal programs, asmentioned above, section 412 specifiesthat only four of the requirements andpenalties under section 409 apply toTribes. The penalty areas, or rather, theareas of Tribal performance thatCongress found significant and attachedfiscal sanctions to, vary considerably.Thus, in considering what method toemploy in monitoring Tribalperformance, we concluded that no one

method could be employed. Thefollowing explains the differentmethods we will use to determine if aTribe used TFAG funds in violation ofthe Act.

Misuse of FundsThe penalty at § 286.195(a)(1) and

§ 286.200(a) provides that if a Tribe hasbeen found to have used funds inviolation of title IV–A through an auditconducted under the Single Audit Act(31 U.S.C. Chapter 75), as referenced insection 102(f) of the Indian Self-Determination Act Amendments of 1994(Pub. L. 103–413), the Tribe is subject toa penalty in the amount misused. Thisis the only penalty for which Congressidentified a method for determining apenalty.

Under the requirements of the SingleAudit Act, Tribes operating Federalgrant programs meeting a monetarythreshold (currently $300,000 for allFederal grants) must conduct an annualaudit. Those Tribes which meet thethreshold must comply with this annualaudit requirement.

The single audit is an organization-wide audit that reviews Tribalperformance in many program areas. Weimplemented the Single Audit Actthrough use of Office of Managementand Budget (OMB) Circular A–128,‘‘Audits of State and LocalGovernments.’’ Because of amendmentsmade to the Single Audit Act in 1996,OMB recently revised this circular anda similar circular for non-profitorganizations, A–133. Effective June 30,1997, A–128 has been rescinded, withthe result that the revised A–133 nowincludes the single audit requirementsfor States, local governments, Indiantribes and non-profit organizations.

In conducting their audits, among thetools auditors use are the statute andregulations for each program and acompliance supplement issued by OMBthat focuses on certain areas of primaryconcern. Upon issuance of finalregulations, we will prepare a TANFprogram compliance supplement.

The Single Audit Act does notpreclude us or other Federal offices oragencies, such as the Office of theInspector General (OIG), fromconducting audits or reviews. In fact, weconclude that we have specific authorityto conduct additional audits or reviews.Under 31 U.S.C. 7503(b),‘‘* * * a Federal agency may conduct, orarrange for additional audits which arenecessary to carry out its responsibilitiesunder Federal law or regulation. Theprovisions of this chapter do not authorizeany non-Federal entity (or subrecipientthereof) to constrain, in any manner, suchagency from carrying out or arranging for



such additional audits, except that theFederal agency shall plan such audits to notbe duplicative of audits of Federal awards.’’

Thus, although the single audit will beour primary means for determining if aTribe has misused funds, we may,through our own audits and reviews, orthrough OIG and its contractors,conduct audits or reviews of the TribalTANF program which will not beduplicative of single organization-wideaudit activities. Our need to conductsuch audits may arise from complaintsfrom individuals and organizations,requests by the Congress to reviewparticular areas of interest, or otherindications which signal problems inTribal compliance with TANF programrequirements. These additional reviewsand audits may be the basis forassessing a penalty under this section.

Intentional Misuse of FundsWhere a penalty is determined for the

misuse of funds, we may apply a secondpenalty if we determine that the Tribehas intentionally misused its TFAG. Thecriteria for determining ‘‘intentionalmisuse’’ are found at § 286.200(d). Thesingle audit will be the primary meansfor determining this penalty as it islinked to the penalty for misuse offunds. However, as with the use of thesingle audit for misuse of funds, we mayalso conduct other reviews and audits inresponse to complaints from individualsand organizations or other indicationswhich signal problems with compliancewith TANF program requirements.These additional reviews and auditsmay be the basis for assessing a penaltyunder this section.

Additional Single Audit DiscussionAlthough we specify that the single

audit will be the primary means todetermine the specific penalties formisuse and intentional misuse of TFAGfunds, we will not ignore other singleaudit findings such as Tribal non-compliance with the minimumparticipation rate requirement. Wherethe single audit is used to determine apenalty for failure to satisfy theminimum participation rate, the penaltythat will apply is the percentagereduction described at § 286.195(a)(3),not the dollar-for-dollar penalty at§ 286.195(a)(1) for misuse of funds.

The single audit may also revealTribal non-compliance with thenegotiated time limit requirements (see§ 286.120). Since Tribes are not subjectto the State penalty at section 409(a)(9)for failure to comply with the time limitprovisions, the question arose as towhether the Tribe’s failure should betreated as a misuse of funds. Becausethe penalty for misuse of funds is equal

to the amount that was spentincorrectly, the Tribal penalty couldpotentially be higher than the fivepercent penalty for States. As a result,a Tribe could be subject to a higherpenalty by comparison. To avoiddisparate treatment of States and Tribesin this area, we will limit any potentialpenalty for failure to comply with theTribal time limits to a maximum of fivepercent.

Similarly, where we, or OIG, conductan audit or review and have findingsthat could result in a penalty, thepenalty amount that will apply is thepenalty amount associated with thespecific penalty under section 409(a) ofthe Act.

Comments: Several Tribes questionedwhether ACF has the authority toconduct additional audits and reviewsthat may result in penalties on Tribes.They assert that the only penalties thatmay be applied regarding misuse offunds are determined by the SingleAudit Act.

Response: The single audit will be theprimary means for determining thepenalty for misuse of funds, whethermisused intentionally or not. The singleaudit may also be used to determinetribal non-compliance with other TribalTANF requirements, such as minimumparticipation rate or negotiated timelimit requirements. However, the SingleAudit Act does not preclude Federalagencies from conducting additionalaudits or reviews. As we indicatedabove, we have specific authority under31 U.S.C. 7503(b) to conduct or arrangefor such additional audits or reviews.Such an audit or review will not beduplicative of the single organization-wide audit activities. The need toconduct such an audit or review will bebased on indications that may signalproblems in tribal compliance withTANF program requirements, such ascomplaints from individuals ororganizations, or may arise from arequest by Congress to review aparticular area of interest.

Section 286.205 (Section 286.180 in theNPRM) How Will We Determine if aTribe Fails To Meet the Minimum WorkParticipation Rate(s)?

Tribal compliance with the minimumwork participation rates under § 286.205will be primarily monitored through theinformation required by section 411(a)of the Act. The Final Rule at § 286.80provides additional information onminimum work participationrequirements.

Some of the data required to bereported by section 411(a) of the Actwere included to gather information inthis area. Thus, we concluded that the

section 411(a) data collection toolswould be our primary means fordetermining this penalty. Our ability tomeet our program managementresponsibilities may also mean that wewill conduct reviews in the future toverify the data submitted by Tribes,particularly in this area where a fiscalpenalty is applicable.

Timely and accurate data is essentialif we are to determine Tribalcompliance in this area. Thus, if a Tribefails to submit a timely report, we willconsider this as a failure by the Tribe tomeet its work participation raterequirements and will enforce thepenalty for failure to meet the workparticipation requirements. Likewise, ifthe data indicating that the Tribe hasmet its participation rate is found to beso inaccurate as to seriously raise adoubt that the Tribe has met theserequirements, we may enforce theparticipation rate penalty.

Although the single audit will be theprimary means for determining certainspecific penalties for misuse orintentional misuse of TFAG funds, if asingle audit detects Tribal non-compliance in the minimumparticipation rate area, we cannot ignorethat finding. Therefore, we will considerimposing a penalty based on the singleaudit in this area. The penalty amountthat will apply is the penalty undersection 409(a)(3) for failure to meet theparticipation rates and not the penaltyunder section 409(a)(1) for misuse offunds.

Comment: A commenter suggestedthat an exception should be made to therequirement for meeting workparticipation requirements for ‘‘regionsstruggling because of declared economicdisasters.’’

Response: Tribes already have theability in § 286.80 to establishexemptions, limitations, and specialrules in relation to work requirements aspart of their basic plan.

Comment: One commenter questionsthe language of proposed § 286.185(b),which provides that ‘‘* * * (t)heaccuracy of the reports are subject tovalidation by (ACF) * * *’’ and askshow that will occur. Suggestion wasmade that either the informationidentifying the means of validation beincluded or that this language beremoved altogether.

Response: Section 286.205(a) clearlyprovides that the Tribal TANF DataReport submitted by the Tribe will bethe major source for determiningcompliance. Also, § 286.220 providesopportunity for the Tribe to explainand/or justify the data.



Section 286.210 (Section 286.185 of theNPRM) What is the Penalty For aTribe’s Failure To Repay a FederalLoan?

If the Tribe fails to repay its loan, plusany accumulated interest, in accordancewith its agreement with ACF, we willreduce the Tribe’s TFAG for theimmediately succeeding fiscal year bythe outstanding loan amount, plus anyinterest owed. Neither the reasonablecause provisions at § 286.225 of thischapter nor the corrective complianceplan provisions at § 286.230 of thischapter apply when a Tribe fails torepay a Federal loan. Please refer to§ 286.235 for more information on thispenalty.

Section 286.215 (Section 286.190 in theNPRM) When Are the TANF PenaltyProvisions Applicable?

This section of the Final Rulesprovides the general time frames for theeffective dates of the Tribal TANFprovisions. As we noted in the NPRM,many of the penalty and fundingprovisions had statutorily delayedeffective dates. For example, whileTribes will be held accountable for thepenalties of misuse of funds from thedate of implementation of TANF, thepenalty to satisfy minimumparticipation rates will not apply untilsix months after the date ofimplementation of the Tribal TANFprogram.

We also made the important pointthat we did not intend to apply theTANF rules retroactively against Tribes.We indicated that, with respect to anyactions or behavior that occurred beforethe Final Rule, we would judge Tribalactions and behavior only against areasonable interpretation of the statute.

In the period prior to the effectivedate of the Final Rules, Tribes mustimplement the TANF provisions inaccordance with a reasonableinterpretation of the statute. If a Tribe’sactions are found to be inconsistentwith the final regulations, but it hasacted in accordance with a reasonableinterpretation of the statute and itsapproved TFAP, no penalty will betaken against the Tribe. However, if aTribe is found to be liable for a penaltyprior to the effective date of the FinalRules, the Tribe may present itsarguments for ‘‘reasonable cause,’’which, if granted, will result in nopenalty being taken.

Comments: Several commenterssuggested that the provisions ofproposed § 286.190(b), which providesthat a Tribe may be subject to thepenalties for failure to meet theminimum work requirements beginningafter the first 6 months of operation of

a program, are too stringent. Suggestionswere made that the ‘‘grace period’’ oncompliance should be extended from 12to 24 months.

Response: Minimum workrequirements are determined via thenegotiation process. If a Tribedetermines during this process that itmay have difficulty meeting thenegotiated rate, it should not agree tothat rate. Thus, we are retaining theproposed language.

Section 286.220 (Section 286.195 in theNPRM) What Happens if a Tribe FailsTo Meet TANF Requirements?

If we determine that a Tribe has failedto meet any of the requirementsincluded in the penalty provisions, wewill notify the Tribe in writing. Ournotification to the Tribe will include: (1)The penalty, including the specificpenalty amount; (2) the basis for ourdecision; (3) an explanation of theTribe’s opportunity to submit areasonable cause justification and/orcorrective compliance plan whereappropriate; and, (4) an invitation to theTribe to present its arguments if itbelieves that the data or method formaking the decision was in error, or thatthe Tribe’s actions, in the absence ofFederal regulations, were based on areasonable interpretation of the statute.

Reasonable Cause and CorrectiveCompliance Plan

Provisions at sections 409(b) of theAct state that we can excuse or reducecertain penalties if we determine thatthe Tribe has reasonable cause forfailing to comply with certainrequirements that are subject to apenalty. At § 286.225 Tribes will havethe opportunity to demonstratereasonable cause upon receipt of awritten notification of a proposedpenalty.

Section 409(c) of the Act, as amendedby the Balanced Budget Act of 1997,provides that prior to imposing certainpenalties against a Tribe, we will notifythe Tribe of the violation and allow theTribe the opportunity to enter into acorrective compliance plan whichoutlines how the Tribe will correct theviolation and ensure continuingcompliance with TANF requirements.

Comments: Several comments werereceived relating to the fact that, whilesetting time frames for the Tribe torespond to findings that would result inpenalties, § 286.195 as proposed sets notime frame for the agency to respond,and that the two-week time frame insubsection (e) for the Tribe to submitadditional information is too short.

Response: We have clarifiedsubsection (c) to specify that we willnotify the Tribe of our decision with

respect to their submissions within twoweeks from when the determination ismade. We have amended subsection (e)to allow the Tribe thirty (30) days forsubmission of additional information.We have also amended § 286.205 toclarify what we mean by ‘‘complete andaccurate.’’

Section 286.225 (Section 286.200 in theNPRM) How May a Tribe EstablishReasonable Cause For Failing To Meeta Requirement That Is Subject toApplication of a Penalty?

This section describes the factors thatwe will consider in deciding whether ornot to excuse a penalty based on aTribe’s claim of reasonable cause,describes the contents of an acceptablecorrective compliance plan that willcorrect the problems that resulted in apenalty, and discusses the process forapplying these provisions.

PRWORA did not specify anydefinition of reasonable cause orindicate what factors we should use indetermining a reasonable causeexceptions for a penalty. We willconsider only certain, limited factorswhen we decide whether or not toexcuse a penalty for reasonable cause. Inkeeping with the need to support thecommitment of Congress, theAdministration, States, and Tribes to theobjectives of the TANF program,including program accountability, wehave identified a limited number ofreasonable cause factors with anemphasis on corrective solutions. Theseare the same reasonable cause factorsthat are applicable for State programs.These factors are applicable to allpenalties for which the reasonable causeprovision applies. In the case of thepenalty for failure to satisfy theminimum participation rates, oneadditional factor is applicable only tothat specific penalty.

General reasonable cause may includethe following: (1) Natural disasters andother calamities (e.g., hurricanes,tornadoes, earthquakes, fires, floods,etc.) whose disruptive impact was sosignificant that the Tribe failed to meeta requirement; (2) formally issuedFederal guidance which providedincorrect information resulting in theTribe’s failure, or guidance that wasissued after a Tribe implemented therequirements of the Act based on adifferent but reasonable interpretation ofthe Act; (3) isolated, non-recurringproblems of minimum impact that arenot indicative of a systemic problem; (4)significant increases in theunemployment rate in the service areaand changes in the TFAG caseload size;and (5) the clearly demonstrated need to



divert critical system resources to Y2Kcompliance activities.

We have included one additionalspecific reasonable cause factor for aTribe’s failure to satisfy minimum workparticipation rates. Under the Final Ruleat § 286.225(c), a Tribe may demonstratethat its failure is due to its granting ofgood cause to victims of domesticviolence. In this case, the Tribe mustshow that it would have achieved thework participation rate(s) if cases withgood cause were removed from bothparts of the calculation (i.e., from thedenominator and the numeratordescribed in § 286.85). In addition, aTribe must show that it granted goodcause in accordance with policiesapproved in the Tribe’s FamilyAssistance Plan (refer to § 286.135).

We understand that limitedemployment opportunities in manyTribal service areas may affect a Tribe’sability to satisfy the participation rates.However, as explained in § 286.100, thework participation requirementsestablished for each Tribe will take intoconsideration the Tribe’s economicconditions and resources.

The burden of proof rests with theTribe to adequately and fully explainwhat circumstances, events, or otheroccurrences constitute reasonable causewith reference to failure to meet aparticular requirement. The Tribe mustprovide us with all relevant informationand documentation to substantiate itsclaim of reasonable cause for failure tomeet one or more of these requirements.

Comments: Several commenterssuggested that the language of§ 286.170(a)(3) as proposed, whichprovides for consideration to be givenfor unemployment increases andchanges in the caseload size indetermining whether a Tribe has failedto meet the minimum workparticipation rates, should beincorporated into this section.

Response: We agree. We haveamended § 286.225(a) with the additionof these additional factors that can beused to claim reasonable cause.

Comment: A commenter suggested anexception be made for ‘‘* * * regionsstruggling because of declared economicdisasters.’’

Response: We believe that therevision mentioned above addresses thisconcern.

Comment: One commenter suggestedthat an exception should be made for‘‘* * * extreme weather conditions* * *.’’

Response: We believe that it is notunreasonable to include extremeweather conditions, which seriouslydisrupt transportation or prevent accessto services, work sites, or related

activities in this section. We haveamended section 286.225(a)(1)accordingly.

Comment: One commenter suggeststhat ‘‘* * * this section should includeacknowledgment of the lack ofemployment, poor economicdevelopment, and lack of transportationand childcare on reservations.’’

Response: We believe these factors areacknowledged in the general plancontent area. They are also taken intoaccount when negotiating workparticipation rates in the individualplans.

Section 286.230 (Section 286.205 in theNPRM) What If a Tribe Does Not HaveReasonable Cause for Failing To Meet aRequirement?

As mentioned above, section 409(c) ofthe Act, as amended by the BalancedBudget Act of 1997, provides that priorto imposing certain penalties against aTribe, the Tribe will be given theopportunity to enter into a correctivecompliance plan.

The corrective compliance plan mustidentify the action steps, outcomes, andtime frames for completion that theTribe believes will fully and adequatelycorrect the violation. We recognize thateach plan will be specific to theviolation (or penalty) and that eachTribe operates its TANF program in aunique manner. Thus, we will revieweach plan on a case-by-case basis. Ourdetermination to accept a plan will beguided by the extent to which theTribe’s plan indicates that it will correctthe situation leading to the penalty.

In instances where a Tribe used itsTFAG in a manner that is prohibited(see § 286.200 on misuse of funds), wewill expect that it will remove thisexpenditure from its TANF accountingrecords and provide steps to assure thatsuch a problem does not recur.

Section 409(c)(3) of the Actappropriately requires that a violationbe corrected ‘‘in a timely manner.’’ ATribe’s timely correction of problemsresulting in a penalty is critical if for noother reason than to assure that theTribe is not subject to subsequentpenalties. While we recognize that thetypes of problems Tribes encounter mayvary, some concern exists that, if we donot restrict the length of a correctivecompliance plan, there is the possibilitya Tribe could indefinitely prolong thecorrective compliance process, leavingproblems unresolved into another fiscalyear. As a result, the Tribe’s ability tooperate an effective program to serve theneeds of its service population would beseverely limited.

Therefore, we are limiting the periodcovered by a corrective compliance plan

to six months, i.e., the plan period endssix months from the date we accept aTribe’s compliance plan. We believethat, for most violations, Tribes willhave some indication prior to our noticethat a problem exists and will be ableto begin addressing the problem prior tosubmitting the corrective complianceplan. Therefore, we think it fair andreasonable that the correctivecompliance plan period begin with ouracceptance of the plan, giving the Tribesufficient time to correct or terminatethe violation(s).

Our review of a Tribe’s efforts tocomplete its action steps and achievethe outcomes within the time framesestablished in the plan will determine ifthe penalty will be fully excused,reduced, or applied in full.

Corrective Compliance Plan ReviewDuring the 60-day period defined

below, we will consult with the Tribeon any modifications to the correctivecompliance plan and seek mutualagreement on a final plan. Anymodifications to the Tribe’s correctivecompliance plan resulting from suchconsultation will constitute the Tribe’sfinal corrective compliance plan andwill obligate the Tribe to initiate thecorrective actions specified in that plan.

We may either accept the Tribe’scorrective compliance plan within the60-day period that begins on the datethe plan is received by us, or reject theplan during this same period. If a Tribedoes not agree to modify its plan as werecommend, we may reject the plan. Ifwe reject the plan, we will immediatelynotify the Tribe that the penalty isimposed. The Tribe may appeal thisdecision in accordance with theprovisions of section 410 of the Act andthe final regulations at § 286.240. If wehave not taken an action to reject a planby the end of the 60-day period, theplan is accepted, as required by section409(c)(1)(D) of the Act.

If a Tribe corrects or discontinues, asappropriate, the problems in accordancewith its corrective compliance plan, wewill not impose the penalty. If we findthat the Tribe has acted in substantialcompliance with its plan but theviolation has not been fully corrected,we may decide to reduce the amount ofthe penalty or, if the situation iscompelling, excuse the penalty in itsentirety. We will make a determinationof substantial compliance based uponinformation and documentationfurnished by the Tribe. In determiningsubstantial compliance, we willconsider the willingness of the Tribe tocorrect the violation and the adequacyof the corrective actions undertaken bythe Tribe pursuant to its plan.



Process

Because both the reasonable causeand the corrective compliance planprovisions apply, we will establish thedetermination of reasonable cause inconjunction with the determination ofacceptability of a Tribe’s correctivecompliance plan, if any is submitted.Thus, a Tribe may submit to us itsjustification for reasonable cause andcorrective compliance plan within 60days of the receipt of our notice offailure to comply with a requirement.

A Tribe may choose to submitreasonable cause justification without acorrective compliance plan. If we do notaccept the Tribe’s justification, the Tribewill be notified in writing. Thisnotification will also inform the Tribe ofits opportunity to submit a correctivecompliance plan. The Tribe will have a60-day period that begins with the dateof the notice of the violation to submitto us a corrective compliance plan tocorrect the violation. A Tribe may alsochoose to submit only a correctivecompliance plan if it believes that thereasonable cause factors do not apply tothe particular penalty.

Although a corrective complianceplan is not required when a Tribe hasreasonable cause for failing to meet arequirement which is subject to apenalty, we stress the importance ofcorrective action to prevent similarproblems from recurring. While a Tribemay have a very good explanation whyit failed to satisfy a requirement underthe Act, we will work with the Tribe toidentify solutions to eliminate theseproblems or prevent them fromrecurring. Otherwise, they may wellcontinue and detract from the Tribe’sability to operate an effective program toserve the needs of its families. Our goalis to focus on positive steps to improvethe program.

Due Dates

The Tribe’s response to ournotification that it has failed to meet arequirement under section 409(a) of theAct, either including its reasonablecause justification and/or its correctivecompliance plan, must be postmarkedwithin sixty days of the receipt of ournotification letter to the Tribe. Also, ifa Tribe believes that our determinationis incorrect, any documentationsupporting its position should besubmitted within sixty days of the dateof the receipt of our notice.

If, upon review of the Tribe’ssubmittal, we find that we needadditional information, the Tribe mustprovide the information within twoweeks of the date of our request. This is

to make sure we are able to respondtimely.

Imposing the Penalty

Once a final decision is made toimpose a full or partial penalty, we willnotify the Tribe that its TFAG will bereduced and inform the Tribe of its rightto appeal our decision to theDepartmental Appeals Board (theBoard).

In imposing a penalty, we will notreduce any TFAG to a Tribe by morethan 25 percent. If this limitation of 25percent prevents us from recovering thefull amount of penalties during a fiscalyear, we will carry the penalty forwardand reduce the TFAG for theimmediately succeeding fiscal year bythe remaining amount.

Comment: A comment was receivedindicating that the time frames proposedin § 286.205(b) and (c) appear to beadequate.

Response: No response is needed.Comment: A comment regarding

proposed § 286.205(f) suggests that thereneeds to be documentation accepting orrejecting a compliance plan, and thatthe time frame for response should beaccelerated and begin with the postmarkdate of the plan rather than the receiptdate at ACF.

Response: We believe the process,which provides for notification to theTribe of our determination that apenalty is applicable, and the Tribe’sresponse in the form of either asubmission of a compliance plan orchallenge to the finding(s), as well asother corresponding actions throughoutthe appeal process adequately providesfor sufficient documentation. The timeframe in § 286.230(f), like the timeframes set forth throughout this entiresection, is determined by theDepartmental Appeals Boardprocedures.

Section 286.235 (Section 286.210 in theNPRM) What Penalties Cannot BeExcused?

Sections 409(b)(2) and 409(c)(3), asamended by the Balanced Budget Act of1997, provide that reasonable cause andcorrective compliance plan are notavailable for certain penalties. One ofthese penalties is the penalty for failureto repay a Federal loan issued undersection 406. Thus we cannot forgive anyoutstanding loan amount or the interestowed on the outstanding amount.

The other penalty that cannot beexcused is the penalty for failure toreplace any grant reduction resultingfrom other penalties that have beenimposed.

Section 286.240 (Section 286.215 in theNPRM) How Can a Tribe Appeal OurDecision To Take a Penalty?

Section 410 of the Act provides thatwithin five days after the date theSecretary takes any adverse actionunder this part with respect to a State,the Secretary shall notify the chiefexecutive officer of the State of theadverse action. We believe that it isreasonable to make these same appealprovisions, including the time frames insection 410, available for Tribes. Thus,within sixty days after the date a Tribereceives notice of such adverse action,the Tribe may appeal the action, inwhole or in part, to the Board by filingan appeal with the Board. Where notinconsistent with section 410(b)(2), aTribes’s appeal to the Board will besubject to our regulations at 45 CFR part16.

By inclusion in this rule, section410(b)(2) provides that the Board shallconsider an appeal filed by the Tribe onthe basis of documentation the Tribemay submit, along with any additionalinformation required by the Board tosupport a final decision. In decidingwhether to uphold an adverse action orany portion of such action, the Boardshall conduct a thorough review of theissues and make a final determinationwithin sixty days after the appeal isfiled.

Finally, a Tribe may obtain judicialreview of a final decision by the Boardby filing an action within ninety daysafter the date of the final decision withthe district court of the United States inthe judicial district where the Tribe orTFAG service area is located. Thedistrict court shall review the finaldecision of the Board on the recordestablished in the administrativeproceeding, in accordance with thestandards of review prescribed bysubparagraphs (A) and (E) of section706(2) of title 5, U.S.C. The review willbe on the basis of the documents andsupporting data submitted to the Board.

Comments: Several commenterscommented on the fact that § 286.215 asproposed does not specify whether ACFwill cease or reduce funding during anappeal.

Response: We do not intend to ceaseor withdraw funding during the appealsprocess. We have amended § 286.240accordingly.

Subpart E—Data Collection andReporting Requirements (Sections286.245—286.285, Appendices A-H)

General ApproachSection 412(h) of the Act makes

section 411 data collection andreporting requirements applicable to



Tribes. The requirements for States areaddressed separately under the finalState TANF regulations (64 FR 17857)which were published April 12, 1999.Although the reporting requirementsstipulated under the final State TANFregulations are also required of Tribesunder the statute, some of the particulardata elements are not applicable. Inorder to minimize misunderstandingsabout what data elements are applicableto Tribes, we separately address theTribal data collection and reportingrequirements in this Final Rule.Additional background and summaryinformation on these requirements,including a complete discussion ofmodifications which have been made tothe proposed requirements, can befound at part 265 of the State TANFFinal Rule.

Based on comments we received bothprior to and after the development of theproposed regulations, Tribes generallyview the section 411 requirements asvery difficult to meet. Automatedsystems capabilities necessary forcollecting and reporting the datarequired of the Act are sorely lacking onmost reservations. Tribes also citeddifficulties in obtaining current andaccurate data from other programsources that are not administered byTribes, and that may not be readilyavailable to Tribal TANF programoperators. For example, Tribes do notgenerally administer programs such asFood Stamps, Medicaid, subsidizedhousing, Child Support Enforcement,and State-administered child careprograms, yet the specified dataelements require such information.Tribes expressed concern that obtainingthese data would entail developingcostly mechanisms to gather accurateinformation on a monthly basis fromStates.

We are sensitive to these issues andare committed to helping Tribes, to theextent possible, in meeting the reportingrequirements.

Before we discuss the commentsassociated with specific sections of theregulatory text or the Appendices, wewant to respond to two cross-cuttingissues:

Publishing the Appendices as a Part ofthe Rule

Comment: A few commenters urgedus to publish the specific data elementsas a part of the Final Rule and to codifythem as a part of the Code of FederalRegulations (CFR). This approach, theybelieved, would help ensure that Tribeswould not only have early access to therequirements but, once they werecodified, the requirements would be less

subject to change, given the time it takesto revise Federal rules.

Other commenters urged us to publishthe data elements in the FederalRegister at the same time we publishedthe Final Rule for the purpose ofadvance notice to the Tribes of thespecific data requirements, but they didnot recommend that they be a part of theFinal Rule in the CFR.

Response: We agree with theimportance of giving Tribes early accessto the specific data elements and havepublished the appendices, including alldata elements and instructions, intoday’s Federal Register along with theFinal Rule.

It was never our intention, however,that these data collection requirementsbecome a part of the rule itself or becodified in the CFR. We believe datacollection needs may change over time,in part because the program is adynamic one and because Congress maymodify the reporting requirements.Therefore, we would want to be able torespond to those changes as quickly aspossible. Since changes in reportingrequirements require PaperworkReduction Act (PRA) approvals, thepublic is guaranteed an opportunity tocomment on any future changes to theTANF Data and Financial Reports as apart of the PRA review process.

Y2K ComplianceWe have taken a number of actions to

raise awareness of the problem andrespond to questions from humanservice providers. For example, we haveestablished an Internet e-mail addressand phone line and a Y2K web page(http://www.y2k.acf.dhhs.gov). We havealso distributed information packages tomore than 7,000 human serviceproviders and representativeorganizations, and we have added areasonable cause criterion related toY2K compliance. This new criterionprovides penalty relief to a Tribe if itcan clearly demonstrate that addressingY2K issues prevented it from meetingthe reporting requirements for the firsttwo quarters and it reports the first twoquarters of data by November 15, 2000.

Section 286.245 (Section 286.220 in theNPRM) What Data Collection andReporting Requirements Apply to TribalTANF Programs?

This section describes the generalscope and purpose of this subpart as itapplies to Tribal TANF data collectionand reporting. Paragraph (a) also makesclear that section 412(h) of the Actrequires that the same reportingrequirements of section 411 of the Actbe applied to Tribal TANF Programs.We have modified the proposed State

regulatory requirements in order tocollect from Tribal TANF programs onlythe data required based on section411(a) of the Act—quarterly reportingrequirements; section 411(b)—report toCongress, and section 412(c)—workparticipation requirements. One reasonfor the modification is that Tribes do nothave a maintenance-of-effort (MOE)requirement; thus there is no need fordata related to MOE. (Section411(a)(1)(A)(xii) authorizes thecollection of information that isnecessary for calculating participationrates).

The final regulation at § 286.255(b)also makes clear that Tribes will berequired to submit: (1) Disaggregateddata for two types of families: thosereceiving assistance and those no longerreceiving assistance; and (2) aggregateddata for three categories of families:Those receiving assistance, thoseapplying for assistance, and those nolonger receiving assistance.

This subpart also explains theproposed content of the quarterly TANFData Report, TANF Financial Report,and the annual report, as well asreporting due dates.

Section 286.250 (Section 286.225 in theNPRM) What Definitions Apply to ThisSubpart?

The data collection and reportingregulations rely on the general TribalTANF definitions at § 286.5.

In this subpart, we are proposing oneadditional definition—for datacollection and reporting purposesonly—a definition of ‘‘TANF family.’’This definition will apply to datacollection for the Tribal TANF programas it will to State TANF programs.

The law uses various terms todescribe persons being served under theTANF program, e.g., eligible families,families receiving assistance, andrecipients. Unlike the AFDC program,there are no persons who must beserved under the TANF program.Therefore, each Tribe and State willdevelop its own definition of ‘‘eligiblefamily,’’ to meet its unique programdesign and circumstances.

We do not expect coverage and familyeligibility definitions to be comparableacross Tribes and States. Therefore, wehave established a definition that willenable us to better understand thedifferent Tribal and State programs andtheir effects. The definition of ‘‘TANFfamily’’ starts with the persons in thefamily who are actually receivingassistance under the Tribal TANFprogram. (Any non-custodial parentsparticipating in work activities will beincluded as a person receivingassistance in an ‘‘eligible family’’ since



Tribes may only serve non-custodialparents on that basis.) We, then, wouldinclude three additional categories ofpersons living in the household, if theyare not already receiving assistance.These three additional categories are:

(1) Parent(s) or caretaker relative(s) ofany minor child receiving assistance;

(2) Minor siblings of any childreceiving assistance; and

(3) Any person whose income andresources would be counted indetermining the family’s eligibility foror amount of assistance.

We believe information on theseadditional individuals is critical tounderstanding the effects of TANF onfamilies and the variability amongTribal and State caseloads, e.g., to whatextent are differences due to, or artifactsof, Tribal or State eligibility rules.

• We need information on theparent(s) or caretaker relative(s) (i.e., anadult relative, living in the householdbut not receiving assistance, and caringfor a minor child) to understand thecircumstances that exist in no-parent(e.g., child-only) cases not covered bykey program requirements, such as timelimits and work requirements.

• We need information on minorsiblings in order to understand theimpact of ‘‘family cap’’ provisions.

• We also need information on otherpersons whose income or resources areconsidered in order to understand thepaths by which families avoiddependence.

For research and other purposes, therewas interest in collecting data on abroader range of persons in thehousehold, e.g., any other person livingin the household such as a grandmotheror a non-marital partner of the mother.We determined that we should limitreporting to those categories of personson whom the Tribes and States willgather data for their own purposes andfor which information will be directlyrelevant to administration of the TANFprogram.

In the interest of greater comparabilityof data, we also considered definingterms such as ‘‘parent,’’ ‘‘caretakerrelative,’’ and ‘‘sibling.’’ We chose not todefine these terms because we wereconcerned that our data collectionpolicies could inadvertently constrainTribal and State flexibility in designingtheir programs. We believe thatvariation among Tribal and Statedefinitions in these areas will not besignificant and will not decrease theusefulness of the data.

We believe this definition of familywill not create an undue burden onTribes since all these additional personseither are part of an aided child’simmediate family or have their incomeor resources considered in determiningeligibility.

Finally, we want to emphasize thatwe have established this definition of‘‘TANF family’’ for reporting purposesonly. Our aim is to obtain data that willbe as comparable as possible under thestatute, and, to the extent possible, overtime. Some comparability in datacollection is necessary for assessingprogram performance; understandingthe impact of program changes onfamilies and children; and informing theStates, the Tribes, the Congress, and thepublic of the progress of welfare reform.

Section 286.255 (Section 286.230 in theNPRM) What Quarterly Reports Mustthe Tribe Submit to Us?

Each Tribe must file two reports on aquarterly basis—the TANF Data Reportand the Tribal TANF Financial Report.You will find the Data Report in itsentirety in the Appendices to this Part.

TANF Data Report

The TANF Data Report consists ofthree sections (Appendices A, B, and C),two of which provide disaggregated caseinformation. The third section providesaggregated data. The contents of eachsection were thoroughly discussed inthe NPRM.

Section 286.260 (Section 286.235 of theNPRM) May Tribes Use Sampling andElectronic Filing?

We will implement section 411(a) ofthe Act by permitting Tribes to meet thedata collection and reportingrequirements by submitting thedisaggregated case file data based on theuse of a scientifically acceptablesampling method approved by theSecretary. Tribes may also submit alldata on all cases monthly rather than ona sample of cases. However, Tribes, likeStates, are not authorized to submitaggregated data based on a sample.

We provide a definition of‘‘scientifically acceptable samplingmethod’’ in paragraph (b) of this section.This definition reflects generallyacceptable statistical standards forselecting samples and is consistent withexisting AFDC/JOBS statistical policy.

At a later date, we will issue theTANF Sampling and Statistical Manualwhich will contain instructions on theapproved procedures and more detailedspecifications for sampling methodsapplicable to both Tribal and StateTANF programs.

We also offer Tribes the opportunityto file quarterly reports electronically.We plan to develop a PC-based softwarepackage that will facilitate data entryand create transmission files for eachreport. The transmission files created bythe system will be the standard fileformat for electronic submission to us.

We also plan to provide some edits inthe system to ensure data consistency.

Because the data collection andreporting requirements are applicable inadvance of our developing the softwarepackage, Tribes will have the option tosubmit a disk with the required data orsubmit hard copy reports. Additionally,Tribes that do not have the necessaryequipment for electronic submissionwould continue to submit data on diskor submit hard copy reports.

Section 286.265 (Section 286.240 in theNPRM) When Are Quarterly ReportsDue?

Unlike for States, there are no reportsubmission time frames specified by theAct for Tribes. In our December 1997policy announcement (TANF–ACF–PA–97–4), we stated that Tribes are requiredto submit the TANF data reports within45 days following the end of each reportquarter (consistent with that given toStates). This Final Rule contains thesame time frame; Tribes must submitthe TANF Data Report and the TribalTANF Financial Report no later than 45days following the close of each reportquarter. If the 45th day falls on aweekend or on a national, State orTribal holiday, the reports will be dueno later than the next business day.

Section 116(a) of PRWORA indicatesthat the effective date for title IV–A ofthe Social Security Act as amended byPRWORA is July 1, 1997. This wouldseem to indicate that Tribal TANFgrantees would need to begin collectingthe required TANF data as of theimplementation date of their TribalTANF program. However, section116(a)(2) states that the provisions ofsection 411(a) are delayed for States tothe later of July 1, 1997, or the date thatis six months after the date that theSecretary of Health and Human Servicesreceives a complete State plan.

Although section 116(a) on its faceseems to apply only to the States, we areinterpreting this section to be applicableto Tribal grantees as well with regardsto section 411(a). We base ourinterpretation on section 412(h) whichstates that section 411 applies to Tribesand the fact that section 116(a)(2) istitled ‘‘Delayed Effective Date ForCertain Provisions’’. We interpret thelanguage of section 116(a)(2) to meanthat section 411(a) of the Act could bedelayed by all entities subject to it. Asthe effective date of section 411(a) isdelayed for States, we believe theeffective date is also delayed for Tribes.

We will also apply section 116(a)(2) ofthe Act to Tribes. Section 116(a)(2) givesStates a six-month reprieve from datareporting requirements upon initial



implementation of their TANFprograms. We recognize that, unlikeStates, most Tribes have never operatedan AFDC-type program, andconsiderable time and effort will beneeded to start up the Tribal TANFprogram. We believe that providing

Tribes with a six-month time periodbefore data needs to begin to becollected and submitted will aid Tribesin the initial program implementationstage.

Therefore, the effective date of aTribe’s first TANF Data Report and

Tribal TANF Financial Report will befor the period beginning six monthsafter the implementation date of itsTANF program.

For example —

Tribe implements TANF Data collection reporting periodstarts Covering the period First data report is due

July 1, 1997 ................................... January 1, 1998 ............................ Jan.–Mar. 1998 ............................. May 15, 1998.October 1, 1997 ............................. April 1, 1998 ................................. Apr.–June1998 ............................. Aug. 14, 1998.November 1, 1997 ......................... May 1, 1998 .................................. May–June 1998 ............................ Aug. 14, 1998.January 1, 1998 ............................. July 1, 1998 .................................. July–Sept. 1998 ............................ Nov. 16, 1998.February 1, 1998 ........................... August 1, 1998 ............................. Aug.–Sept. 1998 ........................... Nov. 16, 1998.March 1, 1998 ................................ September 1, 1998 ....................... Sept. 1998 .................................... Nov. 16, 1998.April 1, 1998 .................................. October 1, 1998 ............................ Oct.–Dec.1998 .............................. Feb. 15, 1999.

For Tribes currently operating aTANF program, the Tribe shall begincollecting data for the TANF DataReport as of the effective date of thisregulation.

Comment: It was pointed out thatproposed § 286.240(a) failed torecognize State and Tribal holidays aslegitimate ‘‘one business day’’ waiversfor the submission of required quarterlyreports..

Response: We have revised theregulations at § 286.265(b) to includesuch holidays as legitimate waivers.

Comment: Several comments weremade that the data collection andreporting requirements proposed in§ 286.240(b) should be implementedafter 12 months rather than six months.

Response: Section 116 of PRWORApermits only a six-month delay.Furthermore, the wording of§ 286.240(b) as proposed implied thatfinancial data did not have to begathered and reported for six months.This is an obvious oversight, and wehave corrected that language.

Section 286.270 (Section 286.245 in theNPRM) What Happens if the Tribe DoesNot Satisfy the Quarterly ReportingRequirements?

As previously discussed, section412(h) of the Act requires Tribes toreport on certain data in accordancewith section 411. Unlike for States, theAct does not impose fiscal penalties onTribes that do not submit the reports.However, in § 286.270(a), we cautionTribes that by not submitting completeand accurate reports, which include thedata necessary for calculatingparticipation rates, they are liable forpenalties associated with failure to meetthe established participation targets.

In addition, failure to submit therequired Tribal TANF Financial Reportcould raise an issue of proper use offunds.

Section 286.275 (Section 286.250 in theNPRM) What Information Must TribesFile Annually?

Section 411(b) of the Act requires theSecretary to prepare an annual report toCongress addressing the States’implementation and operation of theTANF program. Since section 412(h)makes all of section 411 applicable toTribal TANF programs, we interpret thisto mean that Congress intended thatTribes as well as States collect the datanecessary for the section 411(b) annualreport. Therefore, we will need data onTribal TANF programs for inclusion inthe section 411(b) Report to Congress.We will collect some of the informationrequired in section 411(b) for thisReport to Congress as an addendum tothe fourth quarter Tribal TANFFinancial Report.

At a later date, we will work withTribes and others to identify the specificinformation that should be included inthis report.

In order to minimize the reportingburden on Tribes, we will collect someinformation for our report to Congressfrom the quarterly Data and FinancialReports, Tribal plans, annual reviews,and/or special studies. We also want totake advantage of the research efforts onthe TANF program currently beingconducted by several researchorganizations. To the extent that we maybe able to build on existing endeavors,we will avoid duplication of effort,reduce reporting burden, and produce abetter, more complete picture of TribalTANF programs nationally.

Comment: Some commenters said thatthe data required was repetitive ofinformation collected for use in otherprogram functions.

Response: We have changed theregulations to indicate that the TribalTANF grantee’s annual report mayinclude by reference all informationpreviously supplied either in its TFAP

or a previous annual report, and we willno longer require performance andprogram reports. Further, the annualreport is no longer associated with theTribal TANF grantee’s fourth quarterfinancial report. The annual report maynow be submitted either as anaddendum to the fourth quarter TANFdata report or as a separate annualreport.

Section 286.280 (Section 286.255 in theNPRM) When Are Annual ReportsDue?

As indicated at § 286.280(a), theannual reports must be filed ninety (90)days after the close of the Federal fiscalyear. This deadline is consistent withthe deadline for most annual reportsunder DHHS grant programs.

Comment: Some commentersexpressed concern about the timing ofthe first annual report, as some Tribesmay have only a month or two of TribalTANF operations before the first suchreport is due.

Response: We revised § 286.280(b) toindicate that a Tribe does not have tosubmit an annual report until the end ofthe first full fiscal year during which ithas operated the plan, but the reportmust include all relevant data since theplan was approved. For example, if aplan is approved September 1999, thefirst annual report is due 90 days afterthe end of Fiscal Year 2000, and is tocover the period September 1999through September 2000.

In addition, the wording of§ 286.255(b) as proposed implied thatthe first annual report for all Tribes isfor FY 1998. This was an obviousoversight, and we corrected thatlanguage.

Comment: It was suggested that weuse State-submitted data where there isa duplication of TANF data.

Response: The Statue specificallyrequires that Tribes gather and reportdata on their service population. To the



extent that data required are availableonly from a State or another Tribe (e.g.,months receiving TANF), the Tribe mustmake a good faith effort to obtain thedata.

Section 286.285 (Section 286.260 in theNPRM) How Do the Data Collectionand Reporting Requirements AffectPublic Law 102–477 Tribes?

Pub. L. 102–477, the IndianEmployment and Training and RelatedServices Demonstration Act of 1992,affords Tribes an opportunity toconsolidate certain programs into onegrant. In paragraph (a) of this section werequire Tribes desiring to include TANFin their Pub. L. 102–477 plan to obtainapproval to operate a Tribal TANFprogram first through the Tribal TANFplan submission process outlined inthese regulations. (See § 286.160regarding the Tribal TANF planapproval process).

While Pub. L. 102–477 enables Tribesto prepare one consolidated reportregarding the programs included in theplan, it does not provide for waivers ofstatutory requirements. Because theTribal TANF data collection andreporting requirements are statutory,§ 286.285(a) clarifies that Pub. L. 102–477 Tribes must continue to submit thespecified data of the Act.

However, in § 286.285(b) we proposethat the statutory data (bothdisaggregated and aggregated) can besubmitted in a Pub. L. 102–477consolidated report to the U.S.Department of the Interior, Bureau ofIndian Affairs (BIA), in a formatnegotiated with BIA. We consideredwhether we should require Pub. L. 102–477 Tribes to submit TANF reportsdirectly to us, but rejected this idea onthe basis that Pub. L. 102–477specifically authorizes Tribes toconsolidate data and make one reportfor all integrated programs in the plan.However, we are providing Pub. L. 102–477 Tribes with the option to report therequired TANF data directly to us. Wewill work jointly with BIA in collectingthe statutory data required.

Appendices A–H

Background

In Subpart E—Data Collection andReporting Requirements—of theProposed Rule we published thefollowing eight Appendices: AppendixA—Proposed TANF Disaggregated DataCollection for Families ReceivingAssistance Under the TANF Program;Appendix B—Proposed TANFDisaggregated Data Collection forFamilies no Longer ReceivingAssistance under the TANF Program;

Appendix C—Proposed TANFAggregated Data Collection for FamiliesApplying for, Receiving, and no LongerReceiving Assistance under the TANFProgram; Appendix D—Proposed TANFFinancial Report; Appendix E—Proposed Summary of SamplingSpecifications; Appendix F—StatutoryReference Table for Appendix A;Appendix G—Statutory Reference Tablefor Appendix B; and Appendix H—Statutory Reference Table for AppendixC.

In the NPRM we indicated that theseappendices to part 286 would not beincluded in the final regulations.However, we are addressing thecomments we received about theseappendices.

Comments: We received severalcomments about not includingAppendices A, B, C, and D in the finalregulations.

Response: Our rationale for notincluding them is threefold. First, ifthey were included, then anytime it wasnecessary to make any type of change tothe data to be reported (includingreducing the data required, samplesizes, and changes in definitions), itwould be necessary to republish therevised requirements as regulations.Second, it is necessary to design a datacollection system that accurately reflectsstatutory intent. And third, pursuant tosection 412(g) of PRWORA, the datacollection and reporting requirements ofsection 411 apply to Tribal TANFprograms, subject to certainclarifications. We will make suchclarifications as are necessary throughthe issuance of a Program Instruction.

In the interim, for purposes ofimplementing statutory provisionsrelating to data and measurement ofwork participation rates, it is necessaryto obtain some data about Tribal TANFprograms. Instructions as to what datamust be supplied by the Tribes arecontained in the data system programinstructions issued by ACF on May 5,1998— ‘‘TANF–ACF–PI–98–2 InterimTribal TANF Data Report, Form ACF–343, Approved by the Office ofManagement and Budget (OMB)Through 12/31/1998 (Control No. 0970–0176)’’. Note: an extension throughApril 30, 2000 has been granted.

Comments: In the preamble, werequested comments as to whether weshould include a tribal enrollmentidentifier. The comments we receivedindicate general opposition to thisprovision.

Response: A tribal enrollmentidentifier is not included.

Appendix A, TANF Disaggregated DataCollection for Families ReceivingAssistance Under the TANF Program;and:

Appendix B, TANF Disaggregated DataCollection for Families no LongerReceiving Assistance Under the TANFProgram

Comments: Commenters requestedassurance that specific individuals andfamilies not be identified.

Response: All data gathered underthis Statute is covered by the PrivacyAct of 1974, 5 U.S.C. section 552a, asamended in 1997 (5 U.S.C.A. section552a), which restricts the use andrelease of data on individuals.

Comment: It was stated that the datarequested in Appendix B would beavailable only for the last month thecase was active and thus would place atremendous burden on Tribes to collect.The only time such data would beavailable would be for the last monththe case was active.

Response: The data being requested isto be supplied only once—in the monthin which the case was closed, whichwould be the month after the last monthit was active.

Appendix C, TANF Aggregated DataCollection for Families Applying for,Receiving, and no Longer ReceivingAssistance Under the TANF Program

Comment: A comment was receivedthat the term ‘‘out-of-wedlock’’ shouldbe replaced with ‘‘marital status ofhousehold adults’’ because the term isculturally insensitive to Tribes whoconsider no birth of a child within atribal community illegitimate.

Response: The statute requires data on‘‘out-of-wedlock’’ births. Marital statusof adults during the month of the reportis already included as an item to bereported.

Appendix D, TANF Financial Report

Instructions for completing andsubmitting a Tribal TANF financialreport will be issued in a subsequentprogram instruction.

Comment: A comment was receivedthat we should not require reporting oftribal expenditures for TANF.

Response: This data is to be reportedonly when TFAG funds are withheld fora penalty and the Tribe must substituteits own funds in an amount that is noless than the amount withheld.Fiduciary responsibilities require us toobtain this particular data.

Appendix E, Summary of SamplingSpecifications

Comment: Several commentersexpressed concern that the sample sizes



proposed were too large to permit allbut the largest Tribes to utilize thatmethod of collecting and reporting data.

Response: The proposed sample sizesspecified were based on the necessityfor making confidence level statementsabout the observed work participationrates being within a given range. Thesample size could be reduced based onthe proportion of the caseload itrepresented through a statistical formulacalled the ‘‘finite population factor’’ (orpopulation correction factor). Use of thisfactor is already permitted in theinterim data system programinstructions issued by ACF on May 5,1998 (TANF–ACF–PI–98–2) and may beused for the final system.

All samples involve extraadministrative costs for design, control,and monitoring. While the use of the‘‘finite population factor’’ willsomewhat reduce the sample size, thereduction may not be significant enoughto offset the extra administrative costsinvolved. If the caseload is small andthere is relatively low turnover in thecases, the extra administrative costs ofdesign, control, and monitoring may faroutweigh any benefits to be derivedfrom sampling.

ACF has made available to Tribes, atno cost, an automated data entry andreporting system for the interimreporting that is now in effect. As datacollection requirements are finalized forTribes, a new system will be madeavailable to the Tribes, again at no cost.The essential value to this system (orany other similar automated system) isthat once the data is entered into thesystem, only changes have to be entered.This reduces the reporting burdensubstantially. Costs associated withdesigning, administering, monitoring,and controlling a sample will beconsidered administrative costs.

Comment: A comment was receivedthat the sample size should be for theTANF program as a whole rather thanfor each individual Tribe.

Response: The Statue requires that wedetermine if each Tribe is meeting itsnegotiated work participation rates. Wecan do this only if we obtainscientifically acceptable samples fromeach Tribe.

Comment: It was suggested that‘‘scientifically acceptable samplingmethod’’ be replaced with ‘‘or any otherscientifically supportable samplingmethod proposed by the Tribe andapproved for use which has beenincluded in the Tribal TANF plan.’’

Response: There is no practicaldifference between ‘‘scientificallysupportable’’ and ‘‘scientificallyacceptable.’’ ‘‘Scientifically acceptablesampling method’’ has the advantage of

being the more commonly used andunderstood phrase. Inclusion of astatistical sample plan developmentprocess within the framework of theTribal TANF plan development processwould unnecessarily complicate thisprocess.

VI. Part 287—Native EmploymentWorks (NEW) Program Provisions

Discussion of Selected RegulatoryProvisions

The following is a discussion ofselected NEW regulatory provisions. Itis divided into two sections. In the firstsection, we summarize each subpart ofPart 287 and provide background oradditional explanatory information if itis helpful for clarification of the FinalRules. In the second section, we addressthe following program areas in detail:client eligibility, work activities andcoordination.

Overview of CommentsSeventeen entities commented on the

NEW provisions, including twelveTribes. Of those twelve, nine were NEWgrantees and two of the grantees haveincorporated NEW under a Pub.L. 102–477 demonstration project. SeveralTribal and State coalition organizationsalso provided comments, as well asthree states. No federal agenciessubmitted comments.

In general, the NEW proposed rulereceived strong support for providingbroad flexibility in: conducting NEWPrograms, determining servicepopulations and areas, formatting plans,designing programs, defining workactivities, providing services andallowing job creation activities. Therewas also praise for supportingincorporation of the NEW Program intoPub.L. 102–477 demonstration projectsand preserving the concept of a singleplan and report.

Several comments addressed issuesbeyond the department’s control, suchas providing additional programfunding, amending the program toinclude other Tribes, and changing thebasis of NEW funding from the FY 94funding level.

Comment: One state commented thatstates should not have to count tribalmembers that receive TANF benefits inthe state’s participation rate.

Response: According to § 261.25 ofthe State TANF regulations, states havethe option to include tribal familiesreceiving assistance under a tribalTANF or work program in calculatingthe State’s participation rates under§ 261.22 and 261.24. Issues related toproviding services to tribal families byState TANF programs fall under thepurview of State TANF regulations.

Comment: Some commentersassumed that the purpose of the NEWProgram was identical to that of theTribal Job Opportunities and BasicSkills (JOBS) Training Program.

Response: Although NEW replacedthe Tribal JOBS Program, its purposeand scope are different, with the NEWlegislation authorizing a program toprovide work activities. The statuteallows Tribes the autonomy todetermine service population, servicearea and work activities.

Comments: Comments from severalstates indicated a concern that the NEWregulations are not overly supportive ofTANF requirements, and do notspecifically target TANF recipients.

Response: The regulations do nottarget TANF recipients because thestatute does not require them to do so.

We believe the law provides theopportunity for eligible Tribes to designprograms to create work activities fortheir participants. The tribal workprogram is a new program with adifferent purpose than the old TribalJOBS Program. The funding is a separateappropriation and not from the stateTANF allocation. Even though NEWPrograms are not mandated to serveTANF recipients, an overwhelmingmajority of NEW grantees do.

Comment: Several commenters askedthat we permit a grantee operating bothNEW and Tribal TANF programs tosubmit a single, comprehensive programplan. They suggested the statute doesnot prohibit this action, that it wouldeliminate unnecessary administrativepaperwork, emphasize that the NEWProgram is a natural complement toTribal TANF, and encourage thecoordination of NEW and Tribal TANFprograms.

Response: Regardless of whether agrantee operates the NEW Program orboth the NEW and Tribal TANFprograms, the grantee must meet theseparate statutory requirements of eachprogram. There is no provision in thestatute that permits a Tribe to meet adifferent set of provisions if it operatesboth programs.

Because the statutory requirements ofthe NEW and Tribal TANF programs aresignificantly different, we believe itwould be inefficient to develop andmaintain procedures for submission ofjoint plans. Through the plan, thegrantee provides information toestablish that the Tribe is committed tomeeting the statutory requirements ofthe program. It establishes that thegrantee intends to fulfill therequirements of the law and hasimplemented operational procedures bywhich the Tribe will operate a programin compliance with the statute. Because



of the significant difference in thestatutory requirements for NEW andTribal TANF, the requirements relatedto plan content must of necessity reflectthese different requirements. Forexample, the statute requires numerousdata reporting requirements that areapplicable to Tribal TANF grantees andnot to NEW Program grantees. Thesevarying requirements are reflected indifferent plan structures and outlines forthe two programs.

In addition, NEW and Tribal TANFprograms have different fundingsources. These sources do not mergewhen a Tribe receives funding foroperation of the programs, unless aTribe is operating under the 102–477Demonstration Project. The programsremain distinct when they enter into aTribe’s funding stream. With programshaving separate funding sources, thegrantee must report program operationsand financial activities that are uniqueto each program. The Tribe must keepseparate and distinct information abouteach of the programs in terms ofactivities and services and provide anaccounting of funds in accordance withregulatory requirements andDepartmental policies.

Because a grantee must meet thestatutory requirements of each program,we do not believe a significantreduction in paperwork would result byhaving a single plan. As noted above,even if a single plan were used, it wouldstill be necessary to includedocumentation about each program’spurpose, structure, objectives,operational procedures, services andbenefits and reporting requirements.

Development and maintenance ofseparate plans when a Tribe operatesboth NEW and Tribal TANF programsdoes not necessarily result in a loss ofa Tribe’s ability to coordinate activitiesof the two programs. It could also serveto emphasize the flexibility a granteehas to design and integrate programsthat will complement each other inproviding effective services to its servicepopulation.

We made a technical correction to§ 287.160(b) to clarify languageregarding the deadline for submission ofthe financial report (SF–269A).

Other commenters addressedcoordination factors, language, andreport due dates. Responses areprovided for those specific commentsorganized by subparts and sections,following the order of the regulatorytext.

Subpart A—General NEW Provisions(Sections 287.1–287.10)

Part 287 contains our Final Rule forimplementation of section 412(a)(2) of

the Act, as enacted by PRWORA. Thestatute provides flexibility to the Tribesin the implementation and operation ofthe NEW Program, which is to providework activities. Not only do wehighlight this factor as an intent of thestatute, we express that Tribes have theopportunity to create a program thatwill serve a Tribe’s most vulnerable andneedy population.

This is also the portion of the FinalRule where we indicate the start dateand define terms in part 287 that havespecial meanings or need clarification toensure a common understanding.Although a term may be defined in thissubpart, that definition may be repeatedin a section if the term is uncommon orused in a special way. We chose not todefine every term used in the statuteand in these Final Rules. We believethat excessive definitions may undulyand unintentionally limit Tribalflexibility in designing programs.

Section 287.5 What is the Purpose andScope of the NEW Program?

Comments: Several commenterssuggested clarification of the purposeand scope of the tribal work programthat ACF has designated as the NEWProgram. Since the NEW Programreplaced the Tribal JOBS Program, thecommenters’ expectations were that thetwo programs would have similarpurposes.

Response: Unlike the Tribal JOBSProgram, which served only AFDCclients, the purpose for the tribal workprogram is to make work activitiesavailable to the populations and areasthe Tribe specifies.

Comment: One commenter indicatedthe scope of the program, as stated inthe proposed regulations at § 287.5,extended beyond the statutory language.

Response: In order to conform thescope of the program with the statute,we have deleted § 287.5(b).

Comment: One State suggesteddesigning a program more supportive ofTANF requirements.

Response: The statute does notrequire the tribal work program tosupplement the TANF program.Requiring grantees to design theirprograms to support TANFrequirements would impinge upon theTribe’s sovereignty and programflexibility. Section 287.115 of theregulations does, however, requirecoordination between NEW Programsand TANF agencies in cases where theNEW Program has decided to serveTANF recipients.

Subpart B—Eligible Tribes (Sections287.15–287.30)

Funding to operate a NEW Program isonly available to those grantees who aredefined as ‘‘eligible Indian tribes’’ in thestatute. An eligible Indian tribe is anIndian tribe or Alaska Nativeorganization that operated a JobOpportunities and Basic Skills Training(JOBS) program in fiscal year (FY) 1995.When PRWORA was enacted, seventy-six Indian tribes and Alaska Nativeorganizations comprised the universe ofeligible Indian tribes.

A consortium of eligible Indian tribesmay receive NEW Program funding.Where the consortium operated a JOBSprogram in FY 1995, the Tribes mayapply again as a consortium for NEWProgram funds, or a Tribe that is amember of the consortium may applyfor individual funding.

If a consortium should break up orany Tribe withdraws from a consortium,remaining funds and future grants mustbe divided among the Tribes that weremembers of the consortium, if eachindividual Tribe obtains ACF approvalto continue to operate a NEW Program.

Public Law 102–477 allows Tribalgovernments to coordinate federallyfunded programs that provideemployment, training and relatedservices into a single, comprehensiveprogram. The 102–477 grantees mayinclude the NEW Program in their plan.

Section 287.15 Which Tribes areEligible to Apply for NEW ProgramGrants?

Comment: One commenter on thissection suggested that NEW needs to beamended to include Tribes who havenot previously operated the JOBSprogram.

Response: ACF recognizes thepotential benefits of having NEWPrograms operate in additional tribalareas. However, section 412(a)(2) of theAct explicitly specifies those Tribes andAlaska Native Organizations who areeligible for NEW Program funding. Only‘‘eligible Tribes’’ qualify to receivefunding. The law clearly indicates thatit was Congressional intent to establisha limited work activities program, onethat would allow only those Tribes whohad previously and most recentlyoperated a JOBS program to continueoperation of the replacement workactivities program.

Section 287.25 May Tribes Form aConsortium to Operate a NEW Program?

Comment: In the proposed rule, ACFproposed at § 287.25(c) to require thatthe program plan submitted by a newlyformed consortium include a copy of a



resolution from each Tribe indicating itsmembership in the consortium andauthorizing the consortium to act on itsbehalf in regard to administering a NEWProgram. One commenter suggested thatwe add that for Alaska NativeOrganizations grantees that form aconsortium, a supporting resolutionfrom their executive board is sufficientto satisfy this requirement.

Response: We incorporated thesuggestion.

Section 287.30 If an EligibleConsortium Breaks up, What Happensto the NEW Program Grant?

Comments: Two commenterssuggested that only those grantees whooperated a JOBS Program in FY 1995should continue to receive NEWfunding at the FY 1994 funding level,regardless of a change in service area.

Response: Statutory provisionsgoverning the NEW Program providethat funding for an eligible Tribe shallnot be affected by a change in its servicearea. PRWORA authorizes funds foroperation of the NEW Program for sixfiscal years (FY 1997–FY 2002). Theamount of each eligible Tribe’s grant isfixed for each of those six years and isequal to the amount of the JOBS grantthe eligible Tribe received in FY 1994.

Subpart C—NEW Program Funding(Sections 287.35–287.65)

With the creation of the TANF blockgrant, the JOBS programs, includingTribal JOBS, were terminated. However,funding was continued to those Tribeswho operated a Tribal JOBS Program infiscal year 1995 for the purpose ofproviding work activities. The NEWProgram provides funding for Tribesand inter-tribal consortia to administerNEW Programs in FYs 1997 through2002. The funding level is set by thestatute to remain at $7,638,474 for eachFY, the FY 1994 Tribal JOBS fundinglevel. This is the sole basis for thefunding amounts. The FY 1994 JOBSgrant amounts were originally based onagreements between Tribal JOBSgrantees and their respective Statesregarding the ratio of Tribe to Stateadult AFDC recipients. Recipient countsand agreements are not now required,since the NEW Program grants are fixedamounts. There are no matching fundrequirements for NEW. To apply forfunding, an eligible grantee must submita plan that establishes it will operate aprogram in accordance with the statute.Funds must be used to operate programsthat make work activities available tosuch population and service area as thegrantees specify. Work activities mayinclude supportive and job retentionservices necessary for assisting NEW

Program participants in preparing for,obtaining and/or retaining employment.Grantees are required to adhere toapplicable financial reporting andauditing requirements.

Some Tribes expressed an interest inbeing able to carry forward anyunexpended NEW funds to the nextyear. Section 404(e) of the Act allowsStates to reserve amounts paid to theState for any FY for the purpose ofproviding TANF assistance without FYlimitation. This section 404(e) of thestatute is not applicable to Tribal TANFor NEW Programs. Section 412(a)(2) issilent on an obligation period for NEWProgram funds. The absence in thestatute of a specific provisionauthorizing carryover of NEW Programfunds means that such carryover is notpermissible. Carryover authority maynot be implied, but must be specificallygranted by Congress. Unauthorizedcarryover of appropriated funds violates31 U.S.C. 1301(c)(2), which states thatan appropriation may be construed to bepermanent or available continuouslyonly if the appropriation expresslyprovides that it is available after thefiscal year covered by the law in whichit appears.

Section 287.35 What Grant Amountsare Available Under the PersonalResponsibility and Work OpportunityReconciliation Act of 1996 (PRWORA)for the NEW Program?

Comment: One commenter observedthat to base NEW Program funding onthe FY 1994 funding level is inaccuratedue to population increases, economicinflation, and similar factors.

Response: ACF is unable to changethe manner in which the NEW Programis funded. The statute specifies thateach eligible Tribe shall receive a granteach fiscal year in the amount of itsfiscal year 1994 tribal JOBS grant. Thegrants are fixed amounts. Congresschose not to link the funding toadditional factors.

Section 287.55 What Time Frames andGuidelines Apply Regarding theObligation and Liquidation Periods forNEW Program Funds?

Comment: One Tribe requested thatwe clarify the terms ‘‘fiscal year’’ and‘‘program year.’’ It was stated that theterms are confusing and misleading. Thecommenter also noted that because ofthe financial procedures related toobligating and liquidating funds, it isimportant that the terms are clearlydefined in the regulations.

Response: In accordance withprovisions of section 116(a)(1) of Title Iof PRWORA, funding for the NEWProgram became available on July 1,

1997. NEW Program funds are issued foreach fiscal year thereafter. The grantsare annual grants. The definition offiscal year found at section 419 of theAct is applicable to the NEW Program.A fiscal year is the twelve-month periodthat begins October 1 and endsSeptember 30. The definitions of fiscalyear and program year are contained in§ 287.10.

Because of the provisions of PRWORAand fiscal policies governing the use ofannual grants, we determined that fundsprovided for a fiscal year are for useduring the twelve-month period July 1through June 30. We call this twelve-month period for use of program fundsthe program year. The program year,therefore, represents the annual programoperations year.

Possible confusion between the twoterms is minimized by recalling thatfunds for a fiscal year for operation ofa NEW Program are not available at thebeginning of a FY, October 1, but arefirst available on July 1. For example,NEW funds appropriated for FY 1998(October 1, 1997–September 1998) werefirst available on July 1, 1998, foroperation of the 1998 NEW Programyear. The 1998 NEW Program yearbegan July 1, 1998, and ended June 30,1999.

Comment: ACF was asked to explainthe time frames and guidelines thatapply regarding obligation andliquidation periods for NEW Programfunds.

Response: Funds allocated for a FYare for use during the correspondingprogram year, the period that beginsJuly 1 of the FY and ends June 30 of thefollowing FY. Since the funds areannual grant awards, they must beobligated by June 30, the end of thefunding period or program year.Unobligated funds will be returned tothe Federal government through theissuance of negative grant awards.Eligible Tribes are required to report anyunobligated funds on the SF–269Awithin 30 days after the funding period,i.e. by July 30.

The liquidation period is the one-yearperiod after the end of the obligationperiod. This means a Tribe mustliquidate all obligations incurred underthe NEW Program grant award not laterthan June 30 of the following FY. Forexample, funds provided for FY 1998must be obligated no later than June 30,1999. All obligations for operation of theprogram must then be liquidated nolater than June 30, 2000, one year afterthe end of the obligation period. EligibleTribes are required to report anyunliquidated funds on the SF–269Awithin 90 days after the conclusion of



the program year or of the liquidationperiod.

Comment: Numerous comments werereceived regarding the proposedprohibition on carry over of unobligatedNEW grant funds into future programyears.

Response: While ACF is sensitive tothe fact that carry-over of funds ispermitted in other Federal Indian workprograms, we have nonethelessdetermined that specific legislativeauthorization is needed to allow NEWgrantees to reserve grant funds for futureprogram years. Tribal NEW grants arefixed for each fiscal year at the amountreceived by the Indian tribe in fiscalyear 1994 under section 482(i) (as ineffect during fiscal year 1994). Thus, thestatute determines that NEW grant fundsare ‘‘one-year’’ monies. This means thatNEW grant funds must be obligated forthe needs of the current program year.ACF has determined that specificstatutory authorization would be neededto permit NEW grantees to reserve orcarry over NEW grant funds withoutfiscal year limitation.

Section 287.65 What OMB CircularsApply to the NEW Program?

Comment: ACF received onecomment to this section. Thecommenter noted that if a program isimplemented by a nonprofitorganization rather than a Tribe, OMBcircular A–122, ‘‘Cost Principles forNon-Profit Organizations’’ would apply.Therefore, the list of circulars applicableto the NEW Program should includeOMB Circular A–122.

Response: We concur with thecommenter’s suggestion. In a limitednumber of instances, the administrativeunit qualifying to receive NEW Programfunds on behalf of an eligible Tribe ora consortium of eligible Tribes is a non-profit agency or organization. We haverevised the final regulations to indicateOMB Circular A–122 may apply to theNEW Program.

Subpart D—Plan Requirements(Sections 287.70–287.100)

The submission of a NEW plan is todocument the establishment andoperation of a Tribe’s NEW Program.Through this document the Triberequests funding for its program, asoutlined. The requirement forsubmission of a NEW Program plan alsoapplies to a Tribe if it operates a TribalTANF program.

For operation of a NEW Program forthe first year in which funds wereavailable, FY 1997, we required a oneyear interim preprint. This allowedTribes the opportunity to structure theirinitial NEW Program around a shorter

planning cycle. Guidance for preprintsubmittal to operate a FY 1997 NEWProgram was issued in the documententitled, ‘‘Native Employment WorksProgram: Abbreviated Preprint.’’ Issuedthrough a program instruction (NEW–ACF–PI–97–1, dated July 17, 1997), italso included instructions for Tribesoperating Pub. L. 102–477 programs.

After the first year of operation, aTribe will be able to develop a longrange planning document that takes intoconsideration the positive and negativeaspects of the interim preprint. We willrequire the ongoing plan, includingcertifications, to cover a three-yearperiod. The requirement that a NEWProgram plan cover a three-year periodis consistent with the Tribal TANF planrequirement. We will issue programinstructions to provide guidance forsubmission and approval of future NEWplans and any subsequentmodifications.

In general, Tribes who had previouslyconsolidated their JOBS program into aPub. L. 102–477 plan submitted a letterindicating that the NEW Program wasincorporated into their 102–477 planwhere there were no substantivechanges between the Tribal JOBSProgram and the NEW Program.However, a 102–477 plan modificationwill be required if substantive changesare made in the future.

We considered a number of factors indeciding on the funding period for theNEW Program. We noted that PRWORAfirst made funds available on July 1,1997, for the operation of the NEWProgram. Yet, the law refers to fundingthe program for FYs and defines FY inthe usual manner. We believe a correctinterpretation of the statute is to havethe NEW Program begin on July 1 ofeach year and run through June 30 ofthe following year.

Section 287.70 What Are the PlanRequirements for the NEW Program?

Comments: Several commenterssuggested that the description of theNEW Program plan exclude thedescription of client services because itwas duplicative of the description ofwork activities to be provided.

Response: The elements grantees arerequired to describe in the plan weretaken directly from the NEW planningguidance. Upon further review, wedetermined that the applicable sectionof the guide was requesting informationto determine client eligibility and aprocess for prioritizing clients to receiveservices. Thus, the informationrequested is different and notduplicative. As a result, we did notchange that section.

Comment: One state commented thatthe Tribes should be required todescribe the NEW Program as states arerequired to.

Response: We believe the commenterwas confused because states don’t havework programs per se, and § 287.70 doeslist plan requirements for Tribes.

Section 287.75 When Does the PlanBecome Effective?

The Secretary required Tribes tosubmit an interim Tribal preprint, the‘‘Native Employment Works ProgramAbbreviated Preprint,’’ if they wereoffering NEW Program services effectiveJuly 1, 1997. The preprint becameoperative July 1, 1997, and remained ineffect until the end of the program year,June 30, 1998. Subsequent three-yearplans must be submitted to theSecretary by a deadline to beestablished. The 1998 plan coveredprogram years 1998, 1999, and 2000.

Section 287.85 How Is a NEW PlanAmended?

Comments: Comments were receivedsuggesting a word change in proposed§ 287.85(c) that any substantial changein plan content or operations be‘‘submitted’’ rather than ‘‘reported’’ toACF.

Response: We have made that changeto the regulatory language.

Comment: A commenter suggestedthat an amendment to a NEW planbecome effective the first day of thequarter in which the amendment issubmitted.

Response: Such an action would makethe amendment retroactive. If for somereason the amendment wasdisapproved, there may be a negativeconsequence if the grantee had alreadyimplemented the change. A quarterlytime frame is essentially meaningless forNEW operations and reports.

Subpart E—Program Design andOperations (Sections 287.105–287.145)

In this subpart, we require Tribes toindicate who the program will serve,what activities and services will beprovided, the coordination required topromote program effectiveness andprogram outcomes. Each Tribe will haveto give careful consideration to thepopulations most in need of services tohelp them avoid long-term dependencyand chronic unemployment.Opportunities for work may not bereadily available on reservations and thesurrounding economic conditions varygreatly. Consequently, we are allowinggrantees the option of using programfunds to encourage economicdevelopment initiatives leading to jobcreation. Additionally, we support the



alternative of encouraging traditionalsubsistence and other culturallyrelevant activities.

Generally, the need for servicesexceeds the demand. Consequently, anintake prioritization procedure mayneed to be instituted to determine theorder of serving clients. NEW Programsshould be tailored to fit the needs of itsdesignated population and can bedesigned to serve a variety of clients,including General Assistance, TANFclients, other target groups, such as, teenparents, non-custodial parents, seasonalworkers, unemployed parents andveterans, ex-offenders, etc.

It is not only important to coordinatewith other tribal programs to develop acomprehensive service delivery system,but State programs, social serviceagencies, non-profit organizations,private industry and any other entitywhich can provide resources oropportunities for the benefit of NEWclients and their families. It is commonpractice to combine activities andservices from different programs toprovide seamless services to individualclients and their families. This may bevery appropriate in the delivery ofservices to TANF clients who areobligated to participate in prescribedwork activities. NEW Program activitiesmay supplement TANF work activitiesin order to meet TANF workrequirements. In some cases States arecounting NEW Program participation infulfillment of participation raterequirements, where possible.

By allowing Tribes flexibility indetermining measures of programoutcome, we do not intend to imply thatthis is not an important area. Becauseeach NEW Program grantees’ goals,objectives, population and economicconditions will be different, weanticipate that Tribes will developdifferent program standards andmeasures to realistically reflectachievable outcomes and evaluateprogram performance.

It is crucial for NEW Program granteesto establish at the outset of programoperations their goals, expectedoutcomes, and outcome measures. Onlywith such information will programadministrators be able to reasonablyevaluate to what extent a NEW Programis successful.

There was one technical change. Theword ‘‘tribal’’ was added to theregulatory text, at § 287.115(d),regarding TANF participation ratesbecause this section pertains to Tribaland State TANF programs.

Section 287.110 Who is Eligible toReceive Assistance or Services Under aTribe’s NEW Program?

Comment: One comment suggestedthat all welfare recipients on thereservation be eligible for the NEWProgram.

Response: The statute as amendedstipulates each grantee ‘‘shall use thegrant for the purpose of operating aprogram to make work activitiesavailable to such population and suchservice area or areas as the Tribespecifies.’’ Each grantee has theautonomy to determine client eligibility.Whether or not to serve TANFrecipients is a decision to be made byeach tribal grantee.

Section 287.115 When a NEW GranteeServes TANF Recipients, WhatCoordination Should Take Place Withthe Tribal or State TANF Agency?

Comments: Conflicting commentswere received on this section. Somecommenters wanted the factors uponwhich coordination should occur to bereduced to only the essential ones.Other commenters wanted moreguidance on coordination when a NEWProgram serves TANF recipients.

Response: The Final Rule stipulatescoordination should occur, not mustoccur. While some areas of coordinationare more important than others, eachfactor listed represents a soundmanagement practice. The languagepresented in no way discourages tribal-state negotiations and presents moreoptions for tribal-state collaboration. Itis ACF’s intent to insure that eachgrantee evaluate the need for variouscoordination activities based on itsprogram structure and operations.

Comment: It was recommended thatACF mandate Tribe/State agreements todelineate roles, responsibilities, andservices.

Response: While ACF would advocatesuch a practice, this is an area left totribal/state discretion. Consequently, thesuggestion was not incorporated.

Section 287.120 What Work ActivitiesMay be Provided Under the NEWProgram?

Comment: There was a comment thatTribes be able to include work activitiesfor their TANF recipients.

Response: Section 287.120 allowsTribes to define their own workactivities to best address their clients’needs. The Tribes may include whateverwork activities they deem appropriate totheir service populations. Those listedin the rules are merely examples andnot all-inclusive. The rule was notchanged to include more examples.

Comment: One commenter expressedthe importance of including traditionaland tribal relevant activities asallowable work activities. Thecommenter further suggested that NEWparticipants be allowed to comply withwork participation requirements.

Response: Since ‘‘traditionalsubsistence activities’’ is listed in§ 287.120, that activity is alreadyidentified as an allowable activity.However, the listed activities areexamples and grantees are not limited tothe list. Regarding the second comment,it should be noted that there are nowork activity requirements under theNEW Program. The commenter may bereferring to TANF work participationrequirements. It is left to the discretionof the NEW grantee what work activitiesare to be provided. Negotiations andagreement with the TANF agency (andapplicable TANF rules) will determinewhether NEW work activities can becounted toward a TANF agency’sparticipation rate.

Section 287.130 Can NEW ProgramActivities Include Job MarketAssessments, Job Creation andEconomic Development Activities?

Comments: Some commenterssuggested that the term ‘‘job marketassessments’’ be eliminated from the listof activities allowable under the NEWProgram. Another commentercategorized this section as good foroffering guidance on maximizing theirprogram services.

Response: This proposed activity wasrecommended by one of the of NEWProgram directors and has validity forthe grantees that choose to conduct suchactivity. ACF would rather be inclusiveand provide a greater range rather thanbe exclusive for those granteesinterested in conducting such activity.This is an allowable, not mandatoryactivity. The suggested change was notmade.

Section 287.140 With Whom Shouldthe Tribe Coordinate in the Operation ofits Work Activities and Services?

Comment: It was suggested that theIndian and Native American Welfare-to-Work (INAWTW) program bespecifically mentioned as a program tocoordinate NEW with in § 287.140.

Response: Often Federal programs arenot reauthorized, or are authorized withdifferent names and/or revised scopes.For that reason, in the proposed ruleswe opted not to name specific programs.Consequently the suggestion was notincorporated.



Section 287.145 What Measures Willbe Used to Determine NEW ProgramOutcomes?

Comments: Several comments werereceived urging ACF to allow granteesthe ability to define their own standardsand measures.

Response: That was the intent of theproposed rules and remains so in theFinal Rule. According to the NEWProgram Planning Guidance, each NEWgrantee is to develop at least twoprogram standards. The guidance states‘‘the Tribe is encouraged to develop itsown standards.’’ The Final Rulesupports and encourages each grantee todevelop its own standards. Severalexamples are provided in theregulations due to the many inquiriesthat were received for guidance in thisarea. If more standards are developedand achieved by the NEW grantee, thesuccessful program elements willprovide further evidence of positiveprogram performance.

Subpart F—Data Collection andReporting Requirements Sections287.150—287.170)

Although not specified in PRWORAfor the NEW Program, it is necessary tooutline the minimum data gathering andreporting obligations for any granteereceiving Federal funding. Theparticular nature of the program servicesoffered within the NEW Program requirethe granting authority to set forth someuniform standards for appropriateaccountability and service definitionsand to insure the availability ofinformation necessary for publicoversight and evaluation.

Through considerable consultationand discussion with advocacy groupsand many eligible Tribes, the Secretaryhas elected to develop minimumreporting and data collectionrequirements. This minimum reportingrequirement will be evident in the shiftfrom quarterly reporting, which wasrequired under the Tribal JOBSProgram, to annual program and fiscalreporting. We expect NEW grantees tosimply maintain certain caseinformation on file rather than regularlysubmitting formal reports of theserecords to the Federal government.

We will require NEW Programgrantees to submit a report coveringprogram operations and a reportcovering financial expenditures. Thesereports must also be submitted by NEWProgram grantees who operate a TANFprogram.

The program operations report willprovide information essential formonitoring and measuring programperformance. It also includes data

elements to assist management inevaluating program objectives,performance measures and allocation ofresources.

The NEW Program operations reportis an annual report. The report will bedue September 28, which is 90 daysafter the close of the NEW Program year.The report is based on data collectedfrom the current program year. Thereport must be submitted to theappropriate ACF RegionalAdministrator and a copy forwarded tothe ACF, Office of Community Services,Division of Tribal Services, Attention:Data Reporting Team.

Under the Public Law 102–477initiative, all services are integratedunder a single 102–477 program plan;funds from the programs arecommingled under a single budget; andactivities are reported under a singlereporting system. In general, the 102–477 Tribes deal only with the leadFederal agency, the Bureau of IndianAffairs (BIA). The report is submittedannually to BIA and shared with theDepartments of Health and HumanServices and Labor.

The program operations report wasdeveloped by the Secretary inconsultation with NEW Programgrantees and other interested parties.For simplicity and consistency the NEWreport was formatted very similar to the102–477 report.

For Tribes that operate both the NEWand TANF programs, we considereddeveloping a single reportinginstrument. However, we believe that asingle report is not feasible nor wouldit reduce the amount of reporting. Thereare TANF reporting requirements in thelaw which are not required for NEWProgram grantees. Also, the reportingcycles could be different for a Tribeoperating TANF and NEW Programs andto report program operations withdifferent reporting periods on a singleform could be more complicated andconfusing than if separate reports wereused. In addition, we may obtain datawhich is not comparable if we requireTribes who operate only a NEWProgram to report one set of data whilerequiring Tribes that operate TANF andNEW Programs to report on different orfewer data elements.

Grantees must report NEW financialactivities annually on a Standard FormSF–269A. This form is required forreporting NEW Program expenditures ifa Tribe operates both NEW and TANFprograms. 102–477 grantees also reportfinancial data on the SF–269A.

Comment: It was suggested that wegive grantees at least a 12-month graceperiod before data section reportingrequirements are implemented.

Response: We believe a delay insubmitting financial and operationsreports is unwarranted for severalreasons. First, submission of therequired reports in accordance with thetime frames set forth in the regulationsprovide both the agency and thegrantees with essential managementinformation required to access how thenewly instituted work activitiesprograms are meeting their goals andobjectives. Second, grantees must meettime frames for submission of formsregarding financial activities inaccordance with applicable regulationsand Departmental policies. Finally,reporting requirements for the NEWProgram are minimal. Only an annualfinancial activities report and an annualprogram operations report are required.

Section 287.160 What Reports Must aGrantee File Regarding FinancialOperations?

Comment: Several commentersobjected to requiring submission of theannual fiscal report on September 28rather than September 30. Thecommenters note that while September28 may be literally 90 days from the endof the NEW Program year, an end-of-the-quarter date of September 30 would bemuch easier for tribal staff to rememberand be consistent with other deadlinesthat commonly fall either at thebeginning or the end of a calendarmonth.

Response: Regulations at 45 CFR92.41(4) require that grantees submitannual reports 90 days after the end ofthe reporting quarter. For the NEWProgram, the end of the reportingquarter is June 30. The 90 days afterJune 30 is September 28. Consequently,ACF is unable to change the due date ofthe fiscal reports to September 30.

Section 287.165 What are the DataCollection and Reporting Requirementsfor Public Law 102–477 Tribes ThatConsolidate a NEW Program With OtherPrograms?

Comment: It was suggested that ACFneeds to begin identifying a processwith Pub.L. 102–477 Tribes to reducereporting requirements whilemaintaining the efficiencies andopportunities offered under Pub. L.102–477.

Response: The operation of workprograms under a Pub.L. 102–477 planaffords Tribes the opportunity toconsolidate the administrative,operational and reporting activities ofthese programs into a single system. TheNEW Program is eligible for inclusionunder a Pub.L. 102–477 plan. Weencourage eligible Tribes to consider thebenefits of operating under this



demonstration program. Minimalreporting requirements are already inplace for 102–477 Tribes. If a Tribeincorporates NEW under a Pub.L. 102–477 demonstration program, only thePub.L. 102–477 annual report is due toBIA. There are no separate or additionalNEW reporting requirements.

Comment: One commenter stated itwas unclear what reports are due whenTribes operate under Pub.L. 102–477and suggested that flexibility should bemaximized to the greatest extentpossible by carrying the objectives ofPub.L. 102–477 into data reporting.

Response: The BIA administers thePub.L. 102–477 demonstration programsand establishes guidelines regardingdata collection and reportingrequirements. Currently, only an annualoperations report and an annual fiscalreport are required for Tribes thatoperate under Pub.L. 102–477. ForTribes operating Pub.L. 102–477programs, we will obtain information onNEW Program operations and fiscalactivities through the Pub.L. 102–477reporting system.

Section 287.170 What are the DataCollection and Reporting Requirementsfor a Tribe That Operates Both the NEWProgram and a Tribal TANF Program?

Comment: Several commenters statedthat separate data collection andreporting requirements for Tribes thatoperate both TANF and NEW Programsare burdensome and unnecessary. Onecommenter noted that requiring reportsfor both programs exacerbates thealready cumbersome proposed reportingrequirements for TANF.

Response: ACF believes that a singlereport for Tribes operating both TribalTANF and NEW Programs would notreduce the amount of reporting butwould more likely make the reportingrequirements more burdensome andcomplex. There are TANF reportingrequirements in the law which are notrequired for NEW Program grantees.Also, the reporting cycles could bedifferent for a Tribe operating TANFand NEW Programs, and to reportprogram operations with differentreporting periods on a single form couldbe more confusing and complicatedthan if separate reports were used. Inaddition, we may obtain data which isnot comparable if we require Tribes whooperate only a NEW Program to reportone set of data while requiring Tribesthat operate TANF and NEW Programsto report on different data elements.

Discussion of Program Areas

Client EligibilitySection 412(a)(2)(C) of the Act, as

amended, allows for NEW grantees to

define their population and servicearea(s) for the NEW Program. Thiseligibility requirement is different andmuch broader than the Tribal JOBSProgram, where the purpose was toprovide Tribal members receiving AFDCwith education, training andemployment services.

There has been some discussionbetween ACF and the Tribes on howand who the NEW Program shouldsupplement or support. Should NEW bean adaptable, independent programaddressing client needs; should itsupport the Tribal TANF program if aTribe were to choose to operate its ownTANF program; should it be asupplement to State TANF programs,acting as a safety net for those that don’tqualify for TANF or who have met theTANF time limits; or should theprogram be a combination of theseoptions? We believe each NEW granteeshould make these determinations, forthey are in the best position to respondto the needs of their reservation and toallocate Tribal program resources tomeet those needs.

In light of scarce Tribal resources,unnecessary restrictions and rules mayprevent Tribes from using their NEWPrograms as safety nets for familiesineligible for other programs or whohave met the time limits under TANF.Some Tribes are beginning to strugglewith the issue of Tribal families havingmet the time limits in States whereshorter time limits were establishedunder waivers.

Moreover, the Indian and NativeAmerican Welfare-to-Work program,which all NEW grantees are eligible toapply for, makes available funding toserve categories of hard-to-employTANF recipients. Duplication ofservices should be avoided. NEWgrantees have the option ofsupplementing work activities andservices provided by TANF andWelfare-to-Work programs to TANFclients or providing work activities andservices to other needy clients. Agrantee may also choose to serve bothTANF and non-TANF clients. Thedecisions are left to Tribal discretionand not dictated by these rules.

When an eligible Tribe elects toreceive NEW Program funds, but not tooperate the Tribal TANF program,individuals receiving State TANFassistance must participate in StateTANF work activities. If a NEW Programelects to serve individuals who are StateTANF recipients, then it should do soas an addition to or extension of theState TANF work activities to avoidduplication of services and providemaximum benefits to the familiesserved. There will need to be close

coordination between the TANF agencyand the NEW Program to providecomprehensive services to the familiesjointly served.

During our consultation phase, ourTribal partners overwhelminglyrecommended that they be allowedmaximum flexibility as reflected inPRWORA, including defining theirservice population and area(s) anddesigning and operating effectiveprograms. Restrictive program rules onclient eligibility and programexpenditures would create barriers toproviding comprehensive, seamlessservice delivery to needy Tribalfamilies. Consequently, in keeping withthe intent of the law and Tribalsovereignty, we have chosen to allowmaximum flexibility in NEW clienteligibility requirements, program designand operations.

Work Activities

Section 412(a)(2)(C) of the Act, asamended, describes the use of the NEWgrant. Each Indian tribe to which a grantis made under this paragraph must usethe grant for the purpose of operating aprogram to make work activitiesavailable to such population and servicearea(s) as the Tribe specifies.

ACF supports Tribal autonomy indefining what constitutes workactivities. The statutory language forNEW contrasts notably with the statutefor the now repealed Tribal JOBSProgram. JOBS required that Tribes havethe following mandatory workcomponents: Educational activity; jobskills training; job readiness; and jobdevelopment and job placementactivity. In addition, a Tribe wasrequired to have at least one of thefollowing components: group andindividual job search; on-the-jobtraining; community work experience;work supplementation; or alternativeeducation, training and employmentactivities.

Section 407(d) defines work activitiesfor the TANF program as: Unsubsidizedemployment; subsidized private orpublic sector employment; workexperience; on-the-job training; jobsearch and job readiness; communityservice programs; vocationaleducational training; job skills training;education; satisfactory attendance; andprovision of child care.

In order to determine how workactivities should be defined under NEW,we reviewed allowable activities underJOBS, TANF and Welfare-to-Work.Again we consulted our Tribal partnersand other interested parties regardingboth the Tribal TANF and the NEWPrograms.



The first question posed was: ‘‘Whatrelationship should there be betweenwork activities as defined in section 407of the Act and the work activity that isrequired to be made available by section412(a)(2)?’’ The consensus was thatNEW Program grantees should define‘‘work activities’’ and that section 407should serve as a guideline for them.Tribes stated that they should beallowed to use culturally relevantactivities to solve unique problems. Inorder to give Tribes as much flexibilityas possible we have included theactivities listed in section 407 asexamples of NEW work activities. Inaddition, we have added job creation,economic development, and traditionalsubsistence activities, such as huntingand fishing.

The second question posed was:‘‘What is the interconnection betweenNEW work activities and work activityparticipation to the State or TribalTANF program?’’ Some felt thatrequiring NEW Programs to ‘‘mirror’’TANF work activities would facilitateTribe/State coordination and simplifyprogram administration. However,certain educational and trainingassistance which may accrue to theclients would be lost in the process,possibly eliminating client optionswhich are more practical, available orneeded. NEW Programs can providework activities above and beyond whatcan be provided under TANF or WtWprograms, thus broadening the clients’opportunities and options.

States and Tribes should coordinateclosely to ensure that NEW and TANFwork activities are best arranged in acomplimentary fashion to advance theTANF client’s employability goals.

CoordinationThe Family Support Act of 1988

created the opportunity for Indian tribesand Alaska Native organizations toconduct JOBS programs. Operating aTribal JOBS Program requiredcoordination with State programs toensure that the necessary interfacesbetween the Tribal JOBS Programs andState title IV–A programs were in place.It also required that a Tribe and a Statebe able to exchange informationregarding such things as eligibilitystatus, child care services, changes inemployment status, and participationstatus.

Under the JOBS program,coordination was necessary in order toprevent duplication of services, assurethe maximum level of services wasavailable to participants and ensure thatcosts of other program services forwhich welfare recipients were eligiblewere not shifted to the JOBS program.

Coordination between TANF and NEWis still needed for some of these samereasons.

All work activities required as acondition of eligibility to receivetemporary public assistance are nowprescribed by the TANF programadministered by the States and, at theiroption, Tribes. There is somemisunderstanding that NEW Programsshould serve all State tribal TANFrecipients. With 74 percent of all NEWgrants being below $100,000, it isunrealistic to expect NEW Programs tobe able to meet such demands. TheTribe and State should negotiate anagreement if the Tribe plans to serve allTribal TANF clients, which maynecessitate the need for supplementaryfunding from the State. Additional Statefunds would allow Tribes to: increasethe availability of activities andservices; provide additional activitiesand services so that clients could meetthe State’s participation rate; or servemore clients.

Congress did not replace the TribalJOBS Program with another tribal workprogram of identical focus. Individualswho receive TANF assistance,regardless of Native American or AlaskaNative heritage, have to participate inwork activities as prescribed by theState TANF program (unless the Tribeelects to operate its own TANF program)in order to continue to be eligible toreceive TANF assistance. Under thesecircumstances then, what are therequirements for coordination between aNEW Program and a State TANFprogram?

For participants in the NEW Program,coordination efforts should be designedto best fulfill the participants’ self-sufficiency goals. It is critical that anyTANF client referred to NEW be placedin activities leading to fulfillment oftheir employment goal or a job as soonas possible. Otherwise the client mayconsume valuable time. Since TANF istime limited any TANF client not ableto receive immediate services should besent back to the referring agency. Clientsin work activities under a State TANFprogram may be required to participatefor a minimum number of hours perweek to remain eligible for TANFassistance, and the State maintainsresponsibility for the costs of thatparticipation. If a NEW Program electsto serve individuals who areparticipating in State TANF workactivities, it should do so as an additionor extension to the State TANF workactivities. This will avoid duplication ofservices, extend the range of workactivities and services provided, andassure that costs of State TANF workactivities are not shifted inappropriately

to the NEW Program. In order to providethese assurances, initial and ongoingcoordination between the NEW Programand the State TANF agency will benecessary. Also, the responsibility ofmeeting the TANF reportingrequirements must be coordinated whenserving TANF clients.

Moreover, local NEW and TANF caseworkers need to be aware of eachprogram’s requirements and proceduresto offer the best mix of services to jointclients. For example, bonuses, stipends,and performance awards are allowedunder NEW. However, depending on therules of a Tribal or State TANF program,such payments made from NEWProgram funds may be counted asincome in determining and maintainingTANF eligibility. Rules of other need-based programs may also require thatsuch payments be counted as income inthe eligibility and paymentdeterminations. NEW Program operatorswould want to take such informationinto consideration when determiningwhat services to provide and the affecton their clients’ situations.

For a Tribe that previously operated aJOBS program and elects to also conducta TANF program, many of thecoordination and collaborationrelationships will be internal within theTribe. This would also be true if agrantee had responsibility for the DOLor BIA employment programs. Theimportance of developing andmaintaining those relationships isamplified by the additionalresponsibilities that come withoperating a public assistance program.Many contracted work sites, forexample, used by a State may also beavailable to Tribal TANF programs.

Section 407(b)(4) of the Act, asamended by the Balanced Budget Act of1997, expands the State option toinclude individuals receiving assistancefrom a Tribal TANF program in theState’s work participation ratecalculation to also include individualsreceiving assistance from a Tribal NEWProgram. Unlike the Tribal JOBSProgram, this is a State option, and assuch Tribes do not have authority toexempt NEW/TANF programparticipants from State TANF programwork requirements. The statute is silent(exception at section 412(h) noted)regarding comparability of programs.However, the statute prescribesminimum work participation rates forState TANF programs and the minimumnumber of hours necessary to qualify asengaged in work, and we would expectthat agreements on respective roles andresponsibilities will be establishedbetween States and Tribes operatingNEW Programs.



VII. Regulatory Impact Analyses

A. Executive Order 12866

Executive Order 12866 requires thatregulations be drafted to ensure thatthey are consistent with the prioritiesand principles set forth in the ExecutiveOrder. The Department has determinedthat this rule is consistent with thesepriorities and principles. Thisrulemaking implements statutoryauthority based on broad consultationand coordination. It reflects ourresponse to comments received on theNPRM that we issued on July 22, 1998.

The Executive Order encouragesagencies, as appropriate, to provide thepublic with meaningful participation inthe regulatory process. As describedelsewhere in the preamble, ACFconsulted with Tribal, State and localofficials and their representativeorganizations, as well as a broad rangeof advocacy groups, researchers andothers to obtain their views prior to thepublication of the NPRM. We alsoconsidered comments received inresponse to the NPRM.

We respond to the comments that wereceived in the discussions ofindividual regulatory provisions withinthe preamble. These rules reflect thecomments that we received in responseto the NPRM. They also reflect theintent of PRWORA to achieve a balancebetween granting Indian tribes theflexibility they need to develop andoperate effective and responsiveprograms and ensuring that theobjectives of the statute are met. Inaddition, these rules recognize thedifferences that must and will existbetween Tribal and State TANFprograms.

Under the new law, tribal flexibility isachieved by giving Tribes theopportunity to develop, design andadminister their own TANF blockgrants; and for the NEW grantees, theyhave great flexibility in the design oftheir NEW Programs. Ensuring thatprogram goals are accomplished isachieved through the provisions on plancontent, penalty provisions, and datacollection.

We support tribal flexibility invarious ways—such as giving Tribes theability to define key program terms; andsupporting the negotiation of minimumwork participation requirements andtime limits for each Tribal TANFprogram. We support the achievementof program goals by ensuring that wecapture key information on what ishappening under both the Tribal TANFand NEW Programs and maintaining theintegrity of the work and other penaltyprovisions of the TANF program.

We take care to protect againstnegative impacts on needy familiesreceiving assistance from Tribal TANFgrantees by including three provisionsnot required by the statute, using theregulatory authority given to us by thestatute. One of these provisions is theprovision for retrocession; the secondprovision is the limit on administrativeexpenditures. Retrocession can be foundat § 286.30, and the limitation onadministrative expenditures can befound at § 286.50.

The third provision we included toprotect against negative impacts onneedy families is the provision for thereplacement of amounts withheld froma tribal Family Assistance Grant due tothe imposition of a penalty. Weconsidered not including this provision;however, we believe that the benefitsand protections this policy brings to theneedy families being served by a TribalTANF program outweigh the potentialcost to the Tribe.

One of our key goals in developingthe Tribal TANF penalty rules was toensure tribal performance in the keyareas provided under statute—includingwork participation, the proper use ofFederal TANF funds, and datareporting. The law specified that weshould enforce tribal actions in theseareas and also specified the penalty foreach failure. Through the ‘‘reasonablecause’’ and ‘‘corrective compliance’’provisions in the rules we give someconsideration to special circumstanceswithin a Tribe to help ensure thatneither the Tribe nor needy familiesserved by the Tribe will be unfairlypenalized for circumstances beyondtheir control.

In the work and penalty areas, thisrulemaking provides information to theTribes that will help them understandour specific expectations and take thesteps necessary to avoid penalties.These rules may ultimately affect thenumber and size of penalties that areimposed on Tribes, but the basicexpectations on Tribes are statutory.

The financial impacts to the Federalgovernment of these rules are minimalfor three reasons. First, the level offunding provided for both the blockgrant and the NEW Program is fixed.Second, the amount of a Tribe’s TANFblock grant is deducted from the StateTANF block grant of the State in whichthe Tribe is located; thus, no additionalFederal outlays are necessary beyondthe amount needed for State FamilyAssistance Grants. And third, TribalTANF grantees are not eligible for eitherthe contingency fund or performancebonuses; thus, there are no additionaloutlays required for these two items.

A Tribe’s TANF grant could beaffected by the penalty decisions madeunder the law and these rules.Otherwise, we do not believe that therulemaking will affect the overall levelof funding or expenditures. However, itcould have minor impacts on the natureand distribution of such expenditures.

These rules could have a minimalfinancial impact on State governments.This is due to the statutory requirementthat State data be used to determine theamount of a Tribal Family AssistanceGrant. The actual impact to any oneState is difficult to determine as it is notknown how many Tribes will apply toadminister a TANF program. There aresome States that have federally-recognized Tribes within their borders;yet there are many that do not have anyfederally-recognized Tribes within theirborders.

In the area of TANF data collection,the statutory requirements are specificand extensive—especially with respectto case-record or disaggregated data.These rules also include data reportingwith respect to program expenditures.They expand upon the expenditure dataexplicitly mentioned by the statute inorder to ensure that: needy familiescontinue to receive assistance andservices; monies go for the intendedpurposes; and the financial integrity ofthe program is maintained.

The NEW Program grantees mustreport participant characteristics andprogram outcome date that the Secretaryand others will use to determine theimpact of the program. Only an annualoperations report and an annualfinancial activities report are required.

The impacts of these rules on needyindividuals and families will depend onthe choices that a Tribe makes inimplementing the new law. Our datacollection should enable tracking ofthese effects over time and acrossTribes. Overall, our assessment of theserules indicates that they represent theleast burdensome approach consistentwith the regulatory objectives.

The Department has determined thatthis rule is significant under theExecutive Order. The Office ofManagement and Budget has reviewedthe rule.

B. Regulatory Flexibility AnalysisThe Regulatory Flexibility Act (5

U.S.C. Ch. 6) requires the Federalgovernment to anticipate and reduce theimpact of rules and paperworkrequirements on small businesses andother small entities. Small entities aredefined in the Act to include smallbusinesses, small non-profitorganizations, and small governmentalentities. This rule will affect only



federally-recognized Indian tribes andAlaska Native organizations. Therefore,the Secretary certifies that this rule willnot have a significant impact on smallentities.

C. Family Impact Assessment

We certify that we have made anassessment of this rule’s impact on thewell-being of families, as required undersection 654 of The Treasury and GeneralGovernment Appropriations Act of1999. The purpose of the TANF programis to strengthen the economic and socialstability of families, in part bysupporting the formation andmaintenance of two-parent families andreducing out-of-wedlock child-bearing.As required by statute, this rule givesflexibility to Tribes to design programsthat can best serve this purpose.

D. Paperwork Reduction Act

This rule contains informationcollection activities that have beenreviewed and approved by the Office ofManagement and Budget (OMB) underthe Paperwork Reduction Act of 1995(PRA). (OMB has already approved anInterim Tribal TANF Data Report, FormACF–343, Control No. 0970–0176. OMBhas also approved a NEW Program datareporting form, ‘‘The NativeEmployment Works (NEW) ProgramPlan Guidance and ReportRequirements,’’ Control No. 0970–0174).Under this Act, no persons are requiredto respond to a collection of informationunless it displays a valid OMB controlnumber. If you have any comments onthese information collectionrequirements, please submit them toOMB within thirty days. The address is:Office of Management and Budget,Paperwork Reduction Project, 725 17thStreet NW, Washington, DC 20503, Attn:ACF/DHHS Desk Officer. The publicwill have an opportunity to providecomments before OMB makes a finaldecision.

The following discussion incorporatesour response to comments regardinginformation collection that we receivedon the NPRM and the Paperwork Noticepublished on July 22, 1998. This rulecontains provisions covering twoquarterly reports (one program data, theother financial) and one annual reportfor the Tribal TANF program. Theproposed reports were attached to theproposed rule as an Appendix. We willrevise these instruments based on the

comments we have received, and willissue them to Tribes through the ACFpolicy issuance system after they havebeen cleared through OMB. We have,however, responded to the commentsreceived elsewhere in the preamble ofthis Final Rule.

Quarterly Data and Financial ReportsThe two quarterly reports are the

Tribal TANF Data Report (AppendicesA through C) and the Tribal TANFFinancial Report (Appendix D). TheTribal TANF Data Report consists ofthree sections. Two of these threesections consist of disaggregated case-record data elements, and one consistsof aggregated data elements.

We need this information collectionto meet the requirements of section411(a) and to implement other sectionsof the Act, including sections 407 (workparticipation requirements), 409(penalties), and 411(b) (Annual Reportto Congress).

The Tribal TANF Financial Reportconsists of one form. (See Appendix D.)We need this report to meet therequirements of sections 411(a)(2),411(a)(3), and 411(a)(5), and to carry outour other financial management andoversight responsibilities. These includeproviding information that could beused in determining whether Tribes aresubject to penalties under section409(a)(1), tracking the reasonableness ofour definition of ‘‘assistance’; learningthe extent to which recipients ofbenefits and services are covered byprogram requirements, and helping tovalidate the disaggregated data wereceive on TANF cases.

Annual ReportsWe are also requiring an annual report

in order to collect the data required bysection 411(b). This report requires thesubmission of information about thecharacteristics of each tribal program;the design and operation of the program;the services, benefits, and assistanceprovided; the Tribe’s eligibility criteria;and the Tribe’s definition of workactivities. At its option, each Tribe mayalso include a description of any uniquefeatures, accomplishments, innovations,or additional information appropriatefor inclusion in the Department’s annualreport to the Congress.

Instructions pertaining to submissionof the annual NEW Program operationsreport are contained in the NEWProgram guidance document, ‘‘The

Native Employment Works (NEW)Program Plan Guidance and ReportRequirements.’’ This document will bedistributed through ACF’s programinstruction system.

Changes in the Estimate of Burden

In the NPRM we estimated that only18 Tribes would have approved TribalTANF plans and would therefore berespondents. Based both on the numberof Tribes currently operating TANF andthose who are actively preparing TribalTANF plans, we have increased thoseestimates.

Burden Estimates

The respondents for the Tribal TANFData Reports and the Reasonable Cause/Corrective Action documentationprocess are the Tribes that haveapproved Tribal TANF plans.

In estimating the reporting burden inthe NPRM, we pointed out that thisreporting burden will be new to theTribes. Unlike States, many Tribes donot have the electronic capacity formeeting the reporting requirements.However, Tribal TANF programs willnot be required to submit all of the datarequired for State TANF programsbecause some provisions for which dataare being collected apply only to States.In addition, the number of families onwhich the Tribal TANF grantees willhave to report will be substantiallylower than the number of families onwhich States will be reporting.

In calculating the estimates of thereporting burden, we assumed that notall Tribal TANF grantees would collectthe data by means of a review samplebecause their caseloads will not supporta valid sample. However, we believethat a number of Tribal TANF granteeswill eventually choose to undertake theone-time burden and cost of developingor modifying their systems to providethe required data directly from theirautomated systems, thus substantiallyreducing or eliminating the ongoingannual burden and cost reflected inthese estimates.

The annual burden estimates includeany time involved pulling records fromfiles, abstracting information, returningrecords to files, assembling any othermaterial necessary to provide therequested information, and transmittingthe information.

The annual burden estimates for theTribal TANF data collections are:

Instrument orrequirement

Number ofrespondents

Number ofresponses

perrespondent

Averageburden

hours perresponse

Totalburdenhours

Tribal TANF Data Report—§ 286.255(b) ......................................................................... 1 36 4 451 64,944





Number ofresponses

perrespondent

Averageburden

hours perresponse

Totalburdenhours

Tribal TANF Annual Report—§ 286.275 .......................................................................... 2 36 1 40 1,440Reasonable Cause/ Corrective Action Documentation Process—§ 286.225 .................. 3 36 1 60 2,160

Estimated Total Annual Burden Hours: 68,544The annual burden estimates for the NEW data collections are:



Number ofresponses

perrespondent

Averageburden

hours perresponse

Totalburdenhours

NEW Program Operations Report ................................................................................... 4 78 1 16 1,248

As indicated above, we have made asubstantial upward adjustment in thenumber of respondents and total burdenhours.

We considered comments by thepublic on these collections ofinformation in:

• Evaluating whether the collectionsare necessary for the properperformance of our functions, includingwhether the information will havepractical utility;

• Evaluating the accuracy of ourestimate of the burden of the collectionsof information, including the validity ofthe methodology and assumptions used,and the frequency of collection;

• Enhancing the quality, usefulness,and clarity of the information to becollected; and

• Minimizing the burden of thecollection of information on those whoare to respond, including through theuse of appropriate automated,electronic, mechanical, or othertechnology, e.g., the electronicsubmission of responses.

E. Unfunded Mandates Reform Act of1995

Section 202 of the UnfundedMandates Reform Act of 1995(Unfunded Mandates Act) requires thata covered agency prepare a budgetaryimpact statement before promulgating arule that includes any Federal mandatethat may result in the expenditure byState, local, and Tribal governments, inthe aggregate, or by the private sector, of$100 million or more in any one year.

If a covered agency must prepare abudgetary impact statement, section 205further requires that it select the mostcost-effective and least burdensomealternative that achieves the objectivesof the rule and is consistent with thestatutory requirements. In addition,section 203 requires a plan forinforming and advising any smallgovernment that may be significantly oruniquely impacted by the rule.

We have determined that the ruleswill not result in the expenditure byState, local, and Tribal governments, inthe aggregate, or by the private sector, ofmore than $100 million in any one year.Accordingly, we have not prepared abudgetary impact statement, specificallyaddressed the regulatory alternativesconsidered, or prepared a plan forinforming and advising any significantlyor uniquely impacted small government.

F. Congressional Review of Regulations

This Final Rule is not a ‘‘major’’ ruleas defined in Chapter 8 of 5 U.S.C.

G. Executive Order 13132

Executive Order 13132 on Federalismapplies to policies that have federalismimplications, defined as ‘‘regulations,legislative comments or proposedlegislation, and other policy statementsor actions that have substantial directeffects on the States, on the relationshipbetween the national government andthe States, or on the distribution ofpower and responsibilities among thevarious levels of government.’’ This ruledoes not have federalism implicationsfor State or local governments asdefined in the Executive Order.

List of Subjects in 45 CFR Parts 286 and287

Administrative practice andprocedure, Day Care, Employment,Grant programs— social programs,Indian tribes, Loan programs—socialprograms, Manpower training programs,Penalties, Public Assistance programs,Reporting and record keepingrequirements, Vocational education.

(Catalogue of Federal Domestic AssistancePrograms: 93.558 TANF programs—TribalFamily Assistance Grants; 93.559—LoanFund; 93.594—Native Employment WorksProgram; 93.595—Welfare Reform Research,Evaluations and National Studies)

Dated: January 28, 2000.

Olivia A. Golden,Assistant Secretary for Children and Families.

Approved: February 7, 2000.

Donna E. Shalala,Secretary, Department of Health and HumanServices.

For the reasons set forth in thepreamble, we are amending 45 CFRchapter II by adding parts 286 and 287to read as follows:

PART 286—TRIBAL TANFPROVISIONS

Sec.

Subpart A—General Tribal TANF Provisions

286.1 What does this part cover?286.5 What definitions apply to this part?286.10 What does the term ‘‘assistance’’

mean?286.15 Who is eligible to operate a Tribal

TANF program?

Subpart B—Tribal TANF Funding

286.20 How is the amount of a TribalFamily Assistance Grant (TFAG)determined?

286.25 How will we resolve disagreementsover the State-submitted data used todetermine the amount of a Tribal FamilyAssistance Grant?

286.30 What is the process for retrocessionof a Tribal Family Assistance Grant?

286.35 What are proper uses of TribalFamily Assistance Grant funds?

286.40 May a Tribe use the Tribal FamilyAssistance Grant to fund IDAs?

286.45 What uses of Tribal FamilyAssistance Grant funds are improper?

286.50 Is there a limit on the percentage ofa Tribal Family Assistance Grant that canbe used for administrative costs?

286.55 What types of costs are subject to theadministrative cost limit on TribalFamily Assistance Grants?

286.60 Must Tribes obligate all TribalFamily Assistance Grant funds by theend of the fiscal year in which they areawarded?



Subpart C—Tribal TANF Plan Content andProcessing286.65 How can a Tribe apply to administer

a Tribal Temporary Assistance for NeedyFamilies (TANF) program?

286.70 Who submits a Tribal FamilyAssistance Plan?

286.75 What must be included in the TribalFamily Assistance Plan?

286.80 What information on minimumwork participation requirements must aTribe include in its Tribal FamilyAssistance Plan?

286.85 How will we calculate the workparticipation rates?

286.90 How many hours per week must anadult or minor head-of-householdparticipate in work-related activities tocount in the numerator of the workparticipation rate?

286.95 What, if any, are the special rulesconcerning counting work for two-parentfamilies?

286.100 What activities count towards thework participation rate?

286.105 What limitations concerningvocational education, job search and jobreadiness assistance exist with respect tothe work participation rate?

286.110 What safeguards are there to ensurethat participants in Tribal TANF workactivities do not displace other workers?

286.115 What information on time limitsfor the receipt of assistance must a Tribeinclude in its Tribal Family AssistancePlan?

286.120 Can Tribes makes exceptions to theestablished time limit for families?

286.125 Does the receipt of TANF benefitsunder a State or other Tribal TANFprogram count towards a Tribe’s TANFtime limit?

286.130 Does the receipt of Welfare-to-Work (WtW) cash assistance counttowards a Tribe’s TANF time limit?

286.135 What information on penaltiesagainst individuals must be included ina Tribal Family Assistance Plan?

286.140 What special provisions apply tovictims of domestic violence?

286.145 What is the penalty if an individualrefuses to engage in work activities?

286.150 Can a family, with a child underage 6, be penalized because a parentrefuses to work because (s)he cannot findchild care?

286.155 May a Tribe condition eligibilityfor Tribal TANF assistance onassignment of child support to the Tribe?

286.160 What are the applicable timeframes and procedures for submitting aTribal Family Assistance Plan?

286.165 How is a Tribal Family AssistancePlan amended?

286.170 How may a Tribe petition foradministrative review of disapproval of aTFAP or amendment?

286.175 What special provisions apply toAlaska?

286.180 What is the process for developingthe comparability criteria that arerequired in Alaska?

286.185 What happens when a disputearises between the State of Alaska andthe Tribal TANF eligible entities in theState related to the comparabilitycriteria?

286.190 If the Secretary, the State of Alaska,or any of the Tribal TANF eligibleentities in the State of Alaska want toamend the comparability criteria, what isthe process for doing so?

Subpart D—Accountability and Penalties

286.195 What penalties will apply toTribes?

286.200 How will we determine if TribalFamily Assistance Grant funds weremisused or intentionally misused?

286.205 How will we determine if a Tribefails to meet the minimum workparticipation rate(s)?

286.210 What is the penalty for a Tribe’sfailure to repay a Federal loan?

286.215 When are the TANF penaltyprovisions applicable?

286.220 What happens if a Tribe fails tomeet TANF requirements?

286.225 How may a Tribe establishreasonable cause for failing to meet arequirement that is subject to applicationof a penalty?

286.230 What if a Tribe does not havereasonable cause for failing to meet arequirement?

286.235 What penalties cannot be excused?286.240 How can a Tribe appeal our

decision to take a penalty?

Subpart E—Data Collection and ReportingRequirements

286.245 What data collection and reportingrequirements apply to Tribal TANFprograms?

286.250 What definitions apply to thissubpart?

286.255 What quarterly reports must theTribe submit to us?

286.260 May Tribes use sampling andelectronic filing?

286.265 When are quarterly reports due?286.270 What happens if the Tribe does not

satisfy the quarterly reportingrequirements?

286.275 What information must Tribes fileannually?

286.280 When are annual reports due?286.285 How do the data collection and

reporting requirements affect Public Law102–477 Tribes?

Authority: 42 U.S.C. 612

Subpart A—General Tribal TANFProvisions

§ 286.1 What does this part cover?

Section 412 of the Social Security Actallows Indian tribes to apply to operatea Tribal Family Assistance program.This part implements section 412. Itspecifies:

(a) who can apply to operate a TribalFamily Assistance program;

(b) the requirements for thesubmission and contents of a TribalFamily Assistance Plan;

(c) the determination of the amount ofa Tribal Family Assistance Grant; and

(d) other program requirements andprocedures.

§ 286.5 What definitions apply to this part?The following definitions apply under

this part:ACF means the Administration for

Children and Families.Act means the Social Security Act,

unless otherwise specified.Administrative cost means costs

necessary for the proper administrationof the TANF program.

(1) It excludes the direct costs ofproviding program services.

(i) For example, it excludes costs ofproviding diversion benefits andservices, providing program informationto clients, screening and assessments,development of employability plans,work activities, post-employmentservices, work supports, information onand referral to Medicaid, Child HealthInsurance Program (CHIP), Food Stampand Native Employment Works (NEW)programs and case management.

(ii) It excludes the salaries and benefitcosts for staff providing programservices and the direct administrativecosts associated with providing theservices, such as the costs for supplies,equipment, travel, postage, utilities,rental of office space and maintenanceof office space, and

(iii) It excludes informationtechnology and computerization neededfor tracking and monitoring.

(2) It includes the costs for generaladministration and coordination of thisprogram, including contract costs forthese functions and indirect (oroverhead) costs. Some examples ofadministrative costs include, but are notlimited to:

(i) Salaries and benefits and all otherdirect costs not associated withproviding program services toindividuals, including staff performingadministrative and coordinationfunctions;

(ii) Preparation of program plans,budgets, and schedules;

(iii) Monitoring of programs andprojects;

(iv) Fraud and abuse units;(v) Procurement activities;(vi) Public relations;(vii) Services related to accounting,

litigation, audits, management ofproperty, payroll, and personnel;

(viii) Costs for the goods and servicesrequired for administration of theprogram such as the costs for supplies,equipment, travel, postage, utilities, andrental of office space and maintenanceof office space, provided that such costsare not excluded as a directadministrative cost for providingprogram services under paragraph (1) ofthis definition;

(ix) Travel costs incurred for officialbusiness and not excluded as a direct



administrative cost for providingprogram services under paragraph (1) ofthis definition;

(x) Management information systemsnot related to the tracking andmonitoring of TANF requirements (e.g.,for a personnel and payroll system forTribal staff); and

(xi) Preparing reports and otherdocuments related to programrequirements.

Adult means an individual who is nota ‘‘minor child,’’ as defined below.

Alaska Tribal TANF entity means thetwelve Alaska Native regional nonprofitcorporations in the State of Alaska andthe Metlakatla Indian Community of theAnnette Islands Reserve.

Assistant Secretary means theAssistant Secretary for Children andFamilies, Department of Health andHuman Services.

Cash assistance, when provided toparticipants in the Welfare-to-Workprogram, has the meaning specified at§ 286.130.

Comparability means similaritybetween State and Tribal TANFprograms in the State of Alaska.Comparability, when defined related toservices provided, does not necessarilymean identical or equal services.

Consortium means a group of Tribesworking together for the same identifiedpurpose and receiving combined TANFfunding for that purpose.

The Department means theDepartment of Health and HumanServices.

Duplicative Assistance means thereceipt of services/ assistance from twoor more TANF programs for the samepurpose.

Eligible families means all familieseligible for TANF funded assistanceunder the Tribal TANF program fundedunder section 412(a), including:

(1) All U.S. citizens who meet theTribe’s criteria for Tribal TANFassistance;

(2) All qualified aliens, who meet theTribe’s criteria for Tribal TANFassistance, who entered the U.S. beforeAugust 22, 1996;

(3) All qualified aliens, who meet theTribe’s criteria for Tribal TANFassistance, who entered the U.S. on orafter August 22, 1996, who have been inthe U.S. for at least 5 years beginning onthe date of entry into the U.S. with aqualified alien status, are eligiblebeginning 5 years after the date of entryinto the U.S. There are exceptions tothis 5-year bar for qualified aliens whoenter on or after August 22, 1996, andthe Tribal TANF program must coverthese excepted individuals:

(a) An alien who is admitted to theU.S. as a refugee under section 207 ofthe Immigration and Nationality Act;

(b) An alien who is granted asylumunder section 208 of such Act;

(c) An alien whose deportation isbeing withheld under section 243(h) ofsuch Act; and

(d) An alien who is lawfully residingin any State and is a veteran with anhonorable discharge, is on active duty inthe Armed Forces of the U.S., or is thespouse or unmarried dependent child ofsuch an individual;

(4) All permanent resident aliens whoare members of an Indian tribe, asdefined in section 4(e) of the IndianSelf-Determination and EducationAssistance Act;

(5) All permanent resident aliens whohave 40 qualifying quarters of coverageas defined by Title II of the Act.

Eligible Indian tribe means any Tribeor intertribal consortium that meets thedefinition of Indian tribe in this sectionand is eligible to submit a Tribal TANFplan to ACF.

Family Violence Option (or FVO)means the provision at section 402(a)(7)of the Act made available to Tribesunder which a Tribe may certify in itsTribal TANF plan that it has elected theoption to implement comprehensivestrategies for identifying and servingvictims of domestic violence.

Fiscal year means the 12-monthperiod beginning on October 1 of thepreceding calendar year and ending onSeptember 30.

FY means fiscal year.Good cause domestic violence waiver

means a waiver of one or more programrequirements granted by a Tribe to avictim of domestic violence under theFVO, as described in § 286.140(a)(3).

Grant period means the period of timethat is specified in the Tribal TANFgrant award document.

Indian, Indian tribe and TribalOrganization have the same meaninggiven such terms by section 4 of theIndian Self-Determination andEducation Assistance Act (25 U.S.C.450b), except that the term ‘‘Indiantribe’’ means, with respect to the Stateof Alaska, only the Metlakatla IndianCommunity of the Annette IslandsReserve and the following Alaska Nativeregional nonprofit corporations:

(1) Arctic Slope Native Association;(2) Kawerak, Inc.;(3) Maniilaq Association;(4) Association of Village Council

Presidents;(5) Tanana Chiefs Council;(6) Cook Inlet Tribal Council;(7) Bristol Bay Native Association;(8) Aleutian and Pribilof Island

Association;

(9) Chugachmuit;(10) Tlingit Haida Central Council;(11) Kodiak Area Native Association;

and(12) Copper River Native Association.Indian country has the meaning given

the term in 18 U.S.C. 1151.Minor child means an individual who:(1) Has not attained 18 years of age;

or(2) Has not attained 19 years of age

and is a full-time student in a secondaryschool (or in the equivalent level ofvocational or technical training).

Minor Head-of-Household means anindividual under age 18, or 19 and afull-time student in a secondary school,who is the custodial parent of a minorchild.

PRWORA means the PersonalResponsibility and Work OpportunityReconciliation Act of 1996.

Qualified Aliens has the samemeaning given the term in 8 U.S.C. 1641except that it also includes members ofan Indian tribe, as defined in section4(e) of the Indian Self-Determinationand Education Assistance Act, who arelawfully admitted under 8 U.S.C. 1359.

Retrocession means the process bywhich a Tribe voluntarily terminatesand cedes back (or returns) a TribalTANF program to the State whichpreviously served the populationcovered by the Tribal TANF plan.Retrocession includes the voluntaryrelinquishment of the authority toobligate previously awarded grant fundsbefore that authority would otherwiseexpire.

Secretary means the Secretary of theDepartment of Health and HumanServices.

Scientifically acceptable samplingmethod means a probability samplingmethod in which every sampling unithas a known, non-zero chance to beincluded in the sample and the samplesize requirements are met.

SFAG or State Family AssistanceGrant means the amount of the blockgrant funded under section 403(a) of theAct for each eligible State.

SFAP or State Family Assistance Planis the plan for implementation of a StateTANF program under PRWORA.

State means, except as otherwisespecifically provided, the 50 States ofthe United States, the District ofColumbia, the Commonwealth of PuertoRico, the United States Virgin Islands,Guam, and American Samoa.

TANF means the TemporaryAssistance for Needy Families Program,which is authorized under title IV–A ofthe Social Security Act.

TANF funds mean funds authorizedunder section 412(a) of the Act.

TFAG or Tribal Family AssistanceGrant means the amount of the block



grant funded under section 412(a) of theAct for each eligible Tribe.

TFAP or Tribal Family AssistancePlan means the plan for implementationof the Tribal TANF program undersection 412(b) of the Act.

Title IV–A refers to the title of theSocial Security Act that now includesTANF, but previously included AFDCand EA. For the purpose of the TANFprogram regulations, this term does notinclude child care programs authorizedand funded under section 418 of theAct, or their predecessors, unless wespecify otherwise.

Title IV–F refers to the title of theSocial Security Act that was eliminatedwith the creation of TANF andpreviously included the JobOpportunities and Basic Skills TrainingProgram (JOBS).

Tribal TANF expenditures meansexpenditures of TANF funds, within theTribal TANF program.

Tribal TANF program means a Tribalprogram subject to the requirements ofsection 412 of the Act that is funded byTANF funds on behalf of eligiblefamilies.

Victim of domestic violence means anindividual who is battered or subject toextreme cruelty under the definition atsection 408(a)(7)(C)(iii) of the Act.

We (and any other first person pluralpronouns) refers to The Secretary ofHealth and Human Services, or any ofthe following individuals ororganizations acting in an officialcapacity on the Secretary’s behalf: theAssistant Secretary for Children andFamilies, the Regional Administratorsfor Children and Families, theDepartment of Health and HumanServices, and the Administration forChildren and Families.

Welfare-related services means allactivities, assistance, and servicesfunded under Tribal TANF provided toan eligible family. See definition of‘‘Assistance’’ in § 286.10.

Welfare-to-Work means the programfor funding work activities at section412(a)(2)(C) of the Act.

WtW means Welfare-to-Work.WtW cash assistance, when provided

to participants in the Welfare-to-Workprogram, has the meaning specified at§ 286.130.

§ 286.10 What does the term ‘‘assistance’’mean?

(a) The term ‘‘assistance’’ includescash, payments, vouchers, and otherforms of benefits designed to meet afamily’s ongoing basic needs (i.e., forfood, clothing, shelter, utilities,household goods, personal care items,and general incidental expenses).

(1) It includes such benefits evenwhen they are:

(i) Provided in the form of paymentsby a TANF agency, or other agency onits behalf, to individual recipients; and

(ii) Conditioned on participation inwork experience or community serviceor any other work activity.

(2) Except where excluded underparagraph (b) of this section, it alsoincludes supportive services such astransportation and child care providedto families who are not employed.

(b) It excludes:(1) Nonrecurring, short-term benefits

that:(i) Are designed to deal with a

specific crisis situation or episode ofneed;

(ii) Are not intended to meet recurrentor ongoing needs; and

(iii) Will not extend beyond fourmonths.

(2) Work subsidies (i.e., payments toemployers or third parties to help coverthe costs of employee wages, benefits,supervision, and training);

(3) Supportive services such as childcare and transportation provided tofamilies who are employed;

(4) Refundable earned income taxcredits;

(5) Contributions to, and distributionsfrom, Individual DevelopmentAccounts;

(6) Services such as counseling, casemanagement, peer support, child careinformation and referral, information onand referral to Medicaid, Child HealthInsurance Program (CHIP), Food Stampand Native Employment Works (NEW)programs, transitional services, jobretention, job advancement, and otheremployment-related services that do notprovide basic income support; and

(7) Transportation benefits providedunder a Job Access or Reverse Commuteproject, pursuant to section 404(k) of theAct, to an individual who is nototherwise receiving assistance.

(c) The definition of the termassistance specified in paragraphs (a)and (b) of this section does not precludea Tribe from providing other types ofbenefits and services consistent with thepurposes of the TANF program.

§ 286.15 Who is eligible to operate a TribalTANF program?

(a) An Indian tribe that meets thedefinition of Indian tribe given in§ 286.5 is eligible to apply to operate aTribal Family Assistance Program.

(b) In addition, an intertribalconsortium of eligible Indian tribes maydevelop and submit a single TFAP.

Subpart B—Tribal TANF Funding

§ 286.20 How is the amount of a TribalFamily Assistance Grant (TFAG)determined?

(a) We will request and use datasubmitted by a State to determine theamount of a TFAG. The State data thatwe will request and use are the totalFederal payments attributable to Stateexpenditures, including administrativecosts (which includes systems costs) forfiscal year 1994 under the former Aid toFamilies With Dependent Children,Emergency Assistance and JobOpportunities and Basic Skills Trainingprograms, for all Indian familiesresiding in the geographic service areaor areas identified in the Tribe’s letterof intent or Tribal Family AssistancePlan.

(1) A Tribe must indicate itsdefinition of ‘‘Indian family’’ in itsTribal Family Assistance Plan. EachTribe may define ‘‘Indian family’’according to its own criteria.

(2) When we request the necessarydata from the State, the State will have30 days from the date of the request tosubmit the data.

(i) If we do not receive the datarequested from the State at the end ofthe 30-day period, we will so notify theTribe.

(ii) In cases where data is not receivedfrom the State, the Tribe will have 45days from the date of the notification inwhich to submit relevant information.Relevant information may include, butis not limited to, Census Bureau data,data from the Bureau of Indian Affairs,data from other Federal programs, andTribal records. In such a case, we willuse the data submitted by the Tribe toassist us in determining the amount ofthe TFAG. Where there areinconsistencies in the data, follow-updiscussions with the Tribe and the Statewill ensue.

(b) We will share the data submittedby the State under paragraph (a)(2)(i) ofthis section with the Tribe. The Tribemust submit to the Secretary a notice asto the Tribe’s agreement or disagreementwith such data no later than 45 daysafter the date of our notice transmittingthe data from the State. During this 45-day period we will help resolve anyquestions the Tribe may have about theState-submitted data.

(c) We will notify each Tribe that hassubmitted a TFAP of the amount of theTFAG. At this time, we will also notifythe State of the amount of the reductionin its SFAG.

(d) We will prorate TFAGs that areinitially effective on a date other thanOctober 1 of any given Federal fiscal



year, based on the number of daysremaining in the Federal fiscal year.

§ 286.25 How will we resolvedisagreements over the State-submitteddata used to determine the amount of aTribal Family Assistance Grant?

(a) If a Tribe disagrees with the datasubmitted by a State, the Tribe maysubmit additional relevant informationto the Secretary. Relevant informationmay include, but is not limited to,Census Bureau data, data from theBureau of Indian Affairs, data fromother Federal programs, and Tribalrecords.

(1) The Tribe must submit anyrelevant information within 45 daysfrom the date it notifies the Secretary ofits disagreement with State submitteddata under § 286.20(b).

(2) We will review the additionalrelevant information submitted by theTribe, together with the State-submitteddata, in order to make a determinationas to the amount of the TFAG. We willdetermine the amount of the TFAG atthe earliest possible date afterconsideration of all relevant data.

§ 286.30 What is the process forretrocession of a Tribal Family AssistanceGrant?

(a) A Tribe that wishes to terminate itsTFAG prior to the end of its three-yearplan must—

(1) Notify the Secretary and the Statein writing of the reason(s) fortermination no later than 120 days priorto the effective date of the termination,or

(2) Notify the Secretary in writing ofthe reason(s) for termination no laterthan 30 days prior to the effective dateof the termination, where such effectivedata is mutually agreed upon by theTribe and the affected State(s).

(b) The effective date of thetermination must coincide with the lastday of a calendar month.

(c) For a Tribe that retrocedes, theprovisions of 45 CFR part 92 will applywith regard to closeout of the grant. Allunobligated funds will be returned bythe Tribe to the Federal government.

(d) The SFAG will be increased by theamount of the TFAG available for thesubsequent quarterly installment.

(e) A Tribe’s application to implementa TANF program subsequent to itsretrocession will be treated as any otherapplication to operate a TANF program,except that we may take into accountwhen considering approval—

(1) Whether the circumstances thatthe Tribe identified for termination ofits TANF program remain applicableand the extent to which—

(i) The Tribe has control over suchcircumstances, and

(ii) Such circumstances are reasonablyrelated to program fundingaccountability, and

(2) Whether any outstanding fundsand penalty amounts are repaid.

(f) A Tribe which retrocedes a TribalTANF program is responsible for:

(1) Complying with the datacollection and reporting requirementsand all other program requirements forthe period before the retrocession iseffective;

(2) Any applicable penalties (seesubpart D) for actions occurring prior toretrocession; the provisions of 45 CFRPart 92 and OMB Circulars A–87 and A–133;

(3) compliance with other Federalstatutes and regulations applicable tothe TANF program; and

(4) any penalties resulting from auditscovering the period before the effectivedate of retrocession.

§ 286.35 What are proper uses of TribalFamily Assistance Grant funds?

(a) Tribes may use TFAGs forexpenditures that:

(1) Are reasonably calculated toaccomplish the purposes of TANF,including, but not limited to, theprovision to low income householdswith assistance in meeting home heatingand cooling costs; assistance ineconomic development and job creationactivities, the provision of supportiveservices to assist needy families toprepare for, obtain, and retainemployment; the provision ofsupportive services to prevent of out-of-wedlock pregnancies, and assistance inkeeping families together, or

(2) Were an authorized use of fundsunder the State plans for Parts A or Fof title IV of the Social Security Act, assuch parts were in effect on September30, 1995.

§ 286.40 May a Tribe use the Tribal FamilyAssistance Grant to fund IDAs ?

(a) If the Tribe elects to operate anIDA program, it may use Federal TANFfunds or WtW funds to fund IDAs forindividuals who are eligible for TANFassistance and may exercise flexibilitywithin the limits of Federal regulationsand the statute.

(b) The following restrictions apply toIDA funds:

(1) A recipient may deposit onlyearned income into an IDA.

(2) A recipient’s contributions to anIDA may be matched by, or through, aqualified entity.

(3) A recipient may withdraw fundsonly for the following reasons:

(i) To cover post-secondary educationexpenses, if the amount is paid directlyto an eligible educational institution;

(ii) For the recipient to purchase afirst home, if the amount is paid directlyto the person to whom the amounts aredue and it is a qualified acquisition costfor a qualified principal residence by aqualified first-time buyer; or

(iii) For business capitalization, if theamounts are paid directly to a businesscapitalization account in a federallyinsured financial institution and usedfor a qualified business capitalizationexpense.

(c) To prevent recipients fromwithdrawing funds held in an IDAimproperly, Tribes may do thefollowing:

(1) Count withdrawals as earnedincome in the month of withdrawal,unless already counted as income,

(2) Count withdrawals as resources indetermining eligibility, or

(3) Take such other steps as the Tribehas established in its Tribal plan orwritten Tribal policies to deterinappropriate use.

§ 286.45 What uses of Tribal FamilyAssistance Grant funds are improper?

(a) A Tribe may not use Tribal FamilyAssistance Grant funds to provideassistance to:

(1) Families or individuals that do nototherwise meet the eligibility criteriacontained in the Tribal FamilyAssistance Plan (TFAP); or

(2) For more than the number ofmonths as specified in a Tribe’s TFAP(unless covered by a hardshipexemption); or

(3) Individuals who are not citizens ofthe United States or qualified aliens orwho do not otherwise meet thedefinition of ‘‘eligible families’’ at§ 286.5.

(b) Tribal Family Assistance Grantfunds may not be used to contribute toor to subsidize non-TANF programs.

(c) A Tribe may not use Tribal FamilyAssistance Grant funds for services oractivities prohibited by OMB CircularA–87.

(d) All provisions in OMB Circular A–133 and in 45 CFR part 92 areapplicable to the Tribal TANF program.

(e) Tribal TANF funds may not beused for the construction or purchase offacilities or buildings.

(f) Tribes must use program incomegenerated by the Tribal FamilyAssistance grant for the purposes of theTANF program and for allowable TANFservices, activities and assistance.

§ 286.50 Is there a limit on the percentageof a Tribal Family Assistance Grant that canbe used for administrative costs?

(a) ACF will negotiate a limitation onadministrative costs with each TribalTANF applicant individually for the



first year of a program’s operation basedon the applicant’s proposedadministrative cost allocation. No TribalTANF grantee may expend more than 35percent of its Tribal Family AssistanceGrant for administrative costs during thefirst year.

(b) ACF will negotiate a limitation onadministrative costs with each TribalTANF applicant individually for thesecond year of a program’s operationbased on the applicant’s proposedadministrative cost allocation. No TribalTANF grantee may expend more than 30percent of its TFAG for administrativecosts during the second year.

(c) ACF will negotiate a limitation onadministrative costs with each TribalTANF applicant individually for thethird and all subsequent years of aprogram’s operation based on theapplicant’s proposed administrative costallocation. As negotiated, a Tribal TANFgrantee may not expend more than 25percent of its TFAG for administrativecosts during any subsequent grantperiod.

(1) For the purposes of determiningadministrative costs, Tribes withapproved plans who have beenoperating Tribal TANF programs priorto the effective date of this regulationwill be able to negotiate a reasonableadjustment in their approvedadministrative cost rate, not to exceedthe limitations in the Final Ruledelineated above.

(2) [Reserved](d) ACF will negotiate limitations on

administrative costs based on, but notlimited to, a Tribe’s TANF fundinglevel, economic conditions, and theresources available to the Tribe, therelationship of the Tribe’sadministrative cost allocation proposalto the overall purposes of TANF, and ademonstration of the Tribe’sadministrative capability.

§ 286.55 What types of costs are subject tothe administrative cost limit on TribalFamily Assistance Grant funds?

(a) Activities that fall within thedefinition of ‘‘administrative costs’’ at§ 286.5 are subject to the limitdetermined under § 286.50.

(b) Information technology andcomputerization for tracking, data entryand monitoring, including personneland other costs associated with theautomation activities needed for TribalTANF monitoring, data entry andtracking purposes, are excluded fromthe administrative cost cap, even if theyfall within the definition of‘‘administrative costs.’’

(c) Designing, administering,monitoring, and controlling a sampleare not inherent parts of information

technology and computerization and,thus, costs associated with these tasksmust be considered administrativecosts.

(d) Indirect Costs negotiated by BIA,the Department’s Division of CostAllocation, or another federal agencymust be considered to be part of thetotal administrative costs.

§ 286.60 Must Tribes obligate all TribalFamily Assistance Grant funds by the endof the fiscal year in which they areawarded?

(a) No. A Tribe may reserve amountsawarded to it, without fiscal yearlimitation, to provide assistance underthe Tribal TANF program.

(b) A Tribe may expend funds beyondthe fiscal year in which awarded onlyon benefits that meet the definition ofassistance at § 286.10 or on theadministrative costs directly associatedwith providing that assistance.

Subpart C—Tribal TANF Plan Contentand Processing

§ 286.65 How can a Tribe apply toadminister a Tribal Temporary AssistanceFor Needy Families (TANF) Program?

(a) Any eligible Indian tribe, AlaskaNative organization, or intertribalconsortium that wishes to administer aTribal TANF program must submit athree-year TFAP to the Secretary of theDepartment of Health and HumanServices. The original must besubmitted to the appropriate ACFRegional Office with a copy to the ACFCentral Office.

(b) A Tribe currently operating aTribal TANF program must submit tothe appropriate ACF Regional Office,with a copy to the ACF Central Office,no later than 120 days prior to the endof the three-year grant period, either—

(1) A letter of intent, with a copy tothe affected State or States, whichspecifies they do not intend to continueoperating the program beyond the endof the three-year grant period; or

(2) A letter of intent, with a copy tothe affected State or States, whichspecifies they intend to continueprogram operations with no changes tothe geographic service area or servicepopulation; or

(3) A new three-year plan whichindicates a change in either thegeographic service area or servicepopulation.

(c) For Tribes choosing option (b)(2)above, a new three-year plan must besubmitted to the appropriate ACFRegional Office, with a copy to the ACFCentral Office, no later than 60 daysbefore the end of the current three-yeargrant period.

§ 286.70 Who submits a Tribal FamilyAssistance Plan?

(a) A TFAP must be submitted by thechief executive officer of the Indiantribe and be accompanied by a Tribalresolution supporting the TFAP.

(b) A TFAP from a consortium mustbe forwarded under the signature of thechief executive officer of the consortiumand be accompanied by Tribalresolutions from all participating Tribesthat demonstrate each individual Tribe’ssupport of the consortium, thedelegation of decision-making authorityto the consortium’s governing board,and the Tribe’s recognition that mattersinvolving operation of the Tribal TANFconsortium are the expressresponsibility of the consortium’sgoverning board.

(c) When one of the participatingTribes in a consortium wishes towithdraw from the consortium, theTribe needs to both notify theconsortium and the Secretary of thisfact.

(1) This notification must be made atleast 120 days prior to the effective dateof the withdrawal.

(2) The time frame in paragraph (c)(i)of this section is applicable only if theTribe’s withdrawal will cause a changeto the service area or population of theconsortium.

(d) When one of the participatingTribes in a consortium wishes towithdraw from the consortium in orderto operate its own Tribal TANFprogram, the Tribe needs to submit aTribal TANF plan that follows therequirements at § 286.75 and § 286.165.

§ 286.75 What must be included in theTribal Family Assistance Plan?

(a) The TFAP must outline the Tribe’sapproach to providing welfare-relatedservices for the three-year periodcovered by the plan, including:

(1) Information on the generaleligibility criteria the Tribe hasestablished, which includes a definitionof ‘‘needy family,’’ including incomeand resource limits and the Tribe’sdefinition of ‘‘Tribal member family’’ or‘‘Indian family.’’

(2) A description of the assistance,services, and activities to be offered, andthe means by which they will beoffered. The description of the services,assistance, and activities to be providedincludes whether the Tribe will providecash assistance, and what otherassistance, services, and activities willbe provided.

(3) If the Tribe will not provide thesame services, assistance, and activitiesin all parts of the service area, the TFAPmust indicate any variations.



(4) If the Tribe opts to providedifferent services to specificpopulations, including teen parents andindividuals who are transitioning offTANF assistance, the TFAP mustindicate whether any of these serviceswill be provided and, if so, whatservices will be provided.

(5) The Tribe’s goals for its TANFprogram and the means of measuringprogress towards those goals;

(6) Assurance that a 45-day publiccomment period on the Tribal TANFplan concluded prior to the submissionof the TFAP.

(7) Assurance that the Tribe hasdeveloped a dispute resolution processto be used when individuals or familieswant to challenge the Tribe’s decision todeny, reduce, suspend, sanction orterminate assistance.

(8) Tribes may require cooperationwith child support enforcementagencies as a condition of eligibility forTANF assistance. Good cause and otherexceptions to cooperation shall bedefined by the Tribal TANF program.

(b) The TFAP must identify whichTribal agency is designated by the Tribeas the lead agency for the overalladministration of the Tribal TANFprogram along with a description of theadministrative structure for supervisionof the TANF program.

(c) The TFAP must indicate whetherthe services, assistance and activitieswill be provided by the Tribe itself orthrough grants, contracts or compactswith inter-Tribal consortia, States, orother entities.

(d) The TFAP must identify thepopulation to be served by the TribalTANF program.

(1) The TFAP must identify whetherit will serve Tribal member familiesonly, or whether it will serve all Indianfamilies residing in the Tribal TANFservice area.

(2) If the Tribe wishes to serve anynon-Indian families (and thus includenon-Indians in its service population),an agreement with the State TANFagency must be included in the TFAP.This agreement must provide that,where non-Indians are to be served byTribal TANF, these families are subjectto Tribal TANF program rules.

(e) The TFAP must include adescription of the geographic area to beserved by the Tribal TANF program,including a specific description of any‘‘near reservation’’ areas, as defined at45 CFR 20.1(r), or any areas beyond‘‘near reservation’’ to be included in theTribal TANF service area.

(1) In areas beyond those defined as‘‘near reservation’’, the TFAP mustdemonstrate the Tribe’s administrativecapacity to serve such areas and the

State(s)’, and if applicable, otherTribe(s)’ concurrence with the proposeddefined boundaries.

(2) A Tribe cannot extend its servicearea boundaries beyond the boundariesof the State(s) in which the reservationand BIA near-reservation designationsare located.

(3) For Tribes in Oklahoma, if theTribe defines its service area as otherthan its ‘‘tribal jurisdiction statisticalarea’’ (TJSA), the Tribe must include anagreement with the other Tribe(s)reflecting agreement to the service area.TJSAs are areas delineated by theCensus Bureau for each federally-recognized Tribe in Oklahoma withouta reservation.

(f) The TFAP must provide that afamily receiving assistance under theplan may not receive duplicativeassistance from other State or TribalTANF programs and must include adescription of the means by which theTribe will ensure duplication does notoccur.

(g) The TFAP must identify theemployment opportunities in and nearthe service area and the manner inwhich the Tribe will cooperate andparticipate in enhancing suchopportunities for recipients of assistanceunder the plan, consistent with anyapplicable State standards. This shouldinclude:

(1) A description of the employmentopportunities available, in both thepublic and private sector, within andnear the Tribal service area; and

(2) A description of how the Tribewill work with public and private sectoremployers to enhance the opportunitiesavailable for Tribal TANF recipients.

(h) The TFAP must provide anassurance that the Tribe applies thefiscal accountability provisions ofsection 5(f)(1) of the Indian Self-Determination and EducationAssistance Act (25 U.S.C. 450c(f)(1)),relating to the submission of a single-agency audit report required by chapter75 of title 31, United States Code.

§ 286.80 What information on minimumwork participation requirements must aTribe include in its Tribal Family AssistancePlan?

(a) To assess a Tribe’s level of successin meeting its TANF work objectives, aTribe that submits a TFAP mustnegotiate with the Secretary minimumwork participation requirements thatwill apply to families that receive TribalTANF assistance that includes an adultor minor head of household receivingsuch assistance.

(b) A Tribe that submits a TFAP mustinclude in the plan the Tribe’s proposalfor minimum work participation

requirements, which includes thefollowing:

(1) For each fiscal year covered by theplan, the Tribe’s proposed participationrate(s) for all families, for all familiesand two-parent families, or for one-parent families and two-parent families;

(2) For each fiscal year covered by theplan, the Tribe’s proposed minimumnumber of hours per week that adultsand minor heads of household will berequired to participate in workactivities;

(i) If the Tribe elects to includereasonable transportation time to andfrom the site of work activities indetermining the hours of workparticipation, it must so indicate in itsTFAP along with a definition of‘‘reasonable’’ for purposes of thissubsection, along with:

(A) An explanation of how theeconomic conditions and/or resourcesavailable to the Tribe justify inclusion oftransportation time in determining workparticipation hours; and

(B) An explanation of how countingreasonable transportation time isconsistent with the purposes of TANF;

(3) The work activities that counttowards these work requirements;

(4) Any exemptions, limitations andspecial rules being established inrelation to work requirements; and

(5) The Tribe must provide rationalefor the above, explaining how theproposed work requirements relate toand are justified based on the Tribe’sneeds and conditions.

(i) The rationale must address howthe proposed work requirements areconsistent with the purposes of TANFand with the economic conditions andresources of the Tribe.

(ii) Examples of the information thatcould be included to illustrate theTribe’s proposal include, but are notlimited to: poverty, unemployment,jobless and job surplus rates; educationlevels of adults in the service area;availability of and/or accessibility toresources (educational facilities,transportation) to help families becomeemployable and find employment; andemployment opportunities on and nearthe service area.

§ 286.85 How will we calculate the workparticipation rates?

(a) Work participation rate(s) will bethe percentage of families with an adultor minor head-of-household receivingTANF assistance from the Tribe who areparticipating in a work activityapproved in the TFAP for at least theminimum number of hours approved inthe TFAP.

(b) The participation rate for a fiscalyear is the average of the Tribe’s



participation rate for each month in thefiscal year.

(c) A Tribe’s participation rate for amonth is expressed as the followingratio:

(1) The number of families receivingTANF assistance that include an adultor a minor head-of-household who isparticipating in activities for the month(numerator), divided by

(2) The number of families thatinclude an adult or a minor head-of-household receiving TANF assistanceduring the month excluding:

(i) Families that were penalized fornon-compliance with the workrequirements in that month as long asthey have not been sanctioned for morethan three months (whether or notconsecutively) out of the last 12 months;and

(ii) Families with children under ageone, if the Tribe chooses to exemptthese families from participationrequirements.

(d) If a family receives assistance foronly part of a month or beginsparticipating in activities during themonth, the Tribe may count it as amonth of participation if an adult orminor head-of-household in the familyis participating for the minimumaverage number of hours in each fullweek that the family receives assistanceor participates in that month.

(e) Two-parent families in which oneof the parents is disabled are consideredone-parent families for the purpose ofcalculating a Tribe’s participation rate.

§ 286.90 How many hours per week mustan adult or minor head-of-householdparticipate in work-related activities tocount in the numerator of the workparticipation rate?

During the month, an adult or minorhead-of-household must participate inwork activities for at least the minimumaverage number of hours per weekspecified in the Tribe’s approved TribalFamily Assistance Plan.

§ 286.95 What, if any, are the special rulesconcerning counting work for two-parentfamilies?

Parents in a two-parent family mayshare the number of hours required tobe considered as engaged in work.

§ 286.100 What activities count towardsthe work participation rate?

(a) Activities that count toward aTribe’s participation rate may include,but are not limited to, the following:

(1) Unsubsidized employment;(2) Subsidized private sector

employment;(3) Subsidized public sector

employment;(4) Work experience;

(5) On-the-job training (OJT);(6) Job search and job readiness

assistance; (see § 286.105)(7) Community service programs;(8) Vocational educational training;

(see § 286.105)(9) Job skills training directly related

to employment;(10) Education directly related to

employment, in the case of a recipientwho has not received a high schooldiploma or a certificate of high schoolequivalency;

(11) Satisfactory attendance atsecondary school or in a course of studyleading to a certificate of generalequivalence, if a recipient has notcompleted secondary school or receivedsuch a certificate;

(12) Providing child care services toan individual who is participating in acommunity service program; and

(13) Other activities that will helpfamilies achieve self-sufficiency.

(b) [Reserved]

§ 286.105 What limitations concerningvocational education, job search and jobreadiness assistance exist with respect tothe work participation rate?

(a) Tribes are not required to limitvocational education for any oneindividual to a period of 12 months.

(b) There are two limitationsconcerning job search and job readiness:

(1) Job search and job readinessassistance only count for 6 weeks in anyfiscal year.

(2) If the Tribe’s unemployment ratein the Tribal TANF service area is atleast 50 percent greater than the UnitedStates’ total unemployment rate for thatfiscal year, then an individual’sparticipation in job search or jobreadiness assistance counts for up to 12weeks in that fiscal year.

(c) If job search or job readiness is anancillary part of another activity, thenthere is no limitation on counting thetime spent in job search/job readiness.

§ 286.110 What safeguards are there toensure that participants in Tribal TANFwork activities do not displace otherworkers?

(a) An adult or minor head-of-household taking part in a work activityoutlined in § 286.100 cannot fill avacant employment position if:

(1) Any other individual is on layofffrom the same or any substantiallyequivalent job; or

(2) The employer has terminated theemployment of any regular employee orotherwise caused an involuntaryreduction in its work force in order tofill the vacancy with the TANFparticipant.

(b) A Tribe must establish andmaintain a grievance procedure to

resolve complaints of alleged violationsof this displacement rule.

(c) This regulation does not preemptor supersede Tribal laws providinggreater protection for employees fromdisplacement.

§ 286.115 What information on time limitsfor the receipt of assistance must a Tribeinclude in its Tribal Family AssistancePlan?

(a) The TFAP must include the Tribe’sproposal for:

(1) Time limits for the receipt ofTribal TANF assistance;

(2) Any exceptions to these timelimits; and

(3) The percentage of the caseload tobe exempted from the time limit due tohardship or if the family includes anindividual who has been battered orsubjected to extreme cruelty.

(b) The Tribe must also include therationale for its proposal in the plan.The rationale must address how theproposed time limits are consistent withthe purposes of TANF and with theeconomic conditions and resources ofthe Tribe.

(1) Examples of the information thatcould be included to illustrate theTribe’s proposal include, but are notlimited to: Poverty, unemployment,jobless and job surplus rates; educationlevels of adults in the service area;availability of and/or accessibility toresources (educational facilities,transportation) to help families becomeemployable and find employment; andemployment opportunities on and nearthe service area.

(c) We may require that the Tribesubmit additional information about therationale before we approve theproposed time limits.

(d) Tribes must not count towards thetime limit:

(1) Any month of receipt of assistanceto a family that does not include anadult head-of-household;

(2) A family that does not include apregnant minor head-of-household,minor parent head-of-household, orspouse of such a head-of-household;and

(3) Any month of receipt of assistanceby an adult during which the adult livedin Indian country or in an AlaskanNative Village in which at least 50percent of the adults were notemployed.

(e) A Tribe must not use any of itsTFAG to provide assistance (as definedin § 286.10) to a family that includes anadult or minor head-of-household whohas received assistance beyond thenumber of months (whether or notconsecutive) that is negotiated with theTribe.



§ 286.120 Can Tribes make exceptions tothe established time limit for families?

(a) Tribes have the option to exemptfamilies from the established time limitsfor:

(1) Hardship, as defined by the Tribe,or

(2) The family includes someone whohas been battered or has been subject toextreme cruelty.

(b) If a Tribe elects the hardshipoption, the Tribe must specify in itsTFAP the maximum percent of itsaverage monthly caseload of families onassistance that will be exempt from theestablished time limit under paragraph(a) of this section.

(c) If the Tribe proposes to exemptmore than 20 percent of the caseloadunder paragraph (a) of this section, theTribe must include a rationale in theplan.

§ 286.125 Does the receipt of TANFbenefits under a State or other Tribal TANFprogram count towards a Tribe’s TANF timelimit?

Yes, the Tribe must count priormonths of TANF assistance funded withTANF block grant funds, except for anymonth that was exempt or disregardedby statute, regulation, or under anyexperimental, pilot, or demonstrationproject approved under section 1115 ofthe Act.

§ 286.130 Does the receipt of Welfare-to-Work (WtW) cash assistance count towardsa Tribe’s TANF time limit?

(a) For purposes of an individual’stime limit for receipt of TANFassistance as well as the penaltyprovision at § 286.195(a)(1), WtW cashassistance counts towards a Tribe’sTANF time limit only if:

(1) Such assistance satisfies thedefinition at § 286.10; and

(2) Is directed at ongoing basic needs.(b) Only cash assistance provided in

the form of cash payments, checks,reimbursements, electronic fundstransfers, or any other form that canlegally be converted to currency issubject to paragraph (a) of this section.

§ 286.135 What information on penaltiesagainst individuals must be included in aTribal Family Assistance Plan?

(a) The TFAP must include the Tribe’sproposal for penalties againstindividuals who refuse to engage inwork activities. The Tribe’s proposalmust address the following:

(1) Will the Tribe impose a pro ratareduction, or more at Tribal option, orwill it terminate assistance to a family?

(2) After consideration of theprovision specified at § 286.150, whatwill be the proposed Tribal policiesrelated to a single custodial parent, with

a child under the age of 6, who refusesto engage in work activities because ofa demonstrated inability to obtainneeded child care?

(3) What good cause exceptions, ifany, does the Tribe propose that willallow individuals to avoid penalties forfailure to engage in work?

(4) What other rules governingpenalties does the Tribe propose?

(5) What, if any, will be the Tribe’spolicies related to victims of domesticviolence consistent with § 286.140?

(b) The Tribe’s rationale for itsproposal must also be included in theTFAP.

(1) The rationale must address howthe proposed penalties againstindividuals are consistent with thepurposes of TANF, consistent with theeconomic conditions and resources ofthe Tribe, and how they relate to therequirements of section 407(e) of theAct.

(2) Examples of the information thatcould be included to illustrate theTribe’s proposal include, but are notlimited to; poverty, unemployment,jobless and job surplus rates; educationlevels of adults in the service area;availability of and/or accessibility toresources (educational facilities,transportation) to help families becomeemployable and find employment; andemployment opportunities on and nearthe service area.

(c) We may require a Tribe to submitadditional information about therationale before we approve theproposed penalties against individuals.

§ 286.140 What special provisions apply tovictims of domestic violence?

(a) Tribes electing the FamilyViolence Option (FVO) must certify thatthey have established and are enforcingstandards and procedures to:

(1) Screen and identify individualsreceiving TANF assistance with ahistory of domestic violence, whilemaintaining the confidentiality of suchindividuals;

(2) Refer such individuals tocounseling and supportive services; and

(3) Provide waivers, pursuant to adetermination of good cause, of TANFprogram requirements to suchindividuals for so long as necessary incases where compliance would make itmore difficult for such individuals toescape domestic violence or unfairlypenalize those who are or have beenvictimized by such violence or who areat risk of further domestic violence.

(b) Tribes have broad flexibility togrant waivers of TANF programrequirements, but such waivers must:

(1) Identify the specific programrequirement being waived;

(2) Be granted based on need asdetermined by an individualizedassessment by a person trained indomestic violence and redeterminationsno less than every six months;

(3) Be accompanied by an appropriateservices plan that:

(i) Is developed in coordination witha person trained in domestic violence;

(ii) Reflects the individualizedassessment and any revisions indicatedby any redetermination; and

(iii) To the extent consistent withparagraph (a)(3) of this section, isdesigned to lead to work.

(c) If a Tribe wants us to take waiversthat it grants under this section intoaccount in deciding if it has reasonablecause for failing to meet its workparticipation rates or comply with theestablished time limit on TANFassistance, has achieved compliance ormade significant progress towardsachieving compliance with suchrequirements during a correctivecompliance period, the waivers mustcomply with paragraph (b) of thissection.

(d) We will determine that a Tribe hasreasonable cause for failing to meet itswork participation rates or to complywith established time limits onassistance if—

(1) Such failures were attributable togood cause domestic violence waiversgranted to victims of domestic violence;

(2) In the case of work participationrates, the Tribe provides evidence thatit achieved the applicable rates exceptwith respect to any individuals whoreceived a domestic violence waiver ofwork participation requirements. Inother words, the Tribe mustdemonstrate that it met the applicablerates when such waiver cases areremoved from the calculation of workparticipation rate;

(3) In the case of established timelimits on assistance, the Tribe providesevidence that it granted good causedomestic violence waivers to extendtime limits based on the need forcontinued assistance due to current orpast domestic violence or the risk offurther domestic violence, andindividuals and their families receivingassistance beyond the established timelimit under such waivers do not exceed20 percent of the total number offamilies receiving assistance.

(e) We may take good cause domesticviolence waivers of work participationor waivers which extend the establishedtime limits for assistance intoconsideration in deciding whether aTribe has achieved compliance or madesignificant progress toward achievingcompliance during a correctivecompliance period.



(f) Tribes electing the FVO mustsubmit the information specified at§ 286.275(b)(7).

§ 286.145 What is the penalty if anindividual refuses to engage in workactivities?

If an individual refuses to engage inwork activities in accordance with theminimum work participationrequirements specified in the approvedTFAP, the Tribe must apply to theindividual the penalties againstindividuals that were established in theapproved TFAP.

§ 286.150 Can a family, with a child underage 6, be penalized because a parentrefuses to work because (s)he cannot findchild care?

(a) If the individual is a singlecustodial parent caring for a child underage six, the Tribe may not reduce orterminate assistance based on theparent’s refusal to engage in requiredwork if he or she demonstrates aninability to obtain needed child care forone or more of the following reasons:

(1) Appropriate child care within areasonable distance from the home orwork site is unavailable;

(2i) Informal child care by a relativeor under other arrangements isunavailable or unsuitable; or

(3) Appropriate and affordable formalchild care arrangements are unavailable.

(b) Refusal to work when anacceptable form of child care isavailable is not protected fromsanctioning.

(c) The Tribe will determine when theindividual has demonstrated that he orshe cannot find child care, inaccordance with criteria established bythe Tribe. These criteria must:

(1) Address the procedures that theTribe uses to determine if the parent hasa demonstrated inability to obtainneeded child care;

(2) Include definitions of the terms‘‘appropriate child care,’’ ‘‘reasonabledistance,’’ ‘‘unsuitability of informalcare,’’ and ‘‘affordable child carearrangements’’; and

(3) Be submitted to us.(d) The Tribal TANF agency must

inform parents about:(1) The penalty exception to the

Tribal TANF work requirement,including the criteria and applicabledefinitions for determining whether anindividual has demonstrated aninability to obtain needed child care;

(2) The Tribe’s procedures (includingdefinitions) for determining a family’sinability to obtain needed child care,and any other requirements orprocedures, such as fair hearings,associated with this provision; and

(3) The fact that the exception doesnot extend the time limit for receivingFederal assistance.

§ 286.155 May a Tribe condition eligibilityfor Tribal TANF assistance on assignmentof child support to the Tribe?

(a) Tribes have the option to conditioneligibility for Tribal TANF assistance onassignment of child support to the Tribeconsistent with paragraph (b) of thissection.

(b) For Tribes choosing to conditioneligibility for Tribal TANF assistance onassignment of child support to theTribe, the TFAP must address thefollowing—

(1) Procedures for ensuring that childsupport collections, if any, in excess ofthe amount of Tribal TANF assistancereceived by the family must be paid tothe family; and,

(2) How any amounts generated underan assignment and retained by the Tribewill be used to further the Tribe’s TANFprogram, consistent with § 286.45(f).

§ 286.160 What are the applicable timeframes and procedures for submitting aTribal Family Assistance Plan?

(a) A Tribe must submit a TribalTANF letter of intent and/or a TFAP tothe Secretary according to the followingtime frames:

Implementation date: Letter of intent due to ACF andthe State: Formal plan due to ACF: ACF notification to the State due:

January 1, February 1 or March 1 July 1 of previous year ................. September 1 of previous year ...... October 1 of previous year.April 1, May 1 or June 1 ................ October 1 of previous year ........... December 1 of previous year ....... January 1 of same year.July 1, August 1 or September 1 ... January 1 of same year ............... March 1 of same year .................. April 1 of same year.October 1, November 1 or Decem-

ber 1.April 1 of same year ..................... June 1 of same year .................... July 1 of same year.

(b) A Tribe that has requested andreceived data from the State and hasresolved any issues concerning the datamore than six months before itsproposed implementation date is notrequired to submit a letter of intent.

(c) The effective date of the TFAPmust be the first day of any month.

(d) The original TFAP must be sent tothe appropriate ACF RegionalAdministrator, with a copy sent to theDivision of Tribal Services, Office ofCommunity Services, Administrationfor Children and Families.

(e) A Tribe that submits a TFAP or anamendment to an existing plan thatcannot be approved by the Secretarywill be given the opportunity to makerevisions in order to make the TFAP, oran amendment, approvable.

(f) Tribes operating a consolidatedPublic Law 102–477 program mustsubmit a TFAP plan to the Secretary forreview and approval prior to the

consolidation of the TANF program intothe Public Law 102–477 plan.

§ 286.165 How is a Tribal FamilyAssistance Plan amended?

(a) An amendment to a TFAP isnecessary if the Tribe makes anysubstantial changes to the plan,including those which impact anindividual’s eligibility for Tribal TANFservices or participation requirements,or any other program design changeswhich alter the nature of the program.

(b) A Tribe must submit a planamendment(s) to the Secretary no laterthan 30 days prior to the proposedimplementation date. Proposedimplementation dates shall be the firstday of any month.

(c) We will promptly review andeither approve or disapprove the planamendment(s).

(d) Approved plan amendments areeffective no sooner than 30 days afterdate of submission.

(e) A Tribe whose plan amendment isdisapproved may petition for anadministrative review of suchdisapproval under § 286.170 and mayappeal our final written decision to theDepartmental Appeals Board no laterthan 30 days from the date of thedisapproval. This appeal to the Boardshould follow the provisions of the rulesunder this subpart and those at 45 CFRpart 16, where applicable.

§ 286.170 How may a Tribe petition foradministrative review of disapproval of aTFAP or amendment?

(a) If, after a Tribe has been providedthe opportunity to make revisions to itsTFAP or amendment, the Secretarydetermines that the TFAP oramendment cannot be approved, awritten Notice of Disapproval will be



sent to the Tribe. The Notice ofDisapproval will indicate the specificgrounds for disapproval.

(b) A Tribe may requestreconsideration of a disapprovaldetermination by filing a writtenRequest for Reconsideration to theSecretary within 60 days of receipt ofthe Notice of Disapproval. Ifreconsideration is not requested, thedisapproval is final and the proceduresunder paragraph (f) of this section mustbe followed.

(1) The Request for Reconsiderationmust include—

(i) All documentation that the Tribebelieves is relevant and supportive of itsTFAP or amendment; and

(ii) A written response to each groundfor disapproval identified in the Noticeof Disapproval indicating why the Tribebelieves that its TFAP or amendmentconforms to the statutory and regulatoryrequirements for approval.

(c) Within 30 days after receipt of aRequest for Reconsideration, theSecretary or designee will notify theTribe of the date and time a hearing forthe purpose of reconsideration of theNotice of Disapproval will be held. Sucha hearing may be conducted bytelephone conference call.

(d) A hearing conducted under§ 286.170(c) must be held not less than30 days nor more than 60 days after thedate of the notice of such hearing isfurnished to the Tribe, unless the Tribeagrees in writing to an extension.

(e) The Secretary or designee willmake a written determination affirming,modifying, or reversing disapproval ofthe TFAP or amendment within 60 daysafter the conclusion of the hearing.

(f) If a TFAP or amendment isdisapproved, the Tribe may appeal thisfinal written decision to theDepartmental Appeals Board (the Board)within 30 days after such party receivesnotice of determination. The party’sappeal to the Board should follow theprovisions of the rules under thissection and those at 45 CFR part 16,where applicable.

§ 286.175 What special provisions apply inAlaska?

A Tribe in the State of Alaska thatreceives a TFAG must use the grant tooperate a program in accordance withprogram requirements comparable to therequirements applicable to the State ofAlaska’s Temporary Assistance forNeedy Families program. Comparabilityof programs must be established on thebasis of program criteria developed bythe Secretary in consultation with theState of Alaska and the Tribes in Alaska.The State of Alaska has authority towaive the program comparability

requirement based on a request by anIndian tribe in the State.

§ 286.180 What is the process fordeveloping the comparability criteria thatare required in Alaska?

We will work with the Tribes inAlaska and the State of Alaska todevelop an appropriate process for thedevelopment and amendment of thecomparability criteria.

§ 286.185 What happens when a disputearises between the State of Alaska and theTribal TANF eligible entities in the Staterelated to the comparability criteria?

(a) If a dispute arises between theState of Alaska and the Tribes in theState on any part of the comparabilitycriteria, we will be responsible formaking a final determination andnotifying the State of Alaska and theTribes in the State of the decision.

(b) Any of the parties involved mayappeal our decision, in whole or in part,to the HHS Departmental Appeals Board(the Board) within 60 days after suchparty receives notice of determination.The party’s appeal to the Board shouldfollow the provisions of the rules underthis section and those at 45 CFR part 16,where applicable.

§ 286.190 If the Secretary, the State ofAlaska, or any of the Tribal TANF eligibleentities in the State of Alaska want toamend the comparability criteria, what isthe process for doing so?

(a) At such time that any of the aboveparties wish to amend the comparabilitydocument, the requesting party shouldsubmit a request to us, with a copy tothe other parties, explaining therequested change(s) and supplyingbackground information in support ofthe change(s).

(b) After review of the request, wewill make a determination on whetheror not to accept the proposed change(s).

(c) If any party wishes to appeal thedecision regarding the adoption of theproposed amendment, they may appealusing the appeals process pursuant to§ 286.165.

Subpart D—Accountability andPenalties

§ 286.195 What penalties will apply toTribes?

(a) Tribes will be subject to fiscalpenalties and requirements as follows:

(1) If we determine that a Tribemisused its Tribal Family AssistanceGrant funds, including providingassistance beyond the Tribe’s negotiatedtime limit under § 286.115, we willreduce the TFAG for the following fiscalyear by the amount so used;

(2) If we determine that a Tribeintentionally misused its TFAG for an

unallowable purpose, the TFAG for thefollowing fiscal year will be reduced byan additional five percent;

(3) If we determine that a Tribe failedto meet the minimum workparticipation rate(s) established for theTribe, the TFAG for the following fiscalyear will be reduced. The amount of thereduction will depend on whether theTribe was under a penalty for thisreason in the preceding year. If not, thepenalty reduction will be a maximum offive percent. If a penalty was imposedon the Tribe in the preceding year, thepenalty reduction will be increased byan additional 2 percent, up to amaximum of 21 percent. In determiningthe penalty amount, we will take intoconsideration the severity of the failureand whether the reasons for the failurewere increases in the unemploymentrate in the TFAG service area andchanges in TFAG caseload size duringthe fiscal year in question; and

(4) If a Tribe fails to repay a Federalloan provided under section 406 of theAct, we will reduce the TFAG for thefollowing fiscal year by an amount equalto the outstanding loan amount plusinterest.

(b) In calculating the amount of thepenalty, we will add together allapplicable penalty percentages, and thetotal is applied to the amount of theTFAG that would have been payable ifno penalties were assessed against theTribe. As a final step, we will subtractother (non-percentage) penalty amounts.

(c) When imposing the penalties inparagraph (a) of this section, we will notreduce an affected Tribe’s grant by morethan 25 percent. If the 25 percent limitprevents the recovery of the full penaltyimposed on a Tribe during a fiscal year,we will apply the remaining amount ofthe penalty to the TFAG payable for theimmediately succeeding fiscal year.

(1) If we reduce the TFAG payable toa Tribe for a fiscal year because ofpenalties that have been imposed, theTribe must expend additional Tribalfunds to replace any such reduction.The Tribe must document compliancewith this provision on its TANFexpenditure report.

(2) We will impose a penalty of notmore than 2 percent of the amount ofthe TFAG on a Tribe that fails to expendadditional Tribal funds to replaceamounts deducted from the TFAG dueto penalties. We will apply this penaltyto the TFAG payable for the nextsucceeding fiscal year, and this penaltycannot be excused (see § 286.235).

(d) If a Tribe retrocedes the program,the Tribe will be liable for any penaltiesincurred for the period the program wasin operation.



§ 286.200 How will we determine if TribalFamily Assistance Grant funds weremisused or intentionally misused?

(a) We will use the single audit orFederal review or audit to determine ifa Tribe should be penalized formisusing Tribal Family AssistanceGrant funds under § 286.195(a)(1) orintentionally misusing Tribal FamilyAssistance Grant funds under§ 286.195(a)(2).

(b) If a Tribe uses the TFAG inviolation of the provisions of the Act,the provisions of 45 CFR part 92, OMBCirculars A–87 and A–133, or anyFederal statutes and regulationsapplicable to the TANF program, wewill consider the funds to have beenmisused.

(c) The Tribe must show, to oursatisfaction, that it used the funds forpurposes that a reasonable personwould consider to be within thepurposes of the TANF program (asspecified at § 286.35) and the provisionslisted in § 286.45.

(d) We will consider the TFAG tohave been intentionally misused underthe following conditions:

(1) There is supportingdocumentation, such as Federalguidance or policy instructions,indicating that TANF funds could notbe used for that purpose; or

(2) After notification that we havedetermined such use to be improper, theTribe continues to use the funds in thesame or similarly improper manner.

(e) If the single audit determines thata Tribe misused Federal funds inapplying the negotiated time limitprovisions under § 286.115, the amountof the penalty for misuse will be limitedto five percent of the TFAG amount.

(1) This penalty shall be in additionto the reduction specified under§ 286.195(a)(1).

(2) [Reserved]

§ 286.205 How will we determine if a Tribefails to meet the minimum workparticipation rate(s)?

(a) We will use the Tribal TANF DataReports required under § 286.255 todetermine if we will assess the penaltyunder § 286.195(a)(3) for failure to meetthe minimum participation rate(s)established for the Tribe.

(b) Each Tribal TANF Grantee’squarterly reports (the TANF Data Reportand the Tribal TANF Financial Report)must be complete and accurate and filedby the due date. The accuracy of thereports are subject to validation by us.

(1) For a disaggregated data report, ‘‘acomplete and accurate report’’ meansthat:

(i) The reported data accurately reflectinformation available to the Tribal

TANF grantee in case records, financialrecords, and automated data systems;

(ii) The data are free fromcomputational errors and are internallyconsistent (e.g., items that should add tototals do so);

(iii) The Tribal TANF grantee reportsdata for all required elements (i.e., nodata are missing);

(iv) The Tribal TANF grantee providesdata on all families; or

(v) If the Tribal TANF grantee opts touse sampling, the Tribal TANF granteereports data on all families selected ina sample that meets the specificationand procedures in the TANF SamplingManual (except for families listed inerror); and

(vi) Where estimates are necessary(e.g., some types of assistance mayrequire cost estimates), the Tribal TANFgrantee uses reasonable methods todevelop these estimates.

(2) For an aggregated data report, ‘‘acomplete and accurate report’’ meansthat:

(i) The reported data accurately reflectinformation available to the TribalTANF grantee in case records, financialrecords, and automated data systems;


(iii) The Tribal TANF grantee reportsdata on all applicable elements; and

(iv) Monthly totals are unduplicatedcounts for all families (e.g., the numberof families and the number of out-of-wedlock births are unduplicatedcounts).

(3) For the Tribal TANF FinancialReport, a ‘‘complete and accuratereport’’ means that:

(i) The reported data accurately reflectinformation available to the TribalTANF grantee in case records, financialrecords, and automated data systems;


(iii) The Tribal TANF grantee reportsdata on all applicable elements; and

(iv) All expenditures have been madein accordance with 45 CFR part 92 andall relevant OMB circulars.

(4) We will review the data filed inthe quarterly reports to determine ifthey meet these standards. In addition,we will use audits and reviews to verifythe accuracy of the data filed by theTribal TANF grantee.

(c) Tribal TANF grantees mustmaintain records to adequately supportany report, in accordance with 45 CFRpart 92 and all relevant OMB circulars.

(d) If we find reports so significantlyincomplete or inaccurate that we

seriously question whether the Tribehas met its participation rate, we mayapply the penalty under § 286.195(a)(3).

§ 286.210 What is the penalty for a Tribe’sfailure to repay a Federal loan?

(a) If a Tribe fails to repay the amountof principal and interest due at anypoint under a loan agreement:

(1) The entire outstanding loanbalance, plus all accumulated interest,becomes due and payable immediately;and

(2) We will reduce the TFAG payablefor the immediately succeeding fiscalyear quarter by the outstanding loanamount plus interest.

(b) Neither the reasonable causeprovisions at § 286.225 nor thecorrective compliance plan provisionsat § 286.230 apply when a Tribe fails torepay a Federal loan.

§ 286.215 When are the TANF penaltyprovisions applicable?

(a) A Tribe may be subject topenalties, as described in§ 286.195(a)(1), § 286.195(a)(2) and§ 286.195(a)(4), for conduct occurring onand after the first day of implementationof the Tribe’s TANF program.

(b) A Tribe may be subject topenalties, as described in§ 286.195(a)(3), for conduct occurring onand after the date that is six monthsafter the Tribe begins operating theTANF program.

(c) We will not apply the regulationsretroactively. We will judge Tribalactions that occurred prior to theeffective date of these rules andexpenditures of funds received prior tothe effective date only against areasonable interpretation of thestatutory provisions in title IV-A of theAct.

(1) To the extent that a Tribe’s failureto meet the requirements of the penaltyprovisions is attributable to the absenceof Federal rules or guidance, Tribes mayqualify for reasonable cause, asdiscussed in § 286.225.

(2) [Reserved]

§ 286.220 What happens if a Tribe fails tomeet TANF requirements?

(a) If we determine that a Tribe issubject to a penalty, we will notify theTribe in writing. This notice will:

(1) Specify what penalty provision(s)are in issue;

(2) Specify the amount of the penalty;(3) Specify the reason for our

determination;(4) Explain how and when the Tribe

may submit a reasonable causejustification under § 286.225 and/or acorrective compliance plan under§ 286.230(d) for those penalties for



which reasonable cause and/orcorrective compliance plan apply; and

(5) Invite the Tribe to present itsarguments if it believes that the data ormethod we used were in error or wereinsufficient, or that the Tribe’s actions,in the absence of Federal regulations,were based on a reasonableinterpretation of the statute.

(b) Within 60 days of receipt of ourwritten notification, the Tribe maysubmit a written response to us that:

(1) Demonstrates that ourdetermination is incorrect because ourdata or the method we used indetermining the penalty was in error orwas insufficient, or that the Tribe actedprior to June 19, 2000, on a reasonableinterpretation of the statute;

(2) Demonstrates that the Tribe hadreasonable cause for failing to meet therequirement(s); and/or

(3) Provides a corrective complianceplan as discussed in § 286.230.

(c) If we find that the Tribe wascorrect and that a penalty wasimproperly determined, or find that aTribe had reasonable cause for failing tomeet a requirement, we will not imposethe related penalty and so notify theTribe in writing within two weeks ofsuch a determination.

(d) If we determine that the Tribe hasnot demonstrated that our originaldetermination was incorrect or that ithad reasonable cause, we will notify theTribe of our decision in writing.

(e) If we request additionalinformation from a Tribe, it mustprovide the information within thirtydays of the date of our request.

§ 286.225 How may a Tribe establishreasonable cause for failing to meet arequirement that is subject to application ofa penalty?

(a) We will not impose a penaltyagainst a Tribe if it is determined thatthe Tribe had reasonable cause forfailure to meet the requirements listed at§ 286.195(a)(1), § 286.195(a)(2), or§ 286.195(a)(3). The general factors aTribe may use to claim reasonable causeinclude, but are not limited to, thefollowing:

(1) Natural disasters, extreme weatherconditions, and other calamities (e.g.,hurricanes, earthquakes, fire, andeconomic disasters) whose disruptiveimpact was so significant that the Tribefailed to meet a requirement.

(2) Formally issued Federal guidancewhich provided incorrect informationresulting in the Tribe’s failure or priorto the effective date of these regulations,guidance that was issued after a Tribeimplemented the requirements of theAct based on a different, but reasonable,interpretation of the Act.

(3) Isolated, non-recurring problemsof minimal impact that are notindicative of a systemic problem.

(4) Significant increases in theunemployment rate in the TFAG servicearea and changes in the TFAG caseloadsize during the fiscal year beingreported.

(b) We will grant reasonable cause toa Tribe that:

(1) Clearly demonstrates that itsfailure to submit complete, accurate,and timely data, as required at§ 286.245, for one or both of the first twoquarters of FY 2000, is attributable, insignificant part, to its need to divertcritical system resources to Year 2000compliance activities; and

(2) Submits complete and accuratedata for the first two quarters of FY 2000by November 15, 2000.

(c) In addition to the reasonable causecriteria specified above, a Tribe mayalso submit a request for a reasonablecause exemption from the requirementto meet its work participationrequirements in the following situation:

(1) We will consider that a Tribe hasreasonable cause if it demonstrates thatits failure to meet its work participationrate(s) is attributable to its provisionswith regard to domestic violence asfollows:

(i) To demonstrate reasonable cause, aTribe must provide evidence that itachieved the applicable work rates,except with respect to any individualsreceiving good cause waivers of workrequirements (i.e., when cases withgood cause waivers are removed fromthe calculation in § 286.85); and

(ii) A Tribe must grant good causewaivers in domestic violence casesappropriately, in accordance with thepolicies in the Tribe’s approved TribalFamily Assistance Plan.

(2) [Reserved](d) In determining reasonable cause,

we will consider the efforts the Tribemade to meet the requirements, as wellas the duration and severity of thecircumstances that led to the Tribe’sfailure to achieve the requirement.

(e) The burden of proof rests with theTribe to fully explain the circumstancesand events that constitute reasonablecause for its failure to meet arequirement.

(1) The Tribe must provide us withsufficient relevant information anddocumentation to substantiate its claimof reasonable cause.

(2) [Reserved]

§ 286.230 What if a Tribe does not havereasonable cause for failing to meet arequirement?

(a) To avoid the imposition of apenalty under § 286.195(a)(1),

§ 286.195(a)(2), or § 286.195(a)(3), underthe following circumstances a Tribemust enter into a corrective complianceplan to correct the violation:

(1) If a Tribe does not claimreasonable cause for failing to meet arequirement; or

(2) If we found that a Tribe did nothave reasonable cause.

(b) A Tribe that does not claimreasonable cause will have 60 days fromreceipt of the notice described in§ 286.220(a) to submit its correctivecompliance plan to us.

(c) A Tribe that does not demonstratereasonable cause will have 60 days fromreceipt of the second notice described in§ 286.220(d) to submit its correctivecompliance plan to us.

(d) In its corrective compliance planthe Tribe must outline:

(1) Why it failed to meet therequirements;

(2) How it will correct the violation ina timely manner; and

(3) What actions, outcomes and timeline it will use to ensure futurecompliance.

(e) During the 60-day periodbeginning with the date we receive thecorrective compliance plan, we may, ifnecessary, consult with the Tribe onmodifications to the plan.

(f) A corrective compliance plan isdeemed to be accepted if we take noaction to accept or reject the plan duringthe 60-day period that begins when theplan is received.

(g) Once a corrective compliance planis accepted or deemed accepted, we mayrequest reports from the Tribe or takeother actions to confirm that the Tribeis carrying out the corrective actionsspecified in the plan.

(1) We will not impose a penaltyagainst a Tribe with respect to anyviolation covered by that plan if theTribe corrects the violation within thetime frame agreed to in the plan.

(2) We must assess some or all of thepenalty if the Tribe fails to correct theviolation pursuant to its correctivecompliance plan.

§ 286.235 What penalties cannot beexcused?

(a) The penalties that cannot beexcused are:

(1) The penalty for failure to repay aFederal loan issued under section 406.

(2) The penalty for failure to replaceany reduction in the TFAG resultingfrom other penalties that have beenimposed.

(b) [Reserved]

§ 286.240 How can a Tribe appeal ourdecision to take a penalty?

(a) We will formally notify the Tribeof a potential reduction to the Tribe’s



TFAG within five days after wedetermine that a Tribe is subject to apenalty and inform the Tribe of its rightto appeal to the Departmental AppealsBoard (the Board) established in theDepartment of Health and HumanServices. Such notification will includethe factual and legal basis for taking thepenalty in sufficient detail for the Tribeto be able to respond in an appeal.

(b) Within 60 days of the date itreceives notice of the penalty, the Tribemay file an appeal of the action, inwhole or in part, to the Board.

(c) The Tribe must include all briefsand supporting documentation when itfiles its appeal. A copy of the appealand any supplemental filings must besent to the Office of General Counsel,Children, Families and Aging Division,Room 411–D, 200 IndependenceAvenue, SW, Washington, DC 20201.

(d) ACF must file its reply brief andsupporting documentation within 45days after receipt of the Tribe’ssubmission under paragraph (c) of thissection.

(e) The Tribe’s appeal to the Boardmust follow the provisions of thissection and those at §§ 16.2, 16.9, 16.10,and 16.13 through 16.22 of this title tothe extent they are consistent with thissection.

(f) The Board will consider an appealfiled by a Tribe on the basis of thedocumentation and briefs submitted,along with any additional informationthe Board may require to support a finaldecision. Such information may includea hearing if the Board determines that itis necessary. In deciding whether touphold an adverse action or any portionof such action, the Board will conducta thorough review of the issues.

(g) The filing date shall be the datematerials are received by the Board ina form acceptable to it.

(h) A Tribe may obtain judicial reviewof a final decision by the Board by filingan action within 90 days after the dateof such decision with the district courtof the United States in the judicialdistrict where the Tribe or TFAG servicearea is located.

(1) The district court will review thefinal decision of the Board on the recordestablished in the administrativeproceeding, in accordance with thestandards of review prescribed by 5U.S.C. 706(2). The court’s review will bebased on the documents and supportingdata submitted to the Board.

(2) [Reserved](i) No reduction to the Tribe’s TFAG

will occur until a final disposition of thematter has been made.

Subpart E—Data Collection andReporting Requirements

§ 286.245 What data collection andreporting requirements apply to TribalTANF programs?

(a) Section 412(h) of the Act makessection 411 regarding data collectionand reporting applicable to Tribal TANFprograms. This section of theregulations explains how we will collectthe information required by section 411of the Act and information to implementsection 412(c) (work participationrequirements).

(b) Each Tribe must collect monthlyand file quarterly data on individualsand families as follows:

(1) Disaggregated data collection andreporting requirements in this partapply to families receiving assistanceand families no longer receivingassistance under the Tribal TANFprogram; and

(2) Aggregated data collection andreporting requirements in this partapply to families receiving, familiesapplying for, and families no longerreceiving assistance under the TribalTANF program.

(c) Each Tribe must file in itsquarterly TANF Data Report and in thequarterly TANF Financial Report thespecified data elements.

(d) Each Tribe must also submit anannual report that contains specifiedinformation.

(e) Each Tribe must submit thenecessary reports by the specified duedates.

§ 286.250 What definitions apply to thissubpart?

(a) Except as provided in paragraph(b) of this section, the general TANFdefinitions at §§ 286.5 and 286.10 applyto this subpart.

(b) For data collection and reportingpurposes only, ‘‘TANF family’’ means:

(1) All individuals receivingassistance as part of a family under theTribe’s TANF program; and

(2) The following additional personsliving in the household, if not includedunder paragraph (b)(1) of this section:

(i) Parent(s) or caretaker relative(s) ofany minor child receiving assistance;

(ii) Minor siblings of any childreceiving assistance; and

(iii) Any person whose income orresources would be counted indetermining the family’s eligibility foror amount of assistance.

§ 286.255 What quarterly reports must theTribe submit to us?

(a) Quarterly reports. Each Tribe mustcollect on a monthly basis, and file ona quarterly basis, the data specified in

the Tribal TANF Data Report and theTribal TANF Financial Report.

(b) Tribal TANF Data Report. TheTribal TANF Data Report consists ofthree sections. Two sections containdisaggregated data elements and onesection contains aggregated dataelements.

(1) TANF Data Report: DisaggregatedData—Sections one and two. Each Tribemust file disaggregated information onfamilies receiving TANF assistance(section one) and families no longerreceiving TANF assistance (sectiontwo). These two sections specifyidentifying and demographic data suchas the individual’s Social SecurityNumber; and information such as thetype and amount of assistance received,educational level, employment status,work participation activities, citizenshipstatus, and earned and unearnedincome. These reports also specify itemspertaining to child care and childsupport. The data requested coveradults (including non-custodial parentswho are participating in work activities)and children.

(2) TANF Data Report: AggregatedData—Section three. Each Tribe mustfile aggregated information on familiesreceiving, applying for, and no longerreceiving TANF assistance. This sectionof the Report asks for aggregate figuresin the following areas: the total numberof applications and their disposition;the total number of recipient families,adult recipients, and child recipients;the total number of births, out-of-wedlock births, and minor child heads-of-households; the total number of non-custodial parents participating in workactivities; and the total amount of TANFassistance provided.

(c) The Tribal TANF Financial Report.Each Tribe must file quarterlyexpenditure data on the Tribe’s use ofTribal Family Assistance Grant funds,any Tribal fund expenditures which arebeing substituted for TFAG fundswithheld due to a penalty, and any Statecontributions. The report must besubmitted on a form prescribed by ACF.

§ 286.260 May Tribes use sampling andelectronic filing?

(a) Each Tribe may reportdisaggregated data on all recipientfamilies (universal reporting) or on asample of families selected through theuse of a scientifically acceptablesampling method. The sampling methodmust be approved by ACF in advance ofsubmitting reports.

(1) Tribes may not use a sample togenerate the aggregated data.

(2) [Reserved](b) ‘‘Scientifically acceptable

sampling method’’ means a probability



sampling method in which everysampling unit has a known, non-zerochance to be included in the sample,and the sample size requirements aremet.

(c) Each Tribe may file quarterlyreports electronically, based on formatspecifications that we will provide.Tribes who do not have the capacity tosubmit reports electronically maysubmit quarterly reports on a disk or inhard copy.

§ 286.265 When are quarterly reports due?

(a) Upon a Tribe’s initialimplementation of TANF, the Tribeshall begin collecting data for the TANFData Report as of the date that is sixmonths after the initial effective date ofits TANF program. The Tribe shall begincollecting financial data for the TANFFinancial Report as of the initialeffective date of its TANF program.

(b) Each Tribe must submit its TANFData Report and TANF Financial Reportwithin 45 days following the end ofeach quarter. If the 45th day falls on aweekend or on a national, State orTribal holiday, the reports are due nolater than the next business day.

§ 286.270 What happens if the Tribe doesnot satisfy the quarterly reportingrequirements?

(a) If we determine that a Tribe hasnot submitted to us a complete andaccurate Tribal TANF Data Reportwithin the time limit, the Tribe risks theimposition of a penalty at § 286.205related to the work participation ratetargets since the data from the TribalTANF Data Report is required tocalculate participation rates.

(b) Non-reporting of the Tribal TANFFinancial Report may give rise to apenalty under § 286.200 since thisReport is used to demonstratecompliance with provisions of the Act,the provisions of 45 CFR part 92, OMBCirculars A–87 and A–133, or anyFederal statutes and regulationsapplicable to the TANF program.

§ 286.275 What information must Tribesfile annually?

(a) Each Tribal TANF grantee mustfile an annual report containinginformation on its TANF program forthat year. The report may be filed as:

(1) An addendum to the fourth quarterTANF Data Report; or

(2) A separate annual report.(b) Each Tribal TANF grantee must

provide the following information on itsTANF program:

(1) The Tribal TANF grantee’sdefinition of each work activity;

(2) A description of the transitionalservices provided to families no longer

receiving assistance due to employment;and

(3) A description of how a Tribe willreduce the amount of assistance payableto a family when an individual refusesto engage in work without good causepursuant to § 286.145.

(4) The average monthly number ofpayments for child care services madeby the Tribal TANF grantee through theuse of disregards, by the following typesof child care providers:

(i) Licensed/regulated in-home childcare;

(ii) Licensed/regulated family childcare;

(iii) Licensed/regulated group homechild care;

(iv) Licensed/regulated center-basedchild care;

(v) Legally operating (i.e., no licensecategory available in Tribal TANFgrantee’s locality) in-home child careprovided by a nonrelative;

(vi) Legally operating (i.e., no licensecategory available in Tribal TANFgrantee’s locality) in-home child careprovided by a relative;

(vii) Legally operating (i.e., no licensecategory available in Tribal TANFgrantee’s locality) family child careprovided by a nonrelative;

(viii) Legally operating (i.e., no licensecategory available in Tribal TANFgrantee’s locality) family child careprovided by a relative;

(ix) Legally operating (i.e., no licensecategory available in Tribal TANFgrantee’s locality) group child careprovided by a nonrelative;

(x) Legally operating (i.e., no licensecategory available in Tribal TANFgrantee’s locality) group child careprovided by a relative; and

(xi) Legally operating (i.e., no licensecategory available in Tribal TANFgrantee’s locality) center-based childcare.

(5) A description of any nonrecurring,short-term benefits provided, including:

(i) The eligibility criteria associatedwith such benefits, including anyrestrictions on the amount, duration, orfrequency of payments;

(ii) Any policies that limit suchpayments to families that are eligible forTANF assistance or that have the effectof delaying or suspending a family’seligibility for assistance; and

(iii) Any procedures or activitiesdeveloped under the TANF program toensure that individuals diverted fromassistance receive information about,referrals to, or access to other programbenefits (such as Medicaid and foodstamps) that might help them make thetransition from Welfare-to-Work; and

(6) A description of the proceduresthe Tribal TANF grantee has established

and is maintaining to resolvedisplacement complaints, pursuant to§ 286.110. This description mustinclude the name of the Tribal TANFgrantee agency with the leadresponsibility for administering thisprovision and explanations of how theTribal TANF grantee has notified thepublic about these procedures and howan individual can register a complaint.

(7) Tribes electing the FVO mustsubmit a description of the strategiesand procedures in place to ensure thatvictims of domestic violence receiveappropriate alternative services, as wellas an aggregate figure for the totalnumber of good cause domestic waiversgranted.

(c) If the Tribal TANF grantee hassubmitted the information required inparagraph (b) of this section in theTFAP, it may meet the annual reportingrequirements by reference in lieu of re-submission. Also, if the information inthe annual report has not changed sincethe previous annual report, the TribalTANF grantee may reference thisinformation in lieu of re-submission.

(d) If a Tribal TANF grantee makes asubstantive change in certain dataelements in paragraph (b) of thissection, it must file a copy of the changeeither with the next quarterly datareport or as an amendment to its TFAP.The Tribal TANF grantee must alsoindicate the effective date of the change.This requirement is applicable toparagraphs (b)(1), (b)(2), and (b)(3) ofthis section.

§ 286.280 When are annual reports due?

(a) The annual report required by§ 286.275 is due 90 days after the endof the Fiscal Year which it covers.

(b) The first annual report for a Tribemust include all months of operationsince the plan was approved.

§ 286.285 How do the data collection andreporting requirements affect Public Law102–477 Tribes?

(a) A Tribe that consolidates its TribalTANF program into a Public-Law 102–477 plan is required to comply with theTANF data collection and reportingrequirements of this section.

(b) A Tribe that consolidates its TribalTANF program into a Public-Law 102–477 plan may submit the Tribal TANFData Reports and the Tribal TANFFinancial Report to the BIA, with a copyto us.

Note: The following appendices will notappear in the Code of Federal Regulations.



Appendix A.—TANF DisaggregatedData Collection for Families ReceivingAssistance Under the TANF Program—ACTIVES

Instructions and DefinitionsGeneral:• The Tribal grantee should collect and

report data for each data element. The datamust be complete (unless explicitlyinstructed to leave the field blank) andaccurate (i.e., correct).

• An ‘‘Unknown’’ code may appear onlyon four sets of data elements ([#32 and #67]Date of Birth, [#33 and #68] Social SecurityNumber, [#41 and #74] Educational Level,and [#42 and #75] Citizenship/Alienage). Forthese data elements, unknown is not anacceptable code for individuals who aremembers of the eligible family (i.e., familyaffiliation code ‘‘1’’).

• There are five data elements for whichTribes have the option to report based oneither the budget month or the reportingmonth. These are: #16 Amount of FoodStamps Assistance; #19 Amount of ChildSupport; #20 Amount of Families CashResources; #64 Amount of Earned Income;and [#35 and #76] Amount of UnearnedIncome. Whichever choice the Tribe selectsmust be used for all families reported eachmonth and must be used for all months inthe fiscal year.

1. State FIPS Code: Tribal grantees shouldenter ‘‘00’’ or leave blank.

2. County FIPS Code: Tribal granteesshould leave this field blank.

3. Tribal Code: For Tribal grantees, enterthe three-digit Tribal code that representsyour Tribe. See Appendix E of the TANFSampling and Statistical Methods Manual fora complete listing of Tribal Codes. If thereappears to be no code for your Tribe,immediately contact the Director, Division ofTribal Services, Office of CommunityServices. Newly formed consortiums mustcontact the Division to obtain a code. Stateagencies should leave this field blank.

4. Reporting Month: Enter the four-digityear and two-digit month codes that identifythe year and month for which the data arebeing reported.

5. Stratum:Guidance: If a Tribe opts to provide data

for its entire caseload, it may use this for itsown coding purposes as long as a two-digitnumerical code is specified.

Instruction: Enter any two-digit numericalcode.

Family-Level DataDefinition: For reporting purposes, the

TANF family means:(a) All individuals receiving assistance as

part of a family under the Tribe’s TANFProgram; and

(b) The following additional persons livingin the household, if not included under (a)above:

(1) Parent(s) or caretaker relative(s) of anyminor child receiving assistance;

(2) Minor siblings of any child receivingassistance; and

(3) Any person whose income or resourceswould be counted in determining thefamily’s eligibility for or amount ofassistance.

6. Case Number—TANF:Guidance: If the case number is less than

the allowable eleven characters, Tribes mayuse lead zeros to fill in the number. Thisnumber will be used to refer back to theTribal records concerning the case if aquestion about the data arises.

Instruction: Enter the number assigned bythe Tribal grantee to uniquely identify thecase.

7. ZIP Code: Enter the five-digit ZIP codefor the TANF family’s place of residence forthe reporting month.

8. Funding Stream:Guidance: Tribal grantees are not to report

data on families which do not receive anyassistance, in at least part, from FederalTANF funds. The only applicable code forTribes is ‘‘1’’.

Instructions: Enter code ‘‘1’’.9. Disposition:Guidance: If a Tribe opts to report on its

entire caseload, the only applicable code forthe Tribe is ‘‘1’’.

Instructions: Enter code ‘‘1’’.10. New Applicant:Guidance: A newly-approved applicant

means the current reporting month is the firstmonth in which the TANF family receivesTANF assistance (and thus has had a chanceto be reported on). This may be either thefirst month that the TANF family has everreceived assistance or the first month of anew spell on assistance. A TANF family thatis reinstated from a suspension is not anewly, approved applicant.

Instruction: Enter the one-digit code thatindicates whether or not the TANF family isa newly-approved applicant.

1=Yes, a newly-approved application.2=No.11. Number of Family Members:Instruction: Enter two digits that represent

the number of members in the familyreceiving assistance under the Tribe’s TANFProgram during the reporting month. Includein the number of family members, thenoncustodial parent who the Tribe has optedto include as part of the eligible family, whois receiving assistance as defined in Sec.260.31, or who is participating in workactivities as defined for Tribes in theirapproved plan.

12. Type of Family for Work Participation:Guidance: This data element will be used

in conjunction with other data elements(dependent on the approved Tribal plan) todetermine work participation rates.

A family with a minor child head-of-household should be coded as either a single-parent family or two-parent family,whichever is appropriate.

If the family receiving assistance includesa custodial and noncustodial parent, then, ifneither parent is disabled, the family shouldbe coded as a two-parent family. Anoncustodial parent is defined in section260.30 as a parent who lives in the State orStates (in which the Tribal Service area islocated) and does not live with his/herchild(ren). The Tribe must report informationon the noncustodial parent if thenoncustodial parent: (1) Is receivingassistance as defined in Sec. 260.31; (2) isparticipating in work activities as defined inthe Tribal plan; or (3) has been designated by

the Tribe as a member of a family receivingassistance.

Instruction: Enter the one-digit code thatrepresents the type of family

1=One parent family.2=Two-Parent Family.3=Family excluded from both the overall

and two-parent work participation rates (noadult receiving assistance).

13. Receives Subsidized Housing:Guidance: Subsidized housing refers to

housing for which money was paid by theFederal, State, or local government orthrough a private social service agency to thefamily or to the owner of the housing to assistthe family in paying rent. Two familiessharing living expenses does not constitutesubsidized housing.

Instruction: Enter the one-digit code thatindicates whether or not the TANF familyreceived subsidized housing for the reportingmonth.

1=Public housing.2=Rent subsidy.3=No housing subsidy.14. Receives Medical Assistance:Instruction: Enter ‘‘1’’ if, for the reporting

month, any TANF family member is enrolledin Medicaid and thus eligible to receivemedical assistance under the State planapproved under Title XIX or ‘‘2’’ if no TANFfamily member is enrolled in Medicaid.

1=Yes, enrolled in Medicaid.2=No.15. Receives Food Stamps:Instruction: Enter the one-digit code that

indicates whether or not the TANF family isreceiving food stamp assistance.

1=Yes, receives food stamp assistance.2=No.16. Amount of Food Stamp Assistance:Guidance: For situations in which the food

stamp household differs from the TANFfamily, code this element in a manner thatmost accurately reflects the resourcesavailable to the TANF family. One acceptablemethod for calculating the amount of foodstamp assistance available to the TANFfamily is to prorate the amount of foodstamps equally among each food stamprecipient then add together the amountsbelonging to the TANF recipients to get thetotal amount for the TANF family.

Instruction: Enter the TANF family’sauthorized dollar amount of food stampassistance for the reporting month or for themonth used to budget for the reportingmonth.

17. Receives Subsidized Child Care:Instruction: If the TANF family receives

subsidized child care for the reportingmonth, enter code ‘‘1’’ or ‘‘2’’, whichever isappropriate. Otherwise, enter code ‘‘3’’.

1=Yes, receives child care funded entirelyor in part with Federal funds (e.g., receivesTANF, CCDF, SSBG, or other federallyfunded child care).

2=Yes, receives child care funded entirelyunder a State, Tribal, and/or local program(i.e., no Federal funds used).

3=No subsidized child care received.18. Amount of Subsidized Child Care:Guidance: Subsidized child care means a

grant by the Federal, State, Tribal, or localgovernment to or on behalf of a parent (orcaretaker relative) to support, in part or



whole, the cost of child care servicesprovided by an eligible provider to aneligible child. The grant may be paid directlyto the parent (or caretaker relative) or to achild care provider on behalf of the parent (orcaretaker relative).

Instruction: Enter the total dollar amountof subsidized child care from all sources (e.g.,CCDF, TANF, SSBG, State, Tribal, local, etc.)that the TANF family has received forservices in the reporting month. If the TANFfamily did not receive any subsidized childcare for services in the reporting month, enter‘‘0’’.

19. Amount of Child Support:Instruction: Enter the total dollar value of

child support received on behalf of the TANFfamily in the reporting month or for themonth used to budget for the reportingmonth. This includes current payments,arrearages, recoupment, and pass-throughamounts whether paid to the State or thefamily.

20. Amount of the Family’s CashResources:

Instruction: Enter the total dollar amountof the TANF family’s cash resources as theState defines them for determining eligibilityand/or computing benefits for the reportingmonth or for the month used to budget forthe reporting month.

Amount of Assistance Received and theNumber of Months That the Family HasReceived Each Type of Assistance under theTribal TANF Program.

Guidance: The term ‘‘assistance’’ includescash, payments, vouchers, and other forms ofbenefits designed to meet a family’s ongoingbasic needs (i.e., for food, clothing, shelter,utilities, household goods, personal careitems, and general incidental expenses). Itincludes such benefits even when they areprovided in the form of payments by a TANFagency, or other agency on its behalf, toindividual recipients and conditioned ontheir participation in work experience,community service, or other work activities.

Except where excluded as indicated in thefollowing paragraph, it also includessupportive services such as transportationand child care provided to families who arenot employed.

The term ‘‘assistance’’ excludes:(1) Nonrecurrent, short-term benefits (such

as payments for rent deposits or appliancerepairs) that:

(i) Are designed to deal with a specificcrisis situation or episode of need;

(ii) Are not intended to meet recurrent orongoing needs; and

(iii) Will not extend beyond four months.(2) Work subsidies (i.e., payments to

employers or third parties to help cover thecosts of employee wages, benefits,supervision, and training);

(3) Supportive services such as child careand transportation provided to families whoare employed;

(4) Refundable earned income tax credits;(5) Contributions to, and distributions

from, Individual Development Accounts;(6) Services such as counseling, case

management, peer support, child careinformation and referral, transitionalservices, job retention, job advancement, andother employment-related services that donot provide basic income support; and

(7) Transportation benefits provided underan Access to Jobs or Reverse Commuteproject, pursuant to section 404(k) of the Act,to an individual who is not otherwisereceiving assistance.

The exclusion of nonrecurrent, short-termbenefits under (1) of this paragraph alsocovers supportive services for recentlyemployed families, for temporary periods ofunemployment, in order to enable continuityin their service arrangements.

Instruction: For each type of assistanceprovided under the Tribal TANF Program,enter the dollar amount of assistance that theTANF family received or that was paid onbehalf of the TANF family for the reportingmonth and the number of months that theTANF family has received assistance underthe Tribe’s TANF program. For TANF ChildCare also enter the number of childrencovered by the dollar amount of child care.If, for a ‘‘type of assistance’’, no dollaramount of assistance was provided duringthe reporting month, enter ‘‘0’’ as theamount. If, for a ‘‘type of assistance’’, noassistance has been received (since the Tribebegan its TANF Program or since theeffective date of the final regulations) by theTANF eligible family, enter ‘‘0’’ as thenumber of months of assistance.

21. Cash and Cash Equivalents:A. Amount.B. Number of Months.22. TANF Child Care:Guidance: For TANF Child Care, enter the

dollar amount, the number of childrencovered by the dollar amount of child care,and the total number of months that thefamily has received TANF child careassistance for families not employed. Forexample, a TANF family may receive a totalof $500.00 in TANF child care assistance fortwo children for the reporting month.Furthermore, the family may have receivedTANF child care for one or more child(ren)for a total of six months under the State(Tribal) TANF Program. In this example, theState (Tribe) would code 500, 2, and 6 for theamount, number of children and number ofmonths respectively. Include only the childcare funded directly by the Tribal TANFProgram. Do not include child care fundedunder the Child Care and Development Fund,even though some of the funds weretransferred to the CCDF from the TANFprogram.

A. Amount.B. Number of Children Covered.C. Number of Months.23. Transportation:A. Amount.B. Number of Months.24. Transitional Services:A. Amount.B. Number of Months.25. Other:A. Amount.B. Number of Months.26. Reason for and Amount of Reductions

in Assistance:Instruction: The amount of assistance

received by a TANF family may have beenreduced for one or more of the followingreasons. For each reason listed below,indicate whether the TANF family receiveda reduction in assistance. Enter the total

dollar value of the reduction(s) for eachgroup of reasons for the reporting month. Iffor any reason there was no reduction inassistance, enter ‘‘0’’.

a. Sanctions:i. Total Dollar Amount of Reductions due

to Sanctions:Enter the total dollar value of reduction in

assistance due to sanctions.ii. Work Requirements Sanction:1=Yes.2=No.iii. Family Sanction for an Adult with No

High School Diploma or Equivalent:1=Yes.2=No.iv. Sanction for Teen Parent not Attending

School:1=Yes.2=No.v. Non-Cooperation with Child Support:1=Yes.2=No.vi. Failure to Comply with an Individual

Responsibility Plan:1=Yes.2=No.vii. Other Sanction:1=Yes.2=No.b. Recoupment of Prior Overpayment:Enter the total dollar value of reduction in

assistance due to recoupment of a prioroverpayment.

c. Other:i. Total Dollar Amount of Reductions due

to Other Reasons (exclude amounts forsanctions and recoupment): Enter the totaldollar value of reduction in assistance due toreasons other than sanctions andrecoupment.

ii. Family Cap:1=Yes.2=No.iii. Reduction Based on Family Moving

into the Tribal service area from a State oranother Tribal area:

1=Yes.2=No.iv. Reduction Based on Length of Receipt

of Assistance:1=Yes.2=No.v. Other, Non-sanction:1=Yes.2=No.27. Waiver Evaluation Experimental and

Control Groups:Guidance: This data element is not

applicable to Tribes. Tribes should leave itblank.

28. Is the TANF Family Exempt during thereporting month from the Tribal Time-LimitProvisions:

Guidance: Under TANF rules, an eligiblefamily that does not include a recipient whois an adult head-of-household, a spouse ofthe head-of-household, or a minor childhead-of-household who has receivedfederally-funded assistance for countablemonths up to the Tribal Time limit maycontinue to receive assistance. A countablemonth is a month of assistance for which theadult head-of-household, the spouse of thehead-of-household, or the minor child head-of-household is not exempt from the Tribal



time-limit provisions. Families with an adulthead-of-household, a spouse of a head-of-house, or minor child head-of-householdwho have received countable months ofassistance up to the Tribal time limit, may beexempt from termination of assistance.Exemptions from termination of assistanceinclude a hardship exemption (as defined bythe Tribal plan). Also, if, in the reportingmonth, the Family lives in Indian country orin an Alaskan native village where thepercent of adults not employed is 50 percentor more, the month of assistance is exemptfrom being counted (is disregarded).

Instruction: If the TANF family has noexemption from the Tribal time limit, entercode ‘‘01’’. If the TANF family does notinclude an adult head-of-household, a spouseof the head-of-household, or a minor childhead-of-household who has receivedfederally-funded assistance for the maximumnumber of countable months or is otherwiseexempt from accrual of months of assistanceor termination of assistance under the Tribaltime limit for the reporting month, enter‘‘02’’. If the TANF family includes an adulthead-of-household, a spouse of the head-of-household, or minor child head-of-householdwho has not received federally-fundedassistance for the maximum number ofcountable months or is otherwise exemptfrom accrual of months of assistance ortermination of assistance under the Tribaltime limit for the reporting month, enter‘‘03’’, ‘‘04’’, or ‘‘05’’, whichever isappropriate. If the TANF family includes anadult head-of-household, a spouse of thehead-of-household, or minor child head-of-household who has received assistance forthe maximum countable months and thefamily is exempt from termination ofassistance, enter code ‘‘06’’, ‘‘07’’, ‘‘08’’,‘‘09’’, ‘‘10’’, or ‘‘11’’, whichever isappropriate.

01=Family is not exempt from Federal timelimit.

Family does not include an adult head-of-household, a spouse of the head-of-household, or minor child head-of-householdwho has received federally-funded assistancefor the maximum number of countablemonths:

02=Family is exempt from accrual ofmonths and termination of assistance underthe Federal five-year time limit for thereporting month because no adult head-of-household, a spouse of the head-of-household, or minor child head-of-householdin the eligible family is receiving assistance.

Family includes an adult head-of-household, a spouse of the head-of-household, or minor child head-of-household, but has accrued less than themaximum number of months of assistance:

03=Not to be used by Tribes.04=Family is exempt from accrual of

months under the Tribal time limit for thereporting month because the family is livingin Indian country or an Alaskan nativevillage, where at least 50 percent of theadults living in the Indian country orAlaskan native village are not employed.

05=Not to be used by Tribes.Family includes an adult head-of-

household, a spouse of the head-of-household, or minor child head-of-household

who has received federally-funded assistancefor the maximum number of countablemonths:

06=Not to be used by Tribes.07=Family is exempt from termination of

assistance under the Tribal time limit for thereporting month due to a hardshipexemption, battery, or extreme cruelty.

08=Family is exempt from termination ofassistance under Tribal policy for thereporting month based on a federallyrecognized good cause domestic violencewaiver of time limits.

09=Family is exempt from termination ofassistance under the Federal five-year timelimit for the reporting month because theadult head-of-household, the spouse of thehead-of-household, or minor child head-of-household is living in Indian country or anAlaskan native village, where at least 50percent of whose adults are not employed.

10=Not to be used by Tribes.11=Not to be used by Tribes.29. Is the TANF Family A New Child-Only

Family?Guidance: A child-only family is a TANF

family that does not include an adult or aminor child head-of-household who isreceiving TANF assistance. For purposes ofthis data element, a new child-only family isa TANF family that: (a) has received TANFassistance for at least two months (i.e., thereporting month and the month prior to thereporting month); (b) received benefits in theprior month, but not as a child-only case; and(c) is a child-only family for the reportingmonth. All other families—including thosethat are not a child-only case during thereporting month—are coded as ‘‘not a new-child-only family’’, i.e., as code ‘‘2’’.

Instructions: If the TANF family is a newchild-only family, enter code ‘‘1’’. Otherwise,enter code ‘‘2’’.

1=Yes, a new child-only family.2=No, not a new child-only family.

Person-Level Data

Person-level data has two sections: (1) Theadult and minor child head-of-householdcharacteristic section and (2) the childcharacteristics section. Section 419 of the Actdefines adult and minor child. An adult is anindividual that is not a minor child. A minorchild is an individual who (a) has notattained 18 years of age or (b) has notattained 19 years of age and is a full-timestudent in a secondary school (or in theequivalent level of vocational or technicaltraining).

Detailed data elements must be reported onall individuals unless, for a specific dataelement, the instructions explicitly giveTribes an option to not report for a specificgroup of individuals.

Adult and Minor Child Head-of-HouseholdCharacteristics

This section allows for coding up to sixadults (or a minor child who is either a head-of-household or married to the head-of-household and up to five adults) in the TANFfamily. A minor child who is either a head-of-household or married to the head-of-household should be coded as an adult andwill hereafter be referred to as a ‘‘minor childhead-of-household’’. For each adult (or minorchild head-of-household) in the TANF

family, complete the adult characteristicssection. A noncustodial parent is defined insection 260.30 as a parent who lives in theState or States (in which the Tribal Servicearea is located) and does not live with his/her child(ren). The Tribe must reportinformation on the noncustodial parent if thenoncustodial parent: (1) Is receivingassistance as defined in Sec. 260.31; (2) isparticipating in work activities as defined inthe Tribal Plan; or (3) has been designated bythe Tribe as a member of a family receivingassistance.

The Tribe has the option to count a familywith a noncustodial parent receivingassistance as a two-parent family for workparticipation rate purposes. As indicatedbelow, reporting for certain specified dataelements in this section is optional forcertain individuals (whose family affiliationcode is a 2, 3, or 5).

If there are more than six adults (or a minorchild head-of-household and five adults) inthe TANF family, use the following order toidentify the persons to be coded: (1) Thehead-of-household; (2) parents in the eligiblefamily receiving assistance; (3) other adultsin the eligible family receiving assistance; (4)parents not in the eligible family receivingassistance; (5) caretaker relatives not in theeligible family receiving assistance; and (6)other persons whose income or resourcescount in determining eligibility for or amountof assistance of the eligible family receivingassistance, in descending order from theperson with the most income to the personwith least income (or resources if no income).

30. Family Affiliation:Guidance: This data element is used both

for (1) The adult and minor child head-of-household section and (2) the minor childsection. The same coding schemes are usedin both sections. Some of these codes maynot be applicable for adults.

Instruction: Enter the one-digit code thatshows the adult’s (or minor child head-of-household’s) relation to the eligible familyreceiving assistance.

1=Member of the eligible family receivingassistance.

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

2=Parent of minor child in the eligiblefamily receiving assistance.

3=Caretaker relative of minor child in theeligible family receiving assistance.

4=Minor sibling of child in the eligiblefamily receiving assistance.

5=Person whose income or resources areconsidered in determining eligibility for oramount of assistance for the eligible familyreceiving assistance.

31. Noncustodial Parent Indicator:Guidance: A noncustodial parent is

defined in section 260.30 as a parent wholives in the State or States (in which theTribal Service area is located) and does notlive with his/her child(ren). The Tribe mustreport information on the noncustodialparent if the noncustodial parent: (1) Isreceiving assistance as defined in Sec.260.31; (2) is participating in work activitiesas defined in the Tribal plan; or (3) has beendesignated by the Tribe as a member of afamily receiving assistance.



Instruction: Enter the one-digit code thatindicates the adult’s (or minor child head-of-household’s) noncustodial parent status.

1=Yes, a noncustodial parent.2=No.32. Date of Birth: Enter the eight-digit code

for date of birth for the adult (or minor childhead-of-household) under the Tribal TANFProgram in the format YYYYMMDD. If theadult’s (or minor child head-of-household’s)date of birth is unknown and the familyaffiliation code is not ‘‘1’’, enter the code‘‘99999999’’.

33. Social Security Number: Enter the nine-digit Social Security Number for the adult (orminor child head-of-household) in the formatnnnnnnnnn. If the social security number isunknown and the family affiliation code isnot ‘‘1’’, enter ‘‘999999999’’.

34. Ethnicity:Instruction: To allow for the multiplicity of

race/ethnicity, please enter the one-digit codefor each category of race and ethnicity of theTANF adult (or minor child head-of-household). Reporting of this data element isoptional for individuals whose familyaffiliation code is 5.

Ethnicity:a. Hispanic or Latino:1=Yes, Hispanic or Latino.2=No.Race:b. American Indian or Alaska Native:1=Yes, American Indian or Alaska Native.2=No.c. Asian:1=Yes, Asian.2=No.d. Black or African American:1=Yes, Black or African American.2=No.e. Native Hawaiian or Other Pacific

Islander:1=Yes, Native Hawaiian or Pacific Islander.2=No.f. White:1=Yes, White.2=No.35. Gender: Enter the one-digit code that

indicates the adult’s (or minor child head-of-household’s) gender:

1=Male.2=Female.36. Receives Disability Benefits: The Act

specifies five types of disability benefits. Foreach type of disability benefits, enter the one-digit code that indicates whether or not theadult (or minor child head-of-household)received the benefit.

a. Receives Federal Disability InsuranceBenefits Under the Social Security OASDIProgram (Title II of the Social Security Act):

1=Yes, received Federal disabilityinsurance.

2=No.b. Receives Benefits Based on Federal

Disability Status under Non-Social SecurityAct Programs: These programs includeVeteran’s disability benefits, Worker’sdisability compensation, and Black LungDisease disability benefits.

1=Yes, received benefits based on Federaldisability status.

2=No.c. Receives Aid to the Permanently and

Totally Disabled Under Title XIV–APDT ofthe Social Security Act:

1=Yes, received aid under Title XIV–APDT.

2=No.d. Receives Aid to the Aged, Blind, and

Disabled Under Title XVI–AABD of theSocial Security Act:

1=Yes, received aid under Title XVI–AABD.

2=No.e. Receives Supplemental Security Income

under Title XVI–SSI of the Social SecurityAct:

1=Yes, received aid under Title XVI–SSI.2=No.37. Marital Status: Enter the one-digit code

for the adult’s (or minor child head-of-household’s) marital status for the reportingmonth. Reporting of this data element isoptional for individuals whose familyaffiliation code is 5.

1=Single, never married.2=Married, living together.3=Married, but separated.4=Widowed.5=Divorced.38. Relationship to Head-of-Household:Guidance: This data element is used both

for (1) the adult or minor child head-of-household section and (2) the minor childsection. The same coding schemes are usedin both sections. Some of these codes maynot be applicable for adults.

Instruction: Enter the two-digit code thatshows the adult’s relationship (including bymarriage) to the head of the household, asdefined by the Food Stamp Program or asdetermined by the State (Tribe) (i.e., therelationship to the principal person of eachperson living in the household). If minorchild head-of-household, enter code ‘‘01’’.

01=Head-of-household.02=Spouse.03=Parent.04=Daughter or son.05=Stepdaughter or stepson.06=Grandchild or great grandchild.07=Other related person (brother, niece,

cousin).08=Foster child.09=Unrelated child.10=Unrelated adult.39. Parent With Minor Child in the Family:Guidance: A parent with a minor child in

the family may be a natural parent, adoptiveparent, or step-parent of a minor child in thefamily. Reporting of this data element isoptional for individuals whose familyaffiliation code is 3 or 5.

Instruction: Enter the one-digit code thatindicates the adult’s (or minor child head-of-household’s) parental status.

1=Yes, a parent with a minor child in thefamily and used in two-parent participationrate.

2=Yes, a parent with a minor child in thefamily, but not used in two-parentparticipation rate.

3=No.40. Needs of a Pregnant Woman: Some

States (Tribes) consider the needs of apregnant woman in determining the amountof assistance that the TANF family receives.If the adult (or minor child head-of-household) is pregnant and the needsassociated with this pregnancy areconsidered in determining the amount of

assistance for the reporting month, enter a‘‘1’’ for this data element. Otherwise enter a‘‘2’’ for this data element. This data elementis applicable only for individuals whosefamily affiliation code is 1.

1=Yes, additional needs associated withpregnancy are considered in determining theamount of assistance.

2=No.41. Educational Level: Enter the two-digit

code to indicate the highest level ofeducation attained by the adult (or minorchild head-of-household). Unknown is not anacceptable code for individuals whose familyaffiliation code is ‘‘1’’. Reporting of this dataelement is optional for individuals whosefamily affiliation code is 5.

01–11=Grade level completed in primary/secondary school including secondary levelvocational school or adult high school.

12=High school diploma, GED, or NationalExternal Diploma Program.

13=Awarded Associate’s Degree.14=Awarded Bachelor’s Degree.15=Awarded graduate degree (Master’s or

higher).16=Other credentials (degree, certificate,

diploma, etc.).98=No formal education.99=Unknown.42. Citizenship/Alienage:Instruction: Enter the one-digit code that

indicates the adult’s (or minor child head-of-household’s) citizenship/alienage. Unknownis not an acceptable code for individualswhose family affiliation code is ‘‘1’’.Reporting of this data element is optional forindividuals whose family affiliation code is5.

1=U. S. citizen, including naturalizedcitizens.

2=Qualified alien.9=Unknown.43. Cooperation with Child Support: Enter

the one-digit code that indicates if the adult(or minor child head-of-household) hascooperated with child support. Reporting ofthis data element is optional for individualswhose family affiliation code is 5.

1=Yes, adult (or minor child head-of-household) has cooperated with childsupport.

2=No.9=Not applicable.44. Number of Months Countable toward

Federal Time Limit: Enter the number ofmonths countable toward the adult’s (orminor child head-of-household’s) Tribal timelimit based on the cumulative amount of timethe individual has received TANF from boththe State (Tribe) and other States or Tribes.Reporting of this data element is optional forindividuals whose family affiliation code is2, 3, or 5.

45. Number of Countable MonthsRemaining Under the Tribe’s Time Limit:Enter the number of months that remaincountable toward the adult’s (or minor childhead-of-household’s) Tribal time limit.Reporting of this data element is optional forindividuals whose family affiliation code is2, 3, or 5.

46. Is Current Month Exempt from theState’s (Tribe’s) Time Limit: Enter the one-digit code that indicates the adult’s (or minorchild head-of-household’s) current exempt



1 A Tribe, which has negotiated differentlimitations, should use their best judgment todetermine which code to use.

status from Tribe’s time limit. Reporting ofthis data element is optional for individualswhose family affiliation code is 2, 3, or 5.

1=Yes, adult (or minor child head-of-household) is exempt from the Tribe’s timelimit for the reporting month.

2=No.47. Employment Status: Enter the one-digit

code that indicates the adult’s (or minorchild head-of-household’s) employmentstatus. Reporting of this data element isoptional for individuals whose familyaffiliation code is 5.

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

looking for work, includes discouragedworkers).

48. Work Participation Status:Guidance: This item is used in calculating

the work participation rates. The followingtwo definitions are used in reporting thisitem and in determining which families areincluded in and excluded from thecalculations.

‘‘Disregarded’’ from the participation ratemeans the TANF family is not included inthe calculation of the work participation rate.

‘‘Exempt’’ means that the individual willnot be penalized for failure to engage in work(i.e., good cause exception); however, theTANF family is included in the calculationof the work participation rate.

A Tribe is not required to disregard allfamilies that could be disregarded. Forexample, a family with a single custodialparent with a child under 12 months (and theparent has not been disregarded for 12months) may be disregarded. However, if thesingle custodial parent is meeting the workrequirements, the Tribe may want to includethe family in its work participation rate. Inthis situation, the Tribe should use workparticipation status code ‘‘19’’ rather thancode ‘‘01’’.

Instruction: Enter the two-digit code thatindicates the adult’s (or minor child head-of-household’s) work participation status. If theState chooses to include the noncustodialparent in the two-parent work participationrate, the State must code the data element‘‘Type of Family for Work Participation Rate’’with a ‘‘2’’ and enter the applicable code forthis data element. If a State chooses toexclude the noncustodial parent from thetwo-parent work participation rate, the Statemust code the data element ‘‘Type of Familyfor Work Participation’’ with a ‘‘1’’ and codethe data element ‘‘Work Participation Status’’for the noncustodial parent with a ‘‘99’’. Thisdata element is not applicable for individualswhose family affiliation code is 2, 3, 4, or 5(i.e., use code ‘‘99’’ or leave blank).

01=Disregarded from participation rate,single custodial parent with child under 12months.

02=Disregarded from participation ratebecause all of the following apply: requiredto participate, but not participating; andsanctioned for the reporting month, but notsanctioned for more than 3 months withinthe preceding 12-month period (Note, thiscode should be used only in a month forwhich the family is disregarded from theparticipation rate. While one or more adultsmay be sanctioned in more than 3 months

within the preceding 12-month period, thefamily may not be disregarded from theparticipation rate for more than 3 monthswithin the preceding 12-month period).

03=Disregarded, family is part of anongoing research evaluation (as a member ofa control group or experimental group)approved under Section 1115 of the SocialSecurity Act.

04=Not applicable to Tribes.05=Not applicable to Tribes.06=Exempt, single custodial parent with

child under age 6 and child care unavailable.07=Exempt, disabled.08=Exempt, caring for a severely disabled

child.09=Exempt, under a federally recognized

good cause domestic violence waiver.10=Not applicable to Tribes.11=Exempt, other.12=Required to participate, but not

participating; sanctioned for the reportingmonth; and sanctioned for more than 3months within the preceding 12-monthperiod.

13=Required to participate, but notparticipating; and sanctioned for thereporting month, but not sanctioned for morethan 3 months within the preceding 12-month period.

14=Required to participate, but notparticipating; and not sanctioned for thereporting month.

15=Deemed engaged in work—single teenhead-of-household or married teen whomaintains satisfactory school attendance.

16=Deemed engaged in work—single teenhead-of-household or married teen whoparticipates in education directly related toemployment for an average of at least 20hours per week during the reporting month.

17=Deemed engaged in work—parent orrelative (who is the only parent or caretakerrelative in the family) with child under age6 and parent engaged in work activities forat least 20 hours per week.

18=Required to participate andparticipating, but not meeting minimumparticipation requirements.

19=Required to participate and meetingminimum participation requirements.

99=Not applicable (e.g., person living inhousehold and whose income or resourcesare counted in determining eligibility for oramount of assistance of the family receivingassistance, but not in eligible familyreceiving assistance or noncustodial parentthat the Tribe opted to exclude indetermining participation rate).

Adult Work Participation Activities

Guidance: To calculate the average numberof hours per week of participation in a workactivity, add the number of hours ofparticipation across all weeks in the monthand divide by the number of weeks in themonth. Round to the nearest whole number.

Some weeks have days in more than onemonth. Include such a week in thecalculation for the month that contains themost days of the week (e.g., the week of July27–August 2, 1997 would be included in theJuly calculation). Acceptable alternatives tothis approach must account for all weeks inthe fiscal year. One acceptable alternative isto include the week in the calculation forwhichever month the Friday falls (i.e., the

JOBS approach). A second acceptablealternative is to count each month as having4. 33 weeks.

During the first or last month of any spellof assistance, a family may happen to receiveassistance for only part of the month. If afamily receives assistance for only part of amonth, the State (Tribe) may count it as amonth of participation if an adult (or minorchild head-of-household) in the family (bothadults, if they are both required to work) isengaged in work for the minimum averagenumber of hours for any full week(s) that thefamily receives assistance in that month.

Special Rules: Each adult (or minor childhead-of-household) has a life-time limit forvocational educational training. Vocationaleducational training may only count as awork activity for a total of 12 months. Forany adult (or minor child head-of-household)that has exceeded this limit, enter ‘‘0’’ as theaverage number of hours per week ofparticipation in vocational educationtraining, even if (s)he is engaged invocational education training. The additionalparticipation in vocational education trainingmay be coded under ‘‘Other’’.

Limitations: The four limitations 1

concerning job search and job readiness are:(1) Job search and job readiness assistance

only count for 6 weeks in any fiscal year;(2) An individual’s participation in job

search and job readiness assistance counts forno more than 4 consecutive weeks;

(3) If the Tribe’s total unemployment ratefor a fiscal year is at least 50 percent greaterthan the United States’ total unemploymentrate for that fiscal year, then an individual’sparticipation in job search or job readinessassistance counts for up to 12 weeks in thatfiscal year; and

(4) A State may count 3 or 4 days of jobsearch and job readiness assistance during aweek as a full week of participation, but onlyonce for any individual. For each week inwhich an adult (or minor child head-of-household) exceeds any of these limitations,use ‘‘0’’ as the number of hours in calculatingthe average number of hours per week of jobsearch and job readiness, even if (s)he maybe engaged in job search or job readinessactivities.

Instruction: For each work activity inwhich the adult (or minor child head-of-household) participated during the reportingmonth, enter the average number of hours perweek of participation, except as noted above.For each work activity in which the adult (orminor child head-of-household) did notparticipate, enter zero as the average numberof hours per week of participation. Thesework activity data elements are applicableonly for individuals whose family affiliationcode is 1.

49. Unsubsidized Employment.50. Subsidized Private-Sector Employment.51. Subsidized Public-Sector Employment.52. Work Experience.53. On-the-job Training.54. Job Search and Job Readiness

Assistance.Instruction: As noted above, the statute

limits participation in job search and job



readiness training in four ways. Enter, in thisdata element, the average number of hoursper week of participation in job search andjob readiness training that are within thestatutory limitations.

Otherwise, count the additional hours ofwork participation under the work activity‘‘Other Work Activities’’.

55. Community Service Programs.56. Vocational Educational Training:Instruction: As noted above, the statute

contains special rules limiting an adult’s (orminor child head-of-household’s)participation in vocational educationaltraining to twelve months. Enter, in this dataelement, the average number of hours perweek of participation in vocationaleducational training that are within thestatutory limits.

57. Job Skills Training Directly Related toEmployment.

58. Education Directly Related toEmployment for Individuals with no HighSchool Diploma or Certificate of High SchoolEquivalency.

59. Satisfactory School Attendance forIndividuals with No High School Diploma orCertificate of High School Equivalency.

60. Providing Child Care Services to anIndividual Who Is Participating in aCommunity Service Program.

61. This data element is not applicable forTribes. If the Tribe’s approved plan containswork activities not listed above, the totalaverage hours for those activities should bereported in data element 62 ‘‘Other WorkActivities’’.

62. Other Work Activities: Tribes shouldreport total average hours for activities notelsewhere reported.

63. Required Hours of Work under WaiverDemonstration: Not applicable to Tribes.Leave blank.

64. Amount of Earned Income: Enter thedollar amount of the adult’s (or minor childhead-of-household’s) earned income for thereporting month or for the month used tobudget for the reporting month. Includewages, salaries, and other earned income inthis item.

65. Amount of Unearned Income:Unearned income has five categories. Foreach category of unearned income, enter thedollar amount of the adult’s (or minor childhead-of-household’s) unearned income forthe reporting month or for the month used tobudget for the reporting month.

a. Earned Income Tax Credit (EITC):Guidance: Earned Income Tax Credit is a

refundable Federal, State, or local tax creditfor families and dependent children. EITCpayments are received monthly (as advancepayment through the employer), annually (asa refund from IRS), or both.

Instruction: Enter the total dollar amountof the Earned Income Tax Credit actuallyreceived, whether received as an advancepayment or a single payment (e.g., taxrefund), by the adult (or minor child head-of-household) during the reporting month orthe month used to budget for the reportingmonth. If the State counts the EITC as aresource, report it here as unearned incomein the month received (i.e., reporting monthor budget month, whichever the State isusing). If the State assumes an advance

payment is applied for and obtained, onlyreport what is actually received for this item.

b. Social Security: Enter the dollar amountof Social Security benefits that the adult inthe State (Tribal) TANF family has receivedfor the reporting month or for the month usedto budget for the reporting month.

c. SSI: Enter the dollar amount of SSI thatthe adult in the State (Tribal) TANF familyhas received for the reporting month or forthe month used to budget for the reportingmonth.

d. Worker’s Compensation: Enter the dollaramount of Worker’s Compensation that theadult in the State (Tribal) TANF family hasreceived for the reporting month or for themonth used to budget for the reportingmonth.

e. Other Unearned Income:Guidance: Other unearned income

includes (but is not limited to) RSDI benefits,Veterans benefits, UnemploymentCompensation, other government benefits, ahousing subsidy, a contribution or income-in-kind, deemed income, Public Assistanceor General Assistance, educational grants/scholarships/loans, and other. Do not includeEITC, Social Security, SSI, Worker’sCompensation, value of food stampassistance, the amount of a Child Caresubsidy, or the amount of Child Support.

Instruction: Enter the dollar amount ofother unearned income that the adult in theState TANF family has received for thereporting month or for the month used tobudget for the reporting month.

Child Characteristics

This section allows for coding the childcharacteristics for up to ten children in theTANF family. A minor child head-of-household should be coded as an adult, notas a child. The youngest child should becoded as the first child in the family, thesecond youngest child as the second child,and so on. If there are more than ten childrenin the TANF family, use the following orderto identify the persons to be coded: (1)Children in the eligible family receivingassistance in order from youngest to oldest;(2) minor siblings of child in the eligiblefamily receiving assistance from youngest tooldest; and (3) any other children.

66. Family Affiliation:Guidance: This data element is used both

for (1) the adult or minor child head-of-household section and (2) the minor childsection. The same coding schemes are usedin both sections. Some of these codes maynot be applicable for children.

Instruction: Enter the one-digit code thatshows the child’s relation to the eligiblefamily receiving assistance.

1=Member of the eligible family receivingassistance.

Not in eligible family receiving assistance,but in the household





67. Date of Birth: Enter the eight-digit codefor date of birth for this child under the State(Tribal) TANF Program in the formatYYYYMMDD. If the child’s date of birth isunknown and the family affiliation code isnot ‘‘1’’, enter the code ‘‘99999999’’.

68. Social Security Number: Enter the nine-digit Social Security Number for the child inthe format nnnnnnnnn. Reporting of this dataelement is optional for individuals whosefamily affiliation code is 4. If the SocialSecurity number is unknown and the familyaffiliation code is not ‘‘1’’, enter‘‘999999999’’.

69. Race/Ethnicity:Instruction: To allow for the multiplicity of

race/ethnicity, please enter the one-digit codefor each category of race and ethnicity of theTANF adult (or minor child head-of-household). Reporting of this data element isoptional for individuals whose familyaffiliation code is 5.

Ethnicity:a. Hispanic or Latino:1=Yes, Hispanic or Latino.2=No.Race:b. American Indian or Alaska Native:1=Yes, American Indian or Alaska Native.2=No.c. Asian:1=Yes, Asian.2=No.d. Black or African American:1=Yes, Black or African American.2=No.e. Native Hawaiian or Other Pacific

Islander:1=Yes, Native Hawaiian or Pacific Islander.2=No.f. White:1=Yes, White.2=No.70. Gender: Enter the one-digit code that

indicates the adult’s (or minor child head-of-household’s) gender:

1=Male.2=Female.71. Receives Disability Benefits: The Act

specifies five types of disability benefits. Twoof these types of disability benefits areapplicable to children. For each type ofdisability benefits, enter the one-digit codethat indicates whether or not the childreceived the benefit.

a. Receives Benefits Based on FederalDisability Status under Non-Social SecurityAct Programs: These programs includeVeteran’s disability benefits, Worker’sdisability compensation, and Black LungDisease disability benefits.


2=No.b. Receives Supplemental Security Income

under Title XVI–SSI of the Social SecurityAct:

1=Yes, received aid under Title XVI-SSI.2=No.72. Relationship to Head-of-Household:Guidance: This data element is used both

for (1) the adult or minor child head-of-household section and (2) the minor childsection. The same coding schemes are usedin both sections. Some of these codes maynot be applicable for children.



Instruction: Enter the two-digit code thatshows the child’s relationship (including bymarriage) to the head of the household, asdefined by the Food Stamp Program or asdetermined by the Tribe, (i.e., therelationship to the principal person of eachperson living in the household. )


cousin).08=Foster child.09=Unrelated child.10=Unrelated adult.73. Parent With Minor Child in the Family:Guidance: This data element is used both

for (1) the adult or minor child head-of-household section and (2) the minor childsection. The same coding schemes are usedin both sections. Code ‘‘1’’ is not applicablefor children. A parent with a minor child inthe family may be a natural parent, adoptiveparent, or step-parent of a minor child in thefamily. Reporting of this data element isoptional for individuals whose familyaffiliation code is 4 or 5.

Instruction: Enter the one-digit code thatindicates the child’s parental status.

1=Yes, a parent with a minor child in thefamily and used in two-parent participationrate.

2=Yes, a parent with a minor child in thefamily, but not used in two-parentparticipation rate.


code to indicate the highest level ofeducation attained by the child. Unknown isnot an acceptable code for individuals whosefamily affiliation code is ‘‘1’’. Reporting ofthis data element is optional for individualswhose family affiliation code is 4.

01–11=Grade level completed in primary/secondary school including secondary levelvocational school or adult high school.




diploma, etc. ).98=No formal education.99=Unknown.75. Citizenship/Alienage:Instruction: Enter the one-digit code that

indicates the child’s citizenship/alienage.Unknown is not an acceptable code for anindividual whose family affiliation code is‘‘1’’. Reporting of this data element isoptional for individuals whose familyaffiliation code is ‘‘4’’.


2=Qualified alien.9=Unknown.76. Amount of Unearned Income:

Unearned income has two categories. Foreach category of unearned income, enter thedollar amount of the child’s unearnedincome.

a. SSI: Enter the dollar amount of SSI thatthe child in the State (Tribal) TANF familyhas received for the reporting month or forthe month used to budget for the reportingmonth.

b. Other Unearned Income: Enter the dollaramount of other unearned income that thechild in the State (Tribal) TANF family hasreceived for the reporting month or for themonth used to budget for the reportingmonth.

APPENDIX B.—TANF DisaggregatedData Collection for Families No LongerReceiving Assistance Under the TANFProgram—Closed Cases

Instructions and Definitions

General Instruction: The Tribal granteeshould collect and report data for each dataelement. The data must be complete (unlessexplicitly instructed to leave the field blank)and accurate (i.e., correct).

An ‘‘Unknown’’ code may appear only onfour data elements (#15 Date of Birth, #16Social Security Number, #24 EducationalLevel, and #25 Citizenship/Alienage). Forthese data elements, unknown is not anacceptable code for individuals who aremembers of the eligible family (i.e., familyaffiliation code ‘‘1’’). States are not expectedto track closed cases in order to collectinformation on families for months after thefamily has left the rolls. Rather, States are toreport based on the last month of assistance.


2. County FIPS Code: Tribal granteesshould leave this field blank.

3. Tribal Code: For Tribal grantees, enterthe three-digit Tribal code that representsyour Tribe. See Appendix E of the TANFSampling and Statistical Methods Manual fora complete listing of Tribal Codes. If thereappears to be no code for your Tribe,immediately contact the Director, Division ofTribal Services, Office of CommunityServices. Newly formed consortiums mustcontact the Division to obtain a code. Stateagencies should leave this field blank.

4. Reporting Month: Enter the four-digityear and two-digit month code that identifiesthe year and month for which the data arebeing reported.

5. Stratum:Guidance: If a Tribe opts to provide data

for its entire caseload (i.e., does not select asample of cases to report on), the Tribe mayuse this data element for its own codingpurposes as long as a two digit numericalcode is specified.

Instruction: Enter any two-digit numericalcode.

Family-Level Data

Definition: For reporting purposes, theTANF family means:

(a) All individuals receiving assistance aspart of a family under the State’s (Tribe’s)TANF Program; and

(b) The following additional persons livingin the household, if not included under (a)above:

(1) Parent(s) or caretaker relative(s) of anyminor child receiving assistance;

(2) Minor siblings (including unbornchildren) of any child receiving assistance;and

(3) Any person whose income or resourceswould be counted in determining thefamily’s eligibility for or amount ofassistance.

6. Case Number—TANF:Guidance: If the case number is less than

the allowable eleven characters, a State mayuse lead zeros to fill in the number.

Instruction: Enter the number that wasassigned by the State agency or Tribal granteeto uniquely identify the TANF family.

7. ZIP Code: Enter the five-digit ZIP codefor the family’s place of residence for thereporting month.

8. Disposition:Guidance: If a Tribe opts to report on its

entire caseload, the only applicable code forthe Tribe is ‘‘1’’.

Instructions: Enter code ‘‘1’’.9. Reason for Closure:Guidance: A closed case is a family whose

assistance was terminated for the reportingmonth, but received assistance under theState’s TANF Program in the prior month. Atemporarily suspended case is not a closedcase. If there is more than one applicablereason for closure, determine the principal(i.e., most relevant) reason. If two or morereasons are equally relevant, use the reasonwith the lowest numeric code. For example,when an adult marries, the income andresources of the new spouse are consideredin determining eligibility. If, at the time ofthe marriage, the family becomes ineligiblebecause of the addition of the spouse’sincome and/or resources, the case closureshould be coded using code ‘‘2’’.

If the family did not become ineligiblebased on the income and resources at thetime of the marriage, but rather due to anincrease in earnings subsequent to themarriage, then the case closure should becoded using code ‘‘1’’.

Instruction: Enter the two-digit code thatindicates the reason for the TANF family nolonger receiving assistance.

01=Employment and/or excess earnings.02=Marriage.03=Not applicable to Tribes.Sanctions:04=Work-related sanction.05=Child support sanction.06=Teen parent failing to meet school

attendance requirement.07=Teen parent failing to live in an adult

setting.08=Failure to finalize an individual

responsibility plan (e.g., did not sign plan).09=Failure to meet individual

responsibility plan provision or otherbehavioral requirements (e.g., immunize aminor child, attend parenting classes).

State (Tribal) Policies:10=Tribal time limit reached.11=Child support collected.12=Excess unearned income (exclusive of

child support collected).13=Excess resources.14=Youngest child too old to qualify for

assistance.15=Minor child absent from the home for

a significant time period.16=Failure to appear at eligibility/

redetermination appointment, submit



required verification materials, and/orcooperate with eligibility requirements.

17=For Tribes, transfer to a State program,another program of the reporting Tribe oranother Tribe’s TANF program.

Other.18=Family voluntarily closes the case.99=Other.10. Received Subsidized Housing:Guidance: Subsidized housing refers to

housing for which money was paid by theFederal, State, Tribal, or local government orthrough a private social service agency to thefamily or to the owner of the housing to assistthe family in paying rent. Two familiessharing living expenses does not constitutesubsidized housing.

Instruction: Enter the one-digit code thatindicates whether or not the TANF familyreceived subsidized housing for the reportingmonth (or for the last month of TANFassistance).

1=Public housing.2=Rent subsidy.3=No housing subsidy.11. Received Medical Assistance: Enter ‘‘1’’

if, for the reporting month (or for the lastmonth of TANF assistance), any TANFfamily member was enrolled in Medicaidand, thus eligible to receive medicalassistance under the State plan approvedunder Title XIX or ‘‘2’’’ if no TANF familymember was enrolled in Medicaid.

1=Yes, enrolled in Medicaid.2=No.12. Received Food Stamps: Enter the one-

digit code that indicates whether or not theTANF family received food stamp assistancefor the reporting month (or for the last monthof TANF assistance).

1=Yes, received food stamp assistance.2=No.13. Received Subsidized Child Care:Instruction: If the TANF family received

subsidized child care for services in thereporting month (or for the last month ofTANF assistance), enter code ‘‘1’’ or ‘‘2’’,whichever is appropriate. Otherwise, entercode ‘‘3’’.

1=Yes, received federally funded (entirelyor in part) child care (e.g., receives eitherTANF, CCDF, SSBG, or other federallyfunded child care).

2=Yes, received child care funded entirelyunder a State, Tribal, and/or local program(i.e., no Federal funds used).

3=No.

Person-Level Data

This section allows for coding up tosixteen persons in the TANF family. If thereare more than sixteen persons in the TANFfamily, use the following order to identify thepersons to be coded:

(1) the head-of-household;(2) parents in the eligible family receiving

assistance;(3) children in the eligible family receiving

assistance;(4) other adults in the eligible family

receiving assistance;(5) parents not in the eligible family

receiving assistance;(6) caretaker relatives not in the eligible

family receiving assistance;(7) minor siblings of a child in the eligible

family; and

(8) other persons, whose income orresources count in determining eligibility foror amount of assistance of the eligible familyreceiving assistance, in descending orderfrom the person with the most income to theperson with the least income (resources if noincome).

As indicated below, reporting for certainspecified data elements in this section isoptional for certain individuals (whosefamily affiliation code is a 2, 3, 4, or 5).

14. Family Affiliation:Instruction: Enter the one-digit code that

shows the individual’s relation to the eligiblefamily receiving assistance.

1=Member of the eligible family receivingassistance. Not in eligible family receivingassistance, but in the household:





15. Date of Birth: Enter the eight-digit codefor date of birth for this individual underTANF in the format YYYYMMDD. If theindividual’s date of birth is unknown and theindividual’s family affiliation code is not‘‘1,’’ enter the code ‘‘99999999’’.

16. Social Security Number: Enter the nine-digit Social Security Number for theindividual in the format nnnnnnnnn. If thesocial security number is unknown and theindividual’s family affiliation code is not‘‘1,’’ enter ‘‘999999999’’.

17. Race/Ethnicity: Instructions: To allowfor the multiplicity of race/ethnicity, pleaseenter the one-digit code for each category ofrace and ethnicity of the TANF individual.Reporting of this data element is optional forindividuals whose family affiliation code is4 or 5.

Ethnicity:a. Hispanic or Latino:1=Yes, Hispanic or Latino.2=No.Race:b. American Indian or Alaska Native:1=Yes, American Indian or Alaska Native.2=No.c. Asian:1=Yes, Asian.2=No.d. Black or African American:1=Yes, Black or African American.2=No.f. Native Hawaiian or Other Pacific

Islander:1=Yes, Native Hawaiian or Pacific Islander.2=No.g. White:1=Yes, White.2=No.18. Gender: Enter the one-digit code that

indicates the individual’s gender.1=Male.2=Female.19. Received Disability Benefits:Instructions: The Act specifies five types of

disability benefits. For each type of disabilitybenefits, enter the one-digit code that

indicates whether or not the individualreceived the benefit.

a. Received Federal Disability InsuranceBenefits Under the Social Security OASDIProgram (Title II of the Social Security Act):

Enter the one-digit code that indicates theadult received Federal disability insurancebenefits for the reporting month (or the lastmonth of TANF assistance). This item is notrequired to be coded for a child.

1=Yes, received Federal disabilityinsurance.

2=No.b. Receives Benefits Based on Federal

Disability Status under Non-Social SecurityAct Programs: These programs includeVeteran’s disability benefits, Worker’sdisability compensation, and Black LungDisease disability benefits. Enter the one-digit code that indicates the individualreceived benefits based on Federal disabilitystatus for the reporting month (or the lastmonth of TANF assistance). This dataelement should be coded for each adult andchild with family affiliation code ‘‘1’’.


2=No.c. Received Aid to the Permanently and

Totally Disabled Under Title XIV–APDT ofthe Social Security Act: Enter the one-digitcode that indicates the adult received aidunder a State plan approved under Title XIVfor the reporting month (or the last month ofTANF assistance). This item is not requiredto be coded for a child.

1=Yes, received aid under Title XIV–APDT.

2=No.d. Received Aid to the Aged, Blind, and

Disabled Under Title XVI–AABD of theSocial Security Act: Enter the one-digit codethat indicates the adult received aid under aState plan approved under Title XVI–AABDfor the reporting month (or the last month ofTANF assistance). This item is not requiredto be coded for a child.

1=Yes, received aid under Title XVI–AABD.

2=No.e. Received Supplemental Security Income

Under Title XVI–SSI of the Social SecurityAct: Enter the one-digit code that indicatesthe individual received aid under a Stateplan approved under Title XVI–SSI for thereporting month (or the last month of TANFassistance). This data element should becoded for each adult and child with familyaffiliation code ‘‘1’’.

1=Yes, received aid under Title XVI–SSI.2=No.20. Marital Status: Enter the one-digit code

for the marital status of the adult recipient.Reporting of this data element is optional forindividuals whose family affiliation code is4 or 5.

1=Single, never married.2=Married, living together.3=Married, but separated.4=Widowed.5=Divorced.21. Relationship to Head-of-Household:Instruction: Enter the two-digit code that

shows the individual’s relationship(including by marriage) to the head of thehousehold, as defined by the Food Stamp



Program or as determined by the State(Tribe), (i.e., the relationship to the principalperson of each person living in thehousehold.) If a minor child head-of-household, enter code ‘‘01’’.


cousin).08=Foster child.09=Unrelated child.10=Unrelated adult.22. Parent With Minor Child in the Family:Guidance: A parent with a minor child in

the family may be a natural parent, adoptiveparent, or step-parent of a minor child in thefamily. Reporting of this data element isoptional for individuals whose familyaffiliation code is 3, 4, or 5.

Instruction: Enter the one-digit code thatindicates the individual’s parental status.

1=Yes, a parent with a minor child in thefamily.

2=No.23. Needs of a Pregnant Woman: Some

States (Tribes) consider the needs of apregnant woman in determining the amountof assistance that the TANF family receives.If the individual was pregnant and the needsassociated with this pregnancy wereconsidered in determining the amount ofassistance for the last month of TANFassistance, enter a ‘‘1’’ for this data element.Otherwise enter a ‘‘2’’ for this data element.This data element is applicable only forindividuals whose family affiliation code is1.

1=Yes, additional needs associated withpregnancy were considered in determiningthe amount of assistance.


code to indicate the highest level ofeducation attained by the individual.Unknown is not an acceptable code forindividuals whose family affiliation code is‘‘1’’. Reporting of this data element isoptional for individuals whose familyaffiliation code is 4 or 5.

01—11=Grade level completed in primary/secondary school including secondary levelvocational school or adult high school.




diploma, etc. ).98=No formal education.99=Unknown.25. Citizenship/Alienage:Instruction: Enter the one-digit code that

indicates the adult’s (or minor child head-of-household’s) citizenship/alienage. Unknownis not an acceptable code for an individualwhose family affiliation code is ‘‘1’’.Reporting of this data element is optional forindividuals whose family affiliation code is4 or 5.


2=Qualified alien.9=Unknown.26. Number of Months Countable toward

Tribal Time Limit: Enter the number ofmonths countable toward the adult’s (orminor child head-of-household’s) Tribal timelimit based on assistance received from (1)the Tribe and (2) from other Tribes or fromStates. Reporting of this data element isoptional for individuals whose familyaffiliation code is 2, 3, 4, or 5.

27. Number of Countable MonthsRemaining Under Tribe’s Time Limit: Enterthe number of months that remain countabletoward the adult’s (or minor child head-of-household’s) Tribal time limit. Reporting ofthis data element is optional for individualswhose family affiliation code is 2, 3, 4, or 5.

28. Employment Status: Enter the one-digitcode that indicates the adult’s (or minorchild head-of-household’s) employmentstatus. Leave this field blank for other minorchildren. Reporting of this data element isoptional for individuals whose familyaffiliation code is 4 or 5.

1=Employed.2=Unemployed, looking for work.3=Not in labor force (i.e., unemployed and

not looking for work, includes discouragedworkers).

29. Amount of Earned Income: Enter theamount of the adult’s (or minor child head-of-household’s) earned income for the lastmonth on assistance or for the month usedto budget for the last month on assistance.

30. Amount of Unearned Income: Enter thedollar amount of the individual’s unearnedincome for the last month on assistance or forthe month used to budget for the last monthon assistance.

Appendix C—TANF Aggregated DataCollection for Families Applying for,Receiving, and No Longer ReceivingAssistance Under the TANF Program

Instructions and Definitions

General Instruction: The State agency orTribal grantee is to collect and report data foreach data element, unless explicitlyinstructed to leave the field blank. Monthlycaseload counts (e.g., number of families,number of two-parent families, and numberof closed cases) and number of recipientsmust be unduplicated monthly totals. Statesand Tribal grantees may use samples toestimate the monthly totals only for dataelements #4, #5, #6, #15, #16, and #17.


2. Tribal Code: For Tribal grantees only,enter the three-digit Tribal code thatrepresents your Tribe. See Appendix E of theTANF Sampling and Statistical MethodsManual for a complete listing of TribalCodes. If there appears to be no code for yourTribe, immediately contact the Director,Division of Tribal Services, Office ofCommunity Services. Newly formedconsortiums must contact the Division toobtain a code. State agencies should leavethis field blank.

3. Calendar Quarter: The four calendarquarters are as follows:

1=First quarter—January–March.2=Second quarter—April–June.

3=Third quarter—July–September.4=Fourth quarter—October–December.Enter the four-digit year and one-digit

quarter code (in the format YYYYQ) thatidentifies the calendar year and quarter forwhich the data are being reported (e.g., firstquarter of 1997 is entered as ‘‘19971’’).

ApplicationsGuidance: The term ‘‘application’’ means

the action by which an individual indicatesin writing to the agency administering theState (or Tribal) TANF Program his/herdesire to receive assistance.

Instruction: All counts of applicationsshould be unduplicated monthly totals.

4. Total Number of Applications: Enter thetotal number of approved and deniedapplications received for each month of thequarter. For each month in the quarter, thetotal in this item should equal the sum of thenumber of approved applications (in item #5)and the number of denied applications (initem #6). The monthly totals for this elementmay be estimated from samples.

A. First Month:B. Second Month:C. Third Month:5. Total Number of Approved

Applications: Enter the number ofapplications approved during each month ofthe quarter. The monthly totals for thiselement may be estimated from samples.

A. First Month:B. Second Month:C. Third Month:6. Total Number of Denied Applications:

Enter the number of applications denied (orotherwise disposed of) during each month ofthe quarter. The monthly totals for thiselement may be estimated from samples.

A. First Month:B. Second Month:C. Third Month:

Active Cases

For purposes of completing this report,include all TANF eligible cases receivingassistance (i.e., cases funded under the TANFblock grant) as cases receiving assistanceunder the Tribal TANF Program. All countsof families and recipients should beunduplicated monthly totals.

7. Total Amount of Assistance: Enter thedollar value of all assistance (cash and non-cash) provided to TANF families under theState (Tribal) TANF Program for each monthof the quarter. Round the amount ofassistance to the nearest dollar.

A. First Month:B. Second Month:C. Third Month:8. Total Number of Families: Enter the

number of families receiving assistanceunder the State (Tribal) TANF Program foreach month of the quarter. The total in thisitem should equal the sum of the number oftwo-parent families (in item #9), the numberof one-parent families (in item #10) and thenumber of no-parent families (in item #11).

A. First Month:B. Second Month:C. Third Month:9. Total Number of Two-parent Families:

Enter the total number of 2-parent familiesreceiving assistance under the State (Tribal)TANF Program for each month of the quarter.



A. First Month:B. Second Month:C. Third Month:10. Total Number of One-Parent Families:

Enter the total number of one-parent familiesreceiving assistance under the State (Tribal)TANF Program for each month of the quarter.

A. First Month:B. Second Month:C. Third Month:11. Total Number of No-Parent Families:

Enter the total number of no-parent familiesreceiving assistance under the State (Tribal)TANF Program for each month of the quarter.

A. First Month:B. Second Month:C. Third Month:12. Total Number of Recipients: Enter the

total number of recipients receivingassistance under the State (Tribal) TANFProgram for each month of the quarter. Thetotal in this item should equal the sum of thenumber of adult recipients (in item #13) andthe number of child recipients (in item #14).

A. First Month:B. Second Month:C. Third Month:13. Total Number of Adult Recipients:

Enter the total number of adult recipientsreceiving assistance under the State (Tribal)TANF Program for each month of the quarter.

A. First Month:B. Second Month:C. Third Month:14. Total Number of Child Recipients:

Enter the total number of child recipientsreceiving assistance under the State (Tribal)TANF Program for each month of the quarter.

A. First Month:B. Second Month:C. Third Month:15. Total Number of Noncustodial Parents

Participating in Work Activities: Enter thetotal number of noncustodial parentsparticipating in work activities (even if notreceiving assistance) under the State (Tribal)TANF Program for each month of the quarter.The monthly totals for this element may beestimated from samples.

A. First Month:B. Second Month:C. Third Month:16. Total Number of Births: Enter the total

number of births in families receivingassistance under the State (Tribal) TANFProgram for each month of the quarter. Themonthly totals for this element may beestimated from samples.

A. First Month:B. Second Month:C. Third Month:17. Total Number of Out-of-Wedlock

Births: Enter the total number of out-of-wedlock births in families receivingassistance under the State (Tribal) TANFProgram for each month of the quarter. Themonthly totals for this element may beestimated from samples. Tribes should reportthis data based on their historical culturalinterpretation of out-of-wedlock.


Closed Cases18. Total Number of Closed Cases: Enter

the total number of closed cases for eachmonth of the quarter.


PART 287—THE NATIVEEMPLOYMENT WORKS (NEW)PROGRAM

Subpart A—General NEW ProvisionsSec.287.1 What does this part cover?287.5 What is the purpose and scope of the

NEW Program?287.10 What definitions apply to this part?

Subpart B—Eligible Tribes287.15 Which Tribes are eligible to apply

for NEW Program grants?287.20 May a Public Law 102–477 Tribe

operate a NEW Program?287.25 May Tribes form a consortium to

operate a NEW Program?287.30 If an eligible consortium breaks up,

what happens to the NEW Programgrant?

Subpart C—NEW Program Funding287.35 What grant amounts are available

under the Personal Responsibility andWork Opportunity Reconciliation Act of1996 (PRWORA) for the NEW Program?

287.40 Are there any matching fundsrequirements with the NEW Program?

287.45 How can NEW Program funds beused?

287.50 What are the funding periods forNEW Program grants?

287.55 What time frames and guidelinesapply regarding the obligation andliquidation periods for NEW Programfunds?

287.60 Are there additional financialreporting and auditing requirements?

287.65 What OMB circulars apply to theNEW Program?

Subpart D—Plan Requirements287.70 What are the plan requirements for

the NEW Program?287.75 When does the plan become

effective?287.80 What is the process for plan review

and approval?287.85 How is a NEW plan amended?287.90 Are Tribes required to complete any

certifications?287.95 May a Tribe operate both a NEW

Program and a Tribal TANF program?287.100 Must a Tribe that operates both

NEW and Tribal TANF programs submittwo separate plans?

Subpart E—Program Design andOperations287.105 What provisions of the Social

Security Act govern the NEW Program?287.110 Who is eligible to receive

assistance or services under a Tribe’sNEW Program?

287.115 When a NEW grantee serves TANFrecipients, what coordination shouldtake place with the Tribal or State TANFagency?

287.120 What work activities may beprovided under the NEW Program?

287.125 What supportive and job retentionservices may be provided under theNEW Program?

287.130 Can NEW Program activitiesinclude job market assessments, jobcreation and economic developmentactivities?

287.135 Are bonuses, rewards and stipendsallowed for participants in the NEWProgram?

287.140 With whom should the Tribecoordinate in the operation of its workactivities and services?

287.145 What measures will be used todetermine NEW Program outcomes?

Subpart F—Data Collection and ReportingRequirements

287.150 Are there data collectionrequirements for Tribes who operate aNEW Program?

287.155 What reports must a grantee filewith the Department about its programoperations?

287.160 What reports must a grantee fileregarding financial operations?

287.165 What are the data collection andreporting requirements for Public Law102–477 Tribes that consolidate a NEWProgram with other programs?

287.170 What are the data collection andreporting requirements for a Tribe thatoperates both the NEW Program and aTribal TANF program?

Authority: 42 U.S.C. 612.

Subpart A—General NEW Provisions

§ 287.1 What does this part cover?(a) The regulations in this part

prescribe the rules for implementingsection 412(a)(2) of the Social SecurityAct (the Act), as amended by thePersonal Responsibility and WorkOpportunity Reconciliation Act of 1996(PRWORA) (Pub. L. 104–193) and theBalanced Budget Act of 1997 (Pub. L.105–33).

(b) Section 412(a)(2) of the Act, asamended, authorizes the Secretary toissue grants to eligible Indian tribes tooperate a program that makes workactivities available to ‘‘such populationand such service area or areas as thetribe specifies.’’

(c) We call this Tribal work activitiesprogram the Native Employment Works(NEW) program.

(d) These regulations specify theTribes who are eligible to receive NEWProgram funding. They also prescriberequirements for: funding; program plandevelopment and approval; programdesign and operation; and datacollection and reporting.

§ 287.5 What is the purpose and scope ofthe NEW Program?

The purpose of the NEW Program isto provide eligible Indian tribes,including Alaska Native organizations,



the opportunity to provide workactivities and services to their needyclients.

§ 287.10 What definitions apply to thispart?

The following definitions apply tothis part:

ACF means the Administration forChildren and Families;

Act means the Social Security Act,unless we specify otherwise;

Alaska Native organization means anAlaska Native village, or regional orvillage corporation, as defined in orestablished pursuant to the AlaskaNative Claims Settlement Act (43 U.S.C.1601 et seq.), that is eligible to operatea Federal program under the IndianSelf-Determination and EducationAssistance Act (25 U.S.C. 450);

Consortium means a group of Tribesworking together for the same identifiedpurpose and receiving combined NEWfunding for that purpose.

Department means the Department ofHealth and Human Services;

Division of Tribal Services (DTS)means the unit in the Office ofCommunity Services within theDepartment’s Administration forChildren and Families that has as itsprimary responsibility theadministration of the Tribal familyassistance program, called the TribalTemporary Assistance for NeedyFamilies (TANF) program, and theTribal work program, called the NativeEmployment Works (NEW) program, asauthorized by section 412(a);

Eligible Indian tribe means an Indiantribe, a consortium of Indian tribes, oran Alaska Native organization thatoperated a Tribal Job Opportunities andBasic Skills Training (JOBS) program infiscal year 1995 under section 482(i) ofthe Act, as in effect during that fiscalyear;

Fiscal year means the 12-monthperiod beginning on October 1 of thepreceding calendar year and ending onSeptember 30;

FY means fiscal year;Indian, Indian tribe, and Tribal

organization—The terms Indian, Indiantribe, and Tribal organization have themeaning given such terms by section 4of the Indian Self-Determination andEducation Assistance Act (25 U.S.C.450b);

Native Employment Works Programmeans the Tribal work program undersection 412(a)(2) of the Act;

NEW means the Native EmploymentWorks Program;

Program Year means, for the NEWProgram, the 12-month period beginningon July 1 of the calendar year andending on June 30;

PRWORA means the PersonalResponsibility and Work OpportunityReconciliation Act of 1996, Public Law104–193;

Public Law 102–477 refers to theIndian Employment, Training andRelated Services Demonstration Act of1992, whose purpose is to provide forthe integration of employment, trainingand related services to improve theeffectiveness of those services;

Secretary means the Secretary of theDepartment of Health and HumanServices;

State means, except as otherwisespecifically provided, the 50 States ofthe United States, the District ofColumbia, the Commonwealth of PuertoRico, the United States Virgin Islands,Guam, and American Samoa;

TANF means the TemporaryAssistance for Needy Families Program;

Temporary Assistance for NeedyFamilies Program means a familyassistance grant program operated eitherby a Tribe under section 412(a)(1) of theAct or by a State under section 403 ofthe Act;

Tribal TANF program means a Tribalprogram subject to the requirements ofsection 412 of the Act which is fundedby TANF funds on behalf of eligiblefamilies;

We (and any other first person pluralpronouns) refers to The Secretary ofHealth and Human Services, or any ofthe following individuals ororganizations acting in an officialcapacity on the Secretary’s behalf: TheAssistant Secretary for Children andFamilies, the Regional Administratorsfor Children and Families, theDepartment of Health and HumanServices, and the Administration forChildren and Families.

Subpart B—Eligible Tribes

§ 287.15 Which Tribes are eligible to applyfor NEW Program grants?

To be considered for a NEW Programgrant, a Tribe must be an ‘‘eligibleIndian tribe.’’ An eligible Indian tribe isan Indian tribe or Alaska Nativeorganization that operated a JobOpportunities and Basic Skills Training(JOBS) program in FY 1995.

§ 287.20 May a Public Law 102–477 Tribeoperate a NEW Program?

Yes, if the Tribe is an ‘‘eligible Indiantribe.’’

§ 287.25 May Tribes form a consortium tooperate a NEW Program?

(a) Yes, as long as each Tribe formingthe consortium is an ‘‘eligible Indiantribe.’’

(b) To apply for and conduct a NEWProgram, the consortium must submit aplan to ACF.

(c) The plan must include a copy ofa resolution from each Tribe indicatingits membership in the consortium andauthorizing the consortium to act on itsbehalf in regard to administering a NEWProgram. If an Alaska Nativeorganization forms a consortium,submission of the required resolutionfrom the governing board of theorganization is sufficient to satisfy thisrequirement.

§ 287.30 If an eligible consortium breaksup, what happens to the NEW Programgrant?

(a) If a consortium should break up orany Tribe withdraws from a consortium,it will be necessary to allocateunobligated funds and future grantsamong the Tribes that were members ofthe consortium, if each individual Tribeobtains ACF approval to continue tooperate a NEW Program.

(b) Each withdrawing Tribe mustsubmit to ACF a copy of the Tribalresolution that confirms the Tribe’sdecision to withdraw from theconsortium and indicates whether theTribe elects to continue its participationin the program.

(c) The allocation can beaccomplished by any method that isrecommended and agreed to by theleaders of those Tribes.

(d) If no recommendation is made bythe Tribal leaders or no agreement isreached, the Secretary will determinethe allocation of funds based on the bestavailable data.

Subpart C—NEW Program Funding

§ 287.35 What grant amounts are availableunder the Personal Responsibility and WorkOpportunity Reconciliation Act of 1996(PRWORA) for the NEW Program?

Each Tribe shall receive a grant in anamount equal to the amount received bythe Tribe in FY 1994 under section482(i) of the Act (as in effect during FY1994).

§ 287.40 Are there any matching fundsrequirements with the NEW Program?

No, Tribal grantees are not required tomatch NEW Federal funds.

§ 287.45 How can NEW Program funds beused?

(a) NEW grants are for making workactivities available to such populationas the Tribe specifies.

(b) NEW funds may be used for workactivities as defined by the Tribalgrantee.

(c) Work activities may includesupportive services necessary forassisting NEW Program participants inpreparing for, obtaining, and/orretaining employment.



§ 287.50 What are the funding periods forNEW Program grants?

NEW Program funds are for operationof the NEW Program for a 12-monthperiod from July 1 through June 30.

§ 287.55 What time frames and guidelinesapply regarding the obligation andliquidation periods for NEW Programfunds?

(a) NEW Program funds provided fora FY are for use during the period July1 through June 30 and must be obligatedno later than June 30. Carry forward ofan unobligated balance of NEW funds isnot permitted. A NEW fund balance thatis unobligated as of June 30 will bereturned to the Federal governmentthrough the issuance of a negative grantaward. Unobligated funds are to bereported on the SF–269A that Tribesmust submit within 30 days after thefunding period, i.e., no later than July30. This report is called the interimfinancial report.

(b) A Tribe must liquidate allobligations incurred under the NEWProgram grant awards not later than oneyear after the end of the obligationperiod, i.e., no later than June 30 of thefollowing FY. An unliquidated balanceat the close of the liquidation periodwill be returned to the Federalgovernment through the issuance of anegative grant award. Unliquidatedobligations are to be reported on the SF–269A that Tribes must submit within 90days after the liquidation period, i.e., bySeptember 28. This report is called thefinal financial report.

§ 287.60 Are there additional financialreporting and auditing requirements?

(a) The reporting of expenditures aregenerally subject to the requirements of45 CFR 92.41.

(b) NEW Program funds and activitiesare subject to the audit requirement ofthe Single Audit Act of 1984 (45 CFR92.26).

(c) A NEW Program grantee mustcomply with all laws, regulations, andDepartmental policies that governsubmission of financial reports byrecipients of Federal grants.

(d) Improper expenditure claimsunder this program are subject todisallowance.

(e) If a grantee disagrees with theAgency’s decision to disallow funds, thegrantee may follow the appealprocedures at 45 CFR Part 16.

§ 287.65 What OMB circulars apply to theNEW Program?

NEW Programs are subject to thefollowing OMB circulars whereapplicable: A–87 ‘‘Cost Principles forState, Local, and Indian TribalGovernments,’’ A–122 ‘‘Cost Principles

for Non-Profit Organizations,’’ and A–133 ‘‘Audits of States and LocalGovernments.’’

Subpart D—Plan Requirements

§ 287.70 What are the plan requirementsfor the NEW Program?

(a) To apply for and conduct a NEWProgram, a Tribe must submit a plan toACF.

(b) The plan must identify the agencyresponsible for administering the NEWProgram and include a description ofthe following:

(1) Population to be served;(2) Service area;(3) Client services;(4) Work activities to be provided;(5) Supportive and job retention

services to be provided;(6) Anticipated program outcomes,

and the measures the Tribe will use todetermine them; and

(7) Coordination activities conductedand expected to be conducted withother programs and agencies.

(c) The plan must also describe howthe Tribe will deliver work activitiesand services.

(d) The format is left to the discretionof each NEW grantee.

§ 287.75 When does the plan becomeeffective?

NEW plans, which are three-yearplans, become effective when approvedby the Secretary. The plans are usuallyoperative the beginning of a NEWProgram year, July 1.

§ 287.80 What is the process for planreview and approval?

(a) A Tribe must submit its plan to theACF Regional Office, with a copy sentto the Division of Tribal Services, Officeof Community Services, Administrationfor Children and Families, Attention:Native Employment Works Team.

(b) To receive funding by thebeginning of the NEW Program year(July 1), a Tribe must submit its plan bythe established due date.

(c) ACF will complete its review ofthe plan within 45 days of receipt.

(d) After the plan review hasoccurred, if the plan is approvable, ACFwill approve the plan, certifying that theplan meets all necessary requirements.If the plan is not approvable, theRegional Office will notify the Triberegarding additional action needed forplan approval.

§ 287.85 How is a NEW plan amended?

(a) If a Tribe makes substantialchanges in its NEW Program plan oroperations, it must submit anamendment for the changed section(s) ofthe plan to the appropriate ACF

Regional Office for review and approval,with a copy sent to the Division ofTribal Services, Office of CommunityServices, Administration of Childrenand Families, Attention: NativeEmployment Works Team. The reviewwill verify consistency with section412(a)(2) of the Act.

(b) A substantial change is a changein the agency administering the NEWProgram, a change in the designatedservice area and/or population, a changein work activities provided or a changein performance standards.

(c) A substantial change in plancontent or operations must be submittedto us no later than 45 days prior to theproposed implementation date.

(d) ACF will complete the review ofthe amended plan within 45 days ofreceipt.

(e) An amended plan becomeseffective when it is approved by theSecretary.

§ 287.90 Are Tribes required to completeany certifications?

Yes. A Tribe must include in its NEWProgram plan the following fourcertifications and any additionalcertifications that the Secretaryprescribes in the planning guidance:Certification Regarding Debarment,Suspension, and Other ResponsibilityMatters—Primary Covered Transactions;Certification Regarding Drug FreeWorkplace Requirements for GranteesOther Than Individuals; CertificationRegarding Tobacco Smoke, andAssurances—Non-ConstructionPrograms.

§ 287.95 May a Tribe operate both a NEWProgram and a Tribal TANF program?

Yes. However, the Tribe must adhereto statutory and regulatory requirementsof the individual programs.

§ 287.100 Must a Tribe that operates bothNEW and Tribal TANF programs submit twoseparate plans?

Yes. Separate plans are needed toreflect different program and planrequirements as specified in the statuteand in plan guidance documents issuedby the Secretary for each program.

Subpart E—Program Design andOperations

§ 287.105 What provisions of the SocialSecurity Act govern the NEW Program?

NEW Programs are subject only tothose requirements at section 412(a)(2)of the Act, as amended by PRWORA,titled ‘‘Grants for Indian Tribes thatReceived JOBS Funds.’’



§ 287.110 Who is eligible to receiveassistance or services under a Tribe’s NEWProgram?

(a) A Tribe must specify in its NEWProgram plan the population andservice area to be served. In cases wherea Tribe designates a service area for itsNEW Program that is different from itsBureau of Indian Affairs (BIA) servicearea, an explanation must be provided.

(b) A Tribe must include eligibilitycriteria in its plan and establish internaloperating procedures that clearlyspecify the criteria to be used toestablish an individual’s eligibility forNEW services. The eligibility criteriamust be equitable.

§ 287.115 When a NEW grantee servesTANF recipients, what coordination shouldtake place with the Tribal or State TANFagency?

The Tribe should coordinate with theTribal or State TANF agency on:

(a) Eligibility criteria for TANFrecipients to receive NEW Programservices;

(b) Exchange of case file information;(c) Changes in client status that result

in a loss of cash assistance, food stamps,Medicaid or other medical coverage;

(d) Identification of work activitiesthat may meet Tribal or State workparticipation requirements;

(e) Resources available from the Tribalor State TANF agency to ensure efficientdelivery of benefits to the designatedservice population;

(f) Policy for exclusions from theTANF program (e.g., criteria forexemptions and sanctions);

(g) Termination of TANF assistancewhen time limits become effective;

(h) Use of contracts in delivery ofTANF services;

(i) Prevention of duplication ofservices to assure the maximum level ofservices is available to participants;

(j) Procedures to ensure that costs ofother program services for whichwelfare recipients are eligible are notshifted to the NEW Program; and

(k) Reporting data for TANF quarterlyand annual reports.

§ 287.120 What work activities may beprovided under the NEW Program?

(a) The Tribe will determine whatwork activities are to be provided.

(b) Examples of allowable activitiesinclude, but are not limited to:Educational activities, alternativeeducation, post secondary education,job readiness activity, job search, jobskills training, training and employmentactivities, job development andplacement, on-the-job training (OJT),employer work incentives related toOJT, community work experience,innovative approaches with the private

sector, pre/post employment services,job retention services, unsubsidizedemployment, subsidized public orprivate sector employment, communityservice programs, entrepreneurialtraining, management training, jobcreation activities, economicdevelopment leading to job creation,and traditional subsistence activities.

§ 287.125 What supportive and jobretention services may be provided underthe NEW Program?

The NEW Program grantee mayprovide, pay for or reimburse expensesfor supportive services, including butnot limited to transportation, child care,traditional or cultural work relatedservices, and other work or familysufficiency related expenses that theTribe determines are necessary to enablea client to participate in the program.

§ 287.130 Can NEW Program activitiesinclude job market assessments, jobcreation and economic developmentactivities?

(a) A Tribe may conduct job marketassessments within its NEW Program.These might include the following:

(1) Consultation with the Tribe’seconomic development staff orleadership that oversees the economicand employment planning for the Tribe;

(2) Consultation with any localemployment and training program,Workforce Development Boards, One-Stop Centers, or planning agencies thathave undertaken economic andemployment studies for the area inwhich the Tribe resides;

(3) Communication with any training,research, or educational agencies thathave produced economic developmentplans for the area that may or may notinclude the Tribe; and

(4) Coordination with any State orlocal governmental agency pursuingeconomic development options for thearea.

(b) The Tribe’s NEW Program mayengage in activities and provide servicesto create jobs and economicopportunities for its participants. Theseservices should be congruous with anyavailable local job market assessmentsand may include the following:

(1) Tribal Employment Rights Office(TERO) services;

(2) Job creation projects and services;(3) Self-employment;(4) Self-initiated training that leads a

client to improved job opportunities andemployment;

(5) Economic development projectsthat lead to jobs, improved employmentopportunities, or self-sufficiency ofprogram participants;

(6) Surveys to collect informationregarding client characteristics; and

(7) Any other development and jobcreation activities that enable Tribalmembers to increase their economicindependence and reduce their need forbenefit assistance and supportiveservices.

§ 287.135 Are bonuses, rewards andstipends allowed for participants in theNEW Program?

Bonuses, stipends, and performanceawards are allowed. However, suchallowances may be counted as incomein determining eligibility for someTANF or other need-based programs.

§ 287.140 With whom should the Tribecoordinate in the operation of its workactivities and services?

The administration of work activitiesand services provided under the NEWProgram must ensure that appropriatecoordination and cooperation ismaintained with the following entitiesoperating in the same service areas asthe Tribe’s NEW Program:

(a) State, local and Tribal TANFagencies, and agencies operatingemployment and training programs;

(b) Any other agency whose programsimpact the service population of theNEW Program, including employment,training, placement, education, childcare, and social programs.

§ 287.145 What measures will be used todetermine NEW Program outcomes?

Each grantee must develop its ownperformance standards and measures toensure accountability for its programresults. A Tribe’s program plan mustidentify planned program outcomes andthe measures the Tribe will use todetermine them. ACF will compareplanned outcomes against outcomesreported in the Tribe’s annual reports.

Subpart F—Data Collection andReporting Requirements

§ 287.150 Are there data collectionrequirements for Tribes that operate a NEWProgram?

(a) Yes, the Tribal agency ororganization responsible for operation ofa NEW Program must collect data andsubmit reports as specified by theSecretary.

(b) A NEW Program grantee mustestablish and maintain efficient andeffective record-keeping systems toprovide accurate and timely informationregarding its service population.

(c) Required reports will provideTribes, the Secretary, Congress, andother interested parties withinformation to assess the success of theNEW Program in meeting its goals. Also,the reports will provide the Secretarywith information for monitoringprogram and financial operations.



§ 287.155 What reports must a grantee filewith the Department about its NEWProgram operations?

(a) Each eligible Tribe must submit anannual report that provides a summaryof program operations.

(b) The Secretary has developed anannual operations report (OMBclearance number 0970–0174). Thereport specifies the data elements onwhich grantees must report, includingelements that provide informationregarding the number andcharacteristics of those served by theNEW Program. This report is in additionto any financial reports required by law,regulations, or Departmental policies.

(c) The report form and instructionsare distributed through ACF’s programinstruction system.

(d) The program operations reportwill be due September 28th, 90 daysafter the close of the NEW Program year.

§ 287.160 What reports must a grantee fileregarding financial operations?

(a) Grantees will use SF–269A tomake an annual financial report ofexpenditures for program activities andservices.

(b) Two annual financial reports willbe due to the appropriate RegionalOffice. The interim SF–269A is due nolater than July 30, i.e., 30 days after theend of the obligation period. The finalSF–269A is due 90 days after the end ofthe liquidation period.

§ 287.165 What are the data collection andreporting requirements for Public Law 102–477 Tribes that consolidate a NEW Programwith other programs?

(a) Currently, there is a singlereporting system for all programsoperated by a Tribe under Public Law102–477. This system includes aprogram report, consisting of a narrativereport, a statistical form, and a financialreport.

(1) The program report is requiredannually and submitted to BIA, as thelead Federal agency and shared withDHHS and DOL.

(2) The financial report is submittedon a SF–269A to BIA.

(b) Information regarding program andfinancial operations of a NEW Programadministered by a Public Law 102–477Tribe will be captured through theexisting Public Law 102–477 reportingsystem.

§ 287.170 What are the data collection andreporting requirements for a Tribe thatoperates both the NEW Program and aTribal TANF program?

Tribes operating both NEW and TribalTANF programs must adhere to theseparate reporting requirements for eachprogram. NEW Program reportingrequirements are specified in§§ 287.150–287.170.

[FR Doc. 00–3342 Filed 2–17–00; 8:45 am]BILLING CODE 4184–01–P


Department of Health and Human Services may call the Federal Dual Party Relay Service at...

Documents

Transcript of Department of Health and Human Services may call the Federal Dual Party Relay Service at...