[Federal Register Volume 69, Number 61 (Tuesday, March 30, 2004)]
[Rules and Regulations]
[Pages 16638-16682]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-6457]



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Part II





Department of Health and Human Services





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Administration for Children and Families



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45 CFR Parts 286, 302, 309, and 310



Tribal Child Support Enforcement Programs; Final Rule

  Federal Register / Vol. 69, No. 61 / Tuesday, March 30, 2004 / Rules 
and Regulations  

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DEPARTMENT OF HEALTH AND HUMAN SERVICES

Administration for Children and Families

45 CFR Parts 286, 302, 309 and 310

RIN 0970-AB73


Tribal Child Support Enforcement Programs

AGENCY: Office of Child Support Enforcement (OCSE), Administration for 
Children and Families (ACF), Department of Health and Human Services 
(HHS).

ACTION: Final rule.

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SUMMARY: ACF is issuing final regulations to implement direct funding 
to Indian Tribes and Tribal organizations under section 455(f) of the 
Social Security Act (the Act). Section 455(f) of the Act authorizes 
direct funding of Tribal Child Support Enforcement (IV-D) programs 
meeting requirements contained in the statute and established by the 
Secretary of HHS by regulation. These regulations address these 
requirements and related provisions, and provide guidance to Tribes and 
Tribal organizations on how to apply for and, upon approval, receive 
direct funding for the operation of Tribal IV-D programs.

DATES: This rule is effective March 30, 2004. For Tribes and Tribal 
organizations not operating a Tribal IV-D program under 45 CFR part 
310, these regulations are applicable March 30, 2004. For Tribes 
operating a Tribal IV-D program under the Interim Final Rule, 45 CFR 
part 310 will apply until no later than October 1, 2004. Tribes 
operating under 45 CFR part 310 must comply with these final 
regulations (45 CFR part 309) no later than October 1, 2004.

FOR FURTHER INFORMATION CONTACT: Paige Biava, Policy Specialist, OCSE 
Division of Policy, (202) 401-5635.
    Deaf and hearing-impaired individuals may call the Federal Dual 
Party Relay Service at 1-800-877-8339 from Monday through Friday 
between the hours of 8 a.m. and 7 p.m., Eastern Time.

SUPPLEMENTARY INFORMATION: 

Statutory Authority

    This final regulation implements section 455(f) of the Act, as 
added by the Personal Responsibility and Work Opportunity 
Reconciliation Act of 1996 (PRWORA) and amended by section 5546 of the 
Balanced Budget Act of 1997 (Pub. L. 105-33). This final regulation is 
also issued under the authority granted to the Secretary of HHS 
(Secretary) by section 1102 of the Act, 42 U.S.C. 1302. Section 1102 of 
the Act authorizes the Secretary to publish regulations that may be 
necessary for the efficient administration of the functions for which 
the Secretary is responsible under the Act.
    Section 455(f) of the Act, as amended, reads as follows: ``The 
Secretary may make direct payments under this part to an Indian Tribe 
or Tribal organization that demonstrates to the satisfaction of the 
Secretary that it has the capacity to operate a child support 
enforcement program meeting the objectives of this part, including 
establishment of paternity, establishment, modification, and 
enforcement of support orders, and location of absent parents. The 
Secretary shall promulgate regulations establishing the requirements 
which must be met by an Indian Tribe or Tribal organization to be 
eligible for a grant under this subsection.''

Scope of This Rulemaking

    On August 21, 2000, a Notice of Proposed Rulemaking (NPRM) and 
Interim Final Rule were published (65 FR 50800 and 65 FR 50786, 
respectively). The NPRM set forth the proposed rules for direct funding 
to Tribal IV-D agencies. The rulemaking process is ordinarily a lengthy 
process. A number of Tribes expressed concern that efforts they had 
under way would be unduly delayed or disrupted if the regulatory 
process had to run its ordinary course before funds could be made 
available under section 455(f). The Interim Final Rule allowed Tribes 
and Tribal organizations currently operating comprehensive Tribal IV-D 
programs comprising the five mandatory elements listed in section 
455(f) and meeting the requirements specified in the interim rule to 
apply for, and if approved, receive direct funding to operate a Tribal 
IV-D program.
    This rulemaking is intended to establish the minimum requirements 
that must be satisfied by an Indian Tribe or Tribal organization to be 
eligible for direct funding under title IV-D of the Social Security 
Act. The final regulation establishes application procedures, child 
support enforcement plan requirements, funding provisions, and 
accountability and reporting requirements. OCSE is planning a series of 
conferences across the country to explain, discuss, and respond to 
questions on the final regulation. Additional information about these 
conferences will be forthcoming.
    The national Child Support Enforcement Program was initially 
established in 1975 under title IV-D of the Act as a joint Federal/
State partnership. The goal of the Child Support Enforcement Program 
(also known as the title IV-D program) is to ensure that all parents 
financially support their children. The IV-D program locates 
noncustodial parents, establishes paternity, establishes and enforces 
support orders, and collects child support payments from parents who 
are legally obligated to pay.
    We believe the promulgation of these regulations is not only 
consistent with the commitment of the Department to the government-to-
government relationship with Indian Tribes, but also with a productive 
partnership of the Office of Child Support Enforcement in all dealings 
with Tribes.

Tribal Child Support Enforcement

    Prior to enactment of PRWORA, title IV-D of the Act placed 
authority to administer the delivery of IV-D services solely with the 
States. However, within much of Tribal territory, the authority of 
State and local governments is limited or non-existent. The 
Constitution, numerous court decisions, and Federal law clearly reserve 
to Indian Tribes important powers of self-government, including the 
authority to make and enforce laws, to adjudicate civil and criminal 
disputes including domestic relations cases, to tax, and to license. 
Consequently, States have been limited in their ability to provide IV-D 
services on Tribal lands and to establish paternity and establish and 
enforce child support orders and Indian families have had difficulty 
getting IV-D services from State IV-D programs. Some child support 
enforcement services have been provided through cooperative agreements 
between Tribes and States and have helped bring child support services 
to some Indian and Alaska Native families.
    Prior to enactment of PRWORA, Federal funding under title IV-D of 
the Act was limited to funding State child support enforcement programs 
and there was no direct Federal funding to Tribes for child support 
enforcement activities. Federal funding was only available indirectly 
to Tribes through States for eligible expenditures of Tribes pursuant 
to cooperative agreements with States under which the State delegated 
functions of the IV-D program to the Tribal entity. The Tribal entity 
was required to comply with all aspects of title IV-D of the Act 
applicable to the function or functions delegated to the Tribe. Only 
under these circumstances was Federal reimbursement under title IV-D 
available to the State for costs incurred by the Tribal entity for 
performing IV-D functions.

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    For the first time in the history of the title IV-D program, PRWORA 
authorized direct funding of Tribes and Tribal organizations for 
operating child support enforcement programs. The Department recognizes 
the unique relationship between the Federal government and Federally-
recognized Indian Tribes and acknowledges this special government-to-
government relationship in the implementation of the Tribal provisions 
of PRWORA. The direct Federal funding provisions provide Tribes with an 
opportunity to administer their own IV-D programs to meet the needs of 
children and their families.

Principles Governing Regulatory Development

    Essential to the Federal-State-Tribal effort to ensure that 
noncustodial parents support their children is coordination and 
partnership, especially in the processing of inter-jurisdictional 
cases. Therefore, we believe that all IV-D programs must be 
administered under a basic framework to ensure that the objectives of 
title IV-D are successfully implemented. This common title IV-D 
framework does not mean that Indian Tribes are subject to the same 
regulations as States are. However, this regulation sets forth the 
minimum core requirements that must be met in order for a Tribe or 
Tribal organization to receive direct funding for IV-D programs.

Regulatory Flexibility Analysis

    The Secretary certifies, under 5 U.S.C. 605(b), the Regulatory 
Flexibility Act (Pub. L. 96-354), that these regulations will not 
result in a significant impact on a substantial number of small 
entities because the primary impact of these regulations is on Tribal 
governments, not considered small entities under the Act.

Executive Order 12866

    Executive Order 12866 requires that regulations be drafted to 
ensure that they are consistent with the priorities and principles set 
forth in the Executive Order. The Department has determined that this 
rule is consistent with these priorities and principles. The 
regulations are required by PRWORA and represent the requirements 
governing direct funding to Tribal IV-D agencies that demonstrate the 
capacity to operate a IV-D program, including establishment of 
paternity, establishment, modification and enforcement of support 
orders, and location of noncustodial parents.
    The Executive Order encourages agencies, as appropriate, to provide 
the public with meaningful participation in the regulatory process. ACF 
consulted with Tribes and Tribal organizations and their 
representatives to obtain their views prior to the publication of this 
final rule. Consultations included a series of six Nation-to-Nation 
meetings held across the county. In addition, a toll free ``800'' 
number was created to allow for additional comments and input from 
Tribes and Tribal organizations and more in-depth individual 
consultations also occurred.
    This rule is considered a ``significant regulatory action'' under 
3(f) of the Executive Order, and therefore has been reviewed by the 
Office of Management and Budget.

Executive Order 13175

    Executive Order 13175 (65 FR 6724, November 6, 2000) requires us to 
develop an accountable process to ensure ``meaningful and timely input 
by Tribal officials in the development of regulatory policies that have 
Tribal implications.'' The purpose of consultation is to strengthen the 
United States government-to-government relationship with Indian Tribes 
and to reduce the imposition of unfunded mandates upon Indian Tribes. 
ACF consulted with Tribes and Tribal organizations and their 
representatives to obtain their views prior to the publication of this 
final rule. Consultations included a series of six Nation-to-Nation 
meetings in Albuquerque, New Mexico; Portland, Oregon; Nashville, 
Tennessee; Fairbanks, Alaska; Washington, DC; and Prior Lake, Minnesota 
on the Shakopee Indian Reservation. Each of the consultations lasted 
for two and a half days and further follow up was conducted on an 
individual level. In addition, a toll free ``800'' number was created 
to allow for additional comments and input by Tribes and Tribal 
organizations. The consultations were successful in elicting a wide 
range of questions, issues, and suggestions.

Unfunded Mandates

    Section 202 of the Unfunded Mandates Reform Act of 1995, Pub. L. 
104-4, (Unfunded Mandates Act) requires that a covered agency prepare a 
budgetary impact statement before promulgating a rule that includes a 
Federal mandate that may result in the expenditure by State, local and 
Tribal governments, in the aggregate, or by the private sector, of $100 
million or more in any one year. If a covered agency must prepare a 
budgetary impact statement, section 205 further requires that it select 
the most cost-effective and least burdensome alternative that achieves 
the objectives of the rules and is consistent with the statutory 
requirements. In addition, section 203 requires a plan for informing 
and advising any small government that may be significantly or uniquely 
impacted by the rule.
    We have determined that the rule is not an economically significant 
rule and will not result in the expenditure by State, local, and Tribal 
governments, in the aggregate, or by the private sector, of more than 
$100 million in any one year. The following are estimated Federal 
annual expenditures under the Tribal IV-D Program: FY 2004--$18.0 
million; FY 2005--$38.0 million; FY 2006--$53.0 million; FY2007--$57.4 
million. Accordingly, we have not prepared a budgetary impact 
statement, specifically addressed the regulatory alternatives 
considered, or prepared a plan for informing and advising any 
significantly or uniquely impacted small government.

Congressional Review

    This rule is not a major rule as defined in 5 U.S.C. Chapter 8.

Assessment of Federal Regulations and Policies on Families

    Section 654 of the Treasury and General Government Appropriations 
Act of 1999 requires Federal agencies to determine whether a policy or 
regulation may affect family well-being. If the agency's conclusion is 
affirmative, then the agency must prepare an impact assessment 
addressing criteria specified in the law. We have determined that this 
regulation may affect family well-being as defined in section 654 of 
the law and certify that we have made the required impact assessment. 
The purpose of the Tribal Child Support Enforcement Program is to 
strengthen the economic and social stability of families. This rule is 
responsive to the needs of Tribes and Tribal organizations and provides 
them the opportunity to design programs that serve this purpose. The 
rule will have a positive effect on family well-being. Implementation 
of Tribal IV-D programs will result in increased child support 
enforcement services, including increased child support payments, for 
Tribal service populations. By helping to ensure that parents support 
their children, the rule will strengthen personal responsibility and 
increase disposable family income.

Executive Order 13132

    Executive Order 13132 on Federalism applies to policies that have 
federalism implications, defined as ``regulations, legislative comments 
or proposed legislation, and other policy statements or actions that 
have substantial direct

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effects on the States, on the relationship between the national 
government and the States, or on the distributions of power and 
responsibilities among the various levels of government.'' This rule 
does not have federalism implications for State or local governments as 
defined in the Executive Order.

Paperwork Reduction Act of 1995

    This final rule contains reporting requirements as proposed at 45 
CFR part 309. As required by the Paperwork Reduction Act of 1995 (44 
U.S.C. 3507(d)), the Administration for Children and Families submitted 
the requirements to the Office of Management and Budget (OMB) for its 
review.
    Part 309 contains a regulatory requirement that, in order to 
receive funding for an independent Tribal IV-D program, a Tribe or 
Tribal organization must submit an application containing standard 
forms 424 and 424A and a plan describing how the Tribe or Tribal 
organization meets or plans to meet the objectives of section 455(f) of 
the Act, including establishing paternity, establishing, modifying, and 
enforcing support orders, and locating noncustodial parents. Tribes and 
Tribal organizations must respond if they wish to operate a Federally 
funded program. In addition, any Tribe or Tribal organization 
participating in the program would be required to submit standard form 
269A and form OCSE 34A and to submit statistical and narrative reports 
regarding its Tribal IV-D program. The potential respondents to these 
information collection requirements are approximately 10 Federally 
recognized Tribes, and Tribal organizations, during Year 1; 65 
additional Federally recognized Tribes and Tribal organizations during 
Year 2; and 75 additional Federally recognized Tribes and Tribal 
organizations during Year 3; for a three year total of 150 grantees. 
This information collection requirement will impose the estimated total 
annual burden on the Tribes and Tribal organizations described in the 
table below:

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                                            Number of       Responses per     Average burden      Total annual
        Information collection             respondents       respondent        per response          burden
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                                                     Year 1
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SF 424................................                10                 1                .75               7.5
SF 424A...............................                10                 1               3                 30
SF 269A...............................                10                 5               2                100
45 CFR 309--Plan......................                10                 1             480              4,800
Form OCSE 34A.........................                10                 4               8                320
Statistical Reporting.................                10                 1              24                240
                                       -------------------
    Total.............................  ................  ................  .................           5,497.5
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                                                     Year 2
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SF 424................................                75                 1                .75              56.25
SF 424A...............................                75                 1               3                225
SF 269A...............................                75                 5               2                750
45 CFR 309--Plan......................                65                 1             480             31,200
Form OCSE 34A.........................                75                 4               8              2,400
Statistical Reporting.................                75                 1              24              1,800
                                       -------------------
    Total.............................  ................  ................  .................          36,431.25
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                                                     Year 3
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SF 424................................               150                 1                .75             112.5
SF 424A...............................               150                 1               3                450
SF 269A...............................               150                 5               2              1,500
45 CFR 309--Plan......................                75                 1             480             36,000
Form OCSE 34A.........................               150                 4               8              4,800
Statistical Reporting.................               150                 1              24              3,600
                                       -------------------
    Total.............................  ................  ................  .................          46,462.5
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    Total Burden for 3 Years: 88,391.25.
    Total Annual Burden Averaged Over 3 Years: 29,463.75 per year.
    The information collection requirements were approved by OMB under 
OMB number 0970-0218.

Summary Description of Regulatory Provisions

    The following is a summary of the regulatory provisions included in 
this final rule. The Notice of Proposed Rulemaking (NPRM) and Interim 
Final Rule for Comprehensive Tribal Child Support Enforcement Programs 
were published in the Federal Register on August 21, 2000 (65 FR 
50786). The NPRM contained part 309, subparts A through F, and the 
Interim Final Rule contained part 310, subparts A through G. Subparts A 
through F were essentially the same in part 309 and part 310, with one 
exception. Part 309 included proposed provisions both for Tribes and 
Tribal organizations that already are able to operate comprehensive IV-
D programs, and for Tribes and Tribal organizations that do not already 
operate comprehensive IV-D programs and need program development 
funding for start-up IV-D programs. Because the Interim Final Rule, 
part 310, applied only to Tribes and Tribal organizations that already 
operate comprehensive IV-D programs, it did not include provisions for 
program development funding for start-up IV-D programs. Subpart G of 
the part 310 rule contained additional specific requirements for 
interim funding of operational comprehensive Tribal IV-D programs. On 
the effective date of these regulations, part 310 will become time-
limited. For Tribes operating a Tribal IV-D program under the Interim 
Final

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Rule, 45 CFR part 310 will be applicable to grants covering the period 
up to the first day of the quarter beginning 6 months after the date of 
publication of the final regulations for 45 CFR part 309. Tribes 
operating under 45 CFR part 310 must make changes to their current 
program to comply with this final rule not later than the first day of 
the quarter beginning 6 months after the date of publication of the 
final rule in order to receive continued IV-D funding.
    Since issuance of the proposed rule, we have also made changes to 
Sections 286 and 302. Part 286 was modified to comply with the 
distribution requirements found in part 309 of the rule. Changes were 
made to part 302 to include cooperation with Tribal IV-D agencies as a 
requirement for State IV-D agencies.

45 CFR Chapter II

Tribal TANF Provisions, Section 286, Subpart C--Tribal TANF Plan 
Content and Processing

    Section 286.155 sets out the eligibility provisions for Tribal TANF 
in relationship to assignment of child support. This section currently 
requires the Tribal TANF agency to have procedures for ensuring that 
child support collections in excess of the amount of Tribal TANF 
received by the family must be paid to the family. The section was 
modified to eliminate references to payments to the family because 
distribution of these collections is now addressed in Sec.  309.115 of 
this rule.

45 CFR Chapter III

Section 302, State Plan Requirements

    Section 302.36 details the State plan requirement for States to 
cooperate with other states in interstate IV-D cases. This section 
title and content is modified to include cooperation with all Tribal 
IV-D programs. Section 302.36(a)(2) requires States to extend the full 
range of services available under its IV-D plan to all Tribal IV-D 
programs.

Part 309--Comprehensive Tribal Child Support Enforcement (CSE) Programs

Subpart A--Tribal Child Support Enforcement Program (IV-D) Program: 
General Provisions

    Section 309.01 provides the general provisions. Section 309.05 
defines key terms. We added a number of definitions for clarification 
and to make the rule easier to read. Definitions were added for the 
following terms: income, non-cash support, notice of disapproval, OCSE, 
program development plan, TANF and Tribal custom.
    This section establishes definitions for terms used throughout part 
309 of this final rule. We also want to make clear that underlying 
these regulations is the recognition that many Tribal customs and 
traditions have the force and effect of law. We have determined that 
such Tribal customs are equivalent to ``common law'' as described by 
William Blackstone: ``[t]he lex non scripta, or unwritten law, includes 
not only general customs, or the common law properly so called; but 
also the particular customs of certain parts of the kingdom; and 
likewise those particular laws, that are by custom observed only in 
certain courts and jurisdictions'' (Blackstone, 1 Commentaries on the 
Law of England 62).
    Section 309.10 outlines who is eligible to apply for Federal 
funding to operate a Tribal IV-D program. Proposed Sec.  309.10 
required a Tribe or Tribal organization to have at least 100 children 
under the age of majority in the population subject to the jurisdiction 
of the Tribe in order to be eligible to receive Federal funding to 
operate a Tribal IV-D program. In response to comments, we added a 
provision at Sec.  309.10(c) that, if a Tribe or Tribal organization 
can demonstrate to the satisfaction of the Secretary the capacity to 
operate a child support enforcement program and provide justification 
for operating a cost effective program with less than the minimum 
number of children, it may be considered eligible for direct funding 
under a waiver. Details on what information must be included in a 
waiver request are provided in the regulation at Sec.  309.10(c)(1) and 
(2) and the waiver request must be included in the original 
application.

Subpart B--Tribal IV-D Program Application Procedures

    Section 309.15 establishes what must be included in an application 
for direct funding. The application must include a Standard Form (SF) 
424, ``Application for Federal Assistance,'' SF 424A, ``Budget 
Information-Non-Construction Programs'' and a Tribal IV-D plan--a 
comprehensive statement that demonstrates the capacity of the Tribe or 
Tribal organization to operate a IV-D program meeting the objectives of 
title IV-D. This section also describes annual budget submissions 
including a specific mechanism to deal with requests for inclusion of 
indirect costs.
    The provisions in proposed Sec.  309.15 described what was included 
in the initial application, including the SF 424 and 424A, as well as 
the Tribal IV-D plan. We expanded this provision to clarify the 
requirements. The SF 424A, ``Budget Information--Non-Construction 
Programs,'' must be completed and include: A quarter-by-quarter 
estimate of expenditures for the funding period; notification of 
whether the Tribe or Tribal organization is requesting funds for 
indirect costs and if so, an election of a method to calculate 
estimated indirect costs; a narrative justification for each cost 
category on the form; a statement that the Tribe or Tribal organization 
has or will have the non-Federal share of program expenditures 
available, as required, or a request for a waiver of the non-Federal 
share in accordance with Sec.  309.130(e), if appropriate. These new 
requirements are based on our experience with the Tribal IV-D programs 
currently funded under the Interim Final Rule. We discovered that our 
requirements in the interim rule were not explicit enough to ensure we 
received the information necessary to make an informed decision on 
funding. In our review of the applications, we found that it was 
necessary to request the information listed in Sec.  309.15(a)(2)(i)-
(iv). These new requirements will save time for the applicant and OCSE 
by making immediately available all information needed for approval and 
funding decisions.
    We added language at Sec.  309.15(a)(3) giving Tribes an option 
regarding the inclusion of indirect costs. If a Tribe or Tribal 
organization's budget request includes indirect costs as part of its 
request for Federal funds, such requests may be submitted in one of two 
ways. For applications which include indirect costs, we have determined 
that an applicant may, at its option, either calculate the estimated 
indirect costs by documenting the dollar amount of indirect costs 
allocable to the IV-D program, or submit its current indirect cost rate 
negotiated with the Department of the Interior and a dollar amount of 
indirect costs based on that rate. If the Tribe elects to submit actual 
estimated costs attributable to the Tribal IV-D program, the 
methodology used to arrive at the dollar amount must be included in the 
application. Whichever option an applicant chooses, the applicants 
obligations remains the same: Tribal IV-D grantees are responsible for 
ensuring that actual expenditures of Federal IV-D funds are directly, 
demonstrably attributable to operation of the IV-D program, i.e., all 
actual costs claimed under the IV-D grant must be allocable to the IV-D 
program. The Federal statute at 42 U.S.C. 651 limits the use of Federal 
IV-D funds to the purposes enumerated in that section, whether

[[Page 16642]]

such costs are characterized as ``direct'' or ``indirect'' costs. 
Grantees are prohibited from shifting costs to IV-D grants which are 
not attributable to operation of the IV-D program. Adjustments will be 
made for any differences between estimated and actual costs 
attributable to the IV-D program.
    In the Temporary Assistance for Needy Families (TANF) program, even 
though Tribal grantees may use their negotiated indirect cost rate to 
calculate indirect costs, total actual costs are limited and may not go 
beyond a regulatory cap on administrative expenditures. Similarly, in 
the Tribal IV-D program, Tribal grantees may use their negotiated 
indirect cost rate to calculate estimated indirect costs, but the 
Federal statute limits the total amount of costs that may be claimed to 
those that are directly attributable to administration of the IV-D 
program.
    We also added language at Sec.  309.15(a)(4) that the initial 
application must include a comprehensive statement identifying how the 
Tribe or Tribal organization is meeting the requirements of subpart C 
of this part, and that describes the capacity of the Tribe or Tribal 
organization to operate a IV-D program which meets the objectives of 
title IV-D of the Act.
    Section 309.16 establishes the rules for a Tribe or Tribal 
organization to apply for start-up funding authorized under Sec.  
309.65(b) if the Tribe or Tribal organization cannot, at the time of 
application, meet all the Tribal IV-D plan requirements in Sec.  
309.65(a). In addition to the application requirements listed in Sec.  
309.15 above, a Tribe or Tribal organization must include a program 
development plan describing how a Tribal IV-D agency will meet any 
Tribal IV-D plan requirements not currently met within a reasonable, 
specific period of time, not to exceed two years. Funding is limited to 
$500,000. In extraordinary circumstances, the Secretary may grant a no-
cost extension of time.
    The language at proposed Sec.  309.65(b)(1) and (2) contained 
requirements for a start-up application and a program development plan. 
In order to clarify the rule, we moved that language to Sec.  
309.16(a)(4) and (5). We added language at Sec.  309.16(a)(3) that if a 
Tribe or Tribal organization's budget for start-up funding includes a 
request for indirect costs, a mechanism parallel to that described at 
Sec.  309.15(a)(3) must be used. If a Tribe or Tribal organization 
receives funding based on submission and approval of a Tribal IV-D 
application which includes a program development plan under Sec.  
309.16(a)(5), a progress report that describes accomplishments in 
carrying out the plan, as required by Sec.  309.170(b)(6), must be 
submitted with the next annual refunding request.
    New language was added at paragraph (b) indicating that the 
approval and disapproval procedures for applications for start-up 
funding are found in Sec. Sec.  309.35, 309.40, 309.45 and 309.50. We 
also added language that clarifies that an application for start-up 
funding is not subject to administrative appeal.
    Paragraph (c) of Sec.  309.16 indicates that start-up funding is 
limited to $500,000 and must be obligated and liquidated within two 
years from the first day of the quarter after the start-up application 
is approved. The Secretary will consider a request to extend the period 
of time during which the start-up funding is available or increase the 
amount of funding provided. The language that addressed the no-cost 
extension or the additional start-up funding was only found in the 
preamble discussion of the NPRM and is now clearly stated in the final 
rule in paragraphs (c)(1) and (c)(2).
    Proposed Sec. Sec.  309.20 and 309.30 were consolidated in the 
final rule as Sec.  309.20 for clarity. Section 309.20 now addresses 
who submits a Tribal IV-D application and where it must be submitted. 
The authorized representative of a Tribe or Tribal organization must 
sign and submit the application. Two copies of an application or plan 
amendment must be submitted: the original to the OCSE Central Office, 
and a copy to the appropriate regional office.
    Proposed Sec. Sec.  309.25 and 309.35 were consolidated as Sec.  
309.35 for clarity. Section 309.35 now outlines the procedures for 
review of IV-D program applications, plans and plan amendments. The 
Secretary will determine whether the application, plan or plan 
amendment meets the requirements not later than 90 days after receipt. 
If additional information is required, the determination will be made 
within 45 days of receipt of all necessary information. Determinations 
as to whether the Tribal IV-D plan, including plan amendments, meets or 
continues to meet the requirements are based on applicable Federal 
statutes and regulations. Guidance may be furnished to assist in 
interpretation. All relevant changes required by new Federal statutes, 
rules, regulations and interpretations are required to be submitted so 
that OCSE may determine whether the plan continues to meet Federal 
requirements. If a Tribe or Tribal organization intends to make any 
substantive change to the Tribal IV-D program, a plan amendment must be 
submitted at the earliest reasonable time. The effective date of a plan 
or plan amendment may not be earlier than the first day of the fiscal 
quarter in which a plan or amendment is approved.
    Section 309.40 describes the basis for disapproval of a Tribal IV-D 
program application, IV-D plan or plan amendment. An application, plan 
or plan amendment will be disapproved if the Secretary determines that: 
It fails to meet, or no longer meets one or more of the Federal 
requirements; the required Tribal laws, codes or regulations are not in 
effect; or the application is not complete (after the Tribe or Tribal 
organization has had the opportunity to submit all necessary 
information.) A written Notice of Disapproval will be sent to the Tribe 
or Tribal organization upon determination that any of the conditions 
for disapproval applies. If the application, plan or plan amendment is 
incomplete and fails to provide enough information to make a 
determination, the Secretary will request the necessary information.
    Section 309.45 provides that a Tribe or Tribal organization may 
request reconsideration of disapproval of a Tribal IV-D application, 
plan or plan amendment and describes the process. The request for 
reconsideration must include all documentation that is relevant and 
supportive of the application, plan or plan amendment and a written 
response to each ground for disapproval. The request for 
reconsideration must also include whether the Tribe or Tribal 
organization requests a meeting or conference call with the Secretary. 
The Secretary will have a 60-day period to make a written determination 
affirming, modifying or reversing disapproval of the application. 
Disapproval of start-up funding or of a request for waiver of the 100-
child rule or waiver of the required Tribal share of expenditures is 
not subject to administrative appeal.
    If we intend to disapprove an existing IV-D plan, we will send the 
Tribe a Notice of Intent to Disapprove the plan. The Tribe may request 
a hearing within 60 days of the date of the notice of our intent to 
disapprove the plan if the Tribe waives its right to a reconsideration 
under Sec.  309.45. Although we received no written comments on this 
section, we added the opportunity for a hearing prior to disapproval of 
an existing Tribal IV-D plan because of the significant consequences of 
Tribal plan disapproval.
    Section 309.50 describes the consequences of disapproval of an 
application or plan amendment. If an

[[Page 16643]]

application is disapproved, the Tribe can receive no direct funding 
until a new application is submitted and approved. If a plan amendment 
is disapproved, there is no funding for the proposed activity.
    A Tribe or Tribal organization may reapply at any time once it has 
remedied the circumstances that led to disapproval of the application, 
plan or plan amendment.

Subpart C--Tribal IV-D Plan Requirements

    Section 309.55 states that subpart C of Sec.  309 defines the 
Tribal IV-D provisions that are required to demonstrate the Tribe or 
Tribal organization has the capacity to operate a child support 
enforcement program.
    Section 309.60 describes who is responsible for administration of 
the Tribal IV-D program under the plan. The Tribe or Tribal 
organization must designate an agency to administer the Tribal IV-D 
plan. The Tribe or Tribal organization is responsible and accountable 
for the operation of the Tribal IV-D program. If a Tribe or Tribal 
organization delegates any functions of the Tribal IV-D program to 
another Tribe, State, and/or another agency or entity, the Tribe or 
Tribal organization is responsible for securing compliance with the 
requirements of the plan. The Tribe or Tribal organization is 
responsible for submitting copies and appending to the Tribal IV-D plan 
any agreements, contracts, or Tribal resolutions between the Tribal IV-
D agency and a Tribe, State, other agency or entity.
    Section 309.65(a) describes what a Tribal IV-D plan must include in 
order to be approved and receive Federal funds for the operation of the 
Tribal IV-D program. This part outlines the 14 required elements which 
include: (1) A description of the population subject to the 
jurisdiction of the Tribal court or administrative agency for child 
support purposes; (2) evidence that the Tribe has in place procedures 
for accepting all applications for IV-D services and providing IV-D 
services required by law and regulation; (3) assurance that due process 
rights are protected; (4) administrative and management procedures; (5) 
safeguarding procedures; (6) maintenance of records; (7) copies of 
applicable Tribal laws and regulations (8) procedures for the location 
of noncustodial parents; (9) procedures for the establishment of 
paternity; (10) guidelines for the establishment and modification of 
child support obligations; (11) procedures for income withholding; (12) 
procedures for the distribution of child support collections; (13) 
procedures for intergovernmental case processing; and (14) Tribally-
determined performance targets.
    Section 309.65(b) includes a provision for Tribes or Tribal 
organizations that can demonstrate the capacity to operate a IV-D 
program but that are unable at the time of application to satisfy all 
of the requirements of paragraph (a) to request start-up funding. The 
NPRM at Sec.  309.65(b) outlined what must be included in a start-up 
application. Those provisions are now found at Sec.  309.16. The Tribe 
or Tribal organization may demonstrate capacity to operate a Tribal IV-
D program by submission of an application for start-up funding as 
required by Sec.  309.16. Proposed Sec.  309.65(c) said that the 
Secretary will cease funding to a Tribe or Tribal organization's start-
up efforts if that Tribe or Tribal organization fails to demonstrate 
satisfactory progress pursuant to Sec. Sec.  309.15(b)(2) and 309.25(d) 
toward putting a full program in place. The language was revised for 
clarity and now says, ``The Secretary may cease start-up funding to a 
Tribe or Tribal organization of that Tribe or Tribal organization fails 
to satisfy one or more provisions or milestones described in its 
program development plan within the timeframe specified in such plan.'' 
This requirement is now found at 309.65(b)(2).
    In Sec. Sec.  309.70 through 309.120, we eliminate duplicative 
language in the introduction to each section that read, ``A Tribe or 
Tribal organization demonstrates capacity to operate a Tribal CSE 
program meeting objectives of title IV-D of this Act.'' The language is 
unnecessary as approval of a plan is based on the contents of the plan. 
the new introductory language reads: ``A Tribe or Tribal organization 
must include in its Tribal IV-D plan a description of. * * *''
    Section 309.70 requires that the Tribe or Tribal organization 
include a description of the population subject to the jurisdiction of 
the Tribal court or administrative agency for child support enforcement 
purposes and certify that there are at least 100 children under the age 
of majority in the population subject to the Tribe's jurisdiction, in 
accordance with Sec.  309.10 of this part and subject to Sec.  
309.10(c)
    Section 309.75 outlines the administrative and management 
procedures that must be included in the plan. The plan must include a 
description of the agency and the distribution of responsibilities 
within the agency. In response to comments, we eliminated as 
duplicative the requirement that the plan includes procedures under 
which applications are made available to the public upon request and 
that the plan also includes procedures under which the agency must 
promptly open a case record and determine necessary action. This 
requirement is found at Sec.  309.65(a)(2).
    The plan must include evidence that all Federal funds and amounts 
collected by the Tribal IV-D agency are protected against loss. Tribes 
and Tribal organizations may comply with this requirement by submitting 
documentation that every person who receives, disburses, handles, or 
has access to or control over funds collected is covered by a bond or 
insurance sufficient to cover all losses. In response to comments we 
eliminated as duplicative the language in proposed Sec.  309.75(d)(3) 
that specified, ``the requirements of this section do not reduce or 
limit the ultimate liability of the Tribe or Tribal organization for 
losses of support collections from the Tribal CSE agency's program.''
    The plan must include that notices of support collected, itemized 
by month of collection, are provided to families receiving services 
under the Tribal IV-D program at least once a year and to either the 
custodial or noncustodial parent upon request. The plan must include a 
certification that the Tribe or Tribal organization will comply with 
the provisions of chapter 75 of title 31 of the U.S.C. (the Single 
Audit Act of 1984, Pub. L. 98-502, as amended) and OMB Circular A-133.
    We added a new provision at Sec.  309.75(e) that if the Tribal IV-D 
agency intends to charge an application fee, the plan must contain 
provisions that the fee will be uniformly applied and cannot exceed 
$25.00; that in intergovernmental cases referred for services, the 
application fee may only be charged by the jurisdiction where the 
individual applies for services; that fees may not be charged to 
individuals receiving services under titles IV-A, IV-E foster care 
assistance or XIX (Medicaid) of the Act; and that the Tribal IV-D 
agency may recover actual costs of providing services in excess of the 
application fee. Fees collected and costs recovered are considered 
program income and must be used to reduce the amounts of expenditures 
for Federal matching. The Tribal IV-D agency must exclude from its 
quarterly expenditure claims an amount equal to all fees which are 
collected and costs recovered during the quarter. Assessment of a fee 
and/or recovery of costs are not mandatory requirements, but optional 
provisions that some Tribes may choose to use.
    Section 309.80 outlines what safeguarding procedures a Tribe or

[[Page 16644]]

Tribal organization must include in its plan. The plan must include 
procedures under which the use or disclosure of personal information 
received by or maintained by the Tribal IV-D agency is limited to 
purposes directly connected to the administration of the program, or 
other programs or purposes prescribed by the Secretary in regulations. 
The plan must include procedures for safeguards that are applicable to 
all confidential information including safeguards against unauthorized 
use or disclosure of information relating to proceedings or actions to 
establish paternity, establish, modify or enforce support. Also 
included are prohibitions against the release of information on the 
whereabouts of one party or the child to another party when a 
protective order has been entered, and against the release of 
information if the Tribe has reason to believe the release of the 
information may result in physical or emotional harm to the party or 
child, and any other procedures in accordance with specific 
safeguarding regulations applicable to Tribal IV-D programs promulgated 
by the Secretary. The plan must also contain sanctions to be imposed 
for unauthorized disclosure of personal information.
    Although not specified in this final rule, in addition to programs 
and purposes prescribed by the Secretary, Tribal IV-D programs are 
authorized to disclose information to individuals for purposes 
authorized by Federal statute. If a Federal statute requires a Tribal 
IV-D program to share information, the agency must comply.
    Section 309.85 was amended to clarify the section's requirements. 
Previously, the title of the section was ``What reports and maintenance 
of records procedures must a Tribe or Tribal organization include in a 
Tribal IV-D plan?'' The emphasis was on procedures. The title now 
reads: ``What records must a Tribe or Tribal organization agree to 
maintain in a Tribal IV-D plan?'' This more appropriately places the 
emphasis on what will be maintained. This section now requires that the 
Tribal IV-D plan provide that the Tribal IV-D agency will maintain 
records necessary for proper and efficient operation of the program 
including: (1) Applications for child support services; (2) efforts to 
locate noncustodial parents; (3) actions taken to establish paternity 
and obtain and enforce support; (4) amounts owed, arrearages, and 
amounts and sources of support collections, and the distribution of 
such collections; (5) IV-D program expenditures; (6) any fees charged 
and collected, if applicable; and (7) statistical, fiscal and other 
records necessary for reporting and accountability. Records must be 
maintained in accordance with 45 CFR 74.53. The NRPM noted that records 
would be maintained in accordance with 45 CFR 92.42; however, it is 
more appropriate that they be maintained in accordance with part 74. 
Both require three-year records retention, but title IV-D falls under 
part 74.
    Section 309.90(a) requires the submission of copies of Tribal law, 
code, regulations or procedures and other evidence that provides for: 
(1) Establishment of paternity for any child up to at least 18 years of 
age; (2) establishment and modification of child support obligations; 
(3) enforcement of child support obligations including requirements 
that Tribal employers comply with income withholding; and (4) location 
of custodial and noncustodial parents. In the absence of written laws 
and regulations, a Tribe or Tribal organization may provide in its plan 
detailed descriptions of any Tribal custom or common law with the force 
and effect of law which enables the Tribe or Tribal organization to 
satisfy the requirements in paragraph (a).
    Section 309.95 requires the plan to include provisions governing 
the location of custodial and noncustodial parents and their assets. 
The Tribal IV-D agency must attempt to locate custodial and 
noncustodial parents or sources of income and/or assets when location 
is required to take necessary action in a case, and must use all 
sources of information and records reasonably available to locate 
custodial and noncustodial parents and their sources of income and/or 
assets. We added the reference to custodial parents to ensure that 
locate sources are used to find custodial parents for whom support has 
been collected and whom the Tribe may be unable to find.
    Section 309.100 outlines the paternity establishment procedures 
that a Tribe or Tribal organization must include in its plan. The 
agency must attempt to establish paternity by the process set out under 
Tribal law, code and/or custom and provide the alleged father an 
opportunity to voluntarily acknowledge paternity. In a contested 
paternity case the child and all other parties must submit to a genetic 
test (unless otherwise barred by Tribal law) upon the request of any 
party if the request is supported by a sworn statement alleging 
paternity, and setting forth facts establishing a reasonable 
possibility of the requisite sexual contact between parties; or denying 
paternity, and setting forth facts establishing a reasonable 
possibility of the nonexistence of sexual contact between the parties. 
The phrase `otherwise barred by Tribal law' is intended to cover 
situations where, either by action of one or both of the parties or the 
application of Tribal law, or both, paternity has already been 
conclusively determined and may not be reconsidered. In such cases, 
genetic testing to challenge the paternity determination would not be 
authorized. Examples of such a paternity determination would include a 
voluntary admission of paternity or circumstances under which the Tribe 
has other means of recognizing paternity under Tribal law. A Tribe, 
through its own custom, tradition or procedure, may recognize a man as 
the father or may preclude a man who holds himself out to be the father 
from challenging paternity. Similarly, a Tribe may have a conclusive 
presumption of paternity when a child is born to married parents or if 
a noncustodial parent has been validly served in a paternity proceeding 
and failed to contest paternity in such proceeding. A uniquely Tribal 
means would be acceptable as precluding the need for genetic tests if 
Tribal law is used to establish paternity. In such cases, because 
paternity has already been determined, genetic testing would be 
``otherwise barred by Tribal law.'' This language is consistent with 
the language found at section 466(a)(5)(B) of the Act, which mandates 
genetic testing in contested cases to ensure that the rights of both 
parties are protected.
    In any case involving incest or forcible rape, or in a case in 
which legal proceedings for adoption are pending, the agency need not 
attempt to establish paternity. The agency must use accredited 
laboratories, which perform legally and medically-acceptable genetic 
tests when genetic testing is used to establish paternity. 
Establishment of paternity under this section has no effect on Tribal 
enrollment or membership.
    Section 309.105 indicates what procedures governing child support 
guidelines must be included in the plan. We changed the title of this 
section to better reflect its content. The section requires that a 
Tribal IV-D plan establish one set of child support guidelines by law 
or by judicial action for setting and modifying child support 
obligation amounts; include a copy of the child support guidelines; and 
indicate whether non-cash payments of support will be permitted to 
satisfy the child support obligation. In response to comments, we added 
language that the plan must indicate whether non-cash payments will be 
permitted to satisfy support obligations and if so, require that Tribal 
support orders allowing non-cash payments also state the specific

[[Page 16645]]

dollar amount of the support obligation, and describe the types of non-
cash support that will be permitted to satisfy the underlying specific 
dollar amount of the support order. We also added language providing 
that non-cash payments may not be used to satisfy assigned support 
obligations.
    The guidelines must be reviewed, and if appropriate, revised at 
least every four years and provide a rebuttable presumption that the 
child support award based on the guidelines is the correct amount. The 
plan must provide for the application of the guidelines unless there is 
a written finding or a specific finding on the record of the tribunal 
that the application of the guidelines would be unjust or inappropriate 
in a particular case. The guidelines must take into account the needs 
of the child and the earnings and income of the noncustodial parent and 
be based on specific descriptive and numeric criteria.
    Section 309.110 outlines the procedures and requirements governing 
income withholding. The income withholding requirements are similar to 
those requirements governing States' IV-D programs, except that income 
is subject to withholding once the noncustodial parent has failed to 
make a payment equal to the support payable for one month. In response 
to comments from Tribes that income withholding may not be appropriate 
in all cases, we added language to Sec.  309.110(h), that income 
withholding will not be required in any case where either the custodial 
or noncustodial parent demonstrates, and the tribunal enters a finding, 
that there is good cause not to require income withholding; or a signed 
written agreement is reached between the custodial and noncustodial 
parent which provides for an alternate agreement. We added a 
requirement at Sec.  309.110(m) indicating that the Tribal IV-D agency 
must allocate amounts withheld across multiple withholding orders and 
that, in no case, shall the allocation result in a withholding for one 
of the orders not being implemented. Section 309.110(n) was amended by 
adding a requirement that the Tribal IV-D agency is responsible for 
receiving and processing income withholding orders from States or other 
Tribes and ensuring orders are promptly served on employers.
    Section 309.115 outlines the requirements governing distribution. 
This section was rewritten for clarity. A Tribal IV-D plan must outline 
procedures for distribution of child support collections. As a general 
rule, the Tribal IV-D agency, in a timely manner, must apply 
collections first to satisfy current support obligations, and pay all 
support collections to the family unless the family is currently 
receiving or formerly received assistance from the Tribal TANF program, 
or the Tribal IV-D agency has received a request for assistance in 
collecting support on behalf of the family from a State or Tribal IV-D 
agency. Such requests for assistance may be to collect support assigned 
to the State or Tribe as a condition of receiving assistance or to 
provide services on behalf of a family residing in or receiving 
services from the referring State or Tribe. When support is owed to 
both States and Tribes, the Tribal IV-D agency may either send 
collections to the requesting State or Tribe for distribution or 
determine appropriate distribution by contacting the requesting State 
or Tribe and distribute collections accordingly. We added a new 
requirement that any collections attributable to the Federal Income Tax 
Refund Offset must be applied to satisfy child support arrears. This is 
consistent with section 464 of the Act. Finally, we made a conforming 
change to Tribal TANF regulations at 45 CFR 286.155 to eliminate 
reference to payments to the family because distribution of collections 
is addressed in Sec.  309.115 of this rule.
    Section 309.120 requires a Tribe or Tribal organization to specify 
procedures under which the Tribal IV-D agency will extend the full 
range of services available under its IV-D plan to respond to all 
requests from, and cooperate with State and other Tribal IV-D programs. 
The Tribe or Tribal organization must also provide assurances that it 
will recognize child support orders issued by other Tribes and Tribal 
organizations, and by States, in accordance with the requirements under 
28 U.S.C. 1738B, the Full Faith and Credit for Child Support Orders Act 
(FFCCSOA). ACF is making a parallel change to include cooperation with 
Tribal IV-D agencies as a requirement for State IV-D programs at 45 CFR 
302.36.

Subpart D--Tribal IV-D Program Funding

    Section 309.125 provides the basis on which Tribal IV-D program 
funding is determined. The funding is based on the Tribal IV-D 
application, which includes the proposed budget and a description of 
the nature and scope of the Tribal IV-D program and gives assurance 
that the program will be administered in conformity with applicable 
requirements of title IV-D of the Act, regulations contained in this 
part, and other official issuances of the Department that specifically 
apply to Tribes and Tribal organizations.
    Section 309.130 outlines the general mechanism for funding Tribal 
IV-D programs; financial form submittal requirements; the Federal share 
of program expenditures; non-Federal share of program expenditures; 
waiver of non-Federal share of program expenditures; an increase in an 
approved budget; obtaining Federal funds and grant administration 
requirements. The changes in this section are addressed below.
    New language was added at Sec.  309.130(a) indicating that the 
Tribe or Tribal organization will receive funds in the amount equal to 
the percentage specified in paragraph (c) of the total amount of 
approved and allowable expenditures. This language was added for 
clarity. We also added language explaining that Tribes receiving grants 
of less than $1 million per 12-month funding period will receive a 
single annual award and those Tribes that receive grants of $1 million 
or more per 12-month funding period will receive four equal quarterly 
awards. The Department-wide grant procedures require that grant funds 
be disbursed in this manner. The programs administered by the Tribes 
currently being funded under the Interim Final Rule received their 
grant funds in this fashion. This language was added to the rule to 
clarify the manner in which funds are disbursed.
    Section 309.130(b) outlines that the financial forms required must 
be submitted to ACF. ACF reviews each application for direct funding. 
The requirements associated with the submission of the SF 424A, 
``Budget Information--Non-Construction Programs'' form have changed. 
The rule now requires a quarter-by-quarter estimate of expenditures for 
the fiscal year; notification of whether the Tribe or Tribal 
organization is requesting funds for indirect costs; a narrative 
justification for each cost category on the form for funding under 
Sec.  309.65(a); and either: a statement certifying that the Tribe or 
Tribal organization has or will have the non-Federal share of program 
expenditures available, as required; or a request for a waiver of the 
non-Federal share in accordance with paragraph (e). As mentioned 
earlier in the preamble, we discovered that our requirements in the 
Interim Final Rule were not explicit enough to get the information 
necessary to make an informed decision on funding. In our review of 
applications from Tribes being funded under the Interim Final Rule, we 
found it necessary to request the information listed above. Requiring 
the

[[Page 16646]]

information from the onset will result in a timesaving for the 
applicant and for OCSE, as we will have the necessary information 
earlier in the process and the approval and funding, if appropriate, 
will not be unduly delayed.
    The requirement in proposed Sec.  309.140 that the Tribe or Tribal 
organization must submit a Financial Status Report, SF 269, was moved 
to Sec.  309.130(b)(3). We eliminated proposed Sec.  309.140. The final 
rule requires that the SF 269A Financial Status Report (short form) be 
submitted quarterly. We decided to substitute the short form for the 
form previously required. The short form is more appropriate for Tribes 
and Tribal organizations and requires less information than the 
proposed form. The requirements for reporting on the OCSE 34A, 
``Quarterly Report of Collections,'' previously found in proposed Sec.  
309.140 were also moved to this section of the final rule. As noted in 
the preamble to the NPRM, we revised the instructions for reporting on 
this form. We will modify the form to apply to Tribes and Tribal 
organizations operating IV-D programs through direct funding.
    Section 309.130(c) outlines the Federal share of program 
expenditures. During the period of start-up funding, a Tribe or Tribal 
organization will receive Federal funds equal to 100 percent of the 
approved and allowable expenditures made during that period. It is 
important to note that this is a change from the NPRM. Previously, a 
non-Federal match was required for Tribes applying for start-up 
funding. In recognition of the fact that Tribes just beginning title 
IV-D child support enforcement funding may have very limited funds for 
this activity, we have eliminated the requirement for non-Federal match 
for start-up tribes. During the initial three years of full program 
operation, a Tribe or Tribal organization will receive 90 percent 
Federal funding and 80 percent thereafter.
    Section 309.130(d) outlines the non-Federal share of program 
expenditures. This subsection states that the non-Federal share of 
program expenditures must be provided either with cash or with in-kind 
contributions and must meet the requirements found in 45 CFR 74.23. 
This is a change from the NPRM, which stated that 45 CFR part 92 was 
applicable to the administration of Tribal IV-D programs. We have 
amended the rule and changed each reference from 45 CFR part 92 to 45 
CFR part 74, because the language in 45 CFR part 92 clearly states that 
title IV-D programs are not required to comply with part 92.
    Based on comments and experience with currently operating Tribal 
IV-D programs, we revised the section on waiver provisions at Sec.  
309.130(e). Under certain circumstances, the Secretary may grant a 
temporary waiver of the non-Federal share of expenditures. If a Tribe 
or Tribal organization anticipates that it will temporarily be unable 
to contribute part or all of the non-Federal share of funding, it must 
submit a written request that this requirement be temporarily waived. A 
request for waiver must be sent to ACF, and included with the 
submission of SF 424A, no later than 60 days prior to the start of the 
funding period. If, after the start of a funding period, an emergency 
situation occurs that necessitates the grantee to request a waiver of 
the non-Federal costs, it may do so as soon as the adverse affect of 
the emergency situation giving rise to the request is known. The 
request must include a statement of the amount the Tribe is requesting 
be waived; a narrative statement describing the circumstances and 
justification for the waiver; portions of the Tribal budget to 
demonstrate that any funding shortfall is not limited to the Tribal IV-
D program and any uncommitted funds are insufficient to meet the non-
Federal funding requirement; copies of any additional financial 
documents in support of the request; a detailed description of the 
attempts made to secure the necessary funding from other sources; and 
any other documents the Secretary may request to make this 
determination.
    In its request for a temporary waiver of the non-Federal share of 
expenditures, the Tribe or Tribal organization must demonstrate to the 
satisfaction of the Secretary that it lacks sufficient resources to 
provide the required non-Federal share of costs; has made reasonable, 
but unsuccessful, efforts to obtain non-Federal share contributions; 
and has provided all required information requested by the Secretary. 
All statements must be supported by evidence including a description of 
how the Tribe or Tribal organization has the capacity to provide child 
support enforcement services even though it lacks the financial 
resources to provide its required non-Federal share of program costs. 
The following statements are insufficient to merit a waiver without 
documentary evidence satisfactory to the Secretary: funds committed to 
other budget items; a high rate of unemployment; a generally poor 
economic condition; a lack of or a decline in revenue from gaming, 
fishing, timber, mineral rights and other similar revenue sources; a 
small or declining tax base; little or no economic development.
    A Tribe or Tribal organization may consider requesting a waiver if, 
for example, it has experienced a natural disaster, extreme weather 
conditions, or other calamities (e.g., hurricanes, earthquakes, and 
fire) whose disruptive impact is so significant and unpredictable that 
the applicant is temporarily unable to satisfy the non-Federal share 
requirement; or isolated, unanticipated economic hardship, beyond the 
control of the applicant, which makes it temporarily impossible for the 
applicant to satisfy the non-Federal share requirement. The authorized 
representative of the Tribe or Tribal organization must sign and submit 
the Tribal IV-D waiver request. Applications must be submitted to the 
Office of Child Support Enforcement, Attention: Tribal Child Support 
Enforcement Program, 370 L'Enfant Promenade, SW., Washington, DC 20447, 
with a copy to the appropriate regional office and must be submitted as 
soon as the adverse effect of the emergency situation giving rise to 
the request is known to the grantee.
    We added language that the temporary waiver will expire on the last 
day of the funding period for which the waiver was approved. If the 
Tribe is unable to meet the non-Federal share in subsequent years, the 
Tribe must submit a new request with its next budget submission. It 
should also be noted that if a request for a waiver is denied, the 
denial is not subject to administrative appeal.
    Section 309.130(f) addresses increases in an approved budget, which 
may be requested by submitting a revised copy of the SF 424A with an 
explanation of why additional funds are needed. Any approved increase 
in the Tribal IV-D budget will include a requirement for a proportional 
increase in the non-Federal share. Tribes and Tribal organizations will 
obtain Federal funds on a draw-down basis from the Department's Payment 
Management System.
    Section 309.135 specifies the requirements that apply to funding, 
obligating and liquidating IV-D grant funds. This section outlines the 
funding period, obligation period, liquidation period, funding 
reductions and extension requests. This section was broken into 
subsections for ease of understanding.
    Proposed Sec.  309.140 required Tribes to submit a Financial Status 
Report, SF 269, quarterly. Tribes must also submit the Child Support 
Enforcement Program: Quarterly Report of Collections (Form OCSE 34A) on 
a quarterly basis. A report on the

[[Page 16647]]

liquidation of obligations must be submitted using the SF 269A. While 
these requirements must still be met, they have been moved to Sec.  
309.130(b)(3) and (4), as we felt these requirements made more sense in 
the funding portion of the rule.
    Section 309.145 outlines the allowable costs for Tribal IV-D 
programs carried out under Sec.  309.65(a). This list is similar to the 
list of allowable costs in the State IV-D program.
    Section 309.150 outlines costs that are allowable for start-up 
programs carried out under Sec.  309.65(b). Federal funds are available 
for the costs of developing a Tribal IV-D program meeting Federal 
requirements, provided that such costs are reasonable, necessary and 
allocable to the program. Federal funding for program development 
generally may not exceed a total of $500,000 except in very unusual or 
extraordinary circumstances. Allowable start-up costs and activities 
include: planning for the initial development and implementation of a 
program; developing Tribal IV-D laws, codes, guidelines, systems and 
procedures; recruiting, hiring, and training Tribal IV-D program staff; 
and any other reasonable, necessary and allocable costs with a direct 
correlation to the development of a Tribal IV-D program, consistent 
with the cost principles of OMB Circular A-87, and approved by the 
Secretary.
    Section 309.155 outlines costs that are not allowable, which are 
basically the same as those costs that are not allowable under the 
State IV-D program. Funds may not be used for activities related to 
administering other programs including those under the Social Security 
Act; construction or major renovations; expenditures that have been 
reimbursed by fees collected, including any fee collected from a State; 
jailing of parents in Tribal IV-D cases; the cost of legal counsel for 
indigent defendants in Tribal IV-D actions; the cost of guardians ad 
litem or any other costs that are not reasonable, necessary and 
allocable to the Tribal IV-D program.

Subpart E--Accountability and Monitoring

    Section 309.160 indicates that OCSE will rely on audits required by 
OMB Circular A-133, ``Audits of States, Local Governments, and Non-
Profit Organizations,'' and 45 CFR part 74. The Tribal IV-D program 
will be audited as a major program in accordance with section 215(c) of 
the circular. The Department may supplement the required audits through 
reviews or audits conducted by its own staff.
    Section 309.165 provides that the recourse for a Tribe or Tribal 
organization to dispute a determination to disallow program 
expenditures is governed by the procedures in 45 CFR part 16.

Subpart F--Statistical and Narrative Reporting Requirements

    Section 309.170 requires Tribes to submit information and 
statistics for program activities and caseload for each funding period. 
The required information includes: (1) Total number of cases, and of 
those, the number that are State or Tribal TANF and non-TANF; (2) total 
number of out-of-wedlock births in the previous year and total number 
of paternities established or acknowledged; (3) total number of cases 
and the total number of cases with an order; (4) total amount of 
current support due and collected; (5) total amount of past-due support 
owed and total collected; (6) a narrative report on activities, 
accomplishments, and progress of the program; (7) total costs claimed; 
(8) total amount of fees and costs recovered; and (9) total amount of 
laboratory paternity establishment costs.
    The requirements found in proposed Sec.  309.175 were moved to 
Sec.  309.170 for clarity.

Part 310--Comprehensive Tribal Child Support Enforcement (CSE) Programs

    Part 310 establishes provisions, procedures, funding, monitoring 
and reporting for Tribes currently operating a Tribal IV-D system under 
the Interim Final Rule. Section 310.1(c) is added indicating that on 
the effective date of these regulations, part 310 will become time-
limited for Tribes operating a Tribal IV-D program under the Interim 
Final Rule. For Tribes operating under the Interim Final Rule, 45 CFR 
part 310 will be applicable to grants covering the period up to the 
first day of the quarter beginning six months after the date of 
publication of this final rule. In order to continue to receive 
funding, Tribes currently operating under 45 CFR part 310 must make 
changes to their current program to comply with this final rule not 
later than the first day of the quarter beginning six months after the 
date of publication of this final rule.

Discussion of Regulatory Provisions and Response to Comments

    The following is a discussion of the regulatory provisions included 
in this final rule. The discussion follows the order of regulatory 
text, describes each subpart and section and addresses all relevant 
comments.
    Comments were received from 14 Tribes and Tribal organizations, 15 
State IV-D agencies and 10 other interested parties. A discussion of 
the comments received and our responses follows:

Subpart A--Tribal Child Support Enforcement (IV-D) Program: General 
Provisions

    Section 309.01 describes the general parameters of the final 
regulation, Sec.  309.05 defines key terms, and Sec.  309.10 
establishes threshold eligibility criteria.

Section 309.01--What Does This Part Cover?

    1. Comment: Two Tribal commenters suggested a provision be added 
allowing the Secretary to waive any conditions of these regulations as 
long as the statutory requirements are met, and good cause is shown by 
the Tribe or Tribal organization.
    Response: The statute directs the Secretary to establish 
requirements necessary to operate a Tribal child support enforcement 
program capable of meeting the program objectives of title IV-D. The 
final rule establishes the minimum elements, which we have determined 
to be critical to the basic framework for operation of Tribal IV-D 
programs meeting the objectives of title IV-D. After consideration of 
comments received on regulatory waivers, we are persuaded to permit 
limited waivers. We believe that Tribes should be given an opportunity 
to request a waiver of certain specific requirements in this 
regulation. However, we believe that the care taken to limit Federal 
regulatory requirements and to recognize Tribal sovereignty has 
resulted in regulations that are essential to a successful Federally-
funded Tribal IV-D program. We have established criteria under which we 
will consider requests for waiver of the following regulatory 
requirements: Sec.  309.10(a) (100-child minimum) and Sec.  309.130(d) 
(non-Federal share of program expenditures). Waivers of any other 
regulatory requirements are not included because we have determined 
that these are essential to the administration of successful Tribal 
child support enforcement programs.
    2. Comment: We received positive comments from States, Tribes, and 
national organizations affirming that the best way for Tribal IV-D 
programs to be administered is through a direct government-to-
government relationship and direct funding. One State commented that it 
supported limiting the direct funding of Tribal IV-D programs to 
current Federally-recognized Tribes, and a Tribal organization affirmed 
its view that the basic eligibility for funds under section 455(f) of 
the Act was limited to

[[Page 16648]]

Federally-recognized Tribes, as published in the Federal Register 
pursuant to 25 U.S.C. 479a-1.
    Response: Consistent with the government-to-government relationship 
between the Federal government and Indian Tribes, eligibility for 
direct IV-D funding of Tribal IV-D programs is extended to all 
Federally-recognized Indian Tribes. The list of such Tribes is found in 
the annual list of Federally-recognized Indian Tribes, which the 
Secretary of the Interior publishes in the Federal Register pursuant to 
25 U.S.C. 479a-1. Any Tribe that successfully completes the Federal 
recognition process is eligible to apply for direct funding, regardless 
of its status at the time of publication of this final rule. If a Tribe 
is not Federally-recognized at the time of the publication of the final 
rule, but is subsequently recognized, we will consider such Tribe 
eligible to apply for direct funding.
    3. Comment: Two Tribal commenters criticized the proposed 
regulations as significantly different from the document drafted by the 
joint Tribal/Federal workgroup.
    Response: We worked in close consultation with Tribes prior to 
publication of the NPRM. The proposed regulation was the result of a 
significant amount of effort which included not only input from the 
joint Tribal/Federal workgroup, but also consultation from other 
stakeholders (including Tribes) and from within the Department. While 
the draft document submitted by the Tribal/Federal workgroup was 
significant to the development of the proposed regulation, the 
Department's obligation to fulfill its statutory mandate to efficiently 
administer the IV-D program necessarily required broader consultation. 
The NPRM published in August 2000 reflected wide consultation and 
collaboration. This final regulation reflects that input as well as 
careful consideration of all relevant comments received in response to 
the proposed rule. The end result reflects the Federal government's 
determination of the minimum requirements necessary for the successful 
administration of child support programs capable of meeting the 
objectives of title IV-D.

Section 309.05--What Definitions Apply to This Part?

    1. Comment: One State commented that IV-D services as defined by 
the NPRM do not include services that a program may provide in addition 
to those listed in the definition. The State also stated that the 
definition does not include services that may be prohibited.
    Response: It is not the intention of this final regulation to set 
forth an exhaustive list of specific services that may be provided 
under the IV-D program; thus, we do not list in the regulation every 
service that may be provided and attributed to child support 
enforcement. However, Sec. Sec.  309.145, 309.150, and 309.155 
establish parameters for allowable costs that may be submitted for 
funding at the established rate. We believe the regulations establish 
an appropriate framework for Tribal child support enforcement services 
that may be provided under title IV-D.
    2. Comment: One State commenter noted that ``competent 
jurisdiction'' is used in the definition of ``child support order'' and 
``child support obligation'' but is not defined.
    Response: As used in the definition, competent jurisdiction is used 
in its common legal sense and refers to the legal authority to take 
actions in child support matters.
    3. Comment: One State commenter suggested that because the 
definition of ``location'' refers to ``other sources of income and 
assets,'' a definition of ``assets'' should be added to indicate assets 
would include ``in-kind'' child support.
    Response: We believe the definition of ``location'' appropriately 
describes the term as it is used in the context of child support 
enforcement and that the word ``assets'' does not require additional 
elaboration. In-kind support is not within the meaning of assets.
    4. Comment: One State commented that the definition of child 
support order and child support obligation is incorrect when it says it 
includes ``* * * a judgment * * * for the support and maintenance of a 
child * * * or of the parent with whom the child is living.'' The 
commenter noted that the definition would conform to the Full Faith and 
Credit for Child Support Orders Act (FFCCSOA) by deleting ``of the 
parent with whom the child is living.''
    Response: We disagree that the regulatory definitions are 
incorrect. The proposed definitions track the definition of support 
found in 45 CFR part 301 governing State IV-D plans and do not conflict 
with any provision of FFCCSOA. We have therefore retained such 
definitions in the final regulation.
    5. Comment: One Tribe thought the definition of ``Indian'' found in 
the Indian Civil Rights Act would alleviate confusion that enrollment 
might be required. Another thought the Pub. L. 93-638 definition of 
Indian Tribes and Tribal organizations should be used.
    Response: This final Tribal child support enforcement regulation 
does not in any way link the definition of ``Indian'' to any Federal 
standard or rule governing Tribal enrollment. The regulatory definition 
of ``Indian'' is not intended to affect a Tribe's inherent ability to 
determine enrollment standards or to affect the ability of any other 
Federal agency to appropriately exercise authority in this area. We 
agree that enrollment and membership are internal Tribal matters and 
not the concern of the Federal Office of Child Support Enforcement. The 
final rule defines ``Indian'' as a person who is a member of an Indian 
Tribe. ``Indian Tribe'' and ``Tribe'' mean any Indian or Alaska Native 
Tribe, band, nation, pueblo, village, or community that the Secretary 
of the Interior acknowledges to exist as an Indian Tribe and includes 
in the list of Federally-recognized Indian Tribal governments as 
published in the Federal Register pursuant to 25 U.S.C. 479a-1.We have 
determined that this definition of ``Indian'' is sufficient and 
reference to the Indian Civil Rights Act is not necessary.
    Eligibility for direct IV-D funding under section 455(f) of the Act 
is limited to Federally-recognized Indian Tribal governments because 
child support enforcement necessarily requires at least delegated 
governmental authority. Because the definition of ``Indian Tribe'' in 
Pub. L. 93-638 includes some entities that are not Tribal governments, 
to avoid confusion we have not adopted that definition of ``Indian 
Tribe.''
    6. Comment: One State commenter thought the definition of Tribe was 
insufficient in defining persons and circumstances that fall under the 
jurisdiction of Tribes.
    Response: We disagree. For purposes of these final regulations, we 
have determined that it is not appropriate or necessary to define 
``Tribe'' in terms of the limits of Tribal jurisdiction. The regulatory 
definition of ``Tribe'' is appropriately related to Federal recognition 
of governmental entities eligible for Federal funds. Such definition is 
not intended to have any effect on the exercise of Tribal or State 
jurisdiction.
    7. Comment: One State commenter suggested that definitions for 
``Tribal resident,'' ``reservation'' and ``Indian Country'' be added. A 
Tribal commenter suggested that the regulations overlooked the special 
circumstances of Alaska's Tribes when employing the term ``Indian 
Country.''
    Response: We have determined that it is not appropriate or 
necessary in this regulation to define the territorial limits of a 
Tribe's authority by defining ``Tribal resident'' or ``reservation.'' 
The parameters of ``Tribal resident'' and ``reservation'' are more 
appropriately

[[Page 16649]]

determined by Tribal law, the jurisdiction of the Tribe's courts or 
administrative process and by applicable Federal law, not by child 
support enforcement regulations.
    We are aware of the special circumstances in Alaska related to the 
term ``Indian country'' as a consequence of the Supreme Court's 
decision in Alaska v. Native Village of Venetie Tribal Government, 522 
U.S. 520 (1998). For clarification, except where specifically noted, 
throughout the preamble ``Indian country'' is replaced with the term 
``Tribal territory'' in consideration of the special circumstances in 
Alaska. The final regulatory definition of ``Indian Tribe and Tribe'' 
encompasses all Indian Tribes and Alaska Native entities enumerated in 
the Department of the Interior's listing of Federally-recognized 
entities such that each is eligible to apply for direct IV-D funding.
    8. Comment: One Tribal commenter suggested that the term ``agency'' 
is likely to be misunderstood because ``agency'' refers to a 
geographical entity delineated by a Department of the Interior 
Administration area.
    Response: We believe the context of these regulations make the 
definition of Tribal IV-D agency clearly distinguishable from any other 
type of agency and will not result in confusion.

Section 309.10--Who Is Eligible To Apply for Federal Funding To Operate 
a Tribal IV-D Program?

    1. Comment: Twenty-nine Tribal and State commenters opposed the 
requirement that a Tribe have at least 100 children under the age of 
majority as defined by Tribal law or code, in the population subject to 
the jurisdiction of the Tribe to be eligible to apply for direct 
funding.
    Response: The main purpose of establishing the 100-child minimum is 
to assure that Tribal IV-D programs will be cost effective. We also 
believe this threshold eligibility requirement is a reasonable 
indication of necessary IV-D program infrastructure. Any Tribe that has 
at least 100 children subject to its jurisdiction clearly meets this 
requirement. However, in response to comments received, we have amended 
the final rule to permit waiver of the requirement that a Tribe has at 
least 100 children under the age of majority subject to its 
jurisdiction to be eligible for direct funding. Section 309.10(c) has 
been added and specifies that a Tribe or Tribal organization with less 
than 100 children subject to its jurisdiction may apply for direct 
funding provided it can make the required showing. The new subsection 
requires justification for waiver of the Sec.  309.10(a) requirement to 
ensure that a Tribe or Tribal organization has the required 
administrative capacity to undertake a child support enforcement 
program.

Subpart B--Tribal IV-D Program Application Procedures

    Section 309.15 describes what must be included in a Tribal IV-D 
application; Sec. Sec.  309.20-309.30 establish procedures for 
submitting an application for funding; Sec.  309.35 describes 
procedures for approval of applications and Tribal IV-D plan 
amendments; and Sec. Sec.  309.40-309.50 describe procedures related to 
disapproval actions.
    1. Comment: We received comments from two Tribal entities 
suggesting that provision be made in the regulation for voluntary 
retrocession of a IV-D program similar to the retrocession provisions 
in the Tribal TANF and Indian Self-Determination and Education 
Assistance Act (ISDEA) regulations.
    Response: The concept of ``retrocession'' relates to transferring 
authority from one governmental authority to another and is not 
appropriate for these Tribal child support enforcement program 
regulations. In the case of both the Tribal TANF program and contracts 
under the ISDEA, retrocession describes the process under which a Tribe 
voluntarily terminates its administration of a program and cedes back 
(or returns) the program to the State or Federal government. If a Tribe 
or Tribal organization administering a Tribal IV-D program decides not 
to continue to operate a child support enforcement program, it may not 
cede back the program to either a State or to the Federal government. 
Therefore we have determined that retrocession provisions are 
incompatible with the Tribal child support enforcement program. If a 
Tribe or Tribal organization decides not to continue administration of 
a Tribal IV-D program, it is not required to do so. Under the statute, 
administration of Tribal IV-D programs is undertaken voluntarily by 
Tribes and Tribal organizations. Should they decide to do so, 
applicants on Tribal lands can apply for IV-D services from the State 
as they always could.

Section 309.15--What Is a Tribal IV-D Program Application?

    1. Comment: One commenter stated that the use of existing forms SF 
424 and SF 424 A was helpful as Tribes are already familiar with those 
forms.
    Response: We appreciate that comment. We have attempted to use 
existing procedures to ease the application process and alleviate undue 
administrative burden.

Section 309.20--Who Submits a Tribal IV-D Program Application and 
Where?

    We received no comments on this section.

Section 309.25--When Must a Tribe or Tribal Organization Submit a 
Tribal IV-D Application?

    We received no comments on this section. The requirements in this 
section were moved to Sec.  309.16, ``What rules apply to start-up 
funding?''

Section 309.30--Where Does the Tribe or Tribal Organization Submit the 
Application?

    We received no comments on this section. This section was combined 
with Sec.  309.20.

Section 309.35--What Are the Procedures for Review of a Tribal IV-D 
Program Application, Plan and Plan Amendment?

    1. Comment: One Tribal commenter stated that the application 
process and requirements should be the same as those outlined in the 
Indian Self-Determination and Education Assistance Act (ISDEA), (Pub. 
L. 93-638).
    Response: The differences between programs eligible for contracting 
under Pub. L. 93-638 and child support enforcement programs funded 
under title IV-D are so significant that we have determined it would be 
inappropriate to adopt similar substantive requirements. Programs are 
eligible for contracting under Pub. L. 93-638 because they are 
programs, services, or functions otherwise provided by the Federal 
government under Federal statute. The ISDEA is fundamentally different 
from Tribal IV-D programs which are operated by Tribal governmental 
entities under section 455(f) of the Social Security Act. In addition, 
we have determined that an effective program that efficiently delivers 
needed child support services to all families, including the effective 
processing of inter-jurisdictional cases, must be governed by the 
requirements and objectives of the IV-D program rather than those of 
Indian-related programs.
    2. Comment: One Tribal commenter objected to Sec.  309.35(a), 
stating that allowing the Secretary or designee to ``determine whether 
the Tribal IV-D program application or plan amendment conforms to the 
requirements of approval'' subjects the applications to arbitrary 
standards.

[[Page 16650]]

    Response: We disagree that Tribal IV-D applications or plan 
amendments are subject to arbitrary standards by requiring such 
applications and plan amendments to conform to section 455(f) and final 
Tribal child support enforcement regulations. We believe we have 
established in these regulations appropriate and balanced standards for 
the administration and operation of Tribal child support enforcement 
programs that are responsive to the needs of Tribes and Tribal 
organizations. The statute states clearly that the Secretary must 
``promulgate regulations establishing the requirements which must be 
met by an Indian Tribe or Tribal organization'' to be eligible for a 
direct grant under title IV-D. These final regulations establish such 
requirements and are the standards against which all applications will 
be considered. The rule is also issued under the authority granted to 
the Secretary by section 1102 of the Act authorizing the Secretary to 
publish regulations that may be necessary for the efficient 
administration of the functions for which the Secretary is responsible 
under the Act. The Tribal child support enforcement regulations are the 
product of a deliberative and collaborative process under which all 
relevant input was fully considered. The result is a final regulation 
that we believe is necessary for the efficient administration of the 
national child support enforcement program; one which balances the 
needs of Tribes and Tribal organizations with the need for a 
predictable administrative framework.
    3. Comment: Four Tribal respondents stated that the regulations 
should provide a 45-day approval time rather than the 90-day timeframe. 
One Tribal respondent stated that the Federal timeframe for response to 
Tribal IV-D plans is appropriate.
    Response: We have decided to retain the 90-day deadline for review 
of applications, plans and plan amendments with an additional 45 days 
to consider all additional necessary information requested from the 
applicant. We have reviewed Tribal IV-D applications under 45 CFR part 
310 and have determined, based on this experience, that the 90-day 
deadline assures that due consideration is given to every Tribal IV-D 
application. Our experience in reviewing Tribal IV-D applications under 
the Interim Final regulations demonstrated that the complexity of the 
documents, the technical assistance that was required, the coordination 
of requests for additional information, and the consideration of such 
information required a realistic timeframe. Every Tribal IV-D 
application submitted to the Department under 45 CFR part 310 was 
unique and many raised complex issues requiring consideration. For 
these reasons, we decided that 90 days was a realistic timeframe to 
complete application and plan amendment review with an additional 45 
days to consider all necessary information requested from the 
applicant.
    4. Comment: One State suggested that copies of approved Tribal IV-D 
plans be provided to the State. Another State commenter suggested that 
States be notified of Tribal IV-D plan approval where the Tribe may be 
using a State's automated system to provide services.
    Response: While we will not routinely provide copies of approved 
Tribal IV-D plans to States or Tribes, we will notify IV-D Directors of 
newly approved Tribal IV-D programs in the form of a Dear Colleague 
Letter. We encourage Tribes and States to stay in communication with 
one another because such communication is essential to the successful 
delivery of IV-D services to children and families. In support of that 
goal, we are available to provide technical assistance.

Section 309.40--What Is the Basis for Disapproval of a Tribal IV-D 
Program Application, Plan or Plan Amendment?

    1. Comment: One Tribal commenter criticized the proposed rule as 
not providing specific grounds for plan disapproval.
    Response: We have revised Sec.  309.40 to clarify the specific 
grounds upon which Tribal IV-D plans will be disapproved. We believe 
the final regulation adequately specifies requirements which will 
ensure that the objectives of title IV-D are met. These regulations 
balance the needs of Tribes and Tribal organizations with the need for 
a predictable administrative framework so that Tribal child support 
programs successfully accomplish the outcomes specified in the statute. 
Section 309.40 makes clear that Tribal IV-D applications, IV-D plans, 
and plan amendments will be disapproved if applicable statutory and 
regulatory requirements are not met, required procedures are not in 
place, or the plan amendment is incomplete.
    2. Comment: Five Tribal commenters stated that the proposed rule 
imposes requirements not included in section 455(f) of the Act. The 
added elements are not required by statute and should be deleted.
    Response: Section 455(f) of the Act authorizes direct funding for 
Tribal IV-D programs which have the capacity to ``operate a child 
support enforcement program meeting the objectives of this part.'' 
``[T]his part'' refers to part D of title IV of the Social Security 
Act. The statute specifies the mandatory objectives of title IV-D 
programs: establishment of paternity, establishment, modification and 
enforcement of support orders, and location of noncustodial parents. 
While the statute specifies mandatory objectives, it is left to the 
Secretary to promulgate Tribal regulations necessary to accomplish 
these objectives. We have determined that these final regulations 
fulfill the statutory mandate to ``promulgate regulations establishing 
the requirements which must be met by an Indian Tribe or Tribal 
organization to be eligible'' for direct IV-D funding. After 
consideration of all issues raised in comments, we have established the 
minimum requirements which we have determined are necessary to 
reasonably support the statutory objectives of Tribal child support 
enforcement programs.
    3. Comment: Eleven Tribal commenters stated that Sec.  309.40(a)(2) 
goes beyond the statute by specifying that the Secretary review the 
Tribe's laws, code, regulations and procedures. Some also stated that 
although a Tribe may be required to submit a copy of its laws, approval 
of a Tribal IV-D plan or plan amendment should not be based on the 
Secretary's approval of such laws.
    Response: In response to Tribes' requests for clarification, we 
have revised Sec.  309.40(a)(2) to more clearly reflect that Tribal IV-
D plans and plan amendments may be disapproved if required laws, code, 
regulations, and procedures are not in effect. While it is necessary to 
ensure that the appropriate statutes and laws are in place, we do not 
intend to ratify or otherwise approve Tribal law. While the Secretary 
is not approving the Tribal laws, Tribal IV-D plans must contain enough 
information so that the Secretary can determine that relevant required 
Tribal law, regulations and procedures are in place to operate a IV-D 
program.
    4. Comment: Four Tribal commenters stated the proposed regulations 
provide that an application will be disapproved under certain 
circumstances. The section should provide flexibility by replacing 
``will'' with ``may.''
    Response: Section 309.40 establishes the bases for disapproval of 
an application. We have not adopted the suggestion to replace ``will'' 
with ``may.'' As a practical matter, deficiencies in Tribal IV-D plans 
do not inevitably lead to formal Tribal IV-D plan disapproval under 
these regulations. An incomplete plan, for example, is not 
automatically disapproved. Instead, we will communicate with Tribal 
applicants

[[Page 16651]]

and request needed information. We added Sec.  309.40(c) to clarify 
that if the application or plan amendment is incomplete and does not 
provide sufficient information for HHS to make a determination to 
approve or disapprove, HHS will request additional information. 
However, at some point, final action must be taken on a Tribal IV-D 
plan or plan amendment and Sec.  309.40 specifies the circumstances 
under which an application, plan or plan amendment will be disapproved.

Section 309.45--When and How May a Tribe or Tribal Organization Request 
Reconsideration of a Disapproval Action?

    1. Comment: Two Tribal commenters recommended that the Tribe, not 
the Secretary, should have the option to request a meeting. One 
commenter stated that conference calls and face-to-face meetings 
provide a critical forum for interaction, communication and dialogue 
and another endorsed the reconsideration process.
    Response: Tribes have the option to request a meeting. However, we 
have amended the language at Sec.  309.45(c) by deleting ``at the 
Department's discretion,'' to eliminate any confusion.

Section 309.50--What Are the Consequences of Disapproval of a Tribal 
IV-D Program Application, Plan or Plan Amendment?

    We received no comments on this section.

Subpart C--Tribal IV-D Plan Requirements

Section 309.55--What Does This Subpart Cover?

    1. Comment: One Tribal commenter stated that the Tribal IV-D plan 
requirements go beyond the specific requirements in the statute and 
that they are overly burdensome to Tribal governments.
    Response: Section 455(f) of the Act requires the Secretary to 
determine the minimum requirements necessary for the administration of 
Tribal child support programs capable of meeting the objectives of 
title IV-D. The objectives of title IV-D include the establishment of 
paternity, establishment, modification, and enforcement of support 
orders, and location of absent parents. We have promulgated regulations 
that we believe contain the minimum procedures and processes necessary 
for successful administration of IV-D programs, which are capable of 
establishing paternity, establishing, modifying, and enforcing support 
orders, and locating noncustodial parents.
    We recognize that Tribal IV-D programs are in the early stages of 
development. In Subpart C we have established requirements for Tribal 
IV-D programs which accommodate the unique characteristics and 
circumstances of Tribes. At the same time these regulations incorporate 
a framework which has proven effective in delivering needed child 
support services to families.
    2. Comment: Five State commenters stated that the proposed 
regulations did not sufficiently address issues of standardization and 
coordination between Tribes and States. They suggested that the lack of 
comparability among Tribal and State IV-D programs could limit the 
ability of these programs to effectively and efficiently provide IV-D 
services to families.
    Response: We address these comments more fully in the discussion of 
Sec.  309.120, which deals with intergovernmental coordination and 
cooperation. We recognize that Tribal and State child support programs 
necessarily will interact with one another and may do so through a 
variety of mechanisms. Subpart C is intended to establish Tribal IV-D 
program requirements, which will enhance these interactions and inter-
jurisdictional effectiveness. While Tribal IV-D programs are not 
required to meet all requirements that apply to State IV-D programs, 
nothing precludes them from adopting any and all of the techniques 
proven successful for States. In fact, we encourage them to do so, but 
remain convinced that additional mandates at this time are 
inappropriate.

Section 309.60--Who Is Responsible for Administration of the Tribal IV-
D Program Under the Tribal IV-D Plan?

    1. Comment: Several State commenters suggested that the regulation 
clarify a State's responsibility in complying with the provisions of 
approved Tribal IV-D plans under agreements where a State is providing 
services under an approved Tribal IV-D plan.
    Response: Both Sec. Sec.  309.60(c) and 309.145((a)(3) authorize 
Tribal IV-D programs to enter into cooperative arrangements with 
States. Under these provisions, child support enforcement services must 
be provided in accordance with the approved Tribal IV-D plan in order 
for Tribes to be eligible for Federal reimbursement. Rules governing 
the negotiation of agreements between Tribes and States and other 
entities are not the subject of this regulation. However, Sec.  
309.60(c) makes clear that Tribes, not States, will be held accountable 
for the proper operation of Tribal IV-D programs, including all actions 
undertaken on behalf of such programs. The language at Sec.  309.60(c) 
clearly states that if the Tribe or Tribal organization delegates any 
of the functions of operating a program to another Tribe, State or any 
other agency, the Tribe is responsible for compliance with the approved 
Tribal IV-D plan.
    2. Comment: One commenter stated that contracting with the State 
would be viable for many individual Alaska Tribes, rather than 
delegating functions to a regional consortium.
    Response: The unique circumstances and challenges faced by child 
support enforcement programs in the State of Alaska require recognition 
and accommodation so that arrangements may be made for the provision of 
needed services. Alaska and Alaska Native Tribal entities are 
encouraged to find local solutions to meet the challenges they face. 
Contracting with the State or with other Native entities is one 
mechanism for delivery of IV-D services on terms that are in accordance 
with title IV-D requirements and which will enable families to receive 
needed support.

Section 309.65--What Must a Tribe or Tribal Organization Include in a 
Tribal IV-D Plan in Order To Demonstrate Capacity To Operate a Tribal 
IV-D Program?

    Section 309.65(a) establishes requirements under which a Tribe or 
Tribal organization may receive direct funding by submitting a Tribal 
IV-D plan which meets specified criteria. We received many comments 
from Tribes and States--some of them general and some specific--on this 
provision which raised many complex and cross-cutting issues.
    1. Comment: Tribal and State commenters provided positive comments 
on this portion of the rule establishing Tribal IV-D plan requirements. 
They stated that the rule clearly allows for Tribal values, customs and 
traditions. Two Tribal commenters stated that the rule is simple and 
provides needed flexibility.
    Response: We appreciate the acknowledgment of the responsiveness to 
the needs of Tribes and Tribal organizations in these first regulations 
for Tribal IV-D programs and are encouraged by the positive response to 
our efforts to accommodate the unique circumstances of Indian Tribes.
    2. Comment: One Tribal commenter stated that during the early years 
of the IV-D program, the specifications for State programs were 
recommendations, not requirements and it should be the same for new 
Tribal IV-D programs. The

[[Page 16652]]

commenter suggested this rule is much more prescriptive than those 
initially promulgated for States.
    Response: We disagree. The final rule implementing the initial 
Child Support Enforcement program established by Part B of Pub. L. 93-
647 was published in the Federal Register on June 26, 1975. This 
publication added 45 CFR Parts 301 (State Plan Approval and Grant 
Procedures), 302 (State Plan Requirements), 303 (Standards for an 
Effective Program) and 304 (Federal Financial Participation). These are 
not recommendations. States are required to operate child support 
enforcement programs under a specific statutory and regulatory 
framework. As State programs evolved, requirements were expanded. With 
this rule we have set forth minimum requirements for Tribes to ensure 
effective Tribal IV-D programs that are capable of delivering child 
support enforcement services to families.
    3. Comment: One Tribal commenter stated that OCSE must encourage 
Tribes to develop their own policies to achieve program directives, 
defer to Tribes to establish standards and limit the imposition of 
Federal standards in deference to Tribal authority.
    Response: We believe these initial regulations implementing the 
Tribal IV-D program provide the appropriate recognition of Tribal 
sovereignty and culture. Tribes may develop culturally-appropriate 
policies to conform to the requirements of these regulations and are 
encouraged to do so. We have established a minimum administrative 
framework for all Tribal IV-D programs. We recognize that individual 
Tribes may establish IV-D programs within this framework through 
various means.
    4. Comment: One State commenter stated that it is not reasonable to 
expect Tribes to be immediately accountable for the many requirements 
that have evolved over 25 years for State IV-D programs, but that it is 
reasonable to expect that State and Tribal IV-D programs will move in 
the same direction.
    Response: We agree that State and Tribal IV-D programs should move 
in the same direction. As stated earlier, title IV-D has been amended 
over the years to mandate specific case processing actions and 
timeframes for State action as the program has evolved and become more 
automated. We have determined that it is premature to consider such 
specific requirements with respect to Tribal IV-D programs. Like 
States, Tribes need adequate time to develop their programs and 
determine appropriate approaches, levels of automation, and processes 
for delivering services before it would be appropriate to consider the 
need for more specific requirements. Tribes need to have sufficient 
time to operate and automate programs and we need to understand how 
much time it takes Tribal IV-D programs to carry out various functions 
before we can consider specific actions, timeframes and processing 
standards or whether such standards are necessary. These regulations 
strike a balance between including requirements for specific, proven, 
and critical components and aspects of a child support program, while 
leaving implementation details up to the Tribes.
    5. Comment: One State commenter stated that each Tribe should be 
required to have a Central Registry and use CSENet (an automated system 
for interstate case processing), or as an alternative, be required to 
adopt the Uniform Interstate Family Support Act (UIFSA). Another State 
commenter appreciated the efforts to allow Tribes flexibility to 
develop and administer programs consistent with Tribal laws and 
traditions, but thinks that the lack of comparability among Tribal and 
State programs will limit efficiency and effectiveness.
    Response: The specific State requirements raised by the commenter 
related to the Central Registry and CSENet evolved over time and were 
not among the initial set of State IV-D regulatory requirements. This 
Tribal regulation will allow Tribes to begin planning for building 
appropriate automated data processing systems and procedures over time 
and does not mandate links to systems to which Tribes do not presently 
have access.
    As previously stated, we have begun consideration of appropriate 
minimum Tribal systems automation specifications with stakeholders.
    Where needed for effective and efficient programs, we have 
established Tribal IV-D requirements that are comparable with State IV-
D requirements while bearing in mind that the statutory provision 
authorizing direct funding to Indian Tribes was enacted to provide 
much-needed services where, historically, no services were available. 
As to the suggestion that Tribes be required to adopt UIFSA, we address 
this issue in the discussion of Sec.  309.120.
    6. Comment: Twenty-three Tribal commenters objected to this section 
stating that the regulations do not match the statute and impose 
unnecessary burdens. They stated that the 14 elements in Sec.  
309.65(a) far exceed the five core functions listed in the statute at 
section 455(f) and that Tribes should not have to include procedures 
for each of the 14 criteria.
    Response: We agree with the commenters that section 455(f) of the 
Act specifies five core program objectives. However, we disagree that 
the elements enumerated in Sec.  309.65(a) go beyond these objectives. 
The statute specifies functions which must be performed and explicitly 
delegates to the Secretary of HHS the authority to promulgate 
regulations ``establishing the requirements which must be met by an 
Indian Tribe or Tribal organization to be eligible'' for funding under 
title IV-D. While, as a matter of law, the Secretary is not limited in 
the number of requirements which may be promulgated, these regulations 
in fact establish only the minimum requirements we have determined 
necessary for the operation of Tribal child support enforcement 
programs meeting the objectives of title IV-D. Every element specified 
at Sec.  309.65(a) was determined to be necessary to the operation of 
Tribal IV-D programs capable of meeting the specific program objectives 
enumerated in the statute. This determination was made after careful 
and deliberate consideration of comments received on the proposed 
regulation as well as experience administering Tribal IV-D programs 
under the interim final regulation.
    7. Comment: One Tribal commenter stated that the regulations will 
not facilitate establishment and collection of support for Native 
American children because they are too process-oriented and 
prescriptive for Tribal entities to achieve over the short term.
    Response: These regulations establish only the minimum requirements 
we have determined necessary for the operation of Tribal child support 
enforcement programs meeting the mandatory objectives of title IV-D: 
establishing paternity, establishing, modifying and enforcing support 
orders, and locating noncustodial parents. Every requirement 
established by this rule as a condition for Federal funding is intended 
to ensure that Tribal IV-D programs meet the objectives of title IV-D 
while at the same time recognizing the unique status and circumstances 
of Indian Tribes.
    8. Comment: Five Tribal commenters stated that there are too many 
requirements in the rule and these prevent Tribes from designing 
programs to meet their needs. The design and implementation of Indian 
programs by Indian Tribes has proven that the most effective way to 
deliver services is with programs designed by the Tribes themselves.

[[Page 16653]]

    Response: While this regulation is responsive to the needs of 
Tribes and Tribal organizations, the statute itself limits the scope of 
this flexibility. The authorization for direct Federal IV-D funding of 
Indian Tribes requires that Tribes demonstrate to the satisfaction of 
the Secretary a capacity for accomplishing specific IV-D program 
objectives. As we have stated in response to other comments, every 
element specified at Sec.  309.65(a) was determined to be necessary to 
the operation of Tribal IV-D programs capable of meeting the program 
objectives enumerated in the statute. In this rule we have worked hard 
to ensure flexibility and recognize the status of Indian Tribes and 
accommodate the operational realities faced by Tribes. We agree that 
section 455(f) of the Act allows for flexibility, but such flexibility 
must be exercised within the parameters established in the statute. 
Under this regulation we are confident that Tribes will be able to 
design and implement Tribal IV-D programs that meet local needs.
    9. Comment: Nine Tribal commenters stated that, while IV-D 
regulations should have some areas of commonality, respect for Tribal 
sovereignty and recognition of the unique aspects of Indian Tribes 
require accommodation for such characteristics and appropriate 
flexibility in Federal regulations. These commenters suggested that 
forcing Tribal IV-D programs into the existing State model violates the 
law recognizing the unique legal status of Indian Tribes and generally 
stated that Tribes were not States and should not be forced to function 
as States.
    Response: We agree that the final regulation should accommodate the 
unique status of Indian Tribes and incorporate as much flexibility as 
possible while ensuring effective and efficient Tribal IV-D programs. 
In particular, we emphasize that one of the key underlying principles 
of these final Tribal IV-D regulations is recognition of and respect 
for Tribal sovereignty and the unique government-to-government 
relationship between Indian Tribes and the Federal government. We have 
determined that the statute does not mandate that requirements imposed 
on Tribal IV-D programs be the same as those imposed on State IV-D 
programs as prerequisites for funding. Moreover, there is nothing to 
suggest either in the original authorization for Tribal IV-D programs 
or in a subsequent amendment, that Congress intended to limit the 
Secretary's rulemaking discretion to the rules already established for 
State IV-D programs. While Tribal IV-D programs must assure that 
assistance in obtaining child support is available to all who request 
services or are referred to the Tribal IV-D program, the rules for such 
programs must also take into account the unique legal status of such 
Tribes. We believe that these final Tribal IV-D regulations strike the 
appropriate balance.
    10. Comment: One State commenter stated that current IV-D 
regulations do not allow States to refuse services to particular 
applicants, no matter where they reside. If the State where the request 
for services is made had no jurisdiction, the State can refer the 
applicant to an agency in the appropriate jurisdiction. The same 
commenter suggested that a referral process be specified in Federal 
regulation for case referral among Tribes and between States and 
Tribes.
    Response: Under these regulations, Tribes are not permitted to 
refuse services to any applicant. Tribal IV-D programs must take all 
applications and open a case for each application. We know there may be 
circumstances under which the only appropriate service will be to 
request assistance from another Tribal or State IV-D program with the 
legal authority to take actions on the case. We address these comments 
more fully in the discussion of Sec.  309.120, which deals with 
intergovernmental coordination and cooperation.
    11. Comment: One commenter stated that Tribes should be permitted 
to develop their own program operation criteria and service areas.
    Response: As stated above, the statute authorizing direct IV-D 
funding for Tribal programs limits the flexibility that can be 
established to permit Tribes to individually create program 
requirements. The authorization for direct Federal IV-D funding of 
Indian Tribes requires that Tribes demonstrate to the satisfaction of 
the Secretary a capacity for accomplishing specific IV-D objectives. We 
have determined that every element specified at Sec.  309.65(a) is 
necessary to the operation of Tribal IV-D programs capable of meeting 
the objectives enumerated in the statute.
    Section 309.65(a)(2) requires evidence that a Tribe or Tribal 
organization has in place procedures for accepting all applications for 
IV-D services and providing IV-D services as required by law and 
regulation. A Tribe, when describing the population subject to its 
laws, may include geographical descriptions of the area over which such 
authority is exercised. However, as noted above, Tribal IV-D programs 
must take all applications and open cases for each application, and 
there may be instances in which the appropriate services will be to 
request assistance from another Tribal or State IV-D program. Since 
these regulations provide for reimbursement of all allowable costs of 
administering a Tribal IV-D program at the appropriate match rate, it 
is expected that a Tribe will exercise authority over Tribal members 
and others on Tribal lands to the maximum extent legally permitted and 
that Tribes will also provide services to all applicants.
    12. Comment: One Tribal commenter stated that Tribes are not public 
agencies and access to Tribal IV-D services should be limited to 
reservation residents and Tribal members.
    Response: As stated earlier in the preamble, these final 
regulations require that Tribal child support agencies accept all 
applications for services and require that the child support agency 
provide all appropriate services. This is to ensure that IV-D services 
are available to all who need them.
    13. Comment: One Tribal commenter suggested that the wording in 
Sec.  309.65(a)(2) be changed to allow Tribal IV-D agencies to refer 
customers without having to go through the application process. Two 
other Tribal commenters stated that ensuring access to services is not 
a requirement of the statute and should be removed from the regulation.
    Response: As a practical matter, we think the instances in which a 
Tribal IV-D agency has no authority to take action in a particular case 
will be few, but in those instances the Tribal IV-D agency will refer 
the case to the appropriate IV-D agency. There will be instances in 
which States and Tribes must work together to ensure families receive 
the support they deserve. Under these regulations Tribes are not 
permitted to refuse services to any applicant. Taking all applications, 
determining what services are needed or may be provided and providing 
those services either directly or through another IV-D agency are 
activities that are included in categories of costs eligible for 
Federal reimbursement at the appropriate funding rate. We require that 
all IV-D programs accept all applications so that families receive 
assistance in reaching the appropriate IV-D program and no family is 
denied services which are legally available.
    Tribes may not merely refer someone to another IV-D agency without 
accepting an application because everyone needs to be served. However, 
we recognize that as Tribal IV-D programs begin to operate, States and 
Tribes may need to work out cooperative agreements to deal with cases 
in specific instances, e.g., a Tribe has authority to provide certain 
services

[[Page 16654]]

while only a State IV-D agency may provide others. We will provide 
guidance governing referral of cases in specific instances, as needed.
    14. Comment: One State commenter recommended that we provide 
Federal guidance to ensure that an individual does not apply for IV-D 
services at both the local State IV-D program office and the Tribal IV-
D program office. The commenter suggested that this portion of the rule 
be rewritten to clarify that services by a Tribal IV-D program can only 
be provided to an individual who is not receiving services from a State 
IV-D program.
    Response: There is nothing to preclude an individual from applying 
for and receiving services from more than one IV-D agency. The fact 
that a custodial parent and child may reside within a Tribe's 
jurisdiction while the noncustodial parent may reside or work within a 
State's jurisdiction highlights the importance of Tribal-State 
communication and coordination. We encourage States and Tribes to work 
together to provide needed services and coordinate those services.
    15. Comment: One State commenter asked if the Tribal IV-D program 
must charge an application fee as is required of State programs.
    Response: Application fees are not required of Tribal IV-D programs 
at this time. However, Tribes may, at their option, provide that an 
application fee will be charged to individuals who apply for services 
under the Tribal IV-D plan (with stated exceptions). We have added 
paragraph (e) to Sec.  309.75, governing administrative and management 
procedures, which reflects this option and which provides that any 
application fee charged must be uniformly applied, be a flat amount not 
to exceed $25.00, or be an amount based on a fee schedule not to exceed 
$25.00. This is the same cap placed on State IV-D programs.
    16. Comment: One Tribal commenter stated that it was unclear what 
``due process'' means in Sec.  309.65(a)(3). This language offended 
another Tribal commenter who stated that Tribes provide due process. 
Two other Tribal commenters stated that assuring due process is not a 
requirement of the statute and should be removed.
    Response: The term ``due process'' in the context of Sec.  
309.65(a)(3) refers to legal proceedings according to rules and 
principles which have been established by the Tribe or Tribal 
organization for the protection and enforcement of individual rights. 
The required statement of assurance is intended to ensure that the 
procedural and substantive protections of individuals are in place and 
is not meant to suggest that Tribes do not provide due process. 
Requiring this assurance is not indicative of a judgment as to whether 
a Tribe's due process is adequate. While we do not define for Tribes 
what due process is, we have determined that all IV-D programs should 
have due process protections in place and we require an assurance to 
that effect.
    17. Comment: Three Tribal commenters stated that because the 
statute does not require it, OCSE may only suggest that a Tribe include 
performance targets in its plan. Another Tribal commenter stated that 
some Tribes do not utilize standard performance measurements and that 
measuring success by numerical or monetary targets does not allow for 
intangible successes to be taken into account (such as family 
reconciliation.)
    Response: The Federal statute specifically authorizes the Secretary 
to establish requirements which must be met in order to be eligible for 
funding under title IV-D. We have determined that in order to fulfill 
our responsibility to ensure the effective and efficient administration 
of Federally-assisted Tribal child support enforcement programs, it is 
essential that Tribes and Tribal organizations consider and articulate 
performance targets or goals for their programs. In response to 
comments, we have revised Sec.  309.65(a)(14) to clearly reflect that 
the performance targets should be based on the particular needs and 
circumstances of Tribal IV-D programs. In addition to submission of 
targets for paternity and support order establishments, targets on 
total amount of current collections, and targets on total amount of 
past due collections, we encourage Tribes and Tribal organizations to 
include Tribally-defined measures of success that go beyond numerical 
or monetary description. These optional measures could include, for 
example, family reconciliation or other indications of improved quality 
of life for Indian families. We believe that performance targets are 
essential for ensuring that Tribes focus on maintaining efficient and 
effective child support services because such targets assist us and 
Tribes in ensuring that Tribal IV-D programs can increase their 
efficiency and effectiveness over time.
    18. Comment: One Tribal commenter objected to the imposition of a 
performance-based incentive and penalty system for Tribal grantees. 
Another asked if we were proposing to withhold sanctions from Tribal 
and State programs while performance standards are sorted out and one 
commenter said that heavy penalties for failure to meet program 
requirements will drive away a lot of Tribes.
    Response: The proposed rule did not impose a performance-based 
incentive or penalty system for Tribal IV-D grantees and we have not 
imposed such systems in this final regulation. Tribal IV-D plans must 
include performance targets, but funding is not contingent upon the 
targets being met. In the statistical and narrative reports required 
under Sec.  309.170, grantees must report on their success in reaching 
their performance targets. We are not setting performance targets 
because we believe that Tribes are in the best position to set 
performance targets in the initial years of the Tribal IV-D program and 
to estimate the targets that they can reasonably attain. Tribal IV-D 
performance targets have no effect on State IV-D programs.

Sections 309.16 and Sec.  309.65(b)--Start-Up Funding

    1. Comment: Thirteen Tribal commenters stated that a two-year 
start-up time frame is not sufficient. Some suggested that extensions 
be permitted.
    Response: We were persuaded by commenters to re-evaluate the 
regulatory framework for start-up funding and have added a new Sec.  
309.16 to reflect provisions related to applications and approval of 
start-up funding. Section 309.16(a) lays out the requirements for an 
application for start-up funding including the standard application 
forms SF 424, ``Application for Federal Assistance'', and SF 424A, 
``Budget Information--Non-Construction Programs'', a quarter-by-quarter 
estimate of expenditures for the start-up period, notification of 
whether the Tribe or Tribal organization is requesting funds for 
indirect costs and an election of a method to calculate estimated 
indirect costs, and a narrative justification for each cost category on 
the form. If the Tribe or Tribal organization requests funding for 
indirect costs as part of the application for start-up funds, estimated 
costs may be submitted either by a documentation of the dollar amount 
of indirect costs allocable to the IV-D program, including the 
methodology used to arrive at the amounts, or submission of the current 
indirect costs rate negotiated with the Department of the Interior and 
a dollar amount of estimated indirect costs. The amount of indirect 
costs must be included within the $500,000 limit for start-up funds. 
The Tribe or Tribal organization must also submit a description of the 
requirements a Tribe currently meets and, if the Tribe does not 
currently meet the requirements in Sec.  309.65(a), a program 
development

[[Page 16655]]

plan detailing actions to be taken to meet the Tribal plan 
requirements. Section 309.16(c) describes under what circumstances the 
Secretary may consider extending the period of time during which start-
up funding will be available or increasing the amount of start-up 
funding provided. An unfavorable decision to extend the period of time 
during which start-up funding is available or to increase the amount of 
start-up funding provided is not subject to an administrative appeal.
    Based on the experience of Tribes of varying sizes and 
circumstances that are currently operating IV-D programs, we believe 
that the amount of time specified at Sec.  309.16(a)(5) will provide 
Tribes and Tribal organizations with reasonable and necessary support 
to complete the start-up phase necessary for comprehensive child 
support enforcement programs. However, in extraordinary circumstances, 
we will consider extending the period of time during which start-up 
funding will be available to a Tribe or Tribal organization or 
increasing the amount of start-up funding provided.
    2. Comment: One commenter stated that ``demonstrate satisfactory 
progress'' towards a fully operational Tribal IV-D program in proposed 
Sec.  309.65(c) is vague and suggested that it be more clearly defined.
    Response: The language at proposed Sec.  309.65(c) has been 
reworded and moved to 309.16(a)(5) for clarity. Under Sec.  
309.16(a)(5), Tribes must develop a program development plan which 
demonstrates to the satisfaction of the Secretary that the Tribe or 
Tribal organization will have a IV-D program meeting the requirements 
of Sec.  309.65(a) within a specific period of time, not to exceed two 
years. In order to demonstrate satisfactory progress toward a fully-
operational Tribal IV-D program, a Tribe would have to show it is 
meeting specific goals established in the program development plan 
within the timeframes established in the plan. In response to comments, 
we have revised Sec.  309.65(b) to make clear that the Secretary may 
terminate start-up funding if the Tribe or Tribal organization fails to 
satisfy any provision or milestone described in its program development 
plan within the timeframe specified in the plan. A decision to 
terminate start-up funding is not subject to administrative appeal.

Section 309.65(d)--Delayed Program Requirements

    1. Comment: Thirty-nine Tribal and State comments were received on 
this section that outlined future requirements for Tribal IV-D 
programs. While a few of the commenters thought that the requirements 
for enforcement services should be the same for Tribes as for States, 
the majority of the commenters recommended eliminating Sec.  309.65(d). 
Most expressed concern about how Tribes will access the Federal 
automated systems. They also stated that if Tribes are mandated to 
enter into cooperative agreements with States to access these systems, 
it would infringe on Tribal sovereignty.
    Response: Based on comments, we are persuaded that it is not 
appropriate at this time to impose future requirements for additional 
procedures which Tribes and Tribal organizations must implement within 
two years after the Secretary issues guidelines for these requirements. 
These requirements were removed from the final rule. If, after 
experience and consultation, additional regulations become necessary, 
we will propose rules at that time. Some of the advanced child support 
enforcement techniques require a minimal level of automation, and it 
would not be appropriate to mandate the phase-in of such techniques in 
advance of understanding more clearly the issues related to Tribal IV-D 
automation. We have begun consideration of appropriate minimum Tribal 
systems automation specifications with stakeholders.

Section 309.65(e)--Certification of Compliance With the 100-Child 
Minimum Requirement

    1. Comment: One commenter suggested the requirement to certify 
compliance with the 100-child minimum be deleted except for initial 
applications or when a member Tribe drops out of a consortium.
    Response: One of the basic eligibility requirements--that a Tribe 
is eligible to apply for funding if it has at least 100 children under 
the age of majority in the population subject to its jurisdiction is 
found at Sec.  309.10(a). This requirement may be subject to a waiver 
under Sec.  309.10(c). We deleted the language from proposed Sec.  
309.65(e) and moved it to Sec.  309.70. The Tribe must certify that 
there are at least 100 children under the age of majority in the 
population subject to its jurisdiction. The requirement that a 
consortium demonstrate authorization of two or more Indian Tribes with 
at least 100 children under the age of majority subject to its 
jurisdiction remains applicable even if a member of the consortium 
drops out. If, during the funding cycle, a member of a consortium drops 
out, the assurance that the consortium will continue to serve at least 
100 children must be resolved by the beginning of the next funding 
cycle.

Section 309.70--What Provisions Governing Jurisdiction Must a Tribe or 
Tribal Organization Include in a Tribal IV-D Plan?

    1. Comment: Seven Tribal commenters supported the fact that the 
regulation did not address jurisdiction. Several State commenters 
stated that jurisdiction is not adequately addressed in the regulation 
and that guidance is needed.
    Response: Jurisdiction is the legal authority which a court or 
administrative agency has over particular persons and over certain 
types of cases. Issues related to jurisdiction are central to 
intergovernmental cooperation for the provision of child support 
enforcement services to families. Without proper jurisdiction, a 
tribunal cannot proceed to establish, enforce, or modify a support 
order or determine paternity. The legal authority to undertake these 
functions is essential to the ability of both State and Tribal child 
support enforcement programs to meet the statutory objectives of title 
IV-D of the Social Security Act. Lack of jurisdiction does not excuse a 
Tribal IV-D program from the responsibility of providing services when 
asked, including seeking assistance from another IV-D program.

Section 309.75--What Administrative and Management Procedures Must a 
Tribe or Tribal Organization Include in a Tribal IV-D Plan?

    1. Comment: One commenter suggested that the word ``promptly'' 
should be replaced with a 20-calendar day time frame for opening a case 
as required for State IV-D agencies by 45 CFR 303.2(b).
    Response: We disagree that it is necessary at this time to require 
a specific time frame for opening a Tribal IV-D case. We are satisfied 
that Sec.  309.65(a)(2) is sufficient to ensure that all applications 
for IV-D services are accepted and acted upon. We expect that all 
applications for Tribal IV-D services will be acted upon in a prompt 
and efficient manner. A Tribal IV-D agency must open a case for each 
application. In some of these cases, the proper action will be to refer 
the case for enforcement by a State or another Tribe with access to 
enforcement tools the Tribe may not access directly, e.g. State income 
tax refund offset; in others it will be to refer the case to a State or 
another Tribe because the Tribe has no jurisdiction over the parties. 
We have eliminated the language originally proposed in Sec.  309.75(c) 
related to opening IV-D cases since it was duplicative of language in 
Sec.  309.65(a)(2).

[[Page 16656]]

    2. Comment: One Tribal commenter suggested deleting the requirement 
for bonding in paragraph (d), as most Tribes are not able to afford 
bonding. Nine other Tribal commenters suggested eliminating the 
language at paragraph (d)(3) under which the requirements of this 
section do not reduce or limit the ultimate liability of the Tribe or 
Tribal organization for losses of support collections from the Tribal 
IV-D agency's program because it implies the Tribe has liability and it 
could be construed as a waiver of Tribal sovereignty.
    Response: We reviewed the proposed requirement for the bonding of 
employees in light of Tribal comments that such a requirement would 
cause financial hardship. In response to the concerns raised, we have 
revised Sec.  309.75(b) so that taking out a bond is not the only means 
of satisfying the requirement for protection against loss. Under the 
revised provision, Tribal IV-D programs must submit documentation that 
establishes that every person who receives, disburses, handles, or has 
access or control over funds collected under the Tribal IV-D program is 
covered by either a bond or insurance sufficient to cover all losses. 
Because the bond or insurance will cover all losses, it is not 
necessary to address liability. In addition, we have eliminated as 
unnecessary the language in former Sec.  309.75(d)(3) related to the 
ultimate liability of Tribes.
    3. Comment: One Tribal commenter objected to the requirement at 
proposed paragraph (e) to provide notice of all support collections to 
families and noted that States only have to provide notice of assigned 
support. The proposed requirement is more stringent. Another Tribal 
commenter stated that until a Tribe has a sophisticated computer system 
to track individual accounts, providing a notice will be time-consuming 
and the agency should provide such information only on request.
    Response: As indicated earlier in this preamble, we have determined 
that all regulations applicable to State IV-D programs need not apply 
to Tribal IV-D programs. State IV-D programs are required to provide 
monthly notice of support payments for each month to individuals who 
have assigned their rights of support to the IV-A agency. However, we 
believe that notices of support collections should be provided to all 
families receiving services from the program. In order to recognize the 
level of automation currently available to Tribal IV-D programs, we 
have revised Sec.  309.75(c) to require that notice of collections be 
provided to families receiving services under the Tribal IV-D program 
at least once a year. This is less cumbersome than a requirement to 
provide notices on a monthly basis. In addition to the annual notice, a 
notice must be provided at any time to either the custodial or 
noncustodial parent upon request. In this way families will receive 
regular notices of collections made on their behalf.
    4. Comment: One commenter recommended that we require that for each 
of the first three program years, the Tribe should obtain an evaluation 
every six months as well as a yearly external evaluation.
    Response: We have not imposed these additional evaluation 
requirements on Tribes in these final regulations. We have determined 
that the required audits under Sec.  309.75(d) and the authority to 
conduct Federal audits as the need arises are sufficient to ensure 
accountability and additional evaluations are not necessary.

Section 309.80--What Safeguarding Procedures Must a Tribe or Tribal 
Organization Include in a Tribal IV-D Plan?

    1. Comment: One Tribal commenter stated that because the statute 
does not require it, OCSE may only suggest that the Tribal IV-D plan 
include safeguarding information in its plan. Another commenter stated 
that it is critical for Tribal grantees to describe safeguarding 
procedures.
    Response: We disagree that because the statute does not explicitly 
direct the Secretary to establish safeguarding regulations, that the 
Secretary may not do so. As we noted above, the statute explicitly 
delegates to the Secretary the authority to promulgate regulations 
``establishing the requirements which must be met by an Indian Tribe or 
Tribal organization to be eligible'' for funding under title IV-D. We 
have determined that safeguarding confidential information is critical 
to individual rights to privacy as well as to effective Tribal child 
support programs, and that implementation of safeguarding procedures is 
necessary to meet IV-D program objectives and to ensure that data and 
information received from State IV-D programs are safeguarded in 
accordance with statutory and regulatory requirements. Therefore, we 
require minimum but critical safeguarding procedures at Sec.  309.80 to 
ensure that confidential information is protected from improper 
disclosure.
    2. Comment: Two Tribal commenters indicated concern about 
confidential information on Tribal members going into a national 
database system that will be shared with States. Tribes do not want to 
make their enrollment records accessible. Another Tribal commenter did 
not like the proposed requirement in Sec.  309.65(d) and related 
safeguarding requirements in Sec.  309.80(b) that the Tribal IV-D 
agency will have to report new hires to States, which in turn would 
report them to the National Directory of New Hires (NDNH).
    Response: These final regulations do not require Tribes to submit 
any information to a national or State database and there is nothing in 
this final rule that requires Tribes to provide enrollment records to 
any entity. The requirement at Sec.  309.80(b) is necessary because 
Tribes may receive information from Federal sources including the NDNH 
from States as well as information about state cases and must meet 
Federal statutory and regulatory confidentiality requirements. In 
response to comments, the requirements at proposed Sec.  309.65(d) were 
eliminated.
    3. Comment: One State commenter stated that Tribes have no 
authority to access the FPLS or other Federal databases to locate 
individuals for IV-D purposes. Another State commenter stated that if 
Tribes have direct access to statewide systems, confidentiality would 
be a concern.
    Response: Tribes are legally precluded from direct access to the 
FPLS. However, they could receive FPLS data from a State in an 
intergovernmental case. The technical requirements for access to the 
FPLS will be the subject of future guidelines and program instructions. 
All IV-D case record information is confidential, whether a State or 
Tribal IV-D program maintains it and both entities are required to 
treat the information as confidential and are bound by safeguarding 
requirements. State and Tribal safeguarding requirements are not in 
conflict. If Tribes and States enter into agreements for reciprocal 
access to each other's databases for location or other child support 
purposes, such agreements must not conflict with Federal safeguarding 
and other regulations and must comply with the Internal Revenue Service 
(IRS) rules governing the disclosure of tax return information.
    4. Comment: One commenter asked who would be prosecuted if a State 
contracts with a Tribe and a violation of confidentiality of IRS 
material occurs. The commenter suggested that States have hold harmless 
regulations regarding release from liability of prosecution.
    Response: Current Federal law does not allow a State to release tax 
information to a Tribal IV-D agency.

[[Page 16657]]

When an entity directly receives tax return information from the IRS, 
it has the legal responsibility to safeguard such information. Any 
agreement negotiated between a Tribe and a State must address 
safeguarding and comply with all applicable Federal law and 
regulations.

Section 309.85--What Records Must a Tribe or Tribal Organization Agree 
To Maintain in a Tribal IV-D Plan?

    1. Comment: One State commenter stated that the regulations do not 
address reporting of collections made by States on behalf of families 
who are receiving Tribal IV-A assistance.
    Response: State reporting requirements are not addressed in this 
regulation. Information about any collection received by a Tribal IV-D 
program from a State IV-D program must be included in the Tribal IV-D 
program's records under Sec.  309.85(a)(4) and must be reported under 
Sec.  309.170.
    2. Comment: We received five State comments suggesting that Tribal 
IV-D programs use all the standard Federal forms that State IV-D 
programs use.
    Response: State IV-D programs have been in operation for almost 30 
years and are required to use a variety of standard Federal forms. The 
requirements related to these standard forms have evolved over time and 
some of them were developed or amended recently. At this initial stage 
in the development of Tribal IV-D programs, we have determined that it 
is not reasonable to mandate that Tribes use all the same forms as 
States. Whether or not a particular standard Federal form should be 
required of Tribal IV-D programs depends on whether the use of such 
form is essential to the effective and efficient administration of 
Tribal child support enforcement programs. We disagree that Tribes 
should be required to use every standard Federal form that States 
currently use, especially since many of the forms were designed for 
automated case processing. Section 309.110 requires that Tribes use the 
standard income withholding notice, because we have determined that the 
standard use of this form by all IV-D programs is necessary for the 
effective and efficient enforcement of support orders.

Section 309.90--What Governing Tribal Law or Regulations Must a Tribe 
or Tribal Organization Include in a Tribal IV-D Plan?

    1. Comment: One State commenter noted that Tribal laws should be 
used in administering Tribal programs, but States should approve the 
Tribal laws. Three Tribal commenters responded favorably to the 
provision allowing Tribes to use their own laws, traditions and 
customs.
    Response: There is no legal authority to impose a requirement that 
States approve Tribal laws. This would be a clear infringement on 
Tribal sovereignty.
    2. Comment: One Tribal commenter noted that not all Tribal codes 
are written and it would be difficult to submit that kind of code or 
law. Another commenter appreciated the fact that the rule recognized 
that not all Tribes have written codes.
    Response: Should a Tribe with unwritten codes and laws apply for 
direct funding, these final regulations require a detailed description 
of such codes and laws in its application. We recognize in this 
regulation that one of the unique characteristics of Indian Tribes is 
that some do not have written laws and codes, even though they have 
long-standing and rich legal traditions. We have added a definition of 
``Tribal custom'' at Sec.  309.05 to make clear that this term is not 
open-ended, but means unwritten law that has the force and effect of 
law. Section 309.90(b) permits Tribes without written laws to submit 
detailed descriptions of Tribal common law as evidence that procedures 
required by Sec.  309.90(a) are in place. Even though Tribal custom is 
unwritten, it is nonetheless capable of being known and may be shown in 
several ways: it may be shown through recorded opinions and decisions 
of Tribal courts; it may be judicially noticed; or it may be 
established by testimony of expert witnesses who have substantial 
knowledge of Tribal common law in an area relevant to the issue before 
the Tribe.
    3. Comment: One State commenter suggested that the language at 
Sec.  309.90 be amended to require Tribal employers to comply with an 
income withholding order of another Tribe or State.
    Response: We have not amended Sec.  309.90 as suggested because 
Tribes are not required to adopt the Uniform Interstate Family Support 
Act (UIFSA) as all States were required to do. UIFSA compels a State 
employer to honor a withholding order sent directly from another State 
or Indian Tribe. However, the Full Faith and Credit for Child Support 
Orders Act (FFCCSOA) requires both Tribes and States to enforce valid 
child support orders. Where State or Tribal orders referred to a Tribal 
IV-D program include provision for income withholding, such orders must 
be enforced by Tribal IV-D agencies as required by FFCCSOA. Please note 
that Sec.  309.110 provides that Tribal IV-D agencies are responsible 
for ensuring that valid withholding orders are promptly served.

Section 309.95--What Procedures Governing the Location of Noncustodial 
Parents Must a Tribe or Tribal Organization Include in a Tribal IV-D 
Plan?

    We received no comments on this section.

Section 309.100--What Procedures for the Establishment of Paternity 
Must a Tribe or Tribal Organization Include in a Tribal IV-D Plan?

    1. Comment: Eight Tribal commenters raised concerns about the 
effect of paternity establishment on Tribal enrollment and membership. 
Seven of these commented that OCSE should not interfere with the 
authority of Tribal governments, Tribal enrollment committees and 
Tribal religious leaders in establishing paternity. They stated that 
determining paternity through foreign regulations would totally disrupt 
the way they deal with issues and they want to incorporate traditional 
lifestyle into child support enforcement programs through Tribal 
courts. Four commenters supported the provisions allowing Tribal 
discretion in how paternity is established.
    Response: In response to concerns raised by commenters we have 
added Sec.  309.100(d) to make clear that establishment of paternity 
under this regulation does not affect Tribal enrollment or membership. 
Section 309.100(a)(1) provides for paternity to be established in 
accordance with Tribal law, code, or custom. These regulations are not 
intended to override established Tribal authority.
    2. Comment: One Tribal commenter suggested that States be required 
to give full faith and credit to any legal determination of paternity 
considered final by a Tribal court.
    Response: Under the State-enacted UIFSA statutes and FFCCSOA, 
States are required to honor Tribal paternity orders when they are the 
basis for child support orders pursuant to Tribal law, in the same 
manner that a Tribe is compelled to honor States' paternity orders when 
they are the basis for child support orders. We have determined that it 
is not necessary to further regulate in this area.
    3. Comment: One State commenter suggested that parents should have 
the option to request genetic testing.
    Response: We are persuaded that genetic testing should be provided 
upon request and have added Sec.  309.100(a)(3) to require the Tribal 
IV-D plan to provide procedures under which the Tribal IV-D agency is 
required, in a

[[Page 16658]]

contested paternity case (unless otherwise barred by Tribal law), to 
require the child and all other parties to submit to genetic tests upon 
the request of any such party, if the request is supported by a sworn 
statement by the party alleging paternity, and setting forth facts 
establishing a reasonable possibility of the requisite sexual contact 
between parties; or denying paternity, and setting forth facts 
establishing a reasonable possibility of the nonexistence of sexual 
contact between the parties. As stated in an earlier section of the 
preamble, the phrase ``otherwise barred by Tribal law'' is intended to 
cover situations where, either by action of one or both of the parties 
or the application of Tribal law, or both, paternity has already been 
conclusively determined and may not be reconsidered. In such cases, 
genetic testing to challenge the paternity determination would not be 
authorized. Examples of such a paternity determination would include a 
voluntary admission of paternity or circumstances under which the Tribe 
has other means of recognizing paternity under Tribal law. A Tribe, 
through its own custom, tradition or procedure, may recognize a man as 
the father or may preclude a man who holds himself out to be the father 
from challenging paternity. Similarly, a Tribe may have a conclusive 
presumption of paternity when a child is born to married parents or if 
a noncustodial parent has been validly served in a paternity proceeding 
and failed to contest paternity in such proceeding. A uniquely Tribal 
means under Tribal law that was used to establish paternity would be 
acceptable as precluding the need for genetic tests. In such cases, 
because paternity had already been determined, genetic testing would be 
``otherwise barred by Tribal law''. This language is consistent with 
the language found at section 466(a)(5)(B) of the Act, which mandates 
genetic testing in contested cases to ensure that the rights of both 
parties are protected.
    4. Comment: One commenter stated that the due process rights of 
individuals must be protected. States should give full faith and credit 
to paternity determinations made by Tribal law/ordinance but not to 
processes that result in a person with whom the mother has had no 
relation (either sexual or marriage) being established as the legal 
father.
    Response: The regulations at Sec.  309.65(a)(3) require due process 
assurances and Sec.  309.100(a)(1) makes clear that such assurances 
encompass paternity establishment. In light of these requirements, we 
have determined that it is not necessary to mandate further paternity 
establishment procedures. States and Tribes are required to recognize 
and honor valid determinations of paternity.
    5. Comment: One commenter said that the voluntary paternity 
requirement does not go far enough. Voluntary paternity acknowledgement 
services should operate in all birthing hospitals located under the 
Tribe's jurisdiction.
    Response: This rule is flexible enough to allow voluntary 
acknowledgement of paternity at birthing hospitals as determined 
appropriate by Tribes. This practice has proven to be highly effective 
for States and has resulted in a record number of paternity 
acknowledgements.
    6. Comment: Four commenters said that the requirement at Sec.  
309.100(b) should be omitted, and Tribes should determine the 
exceptions to require paternity establishment actions and the 
appropriate entity to make exceptions.
    Response: We believe the language at Sec.  309.100(b) accommodates 
the needs of Tribes to determine exceptions to paternity establishment 
and allows Tribes to establish the appropriate entity to make those 
determinations.

Section 309.105--What Procedures Governing Child Support Guidelines 
Must a Tribe or Tribal Organization Include in a Tribal IV-D Plan?

    1. Comment: Three Tribal commenters suggested that child support 
guidelines are not required. One also suggested that the requirements 
go beyond what Congress intended and interfere with Tribal sovereignty.
    Response: We disagree that because the statute does not explicitly 
direct the Secretary to establish specific minimum requirements for 
support guidelines, that the Secretary may not do so. As we note above, 
the statute explicitly delegates to the Secretary the authority to 
promulgate regulations ``establishing the requirements which must be 
met by an Indian Tribe or Tribal organization to be eligible'' for 
funding under title IV-D. Although guidelines are not specifically 
addressed in the statute, establishment of support orders is one of the 
mandatory program objectives, and we have determined that Sec.  309.105 
requirements are critical to establishing fair and consistent support 
orders. Implementation of the requirements specified at Sec.  309.105 
is necessary to satisfy the statutory IV-D program objective of 
establishing child support orders, and we believe such requirements 
respect Tribal sovereignty.
    2. Comment: One State commenter stated that because there is no 
requirement to enact UIFSA, a Tribal child support guideline could 
allow the Tribal court to change or ignore a State's order, and 
competing orders could result. The need for UIFSA is apparent.
    Response: The commenter fails to take into account that Federal law 
requires all tribunals to give full faith and credit to valid child 
support orders. FFCCSOA requires tribunals of all United States 
territories, States and Tribes to give full faith and credit to a child 
support order issued by another State or Tribe that properly exercised 
jurisdiction over the parties and the subject matter. A Tribe may not 
modify an order valid under FFCCSOA except in certain circumstances, 
nor may valid orders be modified under these regulations in any manner 
that is inconsistent with that Federal law. The grounds for 
modification under FFCCSOA are consistent with UIFSA.
    3. Comment: One State commenter suggested we include requirements 
regarding modifications, since States have very specific requirements 
relating to review and adjustment, and periodic modification ensures 
child support obligation amounts are appropriate over time.
    Response: These regulations specify that guidelines apply to both 
setting and modifying orders. We believe that Sec.  309.105(a)(4) 
sufficiently addresses the commenter's concerns that periodic 
modification ensures child support obligation amounts are appropriate 
over time and do not believe that additional regulation is called for 
at this time.
    4. Comment: Numerous State commenters stated that they did not have 
a clear understanding of the in-kind concept as it related to support 
obligations, while numerous Tribal commenters responded positively to 
the recognition that Tribal support orders could be satisfied with cash 
and non-cash resources.
    Response: We were urged by Tribes to accommodate the reality of 
Tribal economies by recognizing that noncustodial parents could satisfy 
support obligations with non-cash (in-kind) support in addition to cash 
payments. Many reservations and Indian communities are located in 
remote areas with little or no industry or business; thus, there are 
limited opportunities for cash employment. We were persuaded by Tribes 
to accommodate the long-standing recognition among Indian Tribes that 
all resources that contribute to the support of children should be 
recognized and valued by IV-D programs.
    In-kind (non-cash) support is support provided to a family in the 
nature of goods and/or services rather than in cash, but which 
nonetheless has a

[[Page 16659]]

certain and specific dollar value. Non-cash support for purposes of 
this regulation is support that directly contributes to the needs of a 
child. Non-cash support may include services such as making repairs to 
automobiles or a home, the clearing or upkeep of property, providing a 
means for travel, or providing needed resources for a child's 
participation in Tribal customs and practices.
    In Sec.  309.105(a)(3), we allow Tribal child support guidelines to 
permit support obligations to be satisfied with both cash and non-cash 
payments. The regulations at Sec.  309.105(a)(3) require that a support 
order which permits satisfaction with non-cash resources must include, 
in the order itself, a specific dollar amount reflecting the amount of 
the support obligation. The regulation allows individual Tribes to make 
the determination of whether non-cash as well as cash payments can be 
accepted to satisfy the support order.
    Since all Tribal support orders will include a specific dollar 
amount reflecting the support obligation, a specific monetary amount of 
a child support obligation is clear in every order. In this way Tribal 
orders contain the same information as State orders do. The only 
difference is that some Tribal orders may allow the support obligation 
to be satisfied with non-cash resources. Thus, States should be able to 
process support payments through their automated systems and account 
for support payments made under Tribal orders. Other Tribes that 
receive requests for enforcement assistance where there is a support 
order which can be satisfied with non-cash resources should similarly 
be able to process such support payments.
    5. Comment: Five State commenters suggested that the specific 
dollar amount for non-cash support must be a part of the Tribal court 
order. One of these suggested that satisfaction of support obligations 
with non-cash payments should be limited to current support only.
    Response: We agree that support orders must include specific dollar 
amounts and that these amounts must be expressly reflected in the 
Tribal order. Non-cash support merely recognizes that an obligation for 
a specific dollar amount of child support may be satisfied with non-
cash resources. We are persuaded that this is a critical accommodation 
for Tribal subsistence economies. We have added language in Sec.  
309.105(a)(3) to ensure that Tribal support orders include specific 
dollar amounts. If non-cash payments are permitted to satisfy Tribal 
support orders, the support order must include both the specific dollar 
amount of the obligation and the types of non-cash support which may be 
provided to meet the obligation.
    We are not persuaded that the accommodation of non-cash resources 
should be limited to current support obligations only. Arrears, like 
current support, are specific dollar amounts. Since each non-cash 
payment will have an associated dollar value attached to it, it can be 
credited toward arrears as well as current support obligations. 
However, non-cash support cannot be used to satisfy assigned support 
(including arrears). This is consistent with the language added to 
Sec.  309.105(a)(3)(iii).
    6. Comment: We received nine positive comments from Tribes on the 
provision allowing non-cash (in-kind) support payments. One State 
commenter stated that determining the amount of non-cash contributions 
that have been made on a newly opened enforcement case would be 
cumbersome and require intensive labor on the part of the State.
    Response: Permitting Tribal courts to establish support orders 
which can be satisfied with non-cash payments is an essential 
accommodation made to recognize Tribal custom and circumstances. If a 
Tribal IV-D agency refers a case to a State IV-D agency for 
enforcement, the Tribal IV-D agency must provide information necessary 
to work the case, which would include the payment record under the 
order. Therefore, State IV-D agencies would not be required to 
determine non-cash contributions made by the obligor. Non-cash payments 
are merely one means by which Tribal support orders may be satisfied. 
For example, a Tribal support order could provide that an obligor owes 
$200 a month in current support and $100 a month for arrears which may 
be satisfied with the provision of firewood suitable for home heating 
and cooking to the custodial parent and child. The order could provide 
that a cord of firewood has a specific dollar value of $100 based on 
the prevailing market. In this case, the obligor would satisfy his 
support obligation by providing two cords of firewood every month plus 
$100. Such ``payments'' would be credited as $300 paid every month. 
Whenever non-cash payments are permitted, the specific dollar amount 
will always be known (and be reflected in the order) and can be 
credited and tracked. The language at Sec.  309.105(a)(3) has been 
amended to indicate that should the Tribe decide that an non-cash order 
is acceptable, a specific dollar amount must be set in the order.
    Permitting Tribal support orders to specify that support 
obligations may be satisfied with non-cash resources is an important 
recognition of the economic conditions of Indian Tribes and of the 
subsistence economies prevalent throughout much of Tribal territory. In 
addition, it recognizes that noncustodial parents without significant 
cash resources may nonetheless satisfy support obligations and make 
productive contributions to their children's lives.
    7. Comment: One State commenter stated that in-kind orders are not 
compatible with States' automated systems.
    Response: Tribal IV-D programs are required under Sec.  
309.105(a)(3) to include a specific dollar amount if obligors are 
permitted to satisfy their support obligations with non-cash payments. 
Since every non-cash payment will have an associated monetary value, 
each payment will be reducible to a specific dollar amount, which every 
automated system should be able to handle just like any other payment.
    8. Comment: One Tribal commenter stated that there are many 
problems associated with valuing in-kind payments which Tribes 
themselves should address; OCSE officials should not propose 
regulations in areas where they do not have a good understanding.
    Response: Section 309.105(a)(3) requires Tribal support orders 
which permit non-cash payments to establish a specific dollar amount in 
the order itself. We agree that the valuation of non-cash resources is 
the responsibility of Tribes themselves. The Tribe must establish 
standards for valuation of non-cash resources, should it choose to 
permit non-cash payments to be used to satisfy support obligations.
    9. Comment: Two State commenters suggested that we clarify how 
assignments to offset public assistance to a State will be handled when 
the noncustodial parent is making in-kind payments and suggested that 
where assignments are made to a State the obligor must pay a cash 
equivalent specified within the Tribal order.
    Response: Where non-cash payments are permitted to satisfy support 
obligations, they are required to be represented as a specific dollar 
amount which can be credited just like any other child support payment. 
Where assignments of support rights are made to the State as a 
condition of receipt of public assistance, any non-cash payment made by 
the noncustodial parent can be credited to the family as a cash payment 
would be. As specified in Sec.  309.105(a)(3)(iii), if there is an

[[Page 16660]]

assignment to the State or another Tribe, the specific dollar amount 
must be paid.
    10. Comment: One commenter said that the term ``cash equivalents'' 
has subsistence and public assistance implications and may make the 
term unworkable in Alaska. The term ``cash alternatives'' would be more 
acceptable.
    Response: We have revised the regulation at Sec.  309.105(a)(3) to 
eliminate the phrase ``cash equivalents'' to clarify the meaning of 
terms and to eliminate confusion.
    11. Comment: Two State commenters suggested that the obligee be 
required to provide a written receipt to the obligor acknowledging a 
non-cash payment.
    Response: If the Tribal IV-D program decides to permit non-cash 
resources to be used to satisfy a support order, the Tribe is 
responsible for recording payments to ensure obligors receive credit 
for meeting their child support obligations. At this time, we do not 
believe the alternatives suggested by the commenters are necessary.
    12. Comment: One State commenter suggested that we establish 
numeric and descriptive guidelines for in-kind payments. If there is a 
deviation due to in-kind support, the tribunal should make a specific 
finding justifying departure from cash support and establishing that 
such departure is in the best interest of the child. The Tribal IV-D 
plan should specify how the noncustodial parent receives credit for in-
kind payment.
    Response: We have determined that Sec.  309.105 adequately provides 
for consistent and predictable support guidelines which take into 
account the needs of the child and are not persuaded that the 
suggestions of the commenter are necessary.
    13. Comment: One State commenter stated that if a Tribe's 
guidelines allow in-kind credits, then it should be the burden of the 
obligor to raise the issue and prove the entitlement to such credits. 
The in-kind support must directly benefit the child. This same 
commenter stated that there is an issue of equal protection.
    Response: As explained above, allowing Tribal orders to specify 
both a specific dollar amount of support due and an equivalent non-cash 
resource that can be used to satisfy the obligation is an important 
accommodation for Indian Tribes. Such an accommodation permits 
noncustodial parents who can provide non-cash resources which are 
needed by families to meet their child support obligations even when 
they do not have cash available to make cash payments. Section 
309.105(b) requires Tribal child support guidelines to take the needs 
of the child into account, and we do not believe it is necessary to 
require any additional finding in order to allow non-cash resources to 
be used to satisfy a Tribal support order. As long as the Tribal 
support order indicates the specific dollar amount of the support 
obligation and the dollar amount of the non-cash resource, the support 
can be collected whether or not it is made in cash or non-cash 
resources. Allowing non-cash support in Tribal IV-D programs recognizes 
Tribal tradition and custom appropriate to Tribal IV-D programs and 
consistent with Tribal sovereignty.
    We do not believe there is any equal protection risk associated 
with final regulations permitting Tribal support orders to be satisfied 
with non-cash resources consistent with Tribal law and Tribal 
economies. Singling out Indian Tribes for different regulations from 
States is constitutionally sound. The United States Supreme Court has, 
on numerous occasions, upheld legislation and regulations that single 
out Indians for particular and different treatment.
    14. Comment: Two Tribal commenters said that basing support orders 
on the noncustodial parent's ability to pay is not a requirement of the 
statute. If a parent cannot provide non-cash support because he/she no 
longer has access to the resource, the parents should return to Tribal 
court to request that the order be modified.
    Response: We have determined that support guidelines that take into 
account the earnings and income of the noncustodial parent are 
essential to effective IV-D programs. Where a noncustodial parent is no 
longer able to provide non-cash support nor able to satisfy the support 
obligation with cash payments, the Tribe's procedures for modification 
of support orders may be applicable on a case-by-case basis. Non-cash 
support is not a substitute for support; it is a means of providing 
support. If there is a change in circumstances such that the 
noncustodial parent may, under Tribal law, seek modification of the 
support order, the fact that non-cash support is reflected in the order 
should not contribute to any delay or pose any particular problem.
    15. Comment: One State commenter said that Federal child benefit 
programs such as Social Security Retirement or Social Security 
Disability provide for a benefit to be paid directly to the child or 
guardian and that the regulations should address how these benefits 
will affect the obligation of the noncustodial parent.
    Response: We believe that Sec.  309.105 adequately ensures that the 
needs of the child are taken into consideration while providing that 
the support order is appropriate and just given the particular 
circumstances of the case. If a particular child is receiving direct 
payments, such payments may be taken into consideration under these 
regulations.
    16. Comment: One commenter suggested that OCSE examine whether 
there is a need to address Tribal responsibility when a child support 
order contains provisions for health care coverage.
    Response: There is no requirement at this time for Tribal support 
orders to include medical support. However, nothing in this regulation 
precludes a Tribal order of support from including separate provisions 
for medical support and we encourage Tribes to make sure children have 
access to medical care through IHS or otherwise. To the extent that a 
Tribe is enforcing an order containing provisions for health care 
coverage, such an order is entitled to full faith and credit provided 
the underlying order is valid. Just like any other valid order, Tribal 
and State support orders containing provisions for health care coverage 
are enforceable under FFCCSOA.
    17. Comment: We received comments from six Tribal respondents 
suggesting that Tribes be required to review their guidelines every 
four, rather than three years.
    Response: We agree with the commenters. The language at Sec.  
309.105(a)(4) has been changed to require review of support guidelines 
at least once every four years.
    18. Comment: One Tribal commenter disagreed that the standard of 
``best interest of the child'' be imposed. Requiring the tribunal to 
make ``a finding'' why the application of the ``guidelines'' is unjust 
is more than sufficient.
    Response: Proposed Sec.  309.105(b)(1) and (e) used the term 
``needs of the child'' and ``best interest of the child'' to reflect 
the requirement that the particular needs of the child be taken into 
consideration when support orders are established. We have maintained 
this language in final regulation as recodified. In order to ensure 
that support orders in Tribal IV-D programs are just and appropriate, 
we require there be a rebuttable presumption that application of a 
Tribe's support guidelines will result in a support order that is 
correct. In recognition of the possibility that particular 
circumstances may make application of the guidelines unjust or 
inappropriate, we provide for variance from such guidelines on a case-
by-case basis as long as the needs of the child are taken into 
consideration.

[[Page 16661]]

Section 309.110--What Procedures Governing Income Withholding Must a 
Tribe or Tribal Organization Include in a Tribal IV-D Plan?

    1. Comment: Eight Tribal commenters suggested that the requirement 
for income withholding be eliminated because the statute does not 
require income withholding. Two of these commenters stated that Tribes 
need to determine if income withholding is appropriate for their 
populations.
    Response: Although income withholding requirements are not 
specifically addressed in the statute, enforcement of support orders is 
specifically required and we have determined that regulations governing 
income withholding are necessary to address this important IV-D program 
objective.
    Income withholding has been one of the most effective means of 
collecting child support from parents who receive regular income and is 
especially important to ensure that the noncustodial parent does not 
fall into arrears. As important as income withholding is to enforcement 
of child support orders, we have tried to accommodate the needs of 
Tribes and Tribal organizations in how income withholding procedures 
are implemented by Tribal IV-D programs.
    2. Comment: One State commenter said that Tribes should count 
allotment payments (payments made to individuals from either the Tribe 
or the Bureau of Indian Affairs [BIA]) or winnings from gaming as 
income. Two State commenters suggested that Tribes should withhold 
Tribal benefits (casino profits, oil and mineral rights) of all 
obligors and allow other entities to participate in this intercept 
program. A Tribal commenter suggested that the regulation should not 
interfere with Indian Tribal per capita payments, Individual Indian 
Monies (IIM), trust income or Social Security benefits. The commenter 
also suggested that Tribes should also have the discretion to set lower 
income withholding limits than the Consumer Credit Protection Act 
(CCPA) allows.
    Response: The extent to which trust distributions, including per 
capita payments, may be garnished by a Tribe to satisfy its own order 
of support is strictly a matter of Tribal law. Garnishment of Indian 
trust distributions by States is prohibited under 25 U.S.C. 410. This 
statute states that any money accruing from any lease or sale of lands 
held in trust is not liable for the payment of any debt without the 
approval of the Secretary of the Interior. For purposes of this 
regulation, we have defined income at Sec.  309.05, to mean any 
periodic form of payment due to an individual regardless of source, 
except that the exclusion of per capita, trust or Individual Indian 
Money (IIM) payments must be expressly decided by a Tribe. This allows 
Tribes the flexibility to exclude specific categories of payments from 
this definition, including per capita payments, trust income, and 
gaming profit distributions. We have not required Tribes to withhold 
the Tribal benefits (casino profits, oil and mineral rights) of 
obligors. We refer here to the businesses owned by the Tribe and the 
profits thereof. In respect for Tribal sovereignty, we have determined 
that it is not appropriate in this regulation to directly affect Tribal 
management of Tribes' own resources.
    With respect to concerns about the CCPA limits, Tribes have the 
discretion to set lower income withholding limits than the CCPA. These 
rules only preclude income withholding beyond the upper limits set 
forth in the CCPA.
    3. Comment: One Tribal commenter noted that in his village, over 
half of the people with child support orders lose over 50 percent of 
their paychecks to income withholding. The individual's only means of 
getting by is by receiving general assistance. Most, therefore, choose 
not to work.
    Response: The withholding limits set by a Tribe or Tribal 
organization may be lower than the maximum CCPA limits, so that income 
withholding itself does not create a disincentive to remain employed. 
The limit set by a Tribe or Tribal organization may be lower, but may 
not be higher than those set forth in the CCPA. There is nothing to 
prevent a Tribe from setting the upper limit for income withholding at 
any amount deemed appropriate, as long as such limit does not exceed 
CCPA limits. The limits set forth in the CCPA are the highest 
percentages allowed under Federal law and apply to Tribal income 
withholding orders under these Tribal IV-D regulations. However, the 
actual income withholding limit is set by Tribes and may be lower than 
the maximum established in the CCPA.
    When a noncustodial parent's financial circumstances change, or a 
default order is entered because income was not known, the noncustodial 
parent should go back to the appropriate tribunal to seek a 
modification of the order.
    4. Comment: One Tribal commenter stated that until Tribes 
demonstrate substantial enforcement difficulties that can directly 
benefit from income withholding, this section should be eliminated. 
This commenter suggested that if the section is not eliminated, the 
requirement should be made flexible, so that Tribes may adapt income 
withholding to their needs. Two other Tribal commenters stated that 
Tribes need to determine if income withholding is appropriate for their 
populations.
    Response: In response to the concerns raised by commenters, we are 
persuaded that income withholding may not be appropriate in every 
circumstance. Many of the comments we received from Tribes indicated 
that other methods of collecting support owed are more effective than 
income withholding. In some instances, the noncustodial parent is 
brought before Tribal elders and asked to explain why child support 
payments are not being made. This may be enough to get the noncustodial 
parent to make payments. Therefore, we added language to Sec.  309.110 
providing flexibility in this area. Section 309.110(h) allows for 
exceptions to income withholding on a case-by-case basis if: (1) Either 
the custodial or noncustodial parent demonstrates, and the tribunal 
finds good cause not to require the income withholding; or (2) a signed 
written agreement is reached between the custodial and noncustodial 
parent which provides for an alternative arrangement and is reviewed 
and entered into the record by the tribunal.
    5. Comment: One State commenter suggested that Sec.  309.110 
incorporate UIFSA requirements.
    Response: We disagree that it is appropriate to incorporate 
specific UIFSA procedures in these regulations. Section 309.110 assures 
that valid income withholding orders will be honored. We have 
incorporated procedures at Sec.  309.110(n) which require the Tribal 
IV-D agency to receive and process income withholding orders issued by 
States, other Tribes, and other entities and promptly serve such orders 
on employers within the Tribe's jurisdiction.
    6. Comment: One State commenter noted that the section is silent 
concerning penalties against employers to enforce compliance with 
income withholding orders and allocation of income withholding when 
there are multiple orders.
    Response: Section 309.110(g) requires that Tribes have procedures 
under which employers are liable for the accumulated amount the 
employer should have withheld from the noncustodial parent's income. 
Section 309.110(k) requires that Tribal law must provide that the 
employer is subject to a fine for discharging a noncustodial parent 
from employment, refusing to

[[Page 16662]]

employ or taking disciplinary action against any noncustodial parent 
because of income withholding. Section 309.110(n) income withholding 
requires the Tribal IV-D agency be responsible for receiving and 
processing income withholding orders from States, Tribes and other 
entities, and ensuring orders are properly and promptly served on 
employers within the Tribe's jurisdiction. Language concerning the 
treatment of multiple orders has been added at Sec.  309.110(m) to 
provide that income that is withheld be allocated across all valid 
orders. We do not believe that additional regulation is required at 
this time.
    7. Comment: One State commenter stated that allowing direct income 
withholding from another State or Tribe under UIFSA would save work for 
the Tribal IV-D program and that since States are already required to 
extend this privilege to Tribes the responsibility should be 
reciprocal.
    Response: We have not adopted this suggestion. As noted earlier, 
Tribes are not required to adopt UIFSA. Tribes may choose to allow 
direct income withholding but it is their choice.
    8. Comment: One Tribal commenter said that requiring that income 
withholding include amounts ``to be applied toward liquidation of any 
overdue support'' may affect a parent's willingness to pay.
    Response: Payment of overdue support remains the responsibility of 
obligors. Nothing in this regulation precludes an obligor from seeking 
an acceptable agreement for repayment of arrearages or, in certain 
specific and appropriate instances, and with the agreement of the 
State, a compromise of arrearages owed to a State pursuant to the law 
which established the support obligation in the first instance. We 
previously issued two Policy Interpretation Questions (PIQs) on this 
subject. PIQ-99-03 and PIQ-00-03 provide general information concerning 
compromise of child support arrears. This, and other policy issued by 
OCSE, may be found at: https://www.acf.dhhs.gov/programs/cse/poldoc.htm.
    9. Comment: Two Tribal commenters noted that including instructions 
for completing the standard Federal income withholding form in the rule 
is duplicative and perhaps conflicting with regulatory income 
withholding provisions.
    Response: In light of the requirement that the standard Federal 
income withholding form be used whenever income is to be withheld, we 
agree with the commenter and have eliminated language in proposed Sec.  
309.110(b) which merely duplicates language and conditions specified in 
the instructions to the form itself.
    10. Comment: One State commenter stated that the difference in 
withholding requirements for Indian and non-Indian citizens creates 
operational issues, including the fact that States' automated systems 
are not equipped to handle the different timeframes. A Tribal commenter 
stated that Tribes should be exempt from the immediate income 
withholding.
    Response: We believe that the income withholding provisions in 
Sec.  309.110 are sufficiently consistent with State rules and provide 
the minimum requirements necessary to ensure successful withholding 
among IV-D programs when there are valid income withholding orders in 
place. Use of the standard Federal income withholding form by both 
State and Tribal IV-D programs will ensure responsiveness of employers. 
All employers must recognize this form and respond immediately to this 
important enforcement tool. The flexibility allowed under Sec.  
309.110(h) to provide an alternative arrangement to income withholding 
is substantially parallel to 45 CFR 303.100(b) and we do not believe 
that implementation of Sec.  309.110 by Tribes will lead to operational 
problems for States.
    These regulations do not require immediate income withholding, 
although Tribal IV-D programs may choose to impose withholding 
immediately to avoid any possibility for default by obligors who are 
employed. Under Sec.  309.110(i), the income of noncustodial parents is 
subject to income withholding on the date on which the payments the 
noncustodial parent has failed to make are at least equal to the 
support payable for one month unless a determination is made to exempt 
the obligor from income withholding under Sec.  309.110(h).

Section 309.115--What Procedures Governing the Distribution of Child 
Support Must a Tribe or Tribal Organization Include in a Tribal IV-D 
Plan?

    1. Comment: Five Tribal commenters stated objections to having OCSE 
impose a State-based distribution scheme. Instead, they suggested that 
the regulations permit Tribes to merely describe how they will 
distribute support collections.
    Response: Section 457 of the Act imposes requirements which govern 
distribution of support collections in a IV-D case (related custodial 
parent, noncustodial parent and child(ren)) whenever a State IV-D 
program is providing services under title IV-D of the Act. In 
recognition of this statutory mandate, the Tribal IV-D distribution 
requirements must provide for distribution in accordance with section 
457 rules when a Tribe receives a request for assistance in collecting 
support from a State IV-D agency.
    Therefore, section 457 of the Act does not apply to collections 
under the Tribal IV-D program unless a State IV-D agency requests 
assistance in collecting support from a Tribal IV-D agency. Tribal IV-D 
programs are not required to distribute support collections using the 
complex section 457 distribution requirements under this final rule. 
Rather, we have required Tribal IV-D agencies, upon receipt of a 
request from a State IV-D agency for assistance in collecting support 
under Sec.  309.120, which specifies required intergovernmental 
procedures for Tribal IV-D programs, to either: (1) Forward collections 
to the State IV-D agency for distribution using the section 457 
requirements, or (2) contact the State IV-D agency to determine 
appropriate distribution under section 457 and distribute the 
collections accordingly. The latter option would be appropriate, for 
example, if the Tribal IV-D agency is providing IV-D services to the 
family and subsequently receives a request for assistance from a State 
in collecting assigned support from a prior period of receipt of State 
TANF.
    Similarly, we have required that, if a Tribal IV-D agency receives 
a request for assistance in a Tribal IV-D case under Sec.  309.120 from 
another Tribal IV-D agency, collections must be either: (1) Forwarded 
to the requesting Tribal IV-D agency for distribution in accordance 
with Sec.  309.115; or (2) distributed in accordance with instructions 
requested of, and provided by, the other Tribal IV-D agency.
    2. Comment: One State commenter said that automation is a 
requirement for distribution and that the regulations must be the same 
for States and Tribes.
    Response: Title IV-D of the Act imposes explicit distribution and 
automation requirements upon State IV-D agencies but does not impose 
such requirements on Tribal IV-D programs. As discussed above, we have 
revised the final rule to ensure that, when appropriate, Tribal IV-D 
agencies send support collections to State IV-D programs for 
distribution in accordance with section 457, or contact State IV-D 
agencies to determine the appropriate distribution, without requiring 
Tribal IV-D programs to adopt the complex statutory distribution 
requirements that apply to State IV-D programs.

[[Page 16663]]

    We understand the importance of minimum automation standards for 
Tribal IV-D programs to ensure program efficiency and effectiveness. To 
that end, we expect to promulgate regulations establishing such minimum 
standards for automated systems (beyond planning provisions articulated 
under this rule) in the future after consultation with all 
stakeholders.
    We also recognize that some Tribal IV-D programs do, and may 
continue to, contract with State IV-D programs to use the State's 
automation system to calculate appropriate distribution of collections. 
In these instances, forwarding collections to the State, or contacting 
the State to determine appropriate distribution would be unnecessary.
    3. Comment: One State commenter indicated that distribution would 
require another programming change for State systems if collected 
support had to be distributed to Tribal child support enforcement 
programs.
    Response: The impact of State IV-D program cooperation with Tribal 
IV-D programs and distribution by States of collections sent to or 
received from Tribal IV-D programs will depend on each State's 
automated system. Federal funding is available for 66 percent of all 
appropriate and allowable costs associated with any needed programming 
changes to State automated systems.
    4. Comment: One Tribal commenter said that because Tribes do not 
have the same economic base as State governments, Tribes should not be 
required to reimburse the Federal government from IV-D collections.
    Response: This final rule does not require Tribal IV-D agencies to 
reimburse the Federal government using retained Tribal IV-D collections 
in Tribal TANF cases, or otherwise share a portion of retained Tribal 
IV-D collections with the Federal government. The Federal government by 
statute is entitled to a share of collections assigned to a State by a 
family as a condition of receipt of assistance under titles IV-A, IV-E, 
or XIX of the Act. No parallel requirement applies to Tribes.
    5. Comment: One Tribal commenter said that part of child support 
enforcement has to do with helping children and their families, while 
the other has to do with retrieving funds that have been paid out in 
public assistance. This commenter stated that the latter function has a 
very negative impact on some Tribal children because so many Tribal 
members have been on public assistance.
    Response: These final regulations must be consistent with existing 
Federal statutory law governing assignment of rights to support to 
States as a condition of receipt of certain State assistance, and 
distribution of support collections assigned to States. There are no 
corresponding Federal assignment requirements as a condition of receipt 
of assistance under Tribal assistance programs, although some Tribal 
TANF programs have adopted a requirement for assignment of support as a 
condition of receipt of Tribal TANF. To the extent that Federal law 
requires States to retain assigned support collections as reimbursement 
for receipt of State public assistance, these regulations cannot 
undermine that requirement. Any changes to or simplification of the 
distribution process in State IV-D programs must come about as a result 
of statutory changes. The Administration has urged the Congress to 
adopt simplified distribution requirements for State IV-D programs that 
would ensure more support is paid to families to help them attain or 
maintain their self-sufficiency.
    6. Comment: One State commenter said that the regulations should 
address offset of previously provided TANF benefits and priority of 
distribution, especially when a family may have received State and 
Tribal benefits in varying sequences throughout a significant period of 
time. Another State commenter said that a hierarchy for collection and 
distribution is necessary.
    Response: We have revised and clarified Sec.  309.115 governing 
distribution of collections in a Tribal IV-D case by Tribal IV-D 
programs in response to this comment and concerns that Tribal IV-D 
programs not be responsible for complex distribution requirements that 
apply to State IV-D programs. Section 309.115 specifies distribution 
requirements in a Tribal IV-D case based on specific circumstances that 
may exist for each case. The regulation requires a Tribal IV-D agency 
to distribute collections in a timely manner and to apply collections 
first to satisfy current support.
    The Tribal IV-D agency must pay all support to the family when the 
family receiving Tribal IV-D services has never received Tribal TANF 
and the Tribal IV-D agency has not received a request for assistance in 
collecting support for the family from a State IV-D agency or another 
Tribal IV-D agency under Sec.  309.120. A Tribal IV-D agency may 
receive a request for assistance in securing support from a State if 
the custodial parent resides in that State and has applied for or been 
referred to the State IV-D agency for IV-D services. Or a State may 
refer a case to the Tribal IV-D agency for assistance in collecting 
support assigned to the State for some prior period of receipt of 
assistance from the State.
    Section 309.115 then addresses distribution requirements if a 
family receiving Tribal IV-D services is currently receiving or 
formerly received Tribal TANF and there is an assignment of support 
rights to the Tribe.
    A further distinction is made with respect to families who have 
assigned support rights as a condition of receipt of Tribal TANF from 
another Tribe. The Tribal IV-D agency may have received a request for 
assistance in collecting support from a State or another Tribal IV-D 
agency. If the family is currently receiving Tribal TANF, there is an 
assignment to the Tribe, and the Tribal IV-D agency has received from a 
State or another Tribal IV-D agency a request for assistance in 
collecting support previously assigned to that State or Tribe, the 
regulation allows the Tribal IV-D agency to retain assigned support up 
to the amount of Tribal TANF paid to the family. The Tribal IV-D agency 
must then send any remaining collections to the requesting State or 
Tribal IV-D agency for distribution, as appropriate, or contact the 
State or other Tribe to determine accurate distribution and distribute 
the amount of the collection in excess of the Tribal TANF reimbursement 
accordingly. The hierarchy for distribution in different case 
circumstances is illustrated in a chart that appears later in the 
discussion.
    If the family formerly received Tribal TANF from another Tribe, 
there is an assignment of support to that Tribe, and the Tribal IV-D 
agency has received a request for assistance on behalf of the family 
from a State or that other Tribal IV-D agency, the regulation requires 
the Tribal IV-D agency to send all collections to the State or other 
Tribal IV-D agency for distribution. The requesting State or Tribal IV-
D agency, as appropriate, is then responsible for distribution in 
accordance with State IV-D program requirements at section 457 of the 
Act or 45 CFR 302.51 or 302.52, or in accordance with these Tribal 
distribution requirements in Sec.  309.115. Alternatively, the Tribal 
IV-D agency may contact the State or other Tribal agency to determine 
appropriate distribution of the collection as explained above.
    The requirement to send all collections to a State or other Tribal 
IV-D program that has requested assistance on behalf of a family under 
certain circumstances addresses a number of

[[Page 16664]]

possible scenarios. For example, the family may have applied for IV-D 
services from a State or another Tribal IV-D agency and not directly 
with the Tribal IV-D agency making the collection. Or the family may be 
receiving or may have formerly received TANF or other public assistance 
from the requesting State or Tribal IV-D agency. As long as the family 
is not currently receiving Tribal TANF from the same Tribe as the 
Tribal IV-D agency making the collection, under a program that requires 
an assignment of support rights, we believe the only entity in a 
position to determine appropriate distribution is the requesting State 
or Tribal IV-D agency. We have, however, included an option that allows 
Tribal IV-D agencies to determine appropriate distribution by 
contacting the requesting State or Tribe and to then distribute the 
collections as directed. State and Tribal IV-D program requirements for 
timely distribution and disbursement of collections will ensure 
collections owed to families reach them in a timely manner.
    The rules for distribution in cases involving each of these 
circumstances are included in Sec.  309.115, as well as clarification 
that any collection as a result of Federal income tax refund offset 
that is distributed by a Tribal IV-D agency must be applied to satisfy 
arrearages. The following chart should be of assistance to Tribal and 
State IV-D agencies.

--------------------------------------------------------------------------------------------------------------------------------------------------------
                Tribal IV-D case type                    Case 1     Case 2     Case 3     Case 4     Case 5     Case 6     Case 7     Case 8     Case 9
--------------------------------------------------------------------------------------------------------------------------------------------------------
Current Tribal TANF case w/assignment................  .........  .........  .........         X          X   .........  .........  .........  .........
Current Tribal TANF case w/o assignment..............  .........         X   .........  .........  .........  .........  .........         X   .........
Never Tribal TANF case...............................         X   .........         X   .........  .........         X   .........  .........  .........
Former Tribal TANF w/assignment......................  .........  .........  .........  .........  .........  .........         X   .........         X
Request for services from State IV-D agency..........  .........  .........         X   .........         X   .........  .........         X          X
No request for services from State IV-D agency.......         X          X   .........         X   .........         X          X   .........  .........
Request for services from another Tribal IV-D agency.  .........  .........  .........  .........  .........         X   .........  .........  .........
No request for services from another Tribal IV-D              X          X          X          X          X   .........         X          X         X
 agency..............................................
--------------------------------------------------------------------------------------------------------------------------------------------------------
Distribution: The Tribal IV-D agency:
 
 Cases 1 and 2: Must send all collections to the family.
Case 3: Must send all collections to the State IV-D agency for distribution under section 457 of the Act.\*\
Case 4: May retain collections up to the total amount of Tribal TANF paid to the family, then must send excess collections to the family.
Case 5: May retain collections up to the total amount of Tribal TANF paid to the family, then must send excess collections to the State IV-D agency for
  distribution under section 457 of the Act.\*\
Case 6: Must send all collections to the other Tribal IV-D agency for distribution under Sec.   309.115.
Case 7: Must pay current support to the family, may retain excess collections up to the total amount of Tribal TANF paid to the family and pay excess
  collections to the family.
Case 8: Must send all collections to the State IV-D agency for distribution under section 457 of the Act.\*\
Case 9: Must send all collections to the State IV-D agency for distribution under section 457 of the Act.\*\
\*\For cases 3, 5, 8 & 9: The Tribal IV-D agency may, rather than send collections to the State IV-D agency for distribution, contact the State IV-D
  agency to determine appropriate distribution, and distribute the collections as directed.

    These regulations attempt to address the many possible combinations 
of Tribal IV-D case circumstances involving assignment of support 
rights to State and Tribal public assistance programs, and 
intergovernmental requests for assistance in collecting support. We 
encourage State and Tribal IV-D programs to work together to maximize 
the amount of support that is paid to families and ensure support 
obligations are set in an amount that is based on the obligor's ability 
to pay. This will reduce circumstances under which large arrearages are 
assigned to a State based on default support orders set without 
knowledge of an obligor's ability to pay. If complex distribution 
requirements that apply to State IV-D programs are simplified in the 
future to ensure more support is paid to families, State and Tribal IV-
D programs, as well as the families themselves, will benefit from the 
changes in statute.
    7. Comment: One State commenter said that there is no legal basis 
upon which a Tribe can distribute collections differently from States.
    Response: By its terms, section 457 of the Act does not address 
distribution rules applicable to Indian Tribes or support collected by 
Tribal IV-D programs. However, the revised Sec.  309.115 ensures that 
support collected by Tribal IV-D programs on behalf of State IV-D 
programs that have requested assistance under Sec.  309.120 from the 
Tribal IV-D program is sent to the State IV-D program for distribution 
in accordance with section 457 of the Act, or the Tribe must contact 
the State to determine appropriate distribution and distribute the 
support as directed.
    8. Comment: One State commenter said that the regulations should 
provide that the Tribes seek retroactive support to assist a State that 
has previously provided State TANF.
    Response: Retroactive support is support for a prior period that is 
established based on an obligor's ability to pay. For example, a Tribal 
court may establish a support order in June for a six-month-old child 
going back to the date of the child's birth. The amount from January to 
June is considered retroactive support. While these rules do not 
require Tribal IV-D agencies to establish retroactive support, Tribal 
IV-D agencies may choose to do so. If a State IV-D agency has requested 
assistance from a Tribal IV-D agency, the Tribe must provide all 
appropriate services under its Tribal IV-D plan and forward any 
collections, in accordance with Sec.  309.115, to the requesting State 
for distribution in accordance with section 457 of the Act and 45 CFR 
302.51 and 302.52.
    9. Comment: One Tribal commenter suggested that we continue the 
practice under which child support assigned to a Tribe may be retained 
by the Tribe up to the amount of Tribal TANF assistance received by a 
family and the amount in excess of the total TANF assistance must be 
paid to the family.
    Response: Underlying the distribution regulations at Sec.  309.115 
is the concept that all support collections must be paid to the family 
unless there is an assignment of support rights to a State or Tribe as 
a condition of receipt of assistance. Whether or not a Tribe conditions 
receipt of TANF assistance on assignment of support to the Tribe is

[[Page 16665]]

not mandated by Federal statute or regulation, but is an option that 
Indian Tribes may exercise at their discretion. We have made a 
conforming change to the Tribal TANF regulations at 45 CFR 
286.155(b)(1) to remove the requirement under which amounts in excess 
of the total amount of TANF assistance be paid to the family. Section 
286.155(b)(1) continues to require that in no case may a Tribe retain 
assigned collections in excess of the amount of Tribal TANF paid to the 
family. Distribution of support beyond the total amount of Tribal TANF 
assistance paid to the family is now addressed exclusively in Tribal 
IV-D regulations at Sec.  309.115.

Section 309.120--What Intergovernmental Procedures Must a Tribe or 
Tribal Organization Include in a Tribal IV-D Plan?

    1. Comment: Eight State commenters suggested that States would need 
additional resources and one stated that States will have to consider 
their own program needs as a priority when responding to requests for 
services from Tribal IV-D programs. Another State commenter said that 
there should be a Federal directive outlining State duties, which 
indicates how States will be reimbursed whenever they respond to a 
Tribal request for assistance. One State suggested that reimbursement 
be at 90 percent of the costs incurred.
    Response: State IV-D programs may receive FFP at the 66 percent 
rate for expenditures in providing services in response to a request 
from a Tribal IV-D agency. Section 309.65(a)(2) requires Tribal IV-D 
programs to provide IV-D services required by law and regulation, 
including referral of cases to appropriate State IV-D agencies or to 
other Tribal IV-D agencies and Sec.  309.120(a) requires Tribal IV-D 
programs to extend the full range of services available under their 
approved IV-D plans to all other IV-D programs. In addition, we have 
included a parallel requirement in 45 CFR 302.36(a)(2), which requires 
each State to extend the full range of services available under its IV-
D plan to all Tribal IV-D programs, including promptly opening a case 
where appropriate. We encourage States and Tribes to work together to 
design intergovernmental procedures and look to established, proven 
interstate procedures that apply to State IV-D programs as a guide.
    Even though State and Tribal IV-D agencies must respond to each 
other's requests for assistance, we recognize that Tribal and State 
programs are at different stages of development. We encourage, and 
allow time for Tribes and States to put mutually agreeable procedures 
in place to facilitate coordination between IV-D programs. We are 
committed to providing Tribes and States an opportunity to work out 
specific processes for cooperation without imposing more specific 
regulatory mandates at this time.
    The characteristics of cases requiring services, the quality of the 
information received from the initiating agency, the amount of staff 
and other resources available to the responding agency, and the 
development of new or expanded working relationships between Tribes and 
States are all factors which bear on Tribal/State cooperative 
relationships. We are committed to fostering cooperative Tribal/State 
relationships. If it becomes necessary to promulgate specific 
regulations applicable to all IV-D programs to clarify the respective 
roles in an intergovernmental relationship, we will do so in 
partnership with Tribes and States.
    State and Tribal IV-D agencies may claim Federal Financial 
Participation (FFP) at the applicable rate otherwise provided under 
applicable regulations: 66 percent of expenditures when the State 
responds to a Tribal request for interjurisdictional services and 90 
percent of expenditures for the first three years of a fully 
operational Tribal program and 80 percent thereafter when the Tribe 
responds to a State's request for interjurisdictional services. When a 
case is referred for services, the responding State or Tribe must open 
its own case and provide the necessary services.
    2. Comment: One State commenter noted that use of tax offset and 
locate functions must be done through the States because Tribes do not 
have direct access to necessary tools.
    Response: These regulations do not require the use of tools by 
Tribal IV-D agencies for which there is no statutory authority. The 
Tribe and States may enter into agreement to refer cases to the State 
for submittal for Federal tax refund offset and any such access would 
currently require request for services from the State. It is premature 
to regulate specific procedures governing requests for services which 
Tribes are legally unable to perform directly at this time. At some 
future date, if it becomes necessary to establish specific new 
procedures, we will consider such rules after consultation with 
stakeholders.
    3. Comment: One State commenter suggested that where a State enters 
into an agreement to provide services to a Tribal court, the Tribe 
should reimburse the State, but that a State should never be compelled 
to appear in a Tribal court.
    Response: When a State and Tribe enter into an agreement, the 
agreement should be mutually agreeable to both parties.
    4. Comment: One State commenter suggested the Federal government 
should reach agreements with Tribes on issues that affect all States; 
otherwise, uniformity will be sacrificed. Another State suggested that 
we should establish basic rules on negotiation procedures between 
States and Tribes.
    Response: We are committed to working with Tribes and States to 
ensure cooperation and assistance between them as necessary to ensure 
children receive needed support. We believe that issues raised by 
cooperation and coordination between States and Indian Tribes require 
local solutions if they are to be successful. Still, we intend to work 
closely with State and Tribes, issue guidance and share best practices 
and, if regulations are necessary to ensure cooperation, we will work 
with our State and Tribal partners to develop rules that appropriately 
balance the impact on both Tribes and States.
    5. Comment: One Tribal commenter stated the regulations should 
clarify that States will not monitor or oversee Tribes.
    Response: There is nothing in this final regulation which 
authorizes or requires States to monitor Tribal IV-D programs.
    6. Comment: One Alaska Native commenter stated that the regulations 
assume there is a geographical component to the Tribes' jurisdiction 
and that Tribal court jurisdiction does not mesh with UIFSA or FFCCSOA. 
This commenter asked how controlling orders or continuing exclusive 
jurisdiction determinations can be made by Tribal courts, if there is 
no geographic region from which to determine whether the parent or 
child resides ``in the State'' for purpose of those determinations.
    Response: As noted earlier in the preamble, the lack of ``Indian 
country'' in Alaska does not prevent Alaska Native villages from 
applying for direct funding or from exercising jurisdiction over their 
members. FFCCSOA does not limit the exercise of jurisdiction to a 
geographical area. FFCCSOA only requires a court exercising 
jurisdiction to have the authority to do so. UIFSA is not applicable to 
Tribes and is not a factor when Tribes are making jurisdictional 
determinations in relation to Tribal members.
    7. Comment: One commenter observed that States recoup past assigned 
child support payments as a punitive measure and that a Tribal IV-

[[Page 16666]]

D program, in complying with Sec.  309.120(a) requiring 
intergovernmental cooperation, may create a disincentive to Tribal 
members in remote areas from obtaining/keeping employment.
    Response: The recoupment of past assigned support is not punitive, 
but is required by Federal law. Section 309.120(a) requires Tribal IV-D 
agencies to extend the full range of services available under their IV-
D plans upon request from a State or another Tribal IV-D program. 
However, the requesting agency may not dictate the actions taken by the 
responding jurisdiction. The responding agency must take enforcement 
actions as required by Federal regulations and its own laws and 
procedures. We recommend that IV-D programs contact each other to 
determine how to most efficiently and effectively coordinate IV-D 
services at the local level.
    We are particularly aware of Tribal concerns about support orders 
entered against Tribal members by default, resulting in large 
arrearages owed to a State that an obligor is unable to pay and which 
may discourage compliance. We strongly urge States and Tribes to work 
together in these instances to reach agreement on steps to take that 
will result in ongoing support payments to families, including the 
possibility of compromising arrearages permanently assigned to the 
State and/or entering into repayment agreements.
    8. Comment: Two commenters suggested that the reporting 
requirements must be clarified and that States will not know how to 
report State/Tribal cases for purposes of completing the OCSE-157 
reports.
    Response: State IV-D agencies are required to submit the OCSE-157, 
the Support Enforcement Annual Data Report, which is to be used to 
report program status and accomplishments under title IV-D of the 
Social Security Act. There are two specific parts of the OCSE-157 which 
accommodate Tribal IV-D cases. At Line 1: Cases Open and the End of the 
Fiscal Year, ``[i]nclude cases open at end of the fiscal year as a 
result of requests for assistance received from other States, as well 
as cases open in your State that you have referred to another State. Do 
not include on this line Native American and international cases over 
which the State has no jurisdiction. These cases should be reported 
separately on line 3.'' Line 3 of the OCSE-157 is provided to report on 
Cases Open for Which the State has No Jurisdiction. See OCSE-AT-01-09 
for additional information.
    We are working with States on revisions to the OCSE-157 form to 
more accurately reflect how Tribal IV-D cases referred to the State IV-
D programs should be reported. Please note that Tribes are not required 
to complete the OCSE-157 reports.
    9. Comment: One State commenter stated that Tribal IV-D plans 
should include assurances that the Tribe will cooperate with requests 
for assistance with service of process. This commenter said that Tribes 
should establish a central registry for receipt of incoming interstate 
and a Tribal information agency that maintains a list of tribunal 
addresses.
    Response: Tribes are required to provide the full range of Tribal 
IV-D services upon request of another State or Tribal IV-D program. As 
noted above, Sec.  309.120 requires Tribal IV-D agencies to extend the 
full range of services available under their IV-D plans to all IV-D 
programs upon request and to cooperate with States and other Tribal IV-
D agencies to provide services required by law and regulation. This 
could include assisting with service of process or, in the alternative, 
bringing enforcement action in a Tribal tribunal. We have determined 
that additional regulation is not necessary at this time.
    As to the suggestion that Tribes be mandated to establish an 
interstate registry, while we have not mandated such a registry, Tribal 
IV-D programs may determine such a registry is helpful for management 
purposes. Insofar as a State requires the address of a Tribal tribunal, 
States should request the address from the Tribal IV-D agency.
    10. Comment: Seven Tribal and State commenters expressed concern 
that States did not have reciprocal obligations to cooperate with 
Tribal IV-D programs and observed that cooperation was key to the 
success of all IV-D programs.
    Response: As stated in our earlier discussion of Sec.  309.120, 
both Tribes and States are required to extend the full range of 
services available under a IV-D plan and respond to all requests 
received from other IV-D programs. We made a conforming change to 
include a parallel requirement in 45 CFR 302.36(a)(2), which requires 
each State to extend the full range of services available under its IV-
D plan to all Tribal IV-D programs. Without more experience with 
cooperation between these entities, we do not believe that it is 
appropriate to promulgate uniform regulations governing the cooperation 
process. At this initial stage in the development of Tribal IV-D 
programs, we want to allow States and Tribes time and maximum 
flexibility to establish local procedures for coordination and 
cooperation. We are committed to assisting in those efforts, providing 
written guidance and sharing best practices as needed and requested. If 
we determine that additional regulations mandating cooperation 
requirements are necessary for the effective and efficient operation of 
IV-D programs, we will promulgate them at a later date.
    11. Comment: One commenter asked if cooperative arrangements with 
States are going to be absolutely necessary for Tribes.
    Response: Whether Tribes enter into cooperative arrangements with 
States or other entities, as well as the nature of such arrangements, 
is entirely at their discretion. Nothing in this regulation mandates 
such arrangements as a condition of receipt of IV-D funds. Service 
agreements, contracts, and other types of formal agreements between 
Tribes and States may facilitate the effective and efficient delivery 
of IV-D services, and we encourage them when deemed appropriate by the 
parties.
    12. Comment: One State commenter asked how programming costs would 
be paid if Tribes enter into agreements with States to have the States' 
automated systems process child support monies.
    Response: We expect that processing of child support monies 
collected by Tribal IV-D programs will be accomplished under the same 
framework as processing by State A of support collected by State B. 
Federal reimbursement is available to States at the usual match rate. 
The Tribe may claim allowable contract costs and the State must account 
for any payments under the contract as program income. At this time we 
are not persuaded that additional regulation is necessary.
    13. Comment: Eight Tribal commenters criticized the requirement 
that Tribes recognize default paternity orders and default orders based 
on imputed income as a matter of course when the courts that issued 
such orders did not have jurisdiction in the first instance.
    Response: While FFCCSOA requires orders to receive full faith and 
credit, nothing in that statute nor in this regulation requires that 
invalid orders be accorded full faith and credit. If invalid default 
orders are entered, they are subject to challenge under ordinary rules 
of State or Tribal law. See OCSE-AT-02-03 on the applicability of 
FFCCSOA to States and Tribes. However, when valid default orders based 
on imputed income create hardship on obligors because they are not 
based on the ability of the obligor to pay support, we urge States to 
modify those orders and consider compromising arrearages owed to the

[[Page 16667]]

State, when appropriate. As discussed earlier, we urge State and Tribal 
IV-D programs to work together to remove impediments to timely and 
consistent payment of support.
    14. Comment: One State commenter stated that FFCCSOA applies to 
Tribes and that Sec.  309.120 should require Tribes to comply with the 
Act in its entirety, not just the enforcement section. This commenter 
suggested that the word ``assurance'' was not strong enough. To address 
current enforcement problems the section should require Tribes to 
``recognize child support orders, including income withholding orders, 
issued by other Tribes and Tribal organizations and by States.''
    Response: All the requirements of FFCCSOA (28 U.S.C. 1738B) are 
applicable to States and Tribes. We are not persuaded that any change 
to Sec.  309.120 as suggested by the commenter is necessary to impose 
this requirement. To the extent that a valid order includes provisions 
for income withholding, FFCCSOA applies.
    15. Comment: Numerous commenters suggested that Tribes should be 
required to implement UIFSA to promote uniformity and to alleviate 
jurisdictional, as well as operational problems. Several Tribal 
commenters stated that it was inappropriate to require Tribes to adopt 
UIFSA.
    Response: As discussed previously, States are required to adopt 
UIFSA as the result of an express statutory mandate. We have determined 
that requiring Tribes to adopt UIFSA is neither necessary nor 
appropriate.

Subpart D--Tribal IV-D Program Funding

Section 309.125--On What Basis Is Federal Funding of Tribal IV-D 
Programs Determined?

    No comments were received on this section. Changes were made to the 
regulation, however, to specify more directly what information must be 
provided in order for a Tribe to receive Federal funding. We also 
clarified that official issuances of the Department refers only to 
those that specifically indicate applicability to Tribal IV-D programs. 
The title of the section was also modified slightly in the final rule 
by changing ``funding in'' to ``funding of'' for clarity.

Section 309.130--How Will Tribal IV-D Programs Be Funded and What Forms 
Are Required?

    1. Comment: Several Tribal commenters stated that Tribal IV-D 
programs should be funded in the same manner as State IV-D programs, 
i.e., as entitlement programs. They suggested that Tribal IV-D programs 
be funded continuously, with quarterly grant amounts determined, in 
part, by the Tribe's own quarterly estimates. The estimates would be 
subject to review and approval and the Tribes may be requested to 
submit additional supporting documentation as necessary.
    Response: The Tribal IV-D program is an entitlement program. The 
difference between Tribal IV-D grants and State IV-D payments is that 
Tribal IV-D programs are funded for expenditures under an approved IV-D 
plan based on budget requests for a 12-month funding period. We have 
revised Sec.  309.130 to provide that Tribal IV-D programs eligible for 
grants of less than $1 million per 12-month funding period will receive 
a single annual award of the total amount and Tribal IV-D programs with 
funding of $1 million or more per 12-month funding period will receive 
quarterly awards similar to State IV-D programs.
    2. Comment: One commenter suggested clarification is required 
concerning whether Tribal IV-D funds will come from a different funding 
stream than State funds.
    Response: As stated in the preamble to the NPRM, the funding for 
Tribal IV-D activities is completely separate from funding for State 
programs. A Tribe's decision to run its own IV-D program does not 
impact a State's IV-D program funds. Tribal IV-D funding is not 
apportioned from a State's IV-D funding. However, funds for the Tribal 
IV-D programs come from the same appropriation as the State IV-D 
program.
    3. Comment: One commenter said that if Tribes are required to 
provide a 10 or 20 percent match, then they should be able to receive 
an incentive back into their programs.
    Response: States receive incentive funds under section 458 of the 
Act, which does not extend to Indian Tribes. There is no statutory 
authority that provides for Tribal IV-D program incentives.
    4. Comment: Four Tribal commenters suggested that funding should be 
allocated based on population, geographical area, service area, land 
base, isolation factors and local/national scale of economy. Funding 
should be put under a ``special'' category similar to the category used 
for Tribal Program Allocation law enforcement.
    Response: Funding for Tribal IV-D programs is authorized by section 
455(f) of the Social Security Act, which does not provide for 
allocation of funds on the basis described. Under title IV-D of the Act 
and Sec.  309.130, Tribal IV-D funding is based upon documentation 
submitted by Tribes including the SF 424 and 424A and is awarded based 
on reasonable, necessary, and allocable expenditures of approved Tribal 
IV-D programs. We are not persuaded that the factors suggested by the 
commenters are appropriate for the IV-D program. However, in their 
budget requests, there is nothing to preclude Tribes from taking 
service area and population into account.
    5. Comment: Numerous Tribal commenters suggested that the 
regulations should not require a non-Federal share and that Tribes 
should receive 100 percent Federal funding. Some of these commenters 
said that requiring a non-Federal share would penalize, rather than 
support, family programs. Others indicated that most Tribes do not have 
sufficient resources to cover the non-Federal share.
    Response: Unlike other Tribal grant programs, the funding for 
Tribal IV-D programs are not sum certain grants. The Tribal IV-D 
program provides for 90 percent Federal funding for all reasonable, 
necessary and allocable cost associated with the administration of a 
IV-D program during the first three years of operation of a program, 
and 80 percent thereafter. The provision of Federal funding at 90 
percent of program expenditures, with a concomitant non-Federal share 
of 10 percent, reflects our understanding of the unique and generally 
unfavorable fiscal circumstances that Tribes face. We have determined 
that a non-Federal share in expenditures is necessary, based on the 
principle that better programs and better management result when local 
resources are invested. We acknowledge that Tribes may have to split 
limited resources between programs and make difficult decisions 
concerning allocation of funds among important Tribal programs. 
However, we are also aware that some Tribes may face unexpected and 
uniquely adverse conditions that make them temporarily unable to 
provide the non-Federal share in a particular program year. To address 
these limited circumstances, we have incorporated a waiver provision at 
Sec.  309.130, which allows a Tribe in this situation to request a 
temporary waiver of its non-Federal share, based on requirements 
described in paragraph (e), as discussed earlier in this preamble.
    6. Comment: One Tribal commenter stated that the 90 percent Federal 
share rate is fair and adequate. This same commenter suggested that the 
Tribal non-Federal share requirement be fulfilled through in-kind 
contributions. Three other Tribal commenters

[[Page 16668]]

suggested the non-Federal share be in cash or in-kind.
    Response: The regulation permits Tribes to satisfy their non-
Federal share requirements with whatever resources may be available; 
e.g., cash, non-cash resources provided by the Tribe, or in-kind third-
party contributions, as long as the requirements of 45 CFR 74.23 and 
OMB Circular A-87 are satisfied. Regardless of how a Tribe chooses to 
satisfy the non-Federal share of program expenditures, the Federal 
share remains limited to the applicable rates provided in Sec.  
309.130(c), absent a waiver.
    7. Comment: One Tribal commenter stated the assumption that certain 
collections a Tribal IV-D program makes will lose their identity and be 
able to be counted as matching. Where a Tribe has both a TANF and IV-D 
program, collected funds could be allowed for use as matching dollars 
for its IV-D program.
    Response: If a Tribe has a TANF program that requires an assignment 
of support rights as a condition of receipt of Tribal TANF, and 
assigned support collections are retained by the Tribe, the TANF 
regulation at 45 CFR 286.155(b) applies. Section 286.155(b)(2) requires 
that retained collections under TANF assignments to the Tribe must be 
used ``to further the Tribe's TANF program.'' This disqualifies such 
collections from also being used as the Tribe's IV-D non-Federal share.
    8. Comment: One commenter asked what criteria are used to determine 
whether a Tribe has sufficient resources to provide the required non-
Federal match. How will a Tribe's revenue from gaming be considered?
    Response: We have substantially revised the non-Federal waiver 
provisions at Sec.  309.130 to clarify that waivers of the non-Federal 
share will be limited to certain temporary circumstances. In the NPRM 
and the interim final regulation we intended the waiver provisions to 
apply to atypical situations in a particular program year that make it 
impossible for a Tribe to cover its share of program expenditures. Such 
situations were expected to represent difficulties over and above the 
generally poor economic conditions faced by most Tribes (e.g., high 
unemployment rate, lack of economic development) which we already have 
taken into account by providing for Federal funding for up to 90 
percent of program expenditures in the first three years of full 
funding. The final rule governing waiver requests makes more explicit 
the limited availability of waivers of the non-Federal share and the 
general agreement and understanding that a Tribe or Tribal organization 
receiving funds under this part is expected to share in the financial 
costs of the program.
    In addition, the regulation makes clear that the Secretary must 
make specific findings in order to grant a waiver request. The 
availability of gaming or other Tribal resources is a legitimate factor 
that the Secretary may consider under Sec.  309.130 in granting a 
waiver, but the absence of gaming or similar revenue does not 
necessarily entitle a Tribe to a waiver. Finally, Sec.  309.130 states 
that Tribes and Tribal organizations are responsible for the non-
Federal share unless notified in writing that the Secretary has 
approved a request for waiver. There should be no uncertainty as to 
liability for the non-Federal share; a Tribe or Tribal organization is 
liable for the non-Federal share unless it has received a written 
approval of a waiver request.
    9. Comment: One Tribal commenter suggested that we allow Tribes to 
request a budget increase by submitting SF 424 and/or SF 424A with an 
explanation 60 days before the funds are needed. Another three 
commenters indicated that the provision for Tribes to request a mid-
year increase in their approved budgets is a positive feature.
    Response: Regulations at Sec.  309.130(f) permit Tribes and Tribal 
organizations to request budget adjustments by submitting the SF 424 
and/or SF 424A forms with an explanation of why an adjustment is 
necessary. We also revised this subsection to make clear that increases 
in a Tribal IV-D budget will result in a proportional increase in a 
Tribe's non-Federal share.
    10. Comment: One Tribal commenter opposed the application of 45 CFR 
part 95 to Tribal IV-D programs, saying that such regulation was not 
appropriate for Tribes. As Tribes begin to operate IV-D programs, the 
Department will gain knowledge and experience with Tribal system 
development. Tribes will be able to provide technical assistance to one 
another on the processes and models that they have developed.
    Response: In the proposed regulation, we solicited comment on 
investments in Tribal IV-D automation and specifically asked for 
consideration of 45 CFR part 95 as a model. We are not regulating 
Tribal IV-D automation at this time beyond allowable expenditures for 
office automation and planning under Sec.  309.145, but will take the 
suggestions into consideration as we deliberate in this area for the 
future. Of course, no final automation requirements will be imposed on 
Tribal IV-D programs without feedback from all stakeholders.

Section 309.135--What Requirements Apply to Funding, Obligating and 
Liquidating Federal Title IV-D Grant Funds?

    1. Comment: We received five positive Tribal comments on the time 
allotted for obligating and spending IV-D grant funds. One commenter 
criticized requiring Tribes to revise their financial systems.
    Response: There are no provisions in Sec.  309.135 that require 
Tribes to revise their financial systems. The requirements in Sec.  
309.135 are consistent with requirements in other Federal programs. To 
be as clear as possible about the provisions of this section, however, 
we have broken up the two long paragraphs in the proposed rule into 
three shorter paragraphs and added topic headings. In addition, to 
smooth the transition from start-up grant to initial IV-D program 
funding grants, we have added new paragraphs (a) and (b) to this 
section. Paragraph (a) specifies that IV-D program grant awards will be 
made for 12-month periods that coincide with the Federal fiscal year 
(October 1 to September 30). Paragraph (b) provides for an initial IV-D 
program funding period of 6 to 17 months, in order to bring the funding 
cycle in line with the Federal fiscal year. This is necessary for an 
efficient grant process and does not affect the Tribal financial system 
or processes.
    2. Comment: Two commenters suggested that the rule allow carry-
forward of funding to the following fiscal year.
    Response: Since quarterly adjustments can be made to the Tribal IV-
D grants based on actual expenditures, carry-forward of grant funds is 
not necessary. However, in the interest of providing Tribes with the 
maximum flexibility, under our program regulations at Sec.  309.135, we 
allow Tribes to liquidate obligations no later than the last day of the 
12-month period following the funding period for which the funds were 
awarded.

Proposed Section 309.140--What Are the Financial Reporting 
Requirements?

    We eliminated Sec.  309.140 and moved all financial reporting 
requirements to Sec.  309.130, which already contained some of the same 
material and is discussed earlier in this preamble. This places all 
financial reporting requirements in one place in the regulations and 
should make the regulations easier to use.
    1. Comment: Two Tribal commenters were concerned that heavy 
penalties for failure to meet program deadlines will drive away a lot 
of Tribes.

[[Page 16669]]

    Response: Financial Status Reports are required on a quarterly 
basis and are essential to the on-going Tribal IV-D funding process. 
They are required under the terms and conditions of annual IV-D grant 
awards. However, to lessen the burden on Tribes, we have determined 
that they may report on the SF 269A (Short Form) to provide the minimum 
necessary information.
    Financial Status Reports are due not later than 30 days following 
the end of each of the first three quarters and no later than 90 days 
following the end of the fourth quarter of each annual funding period 
and of the subsequent 12-month liquidation period. Failure to meet 
these deadlines will result in possible delays in Federal Tribal IV-D 
funding. If Tribes require technical or other assistance to meet the 
Financial Status Report deadlines, we encourage them to contact us 
immediately to avoid any undue delay in Federal IV-D funding.
    2. Comment: Five Tribal commenters supported less frequent 
financial reporting for Tribal IV-D agencies that meet requirements.
    Response: Because the information provided on the quarterly 
Financial Status Reports is so essential to the Tribal IV-D funding 
mechanism, especially adjustment for the prior quarter's actual 
obligations, less frequent reporting is not feasible. However, we have 
lessened the reporting burden to the minimum required by the SF 269A 
(Short Form), rather than the SF 269 (Long Form) that was proposed. If 
any aspect of financial reporting raises a concern for a Tribe, we 
encourage that Tribe to contact us immediately.

Section 309.145--What Costs Are Allowable for Tribal IV-D Programs 
Carried Out Under Sec.  309.65(a) of This Part?

    1. Comment: We received numerous comments on automation in Tribal 
IV-D programs. A majority of the comments indicated that automation was 
necessary and that without the automation, it would be impossible for 
Tribes to accurately and efficiently process child support collections. 
Many commenters said that States would not be able to bear the burden 
of manual processing, and that the regulations should require that 
Tribal automated systems be compatible with State systems. Other 
commenters suggested that OCSE develop a skeletal automation system for 
Tribal IV-D programs, and some stated that it was inappropriate to 
require a specific level of program automation. One commenter stated 
that Tribes need to be wary of vendors and should evaluate vendors for 
reliability.
    Response: Under Sec.  309.145, Federal funds are available for 
costs of operating a Tribal IV-D program carried out under Sec.  
309.65(a), provided that such costs are determined by the Secretary to 
be reasonable, necessary, and allocable to the program. While we agree 
that automated data processing systems are helpful for record keeping, 
monitoring and high speed processing in child support enforcement 
cases, such automated systems are not presently required for Tribal IV-
D programs and therefore are not necessary to operation of such 
programs. As stated earlier in this preamble, we have begun 
consideration with stakeholders of appropriate minimum Tribal systems 
automation specifications in anticipation of Tribal IV-D programs 
moving toward high-speed automated data processing by convening a 
workgroup. Factors such as compatibility, scale, functionality and 
cost, among others, are issues being considered by this workgroup.
    Section 309.145(h) states that among those Tribal IV-D costs that 
are allowable are costs for ``planning efforts in the identification, 
evaluation, and selection of a new or replacement automated data 
processing computer system solution,'' for the ``operation and 
maintenance of existing Tribal automated data processing computer 
systems,'' as well as for ``essential office automation capability,'' 
and the ``[e]stablishment of intergovernmental agreements with States 
and Tribes for use of an existing automated computer data processing 
system.'' We have determined that these categories of costs, in lieu of 
guidance regarding the need for or scope of Tribal IV-D automation, are 
reasonable at this time. Since high-speed automated data processing 
systems are not currently required under these regulations, the costs 
of designing, developing and implementing such systems are not 
allowable at this time.
    2. Comment: Ten Tribal commenters supported the extensive list of 
allowable costs. One commenter indicated that this gives the Tribes the 
opportunity to continue to develop the necessary infrastructures. One 
commenter suggested that in determining whether costs are reasonable, 
the Secretary must realize that costs vary by geographic area.
    Response: Section 309.145 makes Federal IV-D funds available for 
costs of operating a Tribal IV-D program provided such costs are 
determined by the Secretary to be reasonable, necessary, and allocable 
to the program. Determinations as to whether or not costs are 
reasonable are governed by OMB Circular A-87 and will take all relevant 
factors into consideration.
    3. Comment: One Tribal commenter indicated that it is unclear 
whether Tribes are eligible for Federal assistance for the costs of bad 
debts. Another commenter noted that bad debts are unallowable costs for 
States and asked if they will be allowed for Tribes.
    Response: OMB Circular A-87, Attachment B, establishes principles 
to be applied in establishing the allowability or unallowability of 
certain items of cost. With regard to ``bad debts,'' it states that 
``[a]ny losses arising from uncollectible accounts and other claims, 
and related costs are unallowable unless provided for in Federal 
program award regulations.'' We encourage States and Tribes who have 
questions about allowable IV-D costs to contact us with specific 
information. These final regulations make no provision for the costs of 
bad debts as allowable expenditures.
    4. Comment: Ten Tribal commenters requested clarification on how 
indirect cost rates would be treated.
    Response: Section 309.145 provides that Federal IV-D funds are 
available ``for the costs of operating a Tribal IV-D program under an 
approved Tribal IV-D application.'' The use of a negotiated indirect 
cost rate could result in recovery of costs unrelated to the IV-D 
program, which is prohibited by Section 451 of the Act that expressly 
limits the Congressional appropriation for the IV-D program funds. OCSE 
is allowing Tribes and Tribal organizations the option to use the 
negotiated indirect cost rate as a mechanism for the recovery of 
allowable indirect costs. However, use of this method does not 
guarantee allowability of costs, which must still be attributable to 
the IV-D program. Because the title IV-D program is an uncapped 
entitlement program, the funds allocated are closely scrutinized. 
Actual indirect costs--just like actual direct costs--must be 
demonstrably attributable to operation of the IV-D program. This means 
that Tribal grantees must be able to demonstrate that whatever costs 
are claimed under the IV-D grant are reasonable, necessary, and 
allocable to the IV-D program.
    As stated earlier in the preamble, if a Tribe or Tribal 
organization's budget request includes indirect costs as part of its 
request for Federal funds, such requests may be submitted in one of two 
ways. For applications which include indirect costs, we have determined 
that an applicant may, at its option, submit either documentation of 
the dollar

[[Page 16670]]

amount of indirect costs allocable to the IV-D program, or submit its 
current indirect cost rate negotiated with the Department of the 
Interior and a dollar amount of indirect costs based on that rate. 
Whichever option an applicant chooses, the applicant's obligation 
remains the same: Tribal IV-D grantees are responsible for ensuring 
that actual expenditures of Federal IV-D funds are directly, 
demonstrably attributable to operation of the IV-D program, i.e., all 
actual costs claimed under the IV-D grant must be allocable to the IV-D 
program. The Federal statute at 42 U.S.C. 651 limits the use of Federal 
IV-D funds to the purposes enumerated in that section, whether such 
costs are characterized as ``direct'' or ``indirect'' costs.
    If a Tribe's application includes a budget request for indirect 
costs as well as direct costs, such request must either calculate the 
estimated indirect cost by documenting the dollar amount of indirect 
costs allocable to the IV-D program, or include the indirect cost rate 
and the estimated indirect costs using the negotiated indirect cost 
rate. If the Tribe elects to submit the actual estimated costs 
attributable to the Tribal IV-D program, the methodology used to arrive 
at the dollar amount must be included with the application.
    Whichever option a Tribe choose, the Tribe's obligation is the 
same: Tribal IV-D grantees are responsible for ensuring that 
expenditures of Federal IV-D funds are directly, demonstrably 
attributable to operation of the IV-D program, i.e., all costs claimed 
under the IV-D grant must be allocable to the IV-D program. Tribal IV-D 
grant funds may be used for both direct and indirect costs. However, 
only such actual costs that are directly, demonstrably attributable to 
operation of the IV-D program are allowable under the Federal statute.
    We remind Tribal grantees that even if the Tribe has an approved 
indirect cost rate agreement, any indirect costs must be allowable 
under the program statute, regulations, OMB circulars and Federal 
appropriations law. Any unallowable costs that are recovered under any 
agreement are also unallowable and subject to disallowance. The 
indirect costs must be reasonable, necessary, allocable and in 
compliance with statute, rules, regulations and OMB circulars.
    In addition, under Sec.  309.160 of this final regulation, Tribal 
IV-D programs will be audited as a major program in accordance with 
section 215 (c) of OMB Circular A-133. The annual A-133 audits will be 
used to reconcile the grant award. Adjustments will be made for any 
differences between estimated and actual costs attributable to the 
program. The Department may supplement these required audits through 
reviews or audits conducted by its own staff.
    We caution Tribes that there is some risk involved in using the 
negotiated indirect cost rate agreement. As stated earlier, the Federal 
statute at 42 U.S.C. 651 limits the use of Federal IV-D funds to the 
purposes enumerated in that section, whether such costs are 
characterized as ``direct'' or ``indirect'' costs. Tribes will want to 
be careful with charges to the indirect cost rate so as not to build up 
a large audit exception or debt. A Tribe that initially chooses to use 
the negotiated indirect cost rate to get its program operational, may 
at a later date choose to document program specific indirect costs in 
subsequent years to avoid a large pay-back to the Federal government, 
disrupting program services to families in need.
    5. Comment: One commenter stated that it is not equitable that the 
salaries of chief executives are allowable costs for Tribes.
    Response: OMB Circular A-87, Attachment B, Section 23.b, states, 
``For Federally-recognized Indian Tribal governments and Councils Of 
Governments (COGs), the portion of salaries and expenses directly 
attributable to managing and operating Federal programs by the chief 
executive and his staff is allowable. `` Following this guidance, we 
have determined that Federal IV-D funds may be used for that portion of 
the salaries and expenses of a Tribe's chief executive and staff which 
are directly attributable to managing and operating the Tribal IV-D 
program.
    6. Comment: Five Tribal commenters supported the provision that the 
portion of salaries and expenses of Tribal judges and staff that is 
directly related to Tribal IV-D case program activities is an allowable 
cost because Tribal IV-D programs create additional and unprecedented 
workload increases for Indian tribunals. Six State commenters stated 
that it is not equitable to fund Tribal court costs but not those of 
State courts.
    Response: We have revised Sec.  309.145(k) to permit Federal IV-D 
funds to be used for the portion of salaries and expenses of tribunals 
and staff directly related to required Tribal IV-D program activities. 
We recognize that, at this initial stage of Tribal IV-D programs, 
operation of programs and associated program requirements will result 
in increased workloads for some Indian tribunals. Unlike States, Tribes 
may not have a tax base or the resources to enable them to fund these 
activities of the Tribal court. Child support may not be a normal 
function that the court would perform. Therefore, as provided in OMB 
Circular A-87, Attachment B, section 23.a.(5), we have determined that 
the costs associated with such circumstances are allowable.
    7. Comment: One State commenter suggested that States receive 
direct Federal funds to cover costs associated with providing technical 
assistance to Tribes. Another commenter suggested that the expenses for 
technical assistance should be borne by the funding agency and that the 
costs should not be part of the funds awarded to a Tribe.
    Response: If a State enters into an agreement to provide services 
which are not part of the operation of its IV-D plan, the State may 
bill the Tribe or Tribal organization at rates negotiated between the 
two parties. If the services provided under such purchase of service 
agreements are reasonable, necessary, and allocable to the Tribal IV-D 
program, the Tribe could claim the associated costs it has incurred in 
obtaining the services and would be required to participate in those 
costs, consistent with the required Tribal IV-D share.
    8. Comment: Several Tribal commenters said that unless funds 
awarded to States under section 469B of the Act, which addresses grants 
to States for access and visitation programs, are opened up to Tribal 
child support grantees, access and visitation activities should be 
identified as allowable fundable activities.
    Response: Grants under section 469B of the Act are limited by the 
terms of the statute to States. We do not consider access and 
visitation activities to be allowable child support activities and 
therefore, expenditures related to access and visitation are not 
eligible for IV-D funding under Sec.  309.145.

Section 309.150--What Start-Up Costs Are Allowable for Tribal IV-D 
Programs Carried Out Under Sec.  309.65(b) of This Part?

    1. Comment: Seven Tribal commenters said that a ceiling should not 
be placed on start-up expenses and that in some instances the limit 
will be inadequate. One commenter suggested that exceptions to this 
limit be allowed if a Tribe can prove reasonable need.
    Response: Based on the experiences of currently operating Tribal 
IV-D programs, we continue to believe that a Tribe or Tribal 
organization that receives start-up funding can generally be expected 
to be ready to operate a full Tribal IV-D program within two years and 
that the Federal share of start-up

[[Page 16671]]

costs should generally not exceed $500,000. However, to accommodate 
extraordinary and limited circumstances we have provided, at Sec.  
309.16(c), an opportunity for Tribes and Tribal organizations to 
request additional time and/or funding for start-up Tribal IV-D 
programs.
    2. Comment: Three Tribal commenters suggested that the $500,000 
limit should be exclusive of indirect costs.
    Response: We have determined that the $500,000 limit for start-up 
funding is not exclusive of indirect costs. Section 309.150(d) provides 
that Federal funds are available for reasonable, necessary, and 
allocable costs with a direct correlation to the initial development of 
a Tribal IV-D program, consistent with the cost principles in OMB 
Circular A-87, and approved by the Secretary. As stated earlier in the 
preamble, if a Tribe or Tribal organization's budget for start-up 
funding includes a request for indirect costs, a mechanism parallel to 
that described at Sec.  309.15(a)(3) must be used. Applicants for 
start-up funding should submit such estimates of indirect costs as 
either a product of documentation showing the dollar amount of indirect 
costs specifically allocable to the IV-D program or as a product of 
their current negotiated indirect cost rate. The methodology used to 
arrive at these amounts must be included with the application.
    3. Comment: One commenter asked if ``start-up'' monies are an 
``add-on'' to the amount a Tribal IV-D program will receive in direct 
funding or if they are stand-alone funds for the first two years.
    Response: Sections 309.16, 309.65(b) and 309.145 address funding 
available for initial Tribal IV-D program development. Tribes that are 
operating comprehensive child support enforcement programs under Sec.  
309.65(a) have moved beyond the initial start-up stage and are not 
eligible for start-up funds. The fact that a Tribe may have received 
start-up funding under Sec.  309.65(b) has no bearing on any subsequent 
application for funding under Sec.  309.65(a) for the operation of a 
comprehensive IV-D program. Thus, start-up funds are stand-alone funds.
    4. Comment: One commenter suggested that the requirement for a 
match should be waived during the start-up phase.
    Response: The final regulation does not require a non-Federal share 
for Tribal IV-D start-up grants under Sec. Sec.  309.16 and 309.65(b). 
These grants are for the initial development of Tribal IV-D programs. 
Because the purpose of the start-up grants is to assist Tribes in the 
development of programs that will eventually satisfy the requirements 
of Sec.  309.65(a), we have determined that requiring a non-Federal 
share would not be productive.

Subpart E--Accountability and Monitoring

Section 309.155--What Uses of Tribal IV-D Program Funds Are Not 
Allowable?

    1. Comment: Three Tribal commenters said that Tribes should be 
allowed to use IV-D funds to build offices for their programs where 
none are available. One of those commenters said a certain percentage 
should be allowed for major renovation.
    Response: Grant funds can be used for construction and major 
renovations only if Congress specifically authorizes such use. The 
child support statute does not provide for this use.
    Although we don't believe it is necessary to include the definition 
of construction in the regulation we thought it may be useful to 
provide the definition here. It has been our experience that current 
grantees sometimes include unallowable construction costs in budget 
requests. The following definitions should be helpful.
    Construction means the construction of new buildings or the 
modernization of, or completion of shell space in existing buildings 
(including the installation of fixed equipment, but excluding the cost 
of land acquisition and off-site improvements). A trailer or modular 
unit is considered construction or real property when the unit and its 
installation are designed or planned to be installed permanently at a 
given location so as to seem fixed to the land as a permanent structure 
or appurtenance thereto.
    Real property means land, including land improvements, structures 
and appurtenances thereto, but excludes movable machinery and 
equipment.
    2. Comment: One Tribal commenter said that the Tribes need 
financial supplements for the cost of jailing noncustodial parents.
    Response: If jail is the penalty for violations of Tribal law, 
associated expenses are considered general Tribal expenses for which 
Federal IV-D funding is not available. Establishment and operation of 
penalties for violations of Tribal law is solely the responsibility of 
Tribal governments. These are governmental costs incurred as part of 
administering a Tribal government and are not appropriately borne by 
the Federal IV-D funds.
    3. Comment: One commenter said that is it critical that Tribes are 
able to cover legal counsel for indigent defendants and guardian ad 
litem costs with IV-D program funding.
    Response: To the extent that parties to IV-D cases incur legal 
costs, such costs are personal and not reasonable, necessary, or 
allocable to the IV-D program itself. Similarly, costs associated with 
guardian ad litem are not reasonable, necessary or allocable IV-D 
program costs, but are costs appropriately absorbed by the Tribal 
government or the individuals involved.

Subpart F--Statistical and Narrative Reporting Requirements

Section 309.170--What Statistical and Narrative Reporting Requirements 
Apply to Tribal IV-D Programs?

    1. Comment: Two Tribal commenters pointed out that statistical and 
narrative reporting is not required by statute.
    Response: Although statistical and narrative reporting is not 
expressly mandated in section 455(f) of the Act, we have determined 
that the requirements in Sec.  309.170 are essential to ensuring that 
Tribes and Tribal organizations operate IV-D programs that meet the 
mandated program objectives specified in the statute, i.e., 
establishment of paternity, establishment, modification, and 
enforcement of support orders, and location of noncustodial parents. 
Efforts were made to minimize the reporting requirements to those 
considered critical for program tracking, evaluation and monitoring.

List of Subjects

45 CFR Part 286

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

45 CFR Part 302

    Child Support, grant program--social programs. Reporting and 
recordkeeping requirements.

45 CFR Part 309

    Child support, grant program--social programs, Indians, Native 
Americans.

45 CFR Part 310

    Child support, grant program--social programs, Indians, Native 
Americans.


(Catalog of Federal Domestic Assistance Programs No: 93.558 TANF 
Programs--Tribal Family Assistance Grants; 93.563 Child Support 
Enforcement Program)

[[Page 16672]]

    Dated: August 29, 2003.
Wade F. Horn,
Assistant Secretary for Children and Families.
    Approved December 19, 2003.
Tommy G. Thompson,
Secretary, Department of Health and Human Services.

0
For the reasons discussed in the preamble, title 45 chapters II and III 
of the Code of Federal Regulations are amended as follows:

PART 286--TRIBAL TANF PROVISIONS

0
1. The authority citation for part 286 continues to read as follows:

    Authority: 42 U.S.C. 612.


0
2. In Sec.  286.155, paragraph (b)(1) is revised to read as follows:


Sec.  286.155  May a Tribe condition eligibility for Tribal TANF 
assistance on assignment of child support to the Tribe?

* * * * *
    (b) * * *
    (1) Procedures for ensuring that assigned child support collections 
in excess of the amount of Tribal TANF assistance received by the 
family will not be retained by the Tribe; and
* * * * *

PART 302--STATE PLAN REQUIREMENTS

0
3. The authority citation for part 302 continues to read as follows:

    Authority: 42 U.S.C. 651 through 658, 660, 664, 666, 667, 1302, 
1396a(a)(25), 1396b(d)(2), 1396b(o), 1396b(p), 1396(k).

0
4. The heading and paragraph (a) of Sec.  302.36 are revised to read as 
follows:


Sec.  302.36  Provision of services in interstate and intergovernmental 
IV-D cases.

    (a) The State plan shall provide that:
    (1) The State will extend the full range of services available 
under its IV-D plan to any other State in accordance with the 
requirements set forth in Sec.  303.7 of this chapter; and
    (2) The State will extend the full range of services available 
under its IV-D plan to all Tribal IV-D programs, including promptly 
opening a case where appropriate.
* * * * *

0
5. A new part 309 is added:

PART 309--TRIBAL CHILD SUPPORT ENFORCEMENT (IV-D) PROGRAM

Subpart A--Tribal IV-D Program: General Provisions
Sec.
309.01 What does this part cover?
309.05 What definitions apply to this part?
309.10 Who is eligible to apply for and receive Federal funding to 
operate a Tribal IV-D program?
Subpart B--Tribal IV-D Program Application Procedures
309.15 What is a Tribal IV-D program application?
309.16 What rules apply to start-up funding?
309.20 Who submits a Tribal IV-D program application and where?
309.35 What are the procedures for review of a Tribal IV-D program 
application, plan or plan amendment?
309.40 What is the basis for disapproval of a Tribal IV-D program 
application, plan or plan amendment?
309.45 When and how may a Tribe or Tribal organization request 
reconsideration of a disapproval action?
309.50 What are the consequences of disapproval of a Tribal IV-D 
program application, plan or plan amendment?
Subpart C--Tribal IV-D Plan Requirements
309.55 What does this subpart cover?
309.60 Who is responsible for administration of the Tribal IV-D 
program under the Tribal IV-D plan?
309.65 What must a Tribe or Tribal organization include in a Tribal 
IV-D plan in order to demonstrate capacity to operate a Tribal IV-D 
program?
309.70 What provisions governing jurisdiction must a Tribe or Tribal 
organization include in a Tribal IV-D plan?
309.75 What administrative and management procedures must a Tribe or 
Tribal organization include in a Tribal IV-D plan?
309.80 What safeguarding procedures must a Tribe or Tribal 
organization include in a Tribal IV-D plan?
309.85 What records must a Tribe or Tribal organization agree to 
maintain in a Tribal IV-D plan?
309.90 What governing Tribal law or regulations must a Tribe or 
Tribal organization include in a Tribal IV-D plan?
309.95 What procedures governing the location of custodial and 
noncustodial parents must a Tribe or Tribal organization include in 
a Tribal IV-D plan?
309.100 What procedures for the establishment of paternity must a 
Tribe or Tribal organization include in a Tribal IV-D plan?
309.105 What procedures governing child support guidelines must a 
Tribe or Tribal organization include in a Tribal IV-D plan?
309.110 What procedures governing income withholding must a Tribe or 
Tribal organization include in a Tribal IV-D plan?
309.115 What procedures governing the distribution of child support 
must a Tribe or Tribal organization include in a Tribal IV-D plan?
309.120 What intergovernmental procedures must a Tribe or Tribal 
organization include in a Tribal IV-D plan?
Subpart D--Tribal IV-D Program Funding
309.125 On what basis is Federal funding of Tribal IV-D programs 
determined?
309.130 How will Tribal IV-D programs be funded and what forms are 
required?
309.135 What requirements apply to funding, obligating and 
liquidating Federal title IV-D grant funds?
309.145 What costs are allowable for Tribal IV-D programs carried 
out under Sec.  309.65(a) of this part?
309.150 What start-up costs are allowable for Tribal IV-D programs?
309.155 What uses of Tribal IV-D program funds are not allowable?
Subpart E--Accountability and Monitoring
309.160 How will OCSE determine if Tribal IV-D program funds are 
appropriately expended?
309.165 What recourse does a Tribe or Tribal organization have to 
dispute a determination to disallow Tribal IV-D program 
expenditures?
Subpart F--Statistical and Narrative Reporting Requirements
309.170 What statistical and narrative reporting requirements apply 
to Tribal IV-D programs?

    Authority: 42 U.S.C. 655(f), 1302.

Subpart A--Tribal IV-D Program: General Provisions


Sec.  309.01  What does this part cover?

    (a) The regulations in this part prescribe the rules for 
implementing section 455(f) of the Social Security Act. Section 455(f) 
of the Act authorizes direct grants to Indian Tribes and Tribal 
organizations to operate child support enforcement programs.
    (b) These regulations establish the requirements that must be met 
by Indian Tribes and Tribal organizations to be eligible for grants 
under section 455(f) of the Act. They establish requirements for: 
Tribal IV-D plan and application content, submission, approval, and 
amendment; program funding; program operation; uses of funds; 
accountability; reporting; and other program requirements and 
procedures.


Sec.  309.05  What definitions apply to this part?

    The following definitions apply to this part:
    IV-D services are the services that are authorized or required for 
the establishment of paternity, establishment, modification, and 
enforcement of support orders, and location of noncustodial parents 
under title IV-D of the Act, this rule, the Tribal IV-D plan and 
program instructions issued by the Department.
    ACF means the Administration for Children and Families, U.S. 
Department of Health and Human Services.

[[Page 16673]]

    Act means the Social Security Act, unless otherwise specified.
    Assistant Secretary means the Assistant Secretary for Children and 
Families, Department of Health and Human Services.
    Central office means the Office of Child Support Enforcement.
    Child support order and child support obligation mean a judgment, 
decree, or order, whether temporary, final or subject to modification, 
issued by a court of competent jurisdiction, tribunal or an 
administrative agency for the support and maintenance of a child, 
including a child who has attained the age of majority under the law of 
the issuing jurisdiction, or of the parent with whom the child is 
living, which provides for monetary support, health care, arrearages, 
or reimbursement, and which may include related costs and fees, 
interest and penalties, income withholding, attorneys' fees, and other 
relief.
    The Department means the U.S. Department of Health and Human 
Services.
    Income means any periodic form of payment due to an individual 
regardless of source, except that a Tribe may expressly decide to 
exclude per capita, trust, or Individual Indian Money (IIM) payments.
    Indian means a person who is a member of an Indian Tribe.
    Indian Tribe and Tribe mean any Indian or Alaska Native Tribe, 
band, nation, pueblo, village, or community that the Secretary of the 
Interior acknowledges to exist as an Indian Tribe and includes in the 
list of Federally-recognized Indian Tribal governments as published in 
the Federal Register pursuant to 25 U.S.C. 479a-1.
    Location means information concerning the physical whereabouts of 
the noncustodial parent, or the noncustodial parent's employer(s), and 
other sources of income or assets, as appropriate, which is sufficient 
and necessary to take the next appropriate action in a case.
    Non-cash support is support provided to a family in the nature of 
goods and/or services, rather than in cash, but which, nonetheless, has 
a certain and specific dollar value.
    Notice of Disapproval refers to the written notification from the 
Department that the Tribal IV-D application, IV-D plan, or plan 
amendment fails to meet the requirements for approval under applicable 
Federal statutes and regulations.
    OCSE refers to the Federal Office of Child Support Enforcement.
    Program development plan means a document detailing the specific 
steps a Tribe or Tribal organization will take to come into compliance 
with the requirements of Sec.  309.65(a), and the timeframe associated 
with each step.
    Regional office refers to one of the regional offices of the 
Administration for Children and Families.
    Secretary means the Secretary of the Department of Health and Human 
Services or designee.
    TANF means the Temporary Assistance for Needy Families program as 
found at section 401 et seq. of the Social Security Act (42 U.S.C. 601 
et seq.).
    Title IV-D refers to the title of the Social Security Act that 
authorizes the Child Support Enforcement Program, including the Tribal 
Child Support Enforcement Program.
    Tribal IV-D agency means the organizational unit in the Tribe or 
Tribal organization that has the authority for administering or 
supervising the Tribal IV-D program under section 455(f) of the Act.
    Tribal custom means unwritten law having the force and effect of 
law within a particular Tribe.
    Tribal organization means any legally established organization of 
Indian Tribes which is sanctioned or chartered as a single governing 
body representing two or more Indian Tribes.


Sec.  309.10  Who is eligible to apply for and receive Federal funding 
to operate a Tribal IV-D program?

    The following Tribes or Tribal organizations are eligible to apply 
to receive Federal funding to operate a Tribal IV-D program meeting the 
requirements of this part:
    (a) An Indian Tribe with at least 100 children under the age of 
majority as defined by Tribal law or code, in the population subject to 
the jurisdiction of the Tribal court or administrative agency.
    (b) A Tribal organization that has been designated by two or more 
Indian Tribes to operate a Tribal IV-D program on their behalf, with a 
total of at least 100 children under the age of majority as defined by 
Tribal laws or codes, in the population of the Tribes subject to the 
jurisdiction of the Tribal court (or courts) or administrative agency 
(or agencies).
    (c) A Tribe or Tribal organization that can demonstrate to the 
satisfaction of the Secretary the capacity to operate a child support 
enforcement program and provide justification for operating a program 
with less than the minimum number of children may be granted a waiver 
of paragraph (a) or (b) of this section as appropriate.
    (1) A Tribe or Tribal organization's request for waiver of 
paragraph (a) or (b) of this section must include documentation 
sufficient to demonstrate that meeting the requirement is not 
necessary. Such documentation must state:
    (i) That the Tribe or Tribal organization otherwise complies with 
the requirements established in subpart C of these regulations;
    (ii) That the Tribe or Tribal organization has the administrative 
capacity to support operation of a child support program under the 
requirements of this part;
    (iii) That the Tribal IV-D program will be cost effective; and
    (iv) The number of children under the jurisdiction of the Tribe or 
Tribal organization.
    (2) A Tribe or Tribal organization's request for a waiver may be 
approved if the Tribe or Tribal organization demonstrates to the 
satisfaction of the Secretary that it can provide the services required 
under 45 CFR part 309 in a cost effective manner even though the 
population subject to Tribal jurisdiction includes fewer than 100 
children.

Subpart B--Tribal IV-D Program Application Procedures


Sec.  309.15  What is a Tribal IV-D program application?

    (a) Initial application. The initial application for funding under 
Sec.  309.65(a) may be submitted at any time. The initial application 
must include:
    (1) Standard Form (SF) 424, ``Application for Federal Assistance;''
    (2) SF 424A, ``Budget Information--Non-Construction Programs,'' 
including the following information:
    (i) A quarter-by-quarter estimate of expenditures for the funding 
period; and
    (ii) Notification of whether the Tribe or Tribal organization is 
requesting funds for indirect costs and if so, an election of a method 
under paragraph (a)(3) of this section to calculate estimated indirect 
costs; and
    (iii) A narrative justification for each cost category on the form; 
and either:
    (iv) A statement that the Tribe or Tribal organization has or will 
have the non-Federal share of program expenditures available, as 
required; or
    (v) A request for a waiver of the non-Federal share in accordance 
with Sec.  309.130(e), if appropriate.
    (3) If the Tribe or Tribal organization requests funding for 
indirect costs, estimated indirect costs may be submitted either by:

[[Page 16674]]

    (i) Including documentation of the dollar amount of indirect costs 
allocable to the IV-D program; or
    (ii) Submission of its current indirect cost rate negotiated with 
the Department of Interior and the estimated amount of indirect costs 
calculated using the negotiated cost rate.
    (4) The Tribal IV-D plan. The initial application must include a 
comprehensive statement identifying how the Tribe or Tribal 
organization is meeting the requirements of subpart C of this part and 
that describes the capacity of the Tribe or Tribal organization to 
operate a IV-D program which meets the objectives of title IV-D of the 
Act, including establishment of paternity, establishment, modification, 
and enforcement of support orders, and location of noncustodial 
parents.
    (b) Additional application requirement for Tribal organizations. 
The initial and subsequent annual budget submissions of a Tribal 
organization must document that each participating Tribe authorizes the 
Tribal organization to operate a Tribal IV-D program on its behalf.
    (c) Annual budget submission. Following the initial funding period, 
the Tribe or Tribal organization operating a IV-D program must submit 
annually Form SF 424A, including all the necessary accompanying 
information and documentation described in paragraphs (a)(2) and (a)(3) 
of this section.
    (d) Plan Amendments. Plan amendments must be submitted in 
accordance with the requirements of Sec.  309.35(e).


Sec.  309.16  What rules apply to start-up funding?

    (a) The application for start-up funding under Sec.  309.65(b) must 
include:
    (1) Standard Form (SF) 424, ``Application for Federal Assistance';
    (2) SF 424A, ``Budget Information--Non-Construction Programs,'' 
including the following information:
    (i) A quarter-by-quarter estimate of expenditures for the start-up 
period;
    (ii) Notification of whether the Tribe or Tribal organization is 
requesting funds for indirect costs and, if so, an election of a method 
to calculate estimated indirect costs under paragraph (a)(3) of this 
section; and
    (iii) A narrative justification for each cost category on the form;
    (3) If the Tribe or Tribal organization requests funding for 
indirect costs as part of its application for Federal start-up funds, 
estimated indirect costs may be submitted either by:
    (i) Including documentation of the dollar amount of indirect costs 
allocable to the IV-D program including the methodology used to arrive 
at these amounts; or
    (ii) Submission of its current indirect cost rate negotiated with 
the Department of Interior and the amount of estimated indirect costs 
using that rate.
    (iii) The amount of indirect costs must be included within the 
limit of $500,000 specified in paragraph (c) of this section.
    (4) With respect to each requirement in Sec.  309.65(a) that the 
Tribe or Tribal organization currently meets, a description of how the 
Tribe or Tribal organization satisfies the requirement; and
    (5) With respect to each requirement in Sec.  309.65(a) that the 
Tribe or Tribal organization does not currently meet, a program 
development plan which demonstrates to the satisfaction of the 
Secretary that the Tribe or Tribal organization has the capacity and 
will have in place a Tribal IV-D program that will meet the 
requirements outlined in Sec.  309.65(a), within a reasonable, specific 
period of time, not to exceed two years. The Secretary must approve the 
program development plan. Disapproval of a program development plan is 
not subject to administrative appeal.
    (b) The process for approval and disapproval of applications for 
start-up funding under this section is found in Sec. Sec.  309.35, 
309.40, 309.45, and 309.50. A disapproval of an application for start-
up funding is not subject to administrative appeal.
    (c) Federal funding for start-up costs is limited to $500,000, 
which must be obligated and liquidated within two years after the first 
day of the quarter after the start-up application was approved. In 
extraordinary circumstances, the Secretary will consider a request to 
extend the period of time during which start-up funding will be 
available and/or to increase the amount of start-up funding provided. 
Denial of a request to extend the time during which start-up funding 
will be available or for an increase in the amount of start-up funding 
is not subject to administrative appeal.
    (1) The Secretary may grant a no-cost extension of time if the 
Tribe or Tribal organization demonstrates to the satisfaction of the 
Secretary that the extension will result in satisfaction of each 
requirement established in Sec.  309.65(a) by the grantee and 
completion of the program development plan required under Sec.  
309.65(b)(2).
    (2) The Secretary may grant an increase in the amount of Federal 
start-up funding provided beyond the limit specified at paragraph (c) 
of this section and Sec.  309.150 if--
    (i) The Tribe or Tribal organization demonstrates to the 
satisfaction of the Secretary that a specific amount of additional 
funds for a specific purpose or purposes will result in satisfaction of 
the requirements specified in Sec.  309.65(a) which the Tribe or Tribal 
organization otherwise will be unable to meet; and
    (ii) The Tribe or Tribal organization demonstrates to the 
satisfaction of the Secretary that it has satisfied every applicable 
reporting requirement.
    (d) If a Tribe or Tribal organization receives start-up funding 
based on submission and approval of a Tribal IV-D application which 
includes a program development plan under Sec.  309.65(b), a progress 
report that describes accomplishments to date in carrying out the plan 
must be submitted with the next annual refunding request.


Sec.  309.20  Who submits a Tribal IV-D program application and where?

    (a) The authorized representative of the Tribe or Tribal 
organization must sign and submit the Tribal IV-D program application.
    (b) Applications must be submitted to the Office of Child Support 
Enforcement, Attention: Tribal Child Support Enforcement Program, 370 
L'Enfant Promenade, SW., Washington, DC 20447, with a copy to the 
appropriate regional office.


Sec.  309.35  What are the procedures for review of a Tribal IV-D 
program application, plan or plan amendment?

    (a) The Secretary will promptly review a Tribal IV-D program 
application, plan or plan amendment to determine whether it conforms to 
the requirements of the Act and these regulations. Not later than the 
90th day following the date on which the Tribal IV-D application, plan 
or plan amendment is received by the Secretary, action will be taken 
unless additional information is needed. If additional information is 
needed from the Tribe or Tribal organization, the Secretary will 
promptly notify the Tribe or Tribal organization.
    (b) The Secretary will take action on the application, plan or plan 
amendment within 45 days of receipt of any additional information 
requested from the Tribe or Tribal organization.
    (c) Determinations as to whether the Tribal IV-D plan, including 
plan amendments, originally meets or continues to meet the requirements 
for approval are based on applicable Federal statutes, regulations and 
instructions applicable to Tribal IV-D programs. Guidance may be 
furnished to

[[Page 16675]]

assist in the interpretation of the regulations.
    (d) After approval of the original Tribal IV-D program application, 
all relevant changes required by new Federal statutes, rules, 
regulations, and Department interpretations are required to be 
submitted so that the Secretary may determine whether the plan 
continues to meet Federal requirements and policies.
    (e) If a Tribe or Tribal organization intends to make any 
substantial or material change in any aspect of the Tribal IV-D 
program, a Tribal IV-D plan amendment must be submitted at the earliest 
reasonable time for approval under this section. The plan amendment 
must describe and, as appropriate, document the changes the Tribe or 
Tribal organization proposes to make to its IV-D plan, consistent with 
the requirements of applicable statutes and regulations.
    (f) The effective date of a plan or plan amendment may not be 
earlier than the first day of the fiscal quarter in which an approvable 
plan or plan amendment is submitted.


Sec.  309.40  What is the basis for disapproval of a Tribal IV-D 
program application, plan or plan amendment?

    (a) A IV-D application, plan, or plan amendment will be disapproved 
if:
    (1) The Secretary determines that the application, plan, or plan 
amendment fails to meet or no longer meets one or more of the 
requirements set forth in this part or any other applicable Federal 
regulations, statutes and implementing instructions;
    (2) The Secretary determines that required Tribal laws, code, 
regulations, and procedures are not in effect; and/or
    (3) The Secretary determines that the application, plan, or plan 
amendment is not complete, after the Tribe or Tribal organization has 
had the opportunity to submit the necessary information.
    (b)(1) Except as provided in paragraph (b)(2) of this section and 
Sec.  309.45(h) of this part, a written Notice of Disapproval of the 
Tribal IV-D program application, plan, or plan amendment, as 
applicable, will be sent to the Tribe or Tribal organization upon the 
determination that any of the conditions of paragraph (a) of this 
section apply. The Notice of Disapproval will include the specific 
reason(s) for disapproval.
    (2) Where the Secretary believes an approved Tribal IV-D plan 
should be disapproved, he will notify the Tribe of his intent to 
disapprove the plan.
    (c) If the application, plan or plan amendment is incomplete and 
fails to provide enough information to make a determination to approve 
or disapprove, the Secretary will request the necessary information.


Sec.  309.45  When and how may a Tribe or Tribal organization request 
reconsideration of a disapproval action?

    (a) Except as specified under paragraphs (g) and (h) of this 
section, a Tribe or Tribal organization may request reconsideration of 
the disapproval of a Tribal IV-D application, plan or plan amendment by 
filing a written Request for Reconsideration to the Secretary within 60 
days of the date of the Notice of Disapproval.
    (b) The Request for Reconsideration must include:
    (1) All documentation that the Tribe or Tribal organization 
believes is relevant and supportive of its application, plan or plan 
amendment; and
    (2) A written response to each ground for disapproval identified in 
the Notice of Disapproval, indicating why the Tribe or Tribal 
organization believes its application, plan or plan amendment conforms 
to the requirements for approval specified in applicable Federal 
statutes, regulations and office issuances; and
    (3) Whether or not the Tribe or Tribal organization requests a 
meeting or conference call with the Secretary.
    (c) After receiving a Request for Reconsideration that includes a 
request for a conference call or meeting, OCSE will determine whether 
to hold a conference call or a meeting with the Tribe or Tribal 
organization to discuss the reasons for disapproval of the application, 
plan, or plan amendment as well as the Tribe or Tribal organization's 
response. The Secretary will notify the Tribe or Tribal organization of 
the date and time of the conference call or meeting.
    (d) A conference call or meeting under Sec.  309.45(c) shall be 
held not less than 30 days nor more than 60 days after the date the 
notice of such call or meeting is furnished to the Tribe or Tribal 
organization, unless both parties agree in writing to another time.
    (e) The Secretary will make a written determination affirming, 
modifying, or reversing disapproval of a Tribal IV-D program 
application, plan, or plan amendment within 60 days after the 
conference call or meeting is held, or within 60 days after the request 
for reconsideration that does not include a request for a meeting. This 
determination shall be the final decision of the Secretary.
    (f) The Secretary's determination that a Tribal IV-D application, 
new plan or plan amendment is not approvable remains in effect pending 
the reconsideration under this part.
    (g) Disapproval of start-up funding, a request for waiver of the 
100-child rule, and a request for waiver of the non-Federal Tribal 
share is not subject to administrative appeal.
    (h) Where the Secretary believes an approved Tribal IV-D plan 
should be disapproved, he will notify the Tribe of his intent to 
disapprove the plan. If the Tribe waives its right to reconsideration 
under this section, the Tribe may request a pre-decision hearing with 
60 days of the date of the Notice of Intent to Disapprove the plan. The 
hearing will utilize the procedures at 45 CFR part 213.


Sec.  309.50  What are the consequences of disapproval of a Tribal IV-D 
program application, plan or plan amendment?

    (a) If an application or plan submitted pursuant to Sec.  309.15 is 
disapproved, the Tribe or Tribal organization will receive no funding 
under Sec.  309.65(a) or this part until a new application or plan is 
submitted and approved.
    (b) If a IV-D plan amendment is disapproved, there is no funding 
for the activity proposed in the plan amendment.
    (c) A Tribe or Tribal organization whose application, plan or plan 
amendment has been disapproved may reapply at any time.

Subpart C--Tribal IV-D Plan Requirements


Sec.  309.55  What does this subpart cover?

    This subpart defines the Tribal IV-D plan provisions that are 
required to demonstrate that a Tribe or Tribal organization has the 
capacity to operate a child support enforcement program meeting the 
objectives of title IV-D of the Act and these regulations, including 
establishment of paternity, establishment, modification, and 
enforcement of support orders, and location of noncustodial parents.


Sec.  309.60  Who is responsible for administration of the Tribal IV-D 
program under the Tribal IV-D plan?

    (a) Under the Tribal IV-D plan, the Tribe or Tribal organization 
shall establish or designate an agency to administer the Tribal IV-D 
plan. That agency shall be referred to as the Tribal IV-D agency.
    (b) The Tribe or Tribal organization is responsible and accountable 
for the operation of the Tribal IV-D program. Except where otherwise 
provided in this part, the Tribal IV-D agency need not perform all the 
functions of the Tribal IV-D program, so long as the Tribe or Tribal 
organization ensures that all

[[Page 16676]]

approved functions are carried out properly, efficiently and 
effectively.
    (c) If the Tribe or Tribal organization delegates any of the 
functions of the Tribal IV-D program to another Tribe, a State, and/or 
another agency or entity pursuant to a cooperative arrangement, 
contract, or Tribal resolution, the Tribe or Tribal organization is 
responsible for securing compliance with the requirements of the Tribal 
IV-D plan by such Tribe, State, agency or entity. The Tribe or Tribal 
organization is responsible for submitting copies and appending to the 
Tribal IV-D plan any agreements, contracts, or Tribal resolutions 
between the Tribal IV-D agency and a Tribe, State, other agency or 
entity.


Sec.  309.65  What must a Tribe or Tribal organization include in a 
Tribal IV-D plan in order to demonstrate capacity to operate a Tribal 
IV-D program?

    (a) A Tribe or Tribal organization demonstrates capacity to operate 
a Tribal IV-D program meeting the objectives of title IV-D of the Act 
and these regulations by submission of a Tribal IV-D plan which 
contains the required elements listed in paragraphs (a)(1) through (14) 
of this section:
    (1) A description of the population subject to the jurisdiction of 
the Tribal court or administrative agency for child support purposes as 
specified under Sec.  309.70;
    (2) Evidence that the Tribe or Tribal organization has in place 
procedures for accepting all applications for IV-D services and 
promptly providing IV-D services required by law and regulation;
    (3) Assurance that the due process rights of the individuals 
involved will be protected in all activities of the Tribal IV-D 
program, including establishment of paternity, and establishment, 
modification, and enforcement of support orders;
    (4) Administrative and management procedures as specified under 
Sec.  309.75;
    (5) Safeguarding procedures as specified under Sec.  309.80;
    (6) Assurance that the Tribe or Tribal organization will maintain 
records as specified under Sec.  309.85;
    (7) Copies of all applicable Tribal laws and regulations as 
specified under Sec.  309.90;
    (8) Procedures for the location of noncustodial parents as 
specified under Sec.  309.95;
    (9) Procedures for the establishment of paternity as specified 
under Sec.  309.100;
    (10) Guidelines for the establishment and modification of child 
support obligations as specified under Sec.  309.105;
    (11) Procedures for income withholding as specified under Sec.  
309.110;
    (12) Procedures for the distribution of child support collections 
as specified under Sec.  309.115;
    (13) Procedures for intergovernmental case processing as specified 
under Sec.  309.120; and
    (14) Tribally-determined performance targets for paternity 
establishment, support order establishment, amount of current support 
to be collected, amount of past due support to be collected, and any 
other performance measures a Tribe or Tribal organization may want to 
submit.
    (b) If a Tribe or Tribal organization currently is unable to 
satisfy any or all of the requirements specified in paragraph (a) of 
this section:
    (1) It may demonstrate capacity to operate a Tribal IV-D program 
meeting the objectives of title IV-D of the Act and these regulations 
by submission of an application for start-up funding as required by 
Sec.  309.16(a) of this part.
    (2) The Secretary may cease start-up funding to a Tribe or Tribal 
organization if that Tribe or Tribal organization fails to satisfy one 
or more provisions or milestones described in its program development 
plan within the timeframe specified in such plan.


Sec.  309.70  What provisions governing jurisdiction must a Tribe or 
Tribal organization include in a Tribal IV-D plan?

    A Tribe or Tribal organization must include in its Tribal IV-D plan 
a description of the population subject to the jurisdiction of the 
Tribal court or administrative agency for child support enforcement 
purposes and certify that there are at least 100 children under the age 
of majority in the population subject to the jurisdiction of the Tribe 
in accordance with Sec.  309.10 of this part and subject to Sec.  
309.10(c).


Sec.  309.75  What administrative and management procedures must a 
Tribe or Tribal organization include in a Tribal IV-D plan?

    A Tribe or Tribal organization must include in its Tribal IV-D plan 
the administrative and management provisions contained in this section:
    (a) A description of the structure of the IV-D agency and the 
distribution of responsibilities within the agency.
    (b) Evidence that all Federal funds and amounts collected by the 
Tribal IV-D agency are protected against loss. Tribes and Tribal 
organizations may comply with this paragraph by submitting 
documentation that establishes that every person who receives, 
disburses, handles, or has access to or control over funds collected 
under the Tribal IV-D program is covered by a bond or insurance 
sufficient to cover all losses.
    (c) Procedures under which notices of support collected, itemized 
by month of collection, are provided to families receiving services 
under the Tribal IV-D program at least once a year. In addition, a 
notice must be provided at any time to either the custodial or 
noncustodial parent upon request.
    (d) A certification that for each year during which the Tribe or 
Tribal organization receives or expends funds pursuant to section 
455(f) of the Act and this part, it shall comply with the provisions of 
chapter 75 of Title 31 of the United States Code (the Single Audit Act 
of 1984, Pub. L. 98-502, as amended) and OMB Circular A-133.
    (e) If the Tribe or Tribal organization intends to charge an 
application fee or recover costs in excess of the fee, the Tribal IV-D 
plan must provide that:
    (1) The application fee must be uniformly applied by the Tribe or 
Tribal organization and must be:
    (i) A flat amount not to exceed $25.00; or
    (ii) An amount based on a fee schedule not to exceed $25.00.
    (2) The Tribal IV-D agency may not charge an application fee in an 
intergovernmental case referred to the Tribal IV-D agency for services 
under Sec.  309.120.
    (3) No application fee may be charged to an individual receiving 
services under titles IV-A, IV-E foster care maintenance assistance, or 
XIX (Medicaid) of the Act.
    (4) The Tribal IV-D agency must exclude from its quarterly 
expenditure claims an amount equal to all fees which are collected and 
costs recovered during the quarter.


Sec.  309.80  What safeguarding procedures must a Tribe or Tribal 
organization include in a Tribal IV-D plan?

    A Tribe or Tribal organization must include in its Tribal IV-D plan 
safeguarding provisions in accordance with this section:
    (a) Procedures under which the use or disclosure of personal 
information received by or maintained by the Tribal IV-D agency is 
limited to purposes directly connected with the administration of the 
Tribal IV-D program, or titles IV-A and XIX with the administration of 
other programs or purposes prescribed by the Secretary in regulations.
    (b) Procedures for safeguards that are applicable to all 
confidential information handled by the Tribal IV-D agency and that are 
designed to protect the privacy rights of the parties, including:

[[Page 16677]]

    (1) Safeguards against unauthorized use or disclosure of 
information relating to proceedings or actions to establish paternity, 
or to establish, modify or enforce support;
    (2) Prohibitions against the release of information on the 
whereabouts of one party or the child to another party against whom a 
protective order with respect to the former party or the child has been 
entered;
    (3) Prohibitions against the release of information on the 
whereabouts of one party or the child to another person if the Tribe 
has reason to believe that the release of the information to that 
person may result in physical or emotional harm to the party or child; 
and
    (4) Procedures in accordance with any specific safeguarding 
regulations applicable to Tribal IV-D programs promulgated by the 
Secretary.
    (c) Procedures under which sanctions must be imposed for the 
unauthorized use or disclosure of information covered by paragraphs (a) 
and (b) of this section.


Sec.  309.85  What records must a Tribe or Tribal organization agree to 
maintain in a Tribal IV-D plan?

    A Tribal IV-D plan must provide that:
    (a) The Tribal IV-D agency will maintain records necessary for the 
proper and efficient operation of the program, including records 
regarding:
    (1) Applications for child support services;
    (2) Efforts to locate noncustodial parents;
    (3) Actions taken to establish paternity and obtain and enforce 
support;
    (4) Amounts owed, arrearages, amounts and sources of support 
collections, and the distribution of such collections;
    (5) IV-D program expenditures;
    (6) Any fees charged and collected, if applicable; and
    (7) Statistical, fiscal, and other records necessary for reporting 
and accountability required by the Secretary.
    (b) The Tribal IV-D agency will comply with the retention and 
access requirements at 45 CFR 74.53, including the requirement that 
records be retained for at least three years.


Sec.  309.90  What governing Tribal law or regulations must a Tribe or 
Tribal organization include in a Tribal IV-D plan?

    (a) A Tribe or Tribal organization must include in its Tribal IV-D 
plan Tribal law, code, regulations, and/or other evidence that provides 
for:
    (1) Establishment of paternity for any child up to and including at 
least 18 years of age;
    (2) Establishment and modification of child support obligations;
    (3) Enforcement of child support obligations, including 
requirements that Tribal employers comply with income withholding as 
required under Sec.  309.110; and
    (4) Location of custodial and noncustodial parents.
    (b) In the absence of written laws and regulations, a Tribe or 
Tribal organization may provide in its plan detailed descriptions of 
any Tribal custom or common law with the force and effect of law which 
enables the Tribe or Tribal organization to satisfy the requirements in 
paragraph (a) of this section.


Sec.  309.95  What procedures governing the location of custodial and 
noncustodial parents must a Tribe or Tribal organization include in a 
Tribal IV-D plan?

    A Tribe or Tribal organization must include in its Tribal IV-D plan 
the provisions governing the location of custodial and noncustodial 
parents and their assets set forth in this section.
    (a) The Tribal IV-D agency must attempt to locate custodial or 
noncustodial parents or sources of income and/or assets when location 
is required to take necessary action in a case; and
    (b) The Tribal IV-D agency must use all sources of information and 
records reasonably available to the Tribe or Tribal organization to 
locate custodial or noncustodial parents and their sources of income 
and assets.


Sec.  309.100  What procedures for the establishment of paternity must 
a Tribe or Tribal organization include in a Tribal IV-D plan?

    (a) A Tribe or Tribal organization must include in its Tribal IV-D 
plan the procedures for the establishment of paternity included in this 
section. The Tribe must include in its Tribal IV-D plan procedures 
under which the Tribal IV-D agency will:
    (1) Attempt to establish paternity by the process established under 
Tribal law, code, and/or custom in accordance with this section;
    (2) Provide an alleged father the opportunity to voluntarily 
acknowledge paternity; and
    (3) In a contested paternity case (unless otherwise barred by 
Tribal law) require the child and all other parties to submit to 
genetic tests upon the request of any such party, if the request is 
supported by a sworn statement by the party--
    (i) Alleging paternity, and setting forth facts establishing a 
reasonable possibility of the requisite sexual contact between parties; 
or
    (ii) Denying paternity, and setting forth facts establishing a 
reasonable possibility of the nonexistence of sexual contact between 
the parties.
    (b) The Tribal IV-D agency need not attempt to establish paternity 
in any case involving incest or forcible rape, or in any case in which 
legal proceedings for adoption are pending, if, in the opinion of the 
Tribal IV-D agency, it would not be in the best interests of the child 
to establish paternity.
    (c) When genetic testing is used to establish paternity, the Tribal 
IV-D agency must identify and use accredited laboratories which 
perform, at reasonable cost, legally and medically-acceptable genetic 
tests which intend to identify the father or exclude the alleged 
father.
    (d) Establishment of paternity under this section has no effect on 
Tribal enrollment or membership.


Sec.  309.105  What procedures governing child support guidelines must 
a Tribe or Tribal organization include in a Tribal IV-D plan?

    (a) A Tribal IV-D plan must: (1) Establish one set of child support 
guidelines by law or action of the tribunal for setting and modifying 
child support obligation amounts;
    (2) Include a copy of child support guidelines governing the 
establishment and modification of child support obligations;
    (3) Indicate whether non-cash payments will be permitted to satisfy 
support obligations, and if so;
    (i) Require that Tribal support orders allowing non-cash payments 
also state the specific dollar amount of the support obligation; and
    (ii) Describe the type(s) of non-cash support that will be 
permitted to satisfy the underlying specific dollar amount of the 
support order; and
    (iii) Provide that non-cash payments will not be permitted to 
satisfy assigned support obligations;
    (4) Indicate that child support guidelines will be reviewed and 
revised, if appropriate, at least once every four years;
    (5) Provide that there shall be a rebuttable presumption, in any 
proceeding for the award of child support, that the amount of the award 
that would result from the application of the guidelines established 
consistent with this section is the correct amount of child support to 
be awarded; and
    (6) Provide for the application of the guidelines unless there is a 
written finding or a specific finding on the record of the tribunal 
that the application of the guidelines would be unjust or inappropriate 
in a particular case in accordance with criteria established by the 
Tribe or Tribal

[[Page 16678]]

organization. Such criteria must take into consideration the needs of 
the child. Findings that rebut the guidelines must state the amount of 
support that would have been required under the guidelines and include 
a justification of why the order varies from the guidelines.
    (b) The guidelines established under paragraph (a) of this section 
must at a minimum:
    (1) Take into account the needs of the child and the earnings and 
income of the noncustodial parent; and
    (2) Be based on specific descriptive and numeric criteria and 
result in a computation of the support obligation.


Sec.  309.110  What procedures governing income withholding must a 
Tribe or Tribal organization include in a Tribal IV-D plan?

    A Tribe or Tribal organization must include in its Tribal IV-D plan 
copies of Tribal laws providing for income withholding in accordance 
with this section.
    (a) In the case of each noncustodial parent against whom a support 
order is or has been issued or modified under the Tribal IV-D plan, or 
is being enforced under such plan, so much of his or her income, as 
defined in Sec.  309.05, must be withheld as is necessary to comply 
with the order.
    (b) In addition to the amount to be withheld to pay the current 
month's obligation, the amount withheld must include an amount to be 
applied toward liquidation of any overdue support.
    (c) The total amount to be withheld under paragraphs (a) and (b) of 
this section may not exceed the maximum amount permitted under section 
303(b) of the Consumer Credit Protection Act (15 U.S.C. 1673(b)), but 
may be set at a lower amount.
    (d) Income withholding must be carried out in compliance with the 
procedural due process requirements established by the Tribe or Tribal 
organization.
    (e) The Tribal IV-D agency will promptly refund amounts which have 
been improperly withheld.
    (f) The Tribal IV-D agency will promptly terminate income 
withholding in cases where there is no longer a current order for 
support and all arrearages have been satisfied.
    (g) If the employer fails to withhold income in accordance with the 
provision of the income withholding order, the employer will be liable 
for the accumulated amount the employer should have withheld from the 
noncustodial parent's income.
    (h) Income shall not be subject to withholding in any case where:
    (1) Either the custodial or noncustodial parent demonstrates, and 
the tribunal enters a finding, that there is good cause not to require 
income withholding; or
    (2) A signed written agreement is reached between the noncustodial 
and custodial parent, which provides for an alternative arrangement, 
and is reviewed and entered into the record by the tribunal.
    (i) Where immediate income withholding is not in place, the income 
of the noncustodial parent shall become subject to withholding, at the 
earliest, on the date on which the payments which the noncustodial 
parent has failed to make under a Tribal support order are at least 
equal to the support payable for one month.
    (j) The only basis for contesting a withholding is a mistake of 
fact, which for purposes of this paragraph, means an error in the 
amount of current or overdue support or in the identity of the alleged 
noncustodial parent.
    (k) Tribal law must provide that the employer is subject to a fine 
to be determined under Tribal law for discharging a noncustodial parent 
from employment, refusing to employ, or taking disciplinary action 
against any noncustodial parent because of the withholding.
    (l) To initiate income withholding, the Tribal IV-D agency must 
send the noncustodial parent's employer a notice using the standard 
Federal income withholding form.
    (m) The Tribal IV-D agency must allocate withheld amounts across 
multiple withholding orders to ensure that in no case shall allocation 
result in a withholding for one of the support obligations not being 
implemented.
    (n) The Tribal IV-D agency is responsible for receiving and 
processing income withholding orders from States, Tribes, and other 
entities, and ensuring orders are properly and promptly served on 
employers within the Tribe's jurisdiction.


Sec.  309.115  What procedures governing the distribution of child 
support must a Tribe or Tribal organization include in a Tribal IV-D 
plan?

    A Tribe or Tribal organization must specify in its Tribal IV-D plan 
procedures for the distribution of child support collections in each 
Tribal IV-D case, in accordance with this section.
    (a) General Rule: The Tribal IV-D agency must, in a timely manner:
    (1) Apply collections first to satisfy current support obligations, 
except as provided in paragraph (e) of this section; and
    (2) Pay all support collections to the family unless the family is 
currently receiving or formerly received assistance from the Tribal 
TANF program and there is an assignment of support rights to the 
Tribe's TANF agency, or the Tribal IV-D agency has received a request 
for assistance in collecting support on behalf of the family from a 
State or Tribal IV-D agency.
    (b) Current Receipt of Tribal TANF: If the family is currently 
receiving assistance from the Tribal TANF program and has assigned 
support rights to the Tribe and:
    (1) There is no request for assistance in collecting support on 
behalf of the family from a State or Tribal IV-D agency under Sec.  
309.120 of this part, the Tribal IV-D agency may retain collections on 
behalf of the family, not to exceed the total amount of Tribal TANF 
paid to the family. Any remaining collections must be paid to the 
family.
    (2) There is a request for assistance in collecting support on 
behalf of the family from a State or Tribal IV-D agency under Sec.  
9.120 of this part, the Tribal IV-D agency may retain collections, not 
to exceed the total amount of Tribal TANF paid to the family. Except as 
provided in paragraph (f) of this section, the Tribal IV-D agency must 
send any remaining collections, as appropriate, to the requesting State 
IV-D agency for distribution under section 457 of the Act and 45 CFR 
302.51 or 302.52, or to the requesting Tribal IV-D agency for 
distribution in accordance with this section.
    (c) Former Receipt of Tribal TANF: If the family formerly received 
assistance from the Tribal TANF program and there is an assignment of 
support rights to the Tribe and:
    (1) There is no request for assistance in collecting support from a 
State or Tribal IV-D agency under Sec.  309.120 of this part, the 
Tribal IV-D agency must pay current support and any arrearages owed to 
the family to the family and may then retain any excess collections, 
not to exceed the total amount of Tribal TANF paid to the family. Any 
remaining collections must be paid to the family.
    (2) There is a request for assistance in collecting support from a 
State or Tribal IV-D agency under Sec.  309.120 of this part, the 
Tribal IV-D agency must send all support collected, as appropriate, to 
the requesting State IV-D agency for distribution under section 457 of 
the Act or 45 CFR 302.51 or 303.52, or to the requesting Tribal IV-D 
agency for distribution under this section, except as provided in 
paragraph (f) of this section.

[[Page 16679]]

    (d) Requests for Assistance from State or Tribal IV-D Agency: If 
there is no assignment of support rights to the Tribe as a condition of 
receipt of Tribal TANF and the Tribal IV-D agency has received a 
request for assistance in collecting support on behalf of the family 
from a State or another Tribal IV-D agency under Sec.  309.120 of this 
part, the Tribal IV-D agency must send all support collected to either 
the State IV-D agency for distribution in accordance with section 457 
of the Act and 45 CFR 302.51 and 302.52, or to the Tribal IV-D agency 
for distribution under this section, as appropriate, except as provided 
in paragraph (f) of this section.
    (e) Federal Income Tax Refund Offset Collections: Any collections 
received based on Federal income tax refund offset under section 464 of 
the Act and distributed by the Tribal IV-D agency must be applied to 
satisfy child support arrearages.
    (f) Option to Contact Requesting Agency for Appropriate 
Distribution: Rather than send collections to a State or another Tribal 
IV-D agency for distribution as required under Sec.  309.115 (b)(2), 
(c)(2) and (d), a Tribal IV-D agency may contact the requesting State 
IV-D agency to determine appropriate distribution under section 457 of 
the Act, or the other Tribal IV-D agency to determine appropriate 
distribution under this section, and distribute collections as directed 
by the other agency.


Sec.  309.120  What intergovernmental procedures must a Tribe or Tribal 
organization include in a Tribal IV-D plan?

    A Tribe or Tribal organization must specify in its Tribal IV-D 
plan:
    (a) That the Tribal IV-D agency will extend the full range of 
services available under its IV-D plan to respond to all requests from, 
and cooperate with, State and other Tribal IV-D agencies; and
    (b) That the Tribe or Tribal organization will recognize child 
support orders issued by other Tribes and Tribal organizations, and by 
States, in accordance with the requirements under the Full Faith and 
Credit for Child Support Orders Act, 28 U.S.C. 1738B.

Subpart D--Tribal IV-D Program Funding


Sec.  309.125  On what basis is Federal funding of Tribal IV-D programs 
determined?

    Federal funding of Tribal IV-D programs is based on information 
contained in the Tribal IV-D application. The application must include 
a proposed budget and a description of the nature and scope of the 
Tribal IV-D program and must give assurance that the program will be 
administered in conformity with applicable requirements of title IV-D 
of the Act, regulations contained in this part, and other official 
issuances of the Department that specifically state applicability to 
Tribal IV-D programs.


Sec.  309.130  How will Tribal IV-D programs be funded and what forms 
are required?

    (a) General mechanism. (1) Tribes and Tribal organizations with 
approved Tribal plans under title IV-D will receive Federal grant funds 
in an amount equal to the percentage specified in paragraph (c) of this 
section of the total amount of approved and allowable expenditures 
under the plan for the administration of the Tribal child support 
enforcement program.
    (2) Tribes and Tribal organizations eligible for grants of less 
than $1 million per 12-month funding period will receive a single 
annual award. Tribes and Tribal organizations eligible for grants of $1 
million or more per 12-month funding period will receive four equal 
quarterly awards.
    (b) Financial Form Submittal Requirements. Tribes and Tribal 
organizations receiving Federal funding under this part are required to 
submit the following financial forms, and such other forms as the 
Secretary may designate, to OCSE:
    (1) Standard Form (SF) 424, ``Application for Federal Assistance,'' 
to be submitted with the initial grant application for funding under 
Sec.  309.65(a) and (b) (60 days prior to the start of the funding 
period);
    (2) SF 424A, ``Budget Information--Non-Construction Programs,'' to 
be submitted annually, no later than August 1 (60 days prior to the 
start of the funding period) in accordance with Sec.  309.15(a)(2) of 
this part. With each submission, the following information must be 
included:
    (i) A quarter-by-quarter estimate of expenditures for the funding 
period; and
    (ii) Notification of whether the Tribe or Tribal organization is 
requesting funds for indirect costs and an election of a method to 
calculate estimated indirect costs; and
    (iii) A narrative justification for each cost category on the form; 
and for funding under Sec.  309.65(a) either:
    (iv) A statement certifying that the Tribe or Tribal organization 
has or will have the non-Federal share of program expenditures 
available, as required, or
    (v) A request for a waiver of the non-Federal share in accordance 
with paragraph (e) of this section;
    (3) SF 269A, ``Financial Status Report (Short Form),'' to be 
submitted quarterly within 30 days after the end of each of the first 
three quarters of the funding period and within 30 days after the end 
of each of the first three quarters of the liquidation period. The 
final report for each period is due within 90 days after the end the 
fourth quarter of both the funding and the liquidation period; and
    (4) Form OCSE-34A, ``Quarterly Report of Collections'' to be 
submitted within 30 days after the end of the first three quarters and 
90 days after the end of the fourth quarter.
    (c) Federal share of program expenditures. (1) During the period of 
start-up funding specified in Sec.  309.16, a Tribe or Tribal 
organization will receive Federal grant funds equal to 100 percent of 
approved and allowable expenditures made during that period. Federal 
start-up funds are limited to a total of $500,000.
    (2) During a 3-year period, beginning with the first day of the 
first quarter of the funding grant specified under Sec.  309.135(a)(2), 
a Tribe or Tribal organization will receive Federal grant funds equal 
to 90 percent of the total amount of approved and allowable 
expenditures made during that period for the administration of the 
Tribal child support enforcement program.
    (3) For all periods following the 3-year period specified in 
paragraph (c)(2) of this section, a Tribe or Tribal organization will 
receive Federal grant funds equal to 80 percent of the total amount of 
approved and allowable expenditures made for the administration of the 
Tribal child support enforcement program.
    (d) Non-Federal share of program expenditures. Each Tribe or Tribal 
organization that operates a child support enforcement program under 
title IV-D and Sec.  309.65(a), unless the Secretary has granted a 
waiver pursuant to Sec.  309.130(e), must provide the non-Federal share 
of funding, equal to:
    (1) 10 percent of approved and allowable expenditures during the 3-
year period specified in paragraph (c)(2) of this section or;
    (2) 20 percent of approved and allowable expenditures during the 
subsequent periods specified in paragraph (c)(3) of this section.
    (3) The non-Federal share of program expenditures must be provided 
either with cash or with in-kind contributions and must meet the 
requirements found in 45 CFR 74.23.
    (e) Waiver of non-Federal share of program expenditures. (1) Under 
certain circumstances, the Secretary may grant a temporary waiver of 
part or all of the non-Federal share of expenditures.

[[Page 16680]]

    (i) If a Tribe or Tribal organization anticipates that it will be 
temporarily unable to contribute part or all of the non-Federal share 
of funding under paragraph (d) of this section, it must submit a 
written request that this requirement be temporarily waived. A request 
for a waiver of part or all of the non-Federal share must be sent to 
ACF, included with the submission of SF 424A, no later than 60 days 
prior to the start of the funding period for which the waiver is being 
requested, except as provided in paragraph (e)(1)(ii) of this section. 
An untimely or incomplete request will not be considered.
    (ii) If, after the start of the funding period, an emergency 
situation such as a hurricane or flood occurs such that the grantee 
would need to request a waiver of the non-Federal costs, it may do so. 
The request for a waiver must be submitted in accordance with the 
procedures specified in paragraphs (e)(2), (3) and (4) of this section. 
Any waiver request other than one submitted with the initial 
application must be submitted as soon as the adverse effect of the 
emergency situation giving rise to the request is known to the grantee.
    (2) A request for a waiver of part or all of the non-Federal share 
must include the following:
    (i) A statement of the amount of the non-Federal share that the 
Tribe is requesting be waived;
    (ii) A narrative statement describing the circumstances and 
justification for the waiver request;
    (iii) Portions of the Tribal budget for the funding period 
sufficient to demonstrate that any funding shortfall is not limited to 
the Tribal IV-D program and that any uncommitted Tribal reserve funds 
are insufficient to meet the non-Federal funding requirement;
    (iv) Copies of any additional financial documents in support of the 
request;
    (v) A detailed description of the attempts made to secure the 
necessary funds and in-kind contributions from other sources and the 
results of those attempts, including copies of all relevant 
correspondence; and
    (vi) Any other documentation or other information that the 
Secretary may require to make this determination.
    (3) The Tribe or Tribal organization must demonstrate to the 
satisfaction of the Secretary that it temporarily lacks resources to 
provide the non-Federal share. In its request for a temporary waiver, 
the Tribe or Tribal organization must be able to demonstrate that it:
    (i) Lacks sufficient resources to provide the required non-Federal 
share of costs;
    (ii) Has made reasonable, but unsuccessful, efforts to obtain non-
Federal share contributions; and
    (iii) Has provided all required information requested by the 
Secretary.
    (4) All statements in support of a waiver request must be supported 
by evidence including, but not limited to, a description of how the 
Tribe or Tribal organization's circumstances relate to its capacity to 
provide child support enforcement services. The following statements 
will be considered insufficient to merit a waiver under this section 
without documentary evidence satisfactory to the Secretary:
    (i) Funds have been committed to other budget items;
    (ii) A high rate of unemployment;
    (iii) A generally poor economic condition;
    (iv) A lack of or a decline in revenue from gaming, fishing, 
timber, mineral rights and other similar revenue sources;
    (v) A small or declining tax base; and
    (vi) Little or no economic development.
    (5)(i) If approved, a temporary waiver submitted under either 
paragraph (e)(1)(i) or (ii) of this section will expire on the last day 
of the funding period for which it was approved and is subject to 
review at any time during the funding period and may be revoked, if 
changing circumstances warrant.
    (ii) Unless the Tribe receives a written approval of its waiver 
request, the funding requirements stated in paragraph (d) of this 
section remain in effect.
    (iii) If the request for a waiver is denied, the denial is not 
subject to administrative appeal.
    (f) Increase in approved budget. (1) A Tribe or Tribal organization 
may request an increase in the approved amount of its current budget by 
submitting a revised SF 424A to ACF and explaining why it needs the 
additional funds. The Tribe or Tribal organization should submit this 
request at least 60 days before additional funds are needed, to allow 
the Secretary adequate time to review the estimates and issue a revised 
grant award, if appropriate.
    (2) If the change in Tribal IV-D budget estimate results from a 
change in the Tribal IV-D plan, the Tribe or Tribal organization must 
submit a plan amendment in accordance with Sec.  309.35(e) of this 
part, a revised SF 424 and a revised SF 424A with its request for 
additional funding. The effective date of a plan amendment may not be 
earlier than the first day of the fiscal quarter in which an approvable 
plan is submitted in accordance with Sec.  309.35(f) of this part. The 
Secretary must approve the plan amendment before approving any 
additional funding.
    (3) Any approved increase in the Tribal IV-D budget will 
necessarily result in a proportional increase in the non-Federal share, 
unless a waiver of the non-Federal share has been granted.
    (g) Obtaining Federal funds. Tribes and Tribal organizations will 
obtain Federal funds on a draw down basis from the Department's Payment 
Management System on a letter of credit system for payment of advances 
of Federal funds.
    (h) Grant administration requirements. The provisions of part 74 of 
this title, establishing uniform administrative requirements and cost 
principles, shall apply to all grants made to Tribes and Tribal 
organizations under this part.


Sec.  309.135  What requirements apply to funding, obligating and 
liquidating Federal title IV-D grant funds?

    (a) Funding period. (1) Ongoing funding. Federal title IV-D grant 
funds will be awarded to Tribes and Tribal organizations for use during 
a 12-month period equivalent to the Federal fiscal year of October 1 
through September 30.
    (2) Initial grant. A Tribe or Tribal organization may request that 
its initial IV-D grant be awarded for a funding period of less than one 
year (but at least six months) or more than one year (but not to exceed 
17 months) to enable its program funding cycle to coincide with the 
funding period specified in paragraph (a)(1) of this section.
    (b) Obligation period. A Tribe or Tribal organization must obligate 
its Federal title IV-D grant funds no later than the last day of the 
funding period for which they were awarded. Any of these funds 
remaining unobligated after that date must be returned to the 
Department.
    (c) Liquidation period. A Tribe or Tribal organization must 
liquidate the Federal title IV-D grant funds obligated during the 
obligation period specified in paragraph (b) of this section no later 
than the last day of the 12-month period immediately following the 
obligation period. Any of these funds remaining unliquidated after that 
date must be returned to the Department.
    (d) Funding reductions. As required under Sec.  309.130(b)(3), a 
Tribe or Tribal organization will report quarterly on Form SF 269A the 
amount of Federal title IV-D grant funds that have been obligated and 
liquidated and the amounts that remain unobligated and unliquidated at 
the end of each fiscal quarter during the obligation and liquidation 
periods. The Department

[[Page 16681]]

will reduce the amount of the Tribe or Tribal organization's Federal 
title IV-D grant funds for the funding period by any amount reported as 
remaining unobligated on the report following the last day of the 
obligation period. The Department will further reduce the amount of the 
Tribe or Tribal organization's Federal title IV-D grant funds for the 
funding period by any amount reported as remaining unliquidated on the 
report following the last day of the liquidation period.
    (e) Extension requests. A Tribe or Tribal organization may submit a 
written request for an extension of the deadline for liquidating 
Federal title IV-D grant funds. Such a request must be sent to ACF, to 
the attention of the Federal grants officer named on the most recent 
grant award. The request must be submitted as soon as it is clear that 
such an extension will be needed; any request received after the end of 
the liquidation period will not be considered. The request must include 
a detailed explanation of the extenuating circumstances or other 
reasons for the request and must state the date by which the Tribe 
anticipates all obligated funds will be liquidated. Unless the Tribe 
receives a written approval of its request, the deadline stated in 
paragraph (c) of this section remains in effect.


Sec.  309.145  What costs are allowable for Tribal IV-D programs 
carried out under Sec.  309.65(a) of this part?

    Federal funds are available for costs of operating a Tribal IV-D 
program under an approved Tribal IV-D application carried out under 
Sec.  309.65(a) of this part, provided that such costs are determined 
by the Secretary to be reasonable, necessary, and allocable to the 
program. Allowable activities and costs include:
    (a) Administration of the Tribal IV-D program, including but not 
limited to the following:
    (1) Establishment and administration of the Tribal IV-D plan;
    (2) Monitoring the progress of program development and operations, 
and evaluating the quality, efficiency, effectiveness, and scope of 
available support enforcement services;
    (3) Establishment of all necessary agreements with other Tribal, 
State, and local agencies or private providers for the provision of 
child support enforcement services in accordance with Procurement 
Standards found in 45 CFR part 74. These agreements may include:
    (i) Necessary administrative agreements for support services;
    (ii) Use of Tribal, Federal, State, and local information 
resources;
    (iii) Cooperation with courts and law enforcement officials;
    (iv) Securing compliance with the requirements of the Tribal IV-D 
program plan in operations under any agreements;
    (v) Development and maintenance of systems for fiscal and program 
records and reports required to be made to OCSE based on these records; 
and
    (vi) Development of cost allocation systems.
    (b) Establishment of paternity, including:
    (1) Establishment of paternity in accordance with Tribal law codes, 
and/or custom in accordance with Sec.  309.100 of this part, as 
outlined in the approved Tribal IV-D plan;
    (2) Reasonable attempts to determine the identity of a child's 
father, such as:
    (i) Investigation;
    (ii) Development of evidence, including the use of genetic testing 
performed by accredited laboratories; and
    (iii) Pre-trial discovery;
    (3) Actions taken by a tribunal to establish paternity pursuant to 
procedures established by Tribal law, and/or codes or custom in 
accordance with Sec.  309.100 of this part;
    (4) Identifying accredited laboratories that perform genetic tests 
(as appropriate); and
    (5) Referrals of cases to another Tribal IV-D agency or to a State 
to establish paternity when appropriate.
    (c) Establishment, modification, and enforcement of support 
obligations, including:
    (1) Investigation, development of evidence and, when appropriate, 
court or administrative actions;
    (2) Determination of the amount of the support obligation 
(including determination of income and allowable non-cash support under 
Tribal IV-D guidelines, if appropriate);
    (3) Enforcement of a support obligation, including those activities 
associated with collections and the enforcement of court orders, 
administrative orders, warrants, income withholding, criminal 
proceedings, and prosecution of fraud related to child support; and
    (4) Investigation and prosecution of fraud related to child and 
spousal support cases receiving services under the IV-D plan.
    (d) Collection and disbursement of support payments, including:
    (1) Establishment and operation of an effective system for making 
collections and identifying delinquent cases and collecting from them;
    (2) Referral or transfer of cases to another Tribal IV-D agency or 
to a State IV-D program when appropriate; and
    (3) Services provided for another Tribal IV-D program or for a 
State IV-D program.
    (e) Establishment and operation of a Tribal Parent Locator Service 
(TPLS) or agreements for referral of cases to a State PLS, another 
Tribal PLS, or the Federal PLS for location purposes.
    (f) Activities related to requests to State IV-D programs for 
enforcement services for the Federal Income Tax Refund Offset.
    (g) Establishing and maintaining case records.
    (h) Automated data processing computer systems for:
    (1) Planning efforts in the identification, evaluation, and 
selection of a new or replacement automated data processing computer 
system solution addressing the program requirements defined in a Tribal 
plan;
    (2) Operation and maintenance of existing Tribal automated data 
processing computer systems;
    (3) Procurement, installation, operation and maintenance of 
essential office automation capability;
    (4) Establishment of intergovernmental agreements with States and 
Tribes for use of an existing automated data processing computer system 
necessary to support Tribal IV-D program operations; and
    (5) Other automation and automated data processing computer system 
costs in accordance with instructions and guidance issued by the 
Secretary.
    (i) Staffing and equipment that are directly related to operating a 
Tribal IV-D program.
    (j) The portion of salaries and expenses of a Tribe's chief 
executive and staff that is directly attributable to managing and 
operating a Tribal IV-D program.
    (k) The portion of salaries and expenses of tribunals and staff 
that is directly related to required Tribal IV-D program activities.
    (l) Service of process.
    (m) Training on a short-term basis that is directly related to 
operating a Tribal IV-D program.
    (n) Costs associated with obtaining technical assistance that are 
directly related to operating a IV-D program, from non-Federal third-
party sources, including other Tribes, Tribal organizations, State 
agencies, and private organizations, and costs associated with 
providing such technical assistance to public entities.
    (o) Any other costs that are determined to be reasonable, 
necessary, and allocable to the Tribal IV-D

[[Page 16682]]

program in accordance with the cost principles in OMB Circular A-87. 
The total amount that may be claimed under the Tribal IV-D grant are 
allowable direct costs, plus the allocable portion of allowable 
indirect costs, minus any applicable credits.
    (1) All claimed costs must be adequately documented; and
    (2) A cost is allocable if the goods or services involved are 
assignable to the grant according to the relative benefit received. Any 
cost that is allocable to one Federal award may not be charged to other 
Federal awards to overcome funding deficiencies, or for any other 
reason.


Sec.  309.150  What start-up costs are allowable for Tribal IV-D 
programs carried out under Sec.  309.65(b) of this part?

    Federal funds are available for costs of developing a Tribal IV-D 
program, provided that such costs are reasonable, necessary, and 
allocable to the program. Federal funding for Tribal IV-D program 
development under Sec.  309.65(b) may not exceed a total of $500,000, 
unless additional funding is provided pursuant to Sec.  309.16(c). 
Allowable start-up costs and activities include:
    (a) Planning for the initial development and implementation of a 
Tribal IV-D program;
    (b) Developing Tribal IV-D laws, codes, guidelines, systems, and 
procedures;
    (c) Recruiting, hiring, and training Tribal IV-D program staff; and
    (d) Any other reasonable, necessary, and allocable costs with a 
direct correlation to the initial development of a Tribal IV-D program, 
consistent with the cost principles in OMB Circular A-87, and approved 
by the Secretary.


Sec.  309.155  What uses of Tribal IV-D program funds are not 
allowable?

    Federal IV-D funds may not be used for:
    (a) Activities related to administering other programs, including 
those under the Social Security Act;
    (b) Construction and major renovations;
    (c) Any expenditures that have been reimbursed by fees or costs 
collected, including any fee collected from a State;
    (d) Expenditures for jailing of parents in Tribal IV-D cases;
    (e) The cost of legal counsel for indigent defendants in Tribal IV-
D program actions;
    (f) The cost of guardians ad litem in Tribal IV-D cases; and
    (g) All other costs that are not reasonable, necessary, and 
allocable to Tribal IV-D programs, under the costs principles in OMB 
Circular A-87.

Subpart E--Accountability and Monitoring


Sec.  309.160  How will OCSE determine if Tribal IV-D program funds are 
appropriately expended?

    OCSE will rely on audits required by OMB Circular A-133, ``Audits 
of States, Local Governments, and Non-Profit Organizations'' and 45 CFR 
part 74. The Department has determined that this program is to be 
audited as a major program in accordance with section 215(c) of the 
circular. The Department may supplement the required audits through 
reviews or audits conducted by its own staff.


Sec.  309.165  What recourse does a Tribe or Tribal organization have 
to dispute a determination to disallow Tribal IV-D program 
expenditures?

    If a Tribe or Tribal organization disputes a decision to disallow 
Tribal IV-D program expenditures, the grant appeals procedures outlined 
in 45 CFR part 16 are applicable.

Subpart F--Statistical and Narrative Reporting Requirements


Sec.  309.170  What statistical and narrative reporting requirements 
apply to Tribal IV-D programs?

    (a) Tribes and Tribal organizations operating a Tribal IV-D program 
must submit to OCSE the Child Support Enforcement Program: Quarterly 
Report of Collections (Form OCSE-34A). The reports for each of the 
first three quarters of the funding period are due 30 days after the 
end of each quarterly reporting period. The report for the fourth 
quarter is due 90 days after the end of the fourth quarter of each 
funding period.
    (b) Tribes and Tribal organizations must submit the following 
information and statistics for Tribal IV-D program activity and 
caseload for each annual funding period:
    (1) Total number of cases and, of the total number of cases, the 
number that are State or Tribal TANF cases and the number that are non-
TANF cases;
    (2) Total number of out-of-wedlock births in the previous year and 
total number of paternities established or acknowledged;
    (3) Total number of cases and the total number of cases with a 
support order;
    (4) Total amount of current support due and collected;
    (5) Total amount of past-due support owed and total collected;
    (6) A narrative report on activities, accomplishments, and progress 
of the program, including success in reaching the performance targets 
established by the Tribe or Tribal organization;
    (7) Total costs claimed;
    (8) Total amount of fees and costs recovered; and
    (9) Total amount of laboratory paternity establishment costs.
    (c) A Tribe or Tribal organization must submit Tribal IV-D program 
statistical and narrative reports required by paragraph (b) of this 
section no later than 90 days after the end of each funding period.

PART 310--COMPREHENSIVE TRIBAL CHILD SUPPORT ENFORCEMENT (CSE) 
PROGRAMS

0
6. The authority citation for part 310 continues to read as follows:

    Authority: 42 U.S.C. 655(f), 1302.


0
7. Amend Sec.  310.1 by adding a new paragraph (c) to read as follows:


Sec.  310.1  What does this part cover?

* * * * *
    (c) The regulations in this part apply only to grants for periods 
prior to October 1, 2004.

[FR Doc. 04-6457 Filed 3-29-04; 8:45 am]
BILLING CODE 4184-01-P