[Federal Register Volume 63, Number 62 (Wednesday, April 1, 1998)]
[Rules and Regulations]
[Pages 15986-15992]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-8350]



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Part IV





Department of Labor





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Employment and Training Administration



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20 CFR Part 646



Indian and Native American Welfare-to-Work Grants Program; Final Rule

  Federal Register/Vol. 63, No. 62/Wednesday, April 1, 1998/Rules and 
Regulations  

[[Page 15986]]



DEPARTMENT OF LABOR

Employment and Training Administration

20 CFR Part 646

RIN 1205-AB16


Indian and Native American Welfare-To-Work Grants Program

AGENCY: Employment and Training Administration, Labor.

ACTION: Interim final rule.

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SUMMARY: The Employment and Training Administration (ETA) of the 
Department of Labor hereby publishes this Interim Final Rule to 
implement the provisions of the Indian and Native American Welfare-to-
Work Program (hereinafter referred to as ``INA WtW'') authorized under 
section 412(a)(3) of the Social Security Act (``the Act''), as amended 
by Public Law 104-193, the Personal Responsibility and Work 
Opportunities Reconciliation Act of 1996, and by title V, section 
5001(c) of Public Law 105-33, The Balanced Budget Act of 1997. The 
statute authorizes the Department of Labor to provide INA WtW grants to 
tribes for transitional employment assistance to move hard-to-employ 
welfare recipients with significant employment barriers into 
unsubsidized jobs offering long-term employment opportunities. These 
grants will provide many welfare recipients with the job placement 
services, transitional employment, and job retention and supportive 
services they need to make the successful progression into long-term 
unsubsidized employment and economic self-sufficiency.

DATES: This rule will be effective on April 1, 1998. However, affected 
parties do not have to comply with the information collection 
requirements (ICR) in Sec. 646.705 (reporting requirements for the INA 
WtW program) until DOL publishes in the Federal Register the Control 
Number(s) assigned by the Office of Management and Budget (OMB). 
Publication of the Control Number(s) notifies the public that OMB has 
approved this ICR under the Paperwork Reduction Act of 1995.
    Written or electronic comments are invited on this Interim Final 
Rule. All written or electronic comments submitted on or before June 1, 
1998, will be considered. Appropriate changes to the regulations will 
be made when the Final Rule is published which adopts this interim rule 
as final.

ADDRESSES: Written comments shall be submitted to the Assistant 
Secretary for Employment and Training, Employment and Training 
Administration, U.S. Department of Labor, Room N-4641, 200 Constitution 
Avenue NW., Washington, D.C. 20210, Attention: Anna W. Goddard, 
Director, Office of National Programs. Commenters wishing 
acknowledgment of receipt of their comments shall submit them by 
certified mail, return receipt requested. Commenters may transmit 
written comments of ten (10) or fewer pages by facsimile to (202) 219-
6338, and then must submit these comments in writing to the Assistant 
Secretary at the address cited above.
    Comments received will be available for public inspection and 
copying during normal business hours at the Office of National 
Programs, U.S. Department of Labor, 200 Constitution Avenue N.W., Room 
N-4641, Washington, D.C. 20210. Persons who need assistance to review 
the comments will be provided with appropriate aids such as readers or 
print magnifiers. To schedule an appointment, call (202) 219-5500 
(VOICE) or (202) 326-2577 (TDD).
    Copies of this Interim Final Rule are available on computer disk or 
in a large-type edition which may be obtained at the above address. 
They are also available at our web site at www.wdsc.org/dinap. Any 
comments on this Interim Final Rule may also be addressed to that web 
site.

FOR FURTHER INFORMATION CONTACT: Mr. Thomas M. Dowd, Chief, Division of 
Indian and Native American Programs, Office of National Programs, 
Employment and Training Administration, U.S. Department of Labor, Room 
N-4641, 200 Constitution Avenue N.W., Washington, D.C. 20210. 
Telephone: (202) 219-8502 ext 119(VOICE) or (202) 326-2577(TDD) (these 
are not toll-free numbers).

SUPPLEMENTARY INFORMATION:

(1) Background

    On August 5, 1997, the President signed the Balanced Budget Act of 
1997. This legislation amended certain Temporary Assistance to Needy 
Families (TANF) provisions of the Social Security Act and authorized 
the Secretary of Labor to provide Welfare-to-Work (WtW) grants to 
States, local communities, and Indian tribes for transitional 
employment assistance to move hard to employ TANF recipients into 
unsubsidized jobs and economic self-sufficiency.
    The transitional nature of the WtW program is indicated clearly by 
section 403(a)(5)(C)(vii) of the Act, which provides that grant funds 
not expended within 3 years after the date the funds are provided must 
be remitted to the Secretary of Labor. Pursuant to Secretary of Labor's 
Order No. 4-75, the Assistant Secretary for Employment and Training has 
been delegated responsibility to carry out WtW policies, programs, and 
activities for the Secretary of Labor.
    The regulatory text of this Interim Final Rule adheres closely to 
the pertinent INA WtW statutory language and was written in 
coordination with the existing regulatory provisions of section 401 of 
the Job Training Partnership Act (JTPA), the primary employment and 
training program operated by tribes and Alaska Native entities. The 
Chronology Section of the Preamble addresses the limited instances in 
which regulations implementing the INA WtW statute reflect policy 
decisions by ETA's Division of Indian and Native American Programs 
(DINAP), which will have day-to-day programmatic responsibility for the 
INA WtW Program. Interested parties who believe that more explanation 
of the regulatory text is needed are encouraged to submit their 
suggestions during the 60-day comment period.

(2) Chronology

    The Department's strategy for program implementation places as 
little additional administrative burden on the service providers and 
clients as possible. In order to do so in an effective manner, the 
Department consulted with individual tribal representatives to obtain 
their input concerning various aspects of the INA WtW program 
implementation process. Moreover, this rulemaking exercise was 
undertaken with certain assumptions and preferences in place. These 
assumptions and preferences are as follows:
    (1) The first and most important principle was one of simplicity--
make the rules and regulations as easy to read and understand as 
possible so that valuable staff time can be spent in providing client 
services;
    (2) Where possible, the Act has been cross-referenced rather than 
paraphrased--a full-text ``annotated version'' with actual Act language 
will be published later for reference and staff training purposes;
    (3) We decided to define only those elements such as ``poor work 
history'', ``poor reading and mathematics skills'', and ``substantial 
services'' which are undefined in the Act, and which must be further 
defined for proper program operation;
    (4) We also decided to keep details in these regulations to a 
minimum. We merely refer to DOL-implemented

[[Page 15987]]

policies and procedures in the most general of terms, or refer to 
future administrative issuances, such as for closeout;
    (5) In recognition of tribal self-determination and the government-
to-government relationship, the issues raised and the recommendations 
made by those individual tribal members attending a two-day meeting on 
August 27-28, 1997 in Washington, D.C. have been considered;
    (6) Realizing that there were relatively few tribes with approved 
TANF plans in August of 1997, it was agreed that INA WtW grant 
recipients will need to establish working relationships with State 
welfare agencies to get referrals and to obtain AFDC/TANF data for 
future funding formula allotments;
    (7) We have endeavored to make INA WtW implementation procedures as 
simple as possible. They conform to existing DOL/ETA grant processing 
practices to the maximum extent allowable by law; and
    (8) We have decided, given the precedents set under the JTPA 
program and the recognized difficulties facing tribes attempting to 
start-up and operate INA WtW programs, that it would be more efficient 
and effective to allow INA WtW grantees to spend up to twenty percent 
(20%) of their grant funds on administrative costs. Therefore, the 
Secretary has exercised the waiver authority provided under section 
412(a)(3)(C)(ii) to modify the fifteen percent (15%) administrative 
cost limit provided by section 404(b)(1) of the Act.
    In formulating these regulations, we have consistently applied the 
above-stated principles in consultation with our tribal partners.

(3) Characteristics Associated With Long-Term Welfare Dependence

    Section 403(a)(5)(C)(iii)(I) of the Act states that an individual 
must have characteristics associated with long-term welfare dependence, 
such as having dropped out of school, teenage pregnancy, or having a 
poor work history. We are interpreting ``associated with'' to include 
characteristics ``predictive of'' long-term welfare dependence. In 
order to facilitate coordination at the grantee level, we will not 
further define the characteristics associated with long-term welfare 
dependence. It is likely that the TANF assessment may identify the 
above-noted characteristics, and we do not want to require further 
assessment for the purposes of establishing eligibility where it is not 
needed. Moreover, these regulations interpret the statutory phrase 
``such as'' to mean that, in addition to the characteristics listed in 
the statute, the INA WtW grantee may designate other characteristics 
associated with, or predictive of, long-term welfare dependence, 
including having a disability. In order to provide the grantees with 
flexibility to design their INA WtW programs to support the goals of 
overall assistance for welfare recipients, we are not imposing any 
further restrictions in this area. However, INA WtW grantees are 
required to formulate their own definition of ``long-term welfare 
dependence'' and describe that definition to the Department in their FY 
1999 INA WtW plans.

(4) Funding Formula

    The work group which met in Washington in August, 1997, agreed that 
formula funding is desirable because it is the most objective method of 
funding allocation, and because formula-funded employment programs are 
eligible for inclusion in the consolidation demonstration authorized in 
Public Law 102-477. In FY 1998, two funding formulas will be used. The 
first formula, for the TANF and Native Employment Works (NEW) tribes, 
will be based on welfare caseload data; the second formula, for the 
``substantial services'' tribes, will be based on FY 1990 Census data.
    The work group recommended one FY 1999 funding formula, based on 
AFDC/TANF data, to allocate second-year funds to FY 1998 INA WtW 
grantees. As a result, the ``substantial services'' tribes receiving FY 
1998 INA WtW grants will be required to obtain State-negotiated AFDC/
TANF counts for their WtW service areas prior to the formula allocation 
of FY 1999 funds. In addition, tribes or consortia who qualify under 
the ``substantial services'' criteria for the first time in FY 1999 
will have their INA WtW grant allotments based on 1990 Census data, 
unless they submit State-negotiated AFDC/TANF counts with their grant 
applications.
    Whether funds are distributed using AFDC/TANF data or 1990 Census 
data, each tribe will receive a formula allocation that represents its 
share of the national total. For example, if a tribe has .0002315 
percent of the total Indian/Native American adults in poverty on 
reservations nationwide, then that tribe receives .0002315 percent of 
the total available resources for the funding period.

Regulatory Impact

    This Interim Final Rule, among other things, implements statutory 
requirements under section 412(a)(3) of the Social Security Act, as 
amended by title V of the Balanced Budget Act of 1997, Public Law 105-
33. While these regulations have been crafted to conform to statutory 
amendments to the Personal Responsibility and Work Opportunities 
Reconciliation Act (Public Law 104-193) and the additional requirements 
imposed by Public Law 105-33, the INA WtW program essentially will use 
the delivery system already in place for the TANF program and the NEW 
(formerly the Job Opportunities and Basic Skills Training, or ``JOBS'') 
program. It does not have the financial or other impact to make it a 
major rule and, therefore, the preparation of a regulatory impact 
analysis is not necessary. See Executive Order No. 12866, 58 FR 51735, 
October 4, 1993. However, the Department finds that this Interim Final 
Rule raises novel policy issues and thus constitutes a significant 
regulatory action which has been reviewed by the Office of Management 
and Budget for the purposes of Executive Order 12866.
    The Department of Labor has certified to the Chief Counsel for 
Advocacy, Small Business Administration, that, pursuant to the 
Regulatory Flexibility Act at 5 U.S.C. 605(b), this Interim Final Rule 
would not have a significant economic impact on a substantial number of 
small entities. No significant economic impact would be imposed on such 
entities by this Interim Final Rule.

Unfunded Mandates

    This Interim Final Rule has been reviewed in accordance with the 
Unfunded Mandates Reform Act of 1995 (UMRA) (2 U.S.C. 1501 et seq.) and 
Executive Order 12875. Section 202 of the UMRA requires that a covered 
agency prepare a budgetary impact statement before promulgating a rule 
which includes any Federal mandate which may result in the expenditure 
by State, local, and tribal governments, in the aggregate, or by the 
private sector, of $100 million or more in any one year.
    If a covered agency must prepare a budgetary impact statement, 
section 205 of the UMRA further requires that it select the most cost-
effective and least burdensome alternative that achieves the objectives 
of the rule and is consistent with the statutory requirements. In 
addition, section 203 of UMRA requires a plan for informing and 
advising any small government that may be significantly or uniquely 
impacted by the rule.
    ETA has determined that the INA WtW Interim Final Rule will not 
require the expenditure by State, local, and tribal governments, in the 
aggregate, or by the private sector, of more than $100

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million in any one year. Further, any expenditures made to obtain or 
operate grants would be voluntary. Accordingly, the Agency has not 
prepared a budgetary impact statement, specifically addressed the 
regulatory alternatives considered, or prepared a plan for informing 
and advising any significantly or uniquely impacted small government.

Effective Date and Absence of Notice and Comment

    The Employment and Training Administration has determined, pursuant 
to 5 U.S.C. 553(b)(3)(B), that the statutory mandate to promulgate 
regulations expeditiously constitutes good cause for waiving notice and 
comment proceedings. In addition, the Agency has determined, pursuant 
to 5 U.S.C. 553(d)(3), that the INA WtW statutory mandate provides good 
cause for waiving the customary requirement to delay the effective date 
of a final rule for 30 days following its publication. The short 
statutory duration of the INA WtW program underscores the importance of 
beginning the disbursement of INA WtW funds at the earliest possible 
date. Accordingly, the issuance of a proposed rule, which would delay 
the effective date of a final rule for 30 days, would be contrary to 
the public interest. This Interim Final Rule sets a comment period to 
elicit any concerns raised by the Rule. ETA has limited the comment 
period to 60 days so that input is received in time for the Agency to 
develop any revisions and promulgate a final rule while the INA WtW 
program remains in the early stages of operation.

Catalog of Federal Domestic Assistance Number

    This program is listed in the Catalog of Federal Domestic 
Assistance at No. 17.254, ``Indian and Native American Welfare-to-Work 
Grant Program''.

Paperwork Reduction Act

    This Interim Final Rule utilizes existing collection of information 
requirements imposed by the Personal Responsibility and Work 
Opportunity Reconciliation Act of 1996, Public Law 104-193, by the 
Temporary Assistance to Needy Families (TANF) program and by the Native 
Employment Works (NEW) (formerly the JOBS) program. The only new 
requirements being imposed on potential INA WtW grant recipients which 
are subject to the Paperwork Reduction Act involve the submission of an 
INA WtW plan and, for those tribal entities not operating a TANF or NEW 
program, the submission of a pre-application to determine their 
eligibility to receive INA WtW grant funds under the ``substantial 
services'' criteria. Sections 646.215, 646.300, 646.315, 646.325, 
646.700, 646.705, 646.710, 646.800, and 646.915 contain information 
collection requirements. As required by the Paperwork Reduction Act of 
1995, the Department has submitted a copy of these sections to OMB for 
its review [44 U.S.C. 3507(d)]. For those tribes approved to receive 
INA WtW grants, separate quarterly and annual reports will be required 
covering program participation and financial expenditures, 
respectively. This INA WtW reporting package has been submitted for OMB 
clearance.

List of Subjects in 20 CFR Part 646

    Grant programs, Native Americans, Labor, Employment programs, 
Welfare-to-Work programs.

Interim Final Rule

    For the reasons set forth in the Preamble, 20 CFR Chapter V is 
amended by adding part 646 to read as follows:

    Signed at Washington, DC this 26th day of March, 1998.
Raymond J. Uhalde,
Acting Assistant Secretary.

Alexis M. Herman,
Secretary of Labor.

PART 646--PROVISIONS GOVERNING THE INDIAN AND NATIVE AMERICAN 
WELFARE-TO-WORK GRANT PROGRAM

Subpart A--Introduction to Indian and Native American Welfare to 
Work Programs

Sec.
646.100  What is the purpose of the Indian and Native American 
Welfare-to-Work (INA WtW) Program?
646.105  What are the purposes of these regulations?
646.110  What are the administrative requirements for the INA WtW 
Program?
646.115  What are the definitions which apply uniquely to the INA 
WtW program?

Subpart B--Eligibility to Receive INA WtW Grants

646.200  What entities are eligible to receive INA WtW grants?
646.205  What entities are eligible to receive INA WtW grants in 
Alaska?
646.210  Can a consortium composed of tribes which do not operate 
TANF or NEW programs still receive an INA WtW grant?
646.215  How does a tribe document that it is currently providing 
``substantial services'' to public assistance recipients?
646.220  What criteria apply to TANF/NEW tribes regarding the 
provision of ``substantial services''?
646.225  If a tribe is awarded an INA WtW grant, is the tribe 
required to participate in an evaluation of the program?

Subpart C--Application for INA WtW Grants

646.300  How does my tribe apply for an INA WtW grant?
646.305  Can a consortium of Federally-recognized tribes apply for 
an INA WtW grant on behalf of consortium members approved to operate 
a TANF or NEW program?
646.310  Some of our consortium members operate their own TANF or 
NEW programs, and some do not. Can we still apply for an INA WtW 
grant as a consortium?
646.315  If our consortium members not operating TANF or NEW 
programs meet the ``substantial services'' criteria, do we then have 
to submit two separate INA WtW plans?
646.320  If we choose to operate a single INA WtW program for our 
``mixed consortium'' for FY 1998, must we submit a single plan to 
the Department for FY 1999?
646.325  What unique documentation is required of a tribal 
consortium?
646.330  If our tribe did not receive an INA WtW grant for FY 1998, 
can we still receive funding for FY 1999?

Subpart D--Participant Eligibility, Limits, and Allowable 
Activities

646.400  What TANF recipients are eligible for services under INA 
WtW grants?
646.405  What activities are allowable under the Welfare-to-Work 
program?
646.410  Are there any special rules governing the use of job 
vouchers?
646.415  What kind of ``job readiness'' services are allowable under 
the INA WtW Program?
646.420  What assistance can be provided under the ``supportive 
services'' category?
646.425  Are any education or training activities allowable under 
the INA WtW grant?
646.430  Are there any time limits on client participation under the 
INA WtW program?

Subpart E--Tribal Service Areas and Populations

646.500  We're a TANF/NEW tribe. What is my tribe's service area 
and/or population under an INA WtW grant?
646.505  My tribe (or consortium) must qualify for an INA WtW grant 
under the ``substantial services'' criteria. How will our service 
area be determined?
646.510  Are there any special service area provisions made for 
Indians residing in Oklahoma?

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Subpart F--Funding and Spending Requirements

646.600  How will the INA WtW grant funding allotments be 
determined?
646.605  What spending limitations are imposed on the INA WtW 
program?
646.610  What definition of ``administration'' is applicable to the 
INA WtW program?
646.615  How long does the tribe have to spend INA WtW funds?
646.620  Are there any other restrictions on the use of INA WtW 
funds?

Subpart G--Recordkeeping and Reporting Requirements

646.700  What are the recordkeeping requirements for the INA WtW 
program?
646.705  What are the reporting requirements for the INA WtW 
program?
646.710  Are tribes operating a TANF program required to report INA 
WtW activities under TANF as well?

Subpart H--Waivers and Performance Measures

646.800  Are statutory waivers allowable under the INA WtW program?
646.805  What are the performance measures tribes have to meet under 
the INA WtW program?

Subpart I--Miscellaneous Provisions and Requirements

646.900  May a tribe combine its INA WtW grant with other employment 
and training programs under Pub. L. 102-477, the Indian Employment, 
Training and Related Services Demonstration Act of 1992?
646.905  What are the other Federal laws which must be followed by 
INA WtW grantees?
646.910  What are a tribe's appeal rights under the INA WtW program?
646.915  What administrative requirements must be met when the INA 
WtW program ends?

    Authority: 42 U.S.C. 612(a)(3)(B)(iii), unless otherwise noted.

PART 646--PROVISIONS GOVERNING THE INDIAN AND NATIVE AMERICAN 
WELFARE-TO-WORK PROGRAM

Subpart A--Introduction to Indian and Native American Welfare to 
Work Programs


Sec. 646.100  What is the purpose of the Indian and Native American 
Welfare-to-Work (INA WtW) Program?

    The INA WtW Program, authorized by title V, section 5001(c) of the 
Balanced Budget Act of 1997, is a program to complement the Indian 
provisions of the Personal Responsibility and Work Opportunity 
Reconciliation Act of 1996 (PRWORA--commonly called the ``Welfare 
Reform Act'') [Pub. L. 104-193, 42 U.S.C. 601 et seq.] by providing 
additional funds to eligible federally-recognized Indian tribes to 
facilitate the transition of public assistance recipients from welfare 
dependency to self-sufficiency by helping recipients to obtain lasting 
unsubsidized employment. The INA WtW Program is authorized by title V, 
section 5001(c) of the Balanced Budget Act of 1997 (Pub. L. 105-33), 
which amended title IV-A of the Social Security Act by adding section 
412(a)(3) [42 U.S.C. 612(a)(3)].


Sec. 646.105  What are the purposes of these regulations?

    These regulations are designed to provide INA WtW program operators 
with the basic rules and guidelines needed to operate a Welfare-to-Work 
program which helps Native American public assistance recipients secure 
unsubsidized employment. Where applicable, these regulations also 
establish definitions and parameters not defined in the amended Social 
Security Act. These regulations cross-reference title V of the Balanced 
Budget Act of 1997, title IV of the amended Social Security Act (42 
U.S.C. 601 et seq.), and appropriate sections of the ``Welfare Reform 
Act''.


Sec. 646.110  What are the administrative requirements for the INA WtW 
Program?

    Tribes and tribal consortia who are participating in the INA WtW 
Program shall follow the common rule, Uniform Administrative 
Requirements for Grants and Cooperative Agreements to State and Local 
Governments, which is codified in DOL regulations at 29 CFR part 97. 
Alaska Native regional nonprofit corporations shall follow OMB Circular 
A-110, as codified by the Department at 29 CFR part 95. General 
principles of cost allowability may be found in OMB Circulars A-87 (for 
tribes) and A-122 (for nonprofits). The audit requirements of OMB 
Circular A-133 [issued in the Federal Register on June 30, 1997] shall 
apply to both tribes and nonprofits.


Sec. 646.115  What are the definitions which apply uniquely to the INA 
WtW program?

    The definition of ``substantial services'' is only applicable to 
Indian and Native American Welfare-to-Work programs (see Sec. 646.215 
of this part).

Subpart B--Eligibility to Receive INA WtW Grants


Sec. 646.200  What entities are eligible to receive INA WtW grants?

    The three categories of Federally-recognized Indian tribes or 
Alaska Native regional nonprofit corporations eligible to receive INA 
WtW funds, as described at section 412(a)(3)(B) of the amended Social 
Security Act, are those which: Operate a tribal TANF program; operate a 
NEW program; or operate an employment program funded through other 
sources under which substantial services are provided to recipients of 
assistance under a program funded under Part A of title IV of the 
Social Security Act. The term ``substantial services'' is defined at 
Sec. 646.215 of this part.


Sec. 646.205  What entities are eligible to receive INA WtW grants in 
Alaska?

    The twelve Alaska Native regional nonprofit corporations, along 
with the Metlakatla Indian Community of the Annette Islands Reserve, 
are the only entities in Alaska eligible to apply for INA WtW grants. 
These nonprofit corporations are listed in section 419(4)(B) of the 
amended Social Security Act [42 U.S.C. 619(4)(B)].


Sec. 646.210  Can a consortium composed of tribes which do not operate 
TANF or NEW programs still receive an INA WtW grant?

    Yes, although the consortium must collectively meet the 
``substantial services'' criteria outlined at Sec. 646.215 below. Refer 
to subpart C of this part for more information on consortium 
requirements.


Sec. 646.215  How does a tribe document that it is currently providing 
``substantial services'' to public assistance recipients?

    Tribes which currently operate employment programs funded through 
other sources, such as those under the Job Training Partnership Act 
(JTPA) or Employment Assistance (EA) under the Bureau of Indian Affairs 
(BIA), must provide verifiable documentation that: At least twenty 
percent (20%) of those served in such an employment program were public 
assistance recipients during the most recent program or fiscal year; 
and employment services have been provided to a minimum of fifty (50) 
public assistance recipients over the last two program or fiscal years.


Sec. 646.220  What criteria apply to TANF/NEW tribes regarding the 
provision of ``substantial services''?

    None. Tribes which operate TANF or NEW programs do not need to meet 
the criteria for providing ``substantial services'' to public 
assistance recipients.


Sec. 646.225  If a tribe is awarded an INA WtW grant, is the tribe 
required to participate in an evaluation of the program?

    Yes. The Act specifies that each INA WtW grantee ``must agree to 
negotiate in good faith with the Secretary of Health and Human Services 
with respect to the substance and funding of any evaluation * * * and 
to cooperate with the conduct of any such evaluation.'' [42 U.S.C. 
612(a)(3)(B)(iv)]

[[Page 15990]]

Subpart C--Application for INA WtW Grants


Sec. 646.300  How does my tribe apply for an INA WtW grant?

    Each eligible tribe must submit an INA WtW plan to the Department 
of Labor in accordance with the planning instructions issued by the 
Department of Labor. For those tribes with an approved tribal family 
assistance plan (TANF plan), the application for an INA WtW grant must 
take the form of an addendum to that TANF plan. Tribes already 
participating in the demonstration project under Public Law 102-477 [25 
U.S.C. 3401 et seq.], The Indian Employment, Training and Related 
Services Demonstration Act of 1992, should reference Sec. 646.900 of 
this part. Planning information is also available on the INA WtW web 
site at www.wdsc.org/dinap.


Sec. 646.305  Can a consortium of Federally-recognized tribes apply for 
an INA WtW grant on behalf of consortium member tribes approved to 
operate a TANF or NEW program?

    Yes. Consortium member tribes which operate approved TANF or NEW 
programs are by law eligible to apply for an INA WtW grant. Their 
consortium may apply for the INA WtW grant on their behalf, under the 
following circumstances: if an established consortium exists for one 
purpose, such as operating a JTPA grant, this established consortium 
may apply for an INA WtW grant on behalf of those member tribes 
authorized to receive NEW funding.


Sec. 646.310  Some of our consortium members operate their own TANF/NEW 
programs, and some do not. Can we still apply for an INA WtW grant as a 
consortium?

    Yes. For those consortium member tribes which DO NOT operate TANF 
or NEW programs, they must collectively meet the ``substantial 
services'' criteria.


Sec. 646.315  If our consortium members not operating TANF or NEW 
programs meet the ``substantial services'' criteria, do we then have to 
submit two separate INA WtW plans?

    Yes. Because of the different funding formulas involved for FY 
1998, such a ``mixed consortium'' (composed of tribes which operate 
TANF/NEW programs and those which do not) shall submit two plans for 
providing WtW services across the consortium, one plan for the TANF/NEW 
tribes and the other for those tribes eligible under the ``substantial 
services'' criteria. However, once both plans have been funded, the 
consortium may administer one program across the consortium.


Sec. 646.320  If we choose to operate a single INA WtW program for our 
``mixed consortium'' for FY 1998, must we submit a single plan to the 
Department for FY 1999?

    Yes. All FY 1998 INA WtW grantees must submit AFDC/TANF counts to 
the Department so that a single funding formula may be utilized for FY 
1999.


Sec. 646.325  What unique documentation is required of a tribal 
consortium?

    Consortium tribes must submit a legally-binding consortium 
agreement signed by all the tribes in the consortium with the grant 
application.


Sec. 646.330  If our tribe did not receive an INA WtW grant for FY 
1998, can we still receive funding for FY 1999?

    Yes, provided the tribe or consortium is eligible under the 
criteria cited at Sec. 646.200 of this part. Tribes or consortia having 
to meet the ``substantial services'' criteria may use verifiable data 
from any employment program operated by the tribe, as was the case for 
FY 1998. Refer to section 646.215 for these criteria. Tribes or 
consortia are encouraged to submit State-negotiated AFDC/TANF counts 
for their area prior to applying for FY 1999 INA WtW funds.

Subpart D--Participant Eligibility, Limits, and Allowable 
Activities


Sec. 646.400  What TANF recipients are eligible for services under INA 
WtW grants?

    Individual TANF clients must meet the conditions outlined at 
section 403(a)(5)(C), clauses (ii), or (iii), or (iv) of the amended 
Social Security Act. For INA WtW purposes, an individual determined to 
have low skills in reading or mathematics must be proficient at the 8.9 
grade level or below. An individual determined to have a poor work 
history must have worked no more than three (3) consecutive months in 
the past twelve (12) calendar months.


Sec. 646.405  What activities are allowable under the Welfare-to-Work 
program?

    All allowable activities are described at section 403(a)(5)(C)(i) 
of the Social Security Act. INA WtW funds shall be used to ``move 
individuals into and keep individuals in lasting unsubsidized 
employment by means of any of the following:''
    (a) The conduct and administration of community service or work 
experience programs;
    (b) Job creation through public or private sector employment wage 
subsidies;
    (c) On-the-job training;
    (d) Contracts with public or private providers of readiness, 
placement, and post-employment services;
    (e) Job vouchers for placement, readiness, and post-employment 
services; and
    (f) Job retention or support services if such services are not 
otherwise available.


Sec. 646.410  Are there any special rules governing the use of job 
vouchers?

    In addition to the requirements at 29 CFR 97.36(i) and 29 CFR 
95.48, contracts or vouchers for job placement services supported by 
INA WtW funds must include a provision to require that at least one-
half (\1/2\) of the payment occur after an eligible individual placed 
into the workforce has been in the workforce for six (6) months. This 
provision applies only to placement in unsubsidized jobs.


Sec. 646.415  What kind of ``job readiness'' services are allowable 
under the INA WtW Program?

    Job readiness services include activities necessary to prepare an 
individual for employment. Such activities include, but are not limited 
to: Intake; eligibility determination; testing; assessment; orientation 
to the world of work; job search skills; job search assistance; job 
clubs; and employment counseling.


Sec. 646.420  What assistance can be provided under the ``supportive 
services'' category?

    The provision of supportive services must be directly related to 
retaining employment, and not otherwise available to the client. 
Supportive services include, but are not limited to: Day care; 
transportation; work or protective clothing or equipment; tools; 
medical devices such as eyeglasses or braces; food; shelter; special 
services or equipment for the disabled; and financial counseling. 
Supportive services may be provided in-kind or through cash assistance. 
In cases where severe substance abuse or chemical dependency is a 
significant barrier to employment, substance abuse treatment may be 
undertaken as a ``supportive services'' activity, to the extent that 
such services do not constitute medical services.


Sec. 646.425  Are any education or training activities allowable under 
the INA WtW grant?

    Although the Act does not authorize the use of grant funds for 
independent or stand-alone training activities, the Department 
recognizes that basic education and skills development as part of an 
employment experience will be needed by some recipients in order to 
achieve the ultimate objective of INA WtW assistance, which is self-

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sufficiency. Therefore, basic education and vocational skills training 
where needed, based on an assessment of the recipient's needs, may be 
provided as a post-employment service where the recipient is employed 
in either a subsidized or unsubsidized job.


Sec. 646.430  Are there any time limits on client participation under 
the INA WtW program?

    There are no specific participant time limitations for the INA WtW 
program. However, grantees should keep in mind the purpose of WtW, 
which is to provide transitional assistance to hard-to-employ welfare 
recipients to help them secure lasting, unsubsidized employment.

Subpart E--Tribal Service Areas and Populations


Sec. 646.500  We're a TANF/NEW tribe. What is my tribe's service area 
and/or population under an INA WtW grant?

    NEW tribes will have the same service area and service population 
as they have under the NEW program. TANF tribes may elect to serve only 
their own tribal members in their service area, in accordance with 
their TANF funding.


Sec. 646.505  My tribe (or consortium) must qualify for an INA WtW 
grant under the ``substantial services'' criteria. How will our service 
area be determined?

    Tribes qualifying for the INA WtW program under the ``substantial 
services'' criteria (i.e., not operating their own TANF or NEW 
programs) may use the service area(s) established for the tribe under 
the JTPA or BIA Employment Assistance programs. INA WtW grantees funded 
under the ``substantial services'' criteria shall ensure that all AFDC/
TANF recipients within the service area for which the grantee was 
designated are afforded an equitable opportunity for INA WtW services, 
because their funding is predicated on 1990 Census data for all Native 
Americans residing in their service area, regardless of tribal 
affiliation. While there is no individual entitlement to INA WtW 
services, all eligible AFDC/TANF recipients shall be afforded equal 
consideration in the decision to provide INA WtW services. Service 
areas differing from those outlined above may be negotiated with the 
Department of Labor.


Sec. 646.510  Are there any special service area provisions made for 
Indians residing in Oklahoma?

    Yes. With the exception of the Osage reservation in Oklahoma, 
service areas will be determined by reference to the ``tribal 
jurisdiction statistical areas'' (TJSAs). TJSAs are defined by the 
Bureau of the Census as being areas, delineated by Federally-recognized 
tribes in Oklahoma without a reservation, for which the Census Bureau 
tabulates data. TJSAs represent areas generally containing the American 
Indian population over which one or more tribal governments have 
jurisdiction. Service areas for Oklahoma Indian residents differing 
from those outlined under the TJSAs may also be negotiated with the 
Department of Labor.

Subpart F--Funding and Spending Requirements


Sec. 646.600  How will the INA WtW grant funding allotments be 
determined?

    Funds will be allotted to INA WtW grantees on a formula basis. To 
determine the FY 1998 allotments, poverty data from the 1990 Decennial 
Census will be used to determine the ``split'' between TANF/NEW tribes 
and all other tribes. The percentage of the annual appropriation 
reserved for TANF and NEW tribes will then be allocated using 1995 AFDC 
counts previously published by DHHS. For FY 1999, a single funding 
formula will be employed utilizing AFDC/TANF counts.


Sec. 646.605  What spending limitations are imposed on the INA WtW 
program?

    No less than seventy percent (70%) of INA WtW funds must be spent 
directly on assistance for the benefit of TANF recipients who meet the 
eligibility requirements of section 403(a)(5)(C)(ii) of the Social 
Security Act. Up to thirty percent (30%) of INA WtW funds can be spent 
to provide assistance to individuals who meet the eligibility 
requirements of section 403(a)(5)(C)(iii) of the Social Security Act. 
No more than twenty percent (20%) of INA WtW grant funds may be spent 
for administration. Refer to Sec. 646.400 for the definitions of ``low 
skills in reading or mathematics'' and ``poor work history''.


Sec. 646.610  What definition of ``administration'' is applicable to 
the INA WtW program?

    Administrative costs consist of all direct and indirect costs 
associated with the management of the grantee's program. These costs 
include but are not limited to: the salaries and fringe benefits of 
personnel engaged in executive, fiscal, data collection, personnel, 
legal, audit, procurement, data processing, communications, 
maintenance, and similar functions; and related materials, supplies, 
equipment, office space costs, and staff training. Also included are 
salaries and fringe benefits of direct program administrative positions 
such as supervisors, program analysts, labor market analysts, and 
project directors. Additionally, all costs of clerical personnel, 
materials, supplies, equipment, space, utilities, and travel which are 
identifiable with these program administration positions are charged to 
administration.


Sec. 646.615  How long does the tribe have to spend INA WtW funds?

    INA WtW grantees must expend all allotted funds within three years 
after the effective date of each fiscal year grant agreement signed by 
the Grant Officer, pursuant to section 403(a)(5)(C)(vii) of the Social 
Security Act. Unexpended funds must be returned to the Department in 
accordance with the closeout provisions at 29 CFR parts 97 or 95, as 
applicable.


Sec. 646.620  Are there any other restrictions on the use of INA WtW 
funds?

    Yes. INA WtW funds may not be used for any other fund matching 
requirements under this Act or other Federal law, pursuant to section 
403(a)(5)(C)(vi) of the Social Security Act.

Subpart G--Recordkeeping and Reporting Requirements


Sec. 646.700  What are the recordkeeping requirements for the INA WtW 
program?

    Tribes must meet the recordkeeping and retention requirements of 
the Department's regulations at 29 CFR 97.42. Alaska Native regional 
nonprofit corporations must follow the requirements of 29 CFR 95.53. 
Tribes receiving INA WtW grants may follow the recordkeeping 
requirements of section 411 of the Social Security Act, as applicable.


Sec. 646.705  What are the reporting requirements for the INA WtW 
program?

    Grantees are required to submit both quarterly and annual reports 
covering program activity and financial expenditures. Two forms have 
been approved by OMB for INA WtW reporting. A modified version of the 
Standard Form (SF) 269A (ETA 9069-1) shall be used to report financial 
expenditures. A Participation and Characteristics Report (PCR) (ETA 
9069) shall be used to report program activity and participant 
characteristics.


Sec. 646.710  Are tribes operating a TANF program required to report 
INA WtW activities under TANF as well?

    Yes. Pursuant to the requirements of section 411 of the Social 
Security Act, INA WtW grantees who are TANF tribes shall report INA WtW 
activities under the TANF program, in addition to

[[Page 15992]]

submitting the INA WtW reports cited above. However, tribes operating a 
NEW program and an INA WtW program, but not their own TANF program, are 
exempt from the reporting requirements described in section 411 of the 
Social Security Act.

Subpart H--Waivers and Performance Standards


Sec. 646.800  Are statutory waivers allowable under the INA WtW 
program?

    Yes. The Secretary of Labor may waive or modify any provision of 
section 403(a)(5)(C) [except for clause (vii) thereof, related to the 
deadline for expenditure of funds] of the Social Security Act, which 
are otherwise applicable to INA WtW grantees. Accordingly, the 
Secretary may waive the statutory requirements relating to client 
eligibility for services, allowable activities, and spending limits. 
Any waiver(s) requested must demonstrate how the waiver, if granted, 
will increase the efficiency or effectiveness of the program. Waivers 
may be requested at any time, and shall be effective as of the date 
indicated in the approval letter. Grantees must specify and support 
each provision to be waived.


Sec. 646.805  What are the performance measures tribes have to meet 
under the INA WtW program?

    The Secretary has determined that the most important measures of 
the tribe's performance are the number of participants entering 
unsubsidized employment, the duration of that employment, and the 
increase in their earnings. Grant applicants will be required to submit 
planned outcome figures with their INA WtW plans. These planned 
outcomes will be compared against reported outcomes in the tribe's 
annual report. In addition, INA WtW grantees must negotiate in good 
faith with the Secretary of DHHS with respect to the substance and 
funding of any evaluation under section 413(j) of the Social Security 
Act, and must cooperate with the conduct of any such evaluation.

Subpart I--Miscellaneous Provisions and Requirements


Sec. 646.900  May a tribe combine its INA WtW grant with other 
employment and training programs under Pub. L. 102-477, the Indian 
Employment, Training and Related Services Demonstration Act of 1992?

    Yes. All grants awarded under the INA WtW program are formula-
funded, so any INA WtW grant funds awarded to a tribe can therefore be 
included in a consolidated plan authorized by Public Law 102-477. For 
those tribes already participating in the ``477'' demonstration effort, 
application for an INA WtW grant will take the form of a ``477 plan'' 
modification submitted to the lead agency responsible for the ``477'' 
program.


Sec. 646.905  What are the other Federal laws which must be followed by 
INA WtW grantees?

    All otherwise applicable Federal statutes, including those dealing 
with equal employment opportunity, workplace safety, employment 
standards, treatment of individuals with disabilities, age 
discrimination, and civil rights, must be followed by all INA WtW fund 
recipients.


Sec. 646.910  What are a tribe's appeal rights under the INA WtW 
program?

    The administrative procedures in proceedings initiated by grantees 
funded under section 401 of the Job Training Partnership Act, as 
codified at 20 CFR part 636, shall apply to appeals of agency action by 
INA WtW grantees. These appeal procedures include the following 
provisions:
    (a) Within twenty-one (21) days of the receipt of a denial of a 
request for a statutory waiver under Sec. 646.800 of this part, or 
within twenty-one (21) days of receipt of a final determination 
imposing a sanction or corrective action issued pursuant to 20 CFR 
636.8, an INA WtW grantee whose request for a statutory waiver has been 
denied, or who seeks review of a Grant Officer's Final Determination, 
may request a hearing before the Department's Office of Administrative 
Law Judges pursuant to 20 CFR 636.10.
    (b) The decision of an Administrative Law Judge (ALJ) shall be 
final unless, within twenty (20) days of the decision, a party 
dissatisfied with that ALJ decision has filed a petition for review 
with the Administrative Review Board (ARB), established pursuant to the 
provisions of Secretary's Order No. 2-96, published at 61 FR 19977 (May 
3, 1996). This petition shall specifically identify the procedure, 
fact, law, and/or policy to which exception is taken. Those provisions 
of the determination not specified for review, or the entire 
determination when no hearing has been requested, shall be considered 
resolved and not subject to further review. A copy of the petition for 
review must be sent to the opposing party at that time. Thereafter, the 
decision of the ALJ shall constitute final agency action unless the 
ARB, within thirty (30) days of the filing of the petition for review, 
notifies the parties that the case has been accepted for review. Any 
case accepted by the ARB shall be decided within 120 days of such 
acceptance. If no decision is reached in that time, then the decision 
of the ALJ shall constitute final Departmental action.


Sec. 646.915  What administrative requirements must be met when the INA 
WtW program ends?

    In accordance with the Department's regulations at 29 CFR 97.50 for 
tribes and 29 CFR 95.71 for nonprofits, all expiring grants will be 
closed out. This means that all funds drawn down under the INA WtW 
grant must be accounted for as allowable expenditures or returned to 
the Department. The Department will issue appropriate closeout forms 
and instructions to all INA WtW grantees after the program ends.

[FR Doc. 98-8350 Filed 3-31-98; 8:45 am]
BILLING CODE 4510-30-P