# Tribal Temporary Assistance for Needy Families Program (Tribal TANF) and Native Employment Works (NEW) Program

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URL: https://www.frixlaw.com/law-library/documents/fr%3A98-19007

## Record

- **Collection:** Federal Register
- **Document type:** Proposed Rule
- **Published:** July 22, 1998
- **Citation:** 63 FR 39366

## Text

SUMMARY: The Administration for Children and Families (ACF) proposes to
issue regulations to implement key Tribal provisions of the Personal
Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA)
and the Balanced Budget Act of 1997, Pub. L. 105-33. PRWORA established
the Tribal Temporary Assistance for Needy Families program and a tribal
work program which we have named the Native Employment Works (NEW)
program at the suggestion of some Indian tribes. The Balanced Budget
Act of 1997 made technical corrections to PRWORA.

DATES: You must submit comments by September 21, 1998.

ADDRESSES: You may mail or hand-deliver comments to the Administration
for Children and Families, Office of Community Services, Division of
Tribal Services, 5th Floor, 370 L'Enfant Promenade, SW, Washington, DC
20447. You may also transmit written comments electronically via the
Internet. To transmit comments electronically, or download an
electronic version of the proposed rule, you should access the ACF
Welfare Reform Home Page at http:/www.acf.dhhs.gov/news/welfare and
follow any instructions provided.
We will make all comments available for public inspection on the
5th Floor, 901 D Street, SW, Washington, DC 20447, from Monday through
Friday between the hours of 9 a.m. and 4 p.m. Eastern time, except for
holidays. For additional information, see Supplementary Information
section of the preamble.

FOR FURTHER INFORMATION, CONTACT: John Bushman, Director, Division of
Tribal Services, Office of Community Services, ACF, at 202-401-2418,
Raymond Apodaca, at 202-401-5020 or Ja-Na Oliver, NEW Team Leader at
202-401-5713.
Deaf and hearing-impaired individuals may call the Federal Dual
Party Relay Service at 1-800-877-8339 from Monday through Friday
between the hours of 8 a.m. and 7 p.m., Eastern time.

SUPPLEMENTARY INFORMATION:

Comment Procedures

We will not consider comments received beyond the 60-day comment
period in developing the final rule. Because of the large volume of
comments we anticipate, we will accept written comments only. In
addition, your comments should:
Be specific;
Address issues raised by the proposed rule;
Where appropriate, propose alternatives;
Explain reasons for any objections or recommended changes;
and
Reference the specific section of the proposed rule that
you are addressing.
We will not acknowledge the comments we receive. However, we will
review and consider all comments that are germane and that are received
during the comment period.

Table of Contents

I. The Personal Responsibility and Work Opportunity Reconciliation
Act of 1996
II. Regulatory Framework
A. Consultations
B. Related Regulations under Development
C. Statutory Context
D. Regulatory Reform
E. Scope of This Rulemaking
F. Applicability of the Rules
III. Principles Governing Regulatory Development
A. Tribal Flexibility
B. Regulatory Authority
C. Accountability for Meeting Program Requirements and Goals
IV. Discussion of Individual Regulatory Provisions
A. Part 286--Tribal TANF Program Provisions
B. Part 287--Native Employment Works (NEW) Program
V. Regulatory Impact Analyses
A. Executive Order 12866
B. Regulatory Flexibility Analysis
C. Paperwork Reduction Act
D. Unfunded Mandates Reform Act of 1995

I. The Personal Responsibility and Work Opportunity Reconciliation
Act of 1996

On August 22, 1996, President Clinton signed the ``Personal
Responsibility and Work Opportunity Reconciliation Act of 1996''
(PRWORA) into law. The first title of this new law (Pub. L. 104-193)
establishes a comprehensive welfare reform program which is designed to
change the nation's welfare system. The new program is called Temporary
Assistance for Needy Families, or TANF, in recognition of its focus on
moving recipients into work and time-limited assistance.
PRWORA repeals the existing welfare program known as Aid to
Families with Dependent Children (AFDC), which provided cash assistance
to needy families on an entitlement basis. It also repeals the related
programs known as the Job Opportunities and Basic Skills Training
(JOBS) program and Emergency Assistance (EA).
The new law reflects agreement on several key principles:
Welfare programs should be designed to help move people
from welfare to work.
Welfare should be a short-term, transitional experience,
not a way of life.
Parents should receive the child care and the health care
they need to protect their children as they move from welfare to work.
Child support programs should become tougher and more
effective in securing support from absent parents.
Because many factors contribute to poverty and dependency,
solutions to these problems should not be ``one size fits all.'' The
system should allow States, Tribes, and localities to develop diverse
and creative responses to their own problems.
The Federal government should place more emphasis on
program results.
The new law provides federally-recognized Indian tribes, or
consortia of such Tribes, the opportunity to apply for funding under
section 412 of the Social Security Act (or the Act), as amended by
PRWORA, to operate their own TANF programs beginning July 1, 1997.
Indian tribes that choose to administer a Tribal TANF program have
been given broad flexibility to set TANF eligibility rules and to
decide what benefits are most appropriate for their service areas and
populations. Tribes may try new, far-reaching approaches that can
respond more effectively to the needs of families within their own
unique environments. The TANF program challenges Tribal governments to
foster positive changes in the culture of the welfare system and to
take responsibility for program results and outcomes.
Under the new statute, TANF funding and assistance for families
comes with new expectations and responsibilities. Adults receiving
assistance are expected to engage in work activities and develop the
capability to support themselves and their families before their time-
limited assistance runs out. Tribes who take on the responsibility for
administering a TANF program will be expected to

[[Page 39367]]

assist recipients making the transition to employment. Tribal TANF
grantees also will be expected to meet work participation rates and
other critical program requirements in order to avoid penalties and
maintain their Federal funding.
In meeting these expectations, Tribes need to examine the needs of
their service areas and service populations, identify the causes of
long-term underemployment and dependency, and work with families,
communities, businesses, and other social service agencies in resolving
employment barriers.
In addition to establishing the Tribal TANF program, PRWORA
authorizes funding, to the former Tribal JOBS grantees, for a tribal
program ``to make work activities available * * *''. Based upon Tribal
recommendations, we have designated this tribal work activities program
as the Native Employment Works (NEW) program. Tribes are encouraged to
focus the NEW program on work activities and on services which support
participation in work activities. In addition, Tribes are encouraged to
create and expand employment opportunities when possible.
The new welfare reform legislation not only gives Tribes new
opportunities, as in the case of the TANF program, and continued
responsibilities, as in the case of the NEW program, it also
dramatically affects intergovernmental relationships. It challenges
Federal, Tribal, State and local governments to foster positive changes
in the culture of welfare. It transforms the way agencies do business,
requiring true partnerships with each other, community organizations,
businesses and needy families.

II. Regulatory Framework

A. Consultations

In the spirit of both regulatory reform and PRWORA, and consistent
with the Secretary's policy on consultation with Indian tribes, we
implemented a broad consultation strategy prior to drafting this Notice
of Proposed Rulemaking (NPRM). We had discussions with a number of
different audiences, including representatives of Tribal, State, and
local governments. We solicited both written and oral comments and
worked to ensure that concerns raised during this process were shared
with both the staff working on individual regulatory issues and key
policy-makers.
The purpose of these efforts was to gain a variety of informational
perspectives about the potential benefits and pitfalls of various
regulatory approaches.
The discussions and written comments were very useful in helping us
identify key issues and evaluate policy options. However, we would like
to emphasize that, although we used this early input to draft the
proposed rules, this is not the only opportunity to provide comments.
All interested parties now have the opportunity to comment on specific
policy proposals contained in this NPRM. We will review all comments
submitted during the comment period and will take them into
consideration before issuing a final rule.

B. Related Regulations Under Development

This NPRM addresses the provisions of the Tribal TANF and NEW; the
NPRM on the State TANF program was published in the Federal Register on
November 20, 1997. This NPRM addresses, but does not contain proposed
rules for the Alaska TANF comparability criteria, which the Secretary
will develop in consultation the State of Alaska and the Alaska Native
entities eligible to operate TANF. We will publish the Alaska TANF
comparability criteria at a later date. There are no other regulations
related to the Tribal TANF or NEW program under development.
This NPRM does not include the provisions for the new Tribal
Welfare-to-Work (WTW) program at section 412(a)(3) of the Act, as
created by section 5001(c) of Pub. L. 105-33. The Secretary of Labor is
responsible for issuing rules for this program.

C. Statutory Context

These proposed rules reflect PRWORA, as enacted, and the amendments
contained in Pub. L. 105-33.
Pub. L. 105-33 created the new Welfare-to-Work (WTW) program, made
a few substantive changes to the TANF and NEW program, and made
numerous technical corrections to the TANF statute. Throughout the
preamble discussion and the appendices, you will note references to the
amendments made by this legislation. However, as previously mentioned,
this NPRM includes only a limited number of changes related to the new
WTW provisions. The Department of Labor has primary responsibility for
administering the program and issuing the WTW regulations. We have
responsibility for issuing rules on the WTW data collection
requirements, but will do that at a subsequent date.

D. Regulatory Reform

In its latest Document Drafting Handbook, the Office of the Federal
Register supports the efforts of the National Performance Review and
encourages Federal agencies to produce more reader-friendly
regulations. In drafting this proposed rule, we have paid close
attention to this guidance. Individuals who are familiar with our
existing welfare regulations should notice that this package
incorporates a distinctly different, more readable style.

E. Scope of This Rulemaking

Because there are no existing Tribal TANF or NEW regulations, this
package is intended to cover the proposed rules as they relate to the
provisions of the Tribal TANF and NEW programs (including definitions
of common and frequently used terms).

F. Applicability of the Rules

A Tribe may operate its TANF and/or NEW program under a reasonable
interpretation of the statute prior to publication of final rules.
Thus, in determining whether a Tribe is subject to a penalty under TANF
or a disallowance under the NEW program, we will not apply regulatory
interpretations retroactively. However, Tribes are bound by any Policy
Announcements issued by ACF, including those issued in advance of final
regulations.

III. Principles Governing Regulatory Development

A. Tribal Flexibility

In the Conference Report to PRWORA, Congress stated that the best
welfare solutions come from those closest to the problems, not from the
Federal government. Thus, the legislation provides Tribes with the
opportunity to reform welfare in ways that work best to serve the needs
of their service areas and service populations. It gives Tribes the
flexibility to design their own programs, define who will be eligible,
establish what benefits and services will be available, and develop
their own strategies for achieving program goals, including how to help
recipients move into the work force.
To ensure that our rules support the legislative goals of PRWORA,
we are also committed to gathering information on how Tribes are
responding to the new opportunities available to them. We reserve the
right to revisit some issues, either through proposed legislation or
regulation, if we identify situations where our rules are not
furthering the objectives of the Act.

[[Page 39368]]

B. Regulatory Authority

Early consultation input from Indian tribes suggested that the
intent of Congress to provide for program flexibility should limit the
extent to which we regulate Tribal TANF and NEW programs. However,
Congress gave us more authority to regulate the Tribal TANF and NEW
programs than State TANF programs.
Unlike the process for reviewing and accepting plans for State
TANF, the statute requires us to approve Tribal TANF plans. While we
propose maximum flexibility in program design and procedures, we
believe that it is important for us to set forth, in regulations, the
process for the submission and approval of plans and other program
requirements.
Tribal TANF programs must meet minimum work participation rates,
and Tribal TANF recipients are subject to maximum time limits for the
receipt of assistance as well as penalties for failure to meet program
requirements. While these requirements are specified in PRWORA for
State TANF programs, we will establish these for each Tribal program
with Tribal input. Although the proposed rules suggest flexibility in
how these requirements are established, we believe that it is important
for us to lay out, in regulations, the criteria that we propose to use.
Although Tribes that operate TANF programs are subject to some of
the same statutory requirements as are States, there are some
requirements that do not apply to Tribes, such as the prohibitions in
section 408. At the same time, the statute provides options to States
such as the option to exempt families from applicable time limits due
to hardship, that we propose to make available to Tribes, unless
precluded by other legal authority. Thus, since the statute does not
treat Tribes and States in the same way, we believe the Tribal TANF
regulations should reflect this.

C. Accountability for Meeting Program Requirements and Goals

The new law gives Tribes flexibility to design their TANF programs
in ways that strengthen families and promote work, responsibility, and
self-sufficiency. At the same time, however, it reflects a commitment
to ensuring that the goals of welfare reform are met. To this end, the
statutory provisions on data collection and penalties are crucial
because they give us the authority we need to track what is happening
to needy families and children under the new law, measure program
outcomes, and promote key program objectives.
While we have proposed rules on data collection and reporting
requirements for State TANF programs, this Notice of Proposed
Rulemaking lays down our proposal specific to the Tribal programs. This
is because the Tribal TANF programs will not be subject to the final
rules for the State TANF programs. Thus, we need to ensure that there
is a clear understanding of the data collection and reporting
requirements as they apply to Tribes.

IV. Discussion of Individual Regulatory Provisions

The following is a discussion of all the regulatory provisions we
have included in this package. The discussion follows the order of the
regulatory text, addressing each part and section in turn.

A. PART 286--TRIBAL TANF PROGRAM PROVISIONS

Subpart A--General Tribal TANF Provisions
What does this part cover? (Sec. 286.1)
This part contains our proposed rule for the implementation of
section 412 of the Social Security Act, except for section 412(a)(2)
which is covered in part 287. Section 412 allows federally-recognized
Indian tribes, certain specified Alaska Native organizations and Tribal
consortia to submit plans for the administration of a Temporary
Assistance for Needy Families (TANF) program.
In this proposed rule, we have tried to retain the flexibility
provided by the statute to the Tribal Family Assistance program. At the
same time, we recognize the need to set forth the general rules that
will govern the program.
In addition, in recognition of the unique legal relationship the
United States has with Tribal governments, these regulations will be
applied in a manner that respects and promotes a government-to-
government relationship between Tribal governments and the United
States government, Tribal sovereignty, and the realization of Indian
self-governance.
In this proposed rule the terms ``Tribal Family Assistance
program'' or ``TFAP'' and ``Tribal TANF program'' are used
interchangeably.
What definitions apply to this part? (Sec. 286.5)
This section of the proposed rule includes definitions of the terms
used in part 286. Where appropriate, it also includes cross-references
which direct the reader to other sections or subparts of the proposed
rule for additional information.
In drafting this section of the proposed rule, we chose not to
define every term used in the statute and in these proposed
regulations. We understand that excessive definitions may unduly and
unintentionally limit Tribal flexibility in designing programs that
best serve their needs.
For example, we have not defined ``Indian family'' or ``service
population.'' Each Tribe administering its own Tribal TANF program is
permitted by the statute to define its service population. Because
funding for the Tribal TANF program is based on State expenditures of
Federal funds on Indian families during fiscal year 1994, we believe
the Tribal TANF program was intended to serve primarily Indian
families. However, in order to provide flexibility to Tribes and
States, Tribes may define service population and have the option of
including only a portion of the Tribal enrollment, only Tribal members,
all Indians, or even non-Indians residing in the service area. It will
be up to each Tribe submitting a TANF plan to define the service
population that the plan covers. The service population definition
provided by a Tribe in turn determines what data the State would be
asked to provide to calculate the amount of the Tribal TANF grant. Note
that at Sec. 286.65(d)(2) if a Tribe chooses to include non-Indian
families in its service population definition, the Tribe is required to
demonstrate State agreement with the inclusion of that portion of the
Tribe's service population.
We also have not defined the individual work activities that count
for the purpose of calculating a Tribe's work participation rate. These
are terms the Tribe should define in designing its Tribal TANF program.
We believe Tribes should have maximum flexibility to define these terms
as appropriate for their program design.
Readers will note that we use the term ``we'' throughout the
regulation and preamble. The term ``we'' means the Secretary of the
Department of Health and Human Services or any of the following
individuals or agencies acting on the Secretary's behalf: The Assistant
Secretary for Children and Families, the Regional Administrators for
Children and Families, the Department of Health and Human Services, and
the Administration for Children and Families.
Readers should also note that we use the term ``Tribe'' throughout
the regulation and preamble. The term ``Tribe'' means federally-
recognized Indian tribes, consortia of such Indian tribes, and the 13
entities in the State of Alaska that are eligible to administer a
Tribal Family Assistance program, under an approved plan. It also
refers to

[[Page 39369]]

the Indian tribes and the Alaska Native organizations that are eligible
to administer a NEW program because they operated a Tribal JOBS program
in fiscal year 1995.
We have provided necessary definitions from PRWORA for the readers'
convenience. However, we have chosen not to augment these statutory
definitions.
We also have provided clarifying, operational and administrative
definitions in the interest of developing a clearer, more coherent and
succinct regulation. These include common acronyms and definitions we
believe are needed in order to understand the nature and scope of the
provisions in this proposed rule. Some of these terms have commonly
understood meanings; others are consistent with proposed definitions
included in the State TANF NPRM. We advise readers to review all the
terms in this section carefully because many of them determine the
application of substantive requirements.
Federal requirements related to the expenditures of Federal grant
funds necessitate the use of precise definitions. An example of such a
definition is that used for the term ``administrative costs'' which
triggers particular Federal grant requirements (see Sec. 286.40).
Assistance. The terms ``assistance'' and ``families receiving
assistance'' are used in the PRWORA in many critical places that affect
the Tribal TANF program, including: (1) In the numerator and
denominator of the work participation rates in section 407(b); and (2)
the data collection requirements of section 411(a). Largely through
reference, the term also affects the scope of the penalty provision in
section 409(a)(1). Thus, it is important that Tribes have a definition
of ``assistance.'' For the purposes of the Tribal TANF program, we
propose to adopt the same definition of assistance as developed and
included in the NPRM for the State TANF program.
Because PRWORA is a block grant, a Tribe may provide some forms of
support under TANF that would not commonly be considered public
assistance. Some of this support might resemble the types of short-
term, crisis-oriented support that were provided previously by the
States under the EA program. Other forms might be more directly related
to the work objectives of the Act and not have a direct monetary value
to the family. We are proposing to exclude some of these forms of
support from the definition of assistance.
The general legislative history for this title indicates that
Congress meant that this term encompass more than cash assistance (H.R.
Rep. No. 725, 104 Cong., 2d Sess (1996)). Therefore, as we suggested in
our January policy announcement (TANF-ACF-PA-97-1) for State TANF
programs, the definition of assistance should encompass most forms of
support. However, we recognized two basic forms of support that would
not be considered welfare and proposed to exclude them from the
definition. In brief, the two exclusions were: (1) Services that had no
direct monetary value and did not involve direct or indirect income
support; and (2) one-time, short-term assistance.
In the proposed rule, we are clarifying that child care, work
subsidies, and allowances that cover living expenses for individuals in
education or training are included within the definition of assistance.
For this purpose, child care includes payments or vouchers for direct
child care services, as well as the value of direct child care services
provided under contract or a similar arrangement. It does not include
child care services such as information and referral or counseling, or
child care provided on a short-term, ad hoc basis. Work subsidies
include payments to employers to help cover the costs of employment or
on-the-job training.
We are also proposing to define one-time, short-term assistance as
assistance that is paid no more than once in any twelve-month period,
is paid within a 30-day period, and covers needs that do not extend
beyond a 90-day period. In response to the policy announcement, we
received a number of questions about what the term ``one-time, short-
term'' meant. Based on our experience with the EA program, we realized
that a wide range of interpretations was possible, and we were
concerned that ``short-term'' or ``one-time'' could be defined to
encompass many situations where assistance was of a significant and
ongoing nature. We believe our proposal will give Tribes the
flexibility to meet short-term and emergency needs (such as an
automobile repair), without invoking too many administrative
requirements and undermining the objectives of the Act. We welcome
comments on whether the proposed policy achieves this end.
Under the policy announcement and this proposed rule, we define the
minimum types of services and benefits that must be included as
assistance. Based on comments we received, we considered allowing
Tribes to include additional kinds of benefits and services, at their
option. However, we were concerned that varying Tribal definitions
would create additional comparability problems with respect to data
collection and penalty determinations. Also, we were concerned that an
expanded definition might have undesirable program effects.
If Tribes expanded their definitions of assistance, they would have
to apply that same definition under all provisions of the regulations.
Thus, if something fell within the definition of assistance, the family
receiving that type of benefit would be subject to work requirements,
and Federal time limits; and the family would have to be included in
the Tribe's data collection and reporting.
In response to the policy announcement, we received a number of
questions about the treatment of TANF assistance under the child
support enforcement program. The Office of Child Support Enforcement
will issue guidance on the distribution of child collections under
PRWORA; this guidance will explain the treatment of TANF assistance
under the new distribution rules.
For those concerned about the inclusion of child care in the
definition of assistance, we would point out the child care
expenditures made under the Child Care Development Fund program are not
subject to TANF requirements, including time limits for the receipt of
assistance.
As a part of the Tribal TANF Financial Report that is being
developed, we will propose to collect data on how much of the program
expenditures are being spent on different kinds of ``assistance'' and
``non-assistance.'' If the data that will be collected show that large
portions of the program resources are being spent on ``non-
assistance,'' we would have concerns that the flexibility in our
definition of ``assistance'' is undermining the goals of the
legislation. We would then look more closely at the ``non-assistance''
being provided and try to assess whether work requirements, time limits
and case-record data would be appropriate for those cases. If
necessary, we would consider a change to the definition of
``assistance'' or other remedies.
While our definition excludes some forms of support as
``assistance,'' the exclusions do not apply to the eligible Alaska
Tribal entities and the State of Alaska in determining whether the
Alaska Tribal entities' Tribal TANF programs are comparable to Alaska's
State TANF program. For example, an Alaska Tribal entity that
implements a Tribal TANF program may choose to include ``direct
services'' as part of their benefit level definition, and these
``direct services'' would trigger the TANF requirements, i.e., work
requirements, time limits, and data

[[Page 39370]]

collection and reporting. Please refer to Sec. 286.150 for more
information on the Alaska comparability requirement.
Finally, we would like to note that Sec. 286.5 contains a
definition of ``administrative costs.'' This definition is important
because we are proposing, at Sec. 286.40, to limit to 20 percent the
amount of Tribal TANF funds that a Tribe may use for administrative
costs.
Who is eligible to operate a Tribal TANF program? (Sec. 286.10)
This section of the proposed rule specifies which Indian tribes are
eligible to submit Tribal Family Assistance Plans (TFAPs).
In general, any federally-recognized Indian tribe is eligible to
submit a Tribal Family Assistance Plan. However, with respect to the
State of Alaska, only the 12 Alaska Native regional nonprofit
corporations specified at section 419 of the Act, plus the Metlakatla
Indian Community of the Annette Islands Reserve may submit a TFAP.
In addition, a consortium of eligible Indian tribes may develop and
submit a single TFAP.
Subpart B--Tribal TANF Funding
How is the amount of a Tribal Family Assistance Grant determined?
(Sec. 286.15)
How will we resolve disagreements over the State-submitted data
used to determine the amount of a Tribal Family Assistance Grant?
(Sec. 286.20)
We have combined the discussions for these two sections of the
proposed rule because they are interrelated. These sections of the
proposed rule discuss how the amount of a Tribal Family Assistance
Grant (TFAG) will be determined and the actions we believe will be
necessary to resolve disagreements over the data received from a State.
PRWORA requires the Secretary to pay TFAGs to federally-recognized
Indian tribes with approved 3-year Tribal Family Assistance Plans. To
determine the amount of a TFAG, we must use data submitted by the State
or States in which the Indian tribe is located. Section 412(a)(1)(B)
specifies the data that we will use. The statute provides that, for
each fiscal year 1997-2002, an Indian tribe that has an approved Tribal
Family Assistance Plan will receive an amount equal to the Federal
share (including administrative expenditures, which would include
systems costs) of all expenditures (other than child care expenditures)
by the State or States under the AFDC and Emergency Assistance (title
IV-A) programs, and the JOBS (title IV-F) program for fiscal year (FY)
1994 for Indian families residing in the service area(s) identified in
the Tribal Family Assistance Plan. For Tribes that operated a Tribal
JOBS program in FY 1994, the State title IV-F expenditures (including
administrative costs) used in the calculation of the TFAG would be for
expenditures made by the State on behalf of non-member Indians and non-
Indians, if either or both are included in the Tribal TANF population
and are living in the designated Tribal TANF service area(s). Any
expenditures by the State for Tribal members who were served by the
State JOBS program will also be included in the determination.
Section 412(a)(1)(B)(ii)(II) of the statute allows Tribes the
opportunity to disagree with State-submitted data and to submit
additional information relevant to our determination of the TFAG
amount. We believe Tribes should have an opportunity to submit relevant
information in instances in which the State has failed to submit
requested data on a timely basis. However, we believe the lack of
State-submitted data will be a very rare occurrence.
We will request State data based on the Tribe's identified service
area and population, which may include areas outside the reservation
and non-Indian families. We will allow States 21 days from the date of
our request to submit the requested data before notifying the affected
Tribe of its option under section 412(a)(1)(B)(ii)(II) of PRWORA to
submit its own data. This time frame should allow States adequate time
to gather and submit the data. However, in order for us to notify the
State of any reduction in its grant not later than three months before
payment of any quarterly installment, as specified by section 405(b),
we will use the best available data to determine the amount of the
TFAG, if the State has not submitted the specified data at the end of
the 21-day period. Our experience to date has shown that we need time
to resolve any issues related to determining the amount of a TFAG in
order to meet the statutory requirement for notification to the State
of the reduction in the amount of their State TANF grant.
We also believe a Tribe should have a reasonable period of time in
which to review the State-submitted data and make a determination as to
whether or not it concurs with the data. We have determined that a
twenty-one (21) day period should be sufficient for this activity.
Therefore, we propose to allow a Tribe 21 days from when it receives
the State-submitted data from us to notify us of its concurrence or
non-concurrence with the data.
Once we receive State data, we will share it with the Tribe. We
will also facilitate any meeting or discussions between the Tribe and
the State to answer any questions the Tribe has about the submitted
data. Any meetings or discussions to answer the Tribe's questions about
the data need to be held within the proposed 21-day period for Tribal
concurrence. We believe it is in the best interests of both the Tribe
and the State to reach a consensus on the State data. However, if the
Tribe finds it cannot concur with the State data and has notified us to
this effect, we will provide the Tribe an additional 21 days to submit
additional relevant information. It will then be our responsibility
under section 412(a)(1)(B)(ii)(II) to make the final determination as
to the amount of the TFAG after review of the information submitted by
the Tribe.
In instances in which the State has not submitted the requested
data within the time period given, we will notify the Tribe. We will
give the Tribe 21 days from the date of our notification to submit
relevant data. This 21-day time frame is the same time frame we have
proposed for Tribes to submit information if they disagree with State-
submitted data. In the absence of State-submitted data, we propose to
use relevant Tribe-submitted data to determine the amount of the TFAG.
If a Tribe disagrees with the data submitted by the State, we will
use the State-submitted data and any additional relevant information
submitted by the Tribe to determine the amount of the TFAG. Relevant
Tribal data may include, but are not limited to, Census Bureau data,
data from the Bureau of Indian Affairs, data from other Federal
programs, and tribal records.
Once the amount of the TFAG is officially determined, we will
notify both the Tribe and the State of the Secretary's decision. Our
goal will be to resolve any data issues at least two weeks prior to
when we are required to notify the State. We will make official
notification of the amount of the State Family Assistance Grant
reduction to the appropriate State(s) no later than 90 days before the
payment of the State's next quarterly SFAG installment.
What is the process for retrocession of a Tribal Family Assistance
Grant? (Sec. 286.25)
As defined at Sec. 286.5, retrocession is a voluntary termination
of a Tribal TANF program. Section 412 of the Act does not include a
provision for retrocession. However, we recognize that Tribes
voluntarily implement a TANF program for their needy families and
should, therefore, be afforded the opportunity to withdraw their
agreement to operate the program. For

[[Page 39371]]

example, a Tribe may lose a State's commitment to provide State funds
for Tribal TANF, which could significantly impact the Tribe's financial
ability to operate the program. Based on overwhelming support and
comments by both Tribes and States, we determined the necessity of a
retrocession provision in these regulations.
In providing for the retrocession of a Tribal TANF program, we
recognize several needs. Thus, the proposed specified time frame is
intended to ensure that: (1) There is minimal disruption of services to
families in need of assistance; (2) a Tribe makes an informed decision
in determining whether or not to cease operating the Tribal TANF
program; and (3) a State is provided adequate notice to ensure
continuity of program services.
A Tribe that decides to terminate its Tribal TANF program must
notify the Secretary in writing of its decision and the reason(s) for
retrocession at least 120 days prior to the effective date of the
termination. The effective date must coincide with the end of the grant
period (i.e., September 30). This deadline reflects our intention to
notify the State no later than 90 days prior to the effective date of
the termination. We believe this will give the State ample time to
implement services for the families who had been served by the Tribal
TANF program.
For Tribes that retrocede, the provisions of 45 CFR part 92 will
apply with regard to closeout of the grant. The Tribe must return all
unobligated funds to the Federal government. The appropriate SFAG will
be increased by the amount of the TFAG.
Tribes that retrocede the program may be eligible to operate a
Tribal TANF program at a later date. However, in the proposed rule we
state that we will not approve another TFAP until the Tribe can
demonstrate that the reasons for the earlier retrocession no longer
exist and that all outstanding penalty amounts have been repaid. We
will not return the TANF program to the Tribe unless and until we are
certain that it has resolved any outstanding problems.
A Tribe that retrocedes a Tribal TANF program is responsible for
complying with the data collection and reporting requirements and all
other program requirements for the period before the retrocession is
effective. In addition, the Tribe is liable for any applicable
penalties (see subpart D); and it is subject to the provisions of 45
CFR part 92 and OMB Circulars A-87 and A-133, and other Federal
statutes and regulations applicable to the TANF program. The Tribe also
will be responsible for any penalties resulting from audits covering
the period up to the effective date of retrocession. Please refer to
Sec. 286.170 for the discussion on penalties.
What are proper uses of Tribal Family Assistance Grant funds?
(Sec. 286.30)
Section 412 of the Act does not specify the particular purposes for
which a TFAG may be used. However, under these proposed rules any such
use must be consistent with section 401(a) of the Act. We believe the
Tribes should have the same flexibility as the States in their use of
TANF funds. Therefore, we propose at Sec. 286.30 that the Tribal TANF
grantees will be able to use their TFAGs for the same purposes as
States may use their TANF funds as specified in section 404(a) of the
Act.
Thus, a Tribe may use its TFAG in any reasonable manner to
accomplish the purposes of part A of title IV of the Act. This may
include the provision of low-income households with assistance in
meeting home heating and cooling costs. In addition, we believe that
Tribes should be able to use their TFAGs in any manner that was an
authorized use of funds under the AFDC and JOBS programs, as those
programs were in effect on September 30, 1995.
In determining whether a welfare-related service or activity may be
funded with its TFAG, a Tribe should refer to the purposes of TANF, as
described in section 401 of the Act, as well as to section 404(a).
Tribes should be aware that TANF funds may be used only for welfare-
related services or activities reasonably calculated to accomplish the
purposes of part IV-A of the Act. TANF funds are not authorized to be
used to contribute to or otherwise support non-TANF programs. Use of
TANF funds to support non-TANF programs or other unauthorized purpose
shall give rise to penalties under section 409(a)(1) of the Act (made
applicable to Tribes by section 412(g).
What uses of Tribal Family Assistance Grant funds are improper?
(Sec. 286.35)
Just as section 412 of the Act does not specify the particular
purposes for which Tribal Family Assistance Grant funds may be used, it
does not specify any prohibitions or restrictions on the use of TFAG
funds in a Tribal TANF program. As we are proposing rules for the uses
of Tribal Family Assistance Grants, we believe it is important to
indicate in this proposed rule what would not be a proper use of a
TFAG. Section 401 of the Act makes clear that TFAG funds are restricted
to the operation and administration of the TANF program. Tribal TFAG
funds may not be used to contribute to or to subsidize non-TANF
programs. Any use of TFAG funds to contribute to or otherwise support
non-TANF programs will be considered an improper use of TANF funds and
subject to penalties under Sec. 286.170.
We propose to restrict the use of a TFAG to providing welfare-
related services and assistance to families that include either a minor
child who resides with a custodial parent or other adult caretaker
relative of the child or a pregnant individual. In addition, we propose
that a TFAG may be used to provide welfare-related services or
assistance for no more than the number of months specified in a Tribe's
approved TFAP.
OMB Circular A-87 includes restrictions and prohibitions that limit
the use of a TFAG. In addition, all provisions in 45 CFR part 92 and
OMB Circular A-133 apply to the Tribal TANF program. TANF is not one of
the Block Grant programs exempt from the requirement of part 92 because
OMB has determined that TANF should be subject to part 92.

Non-Citizens

Title IV of PRWORA establishes restrictions on the use of TANF
funds to provide assistance to certain individuals who are not citizens
of the United States. These restrictions are part of the definition of
eligible family at Sec. 286.5. Individuals who do not meet the criteria
at Sec. 286.5 may not receive TANF assistance paid with Tribal Family
Assistance Grant funds.

Construction and Purchase of Facilities

The Comptroller General of the United States has prohibited the use
of Federal funds for the construction or purchase of facilities or
buildings unless there is explicit statutory authority permitting such
use. Since the statute is silent on this, a Tribe may not use its TFAG
for construction or for the purchase of facilities or buildings.

Program Income

We have received inquiries as to whether TANF funds may be used to
generate program income. An example of program income is the income a
Tribe earns if it sells a product (e.g., a software program) developed,
in whole or mostly with TANF funds.
Tribes may generate program income to defray costs of the program.
Under 45 CFR 92.25, there are several options for how this program
income may be treated. To give Tribes flexibility in the use of TFAGs,
we are proposing to permit Tribes to add to their Tribal Family
Assistance Grant program income that has been earned by the Tribe.
Tribes must use such program

[[Page 39372]]

income for the purposes of the TANF program and for allowable TANF
services, activities and assistance. We will not require Tribes to
report on the amount of program income earned, but they must keep on
file financial records on program income earned and the purposes for
which it is used in the event of an audit or review.
Is there a limit on the percentage of a Tribal Family Assistance
Grant that can be used for administrative costs? Sec. 286.40
Under section 404(b) of the Act no more than 15 percent of a
State's SFAG may be spent on administrative expenditures. Expenditures
by a State for information technology and computerization needed for
tracking or monitoring cases covered by the TANF program are excluded
from the 15 percent limit. Because section 404(b) is not applicable to
Tribal TANF programs, we asked in our discussions with Tribes and
States, what limit, if any, should be placed on administrative
expenditures under the Tribal TANF program. Many respondents indicated
that a limit on administrative expenditures should not be applied to
Tribal TANF programs. Other respondents indicated that Tribes do not
have the same level of experience in operating this kind of welfare
program as do States, and, that if a limit had to be set, any limit
should be higher than the State TANF limit. Respondents also cited both
the additional start-up expenses that Tribes will experience and the
new requirements of the TANF program as a reason to set a higher limit
for Tribal TANF programs.
In our deliberations on whether to propose a limit on
administrative expenditures, we considered various options. One was to
follow the statute and be silent on the issue. The second option was to
apply the same limit placed on States. The third option was to set a
limit that recognizes the special needs of Tribes mentioned above. In
whatever option we choose, we felt it necessary to ensure that most of
a Tribal TANF grant would be available to carry out the primary
objective of the TANF statute.
We understand the reason why many of the respondents said that an
administrative expenditure limit should not be placed on Tribal TANF
programs. However, not placing a limit could result in depriving needy
families of the program benefits Congress intended families to receive.
We believe setting a limit on administrative expenditures is more
consistent with the purposes of the Act. Placing a limit on
administrative expenditures guarantees that the major portion of a
Tribal TANF grant goes to assisting needy families.
We will respond to the fact that Tribes do not have the same level
of experience operating welfare programs as do the States. In addition,
we want to recognize that Tribes will need to expend a larger portion
of their grant funds on administration than States because they cannot
take advantage of economies of scale. Therefore, at Sec. 286.40 we
propose to limit Tribal TANF administrative expenditures during any
grant period to 20 percent of a Tribal TANF grant. Thus, each Tribal
TANF grantee will be required to expend at least 80 percent of its
grant on direct program services (and technology) during the grant
period.
Because expenditures for information technology and computerization
needed for tracking and monitoring of cases under the TANF program by
the States will be excluded from the administrative expenditure limit,
these same expenditures by Tribes will also be excluded from the Tribal
limit.
If a Tribe's administrative costs exceed the 20 percent limit, the
penalty for misuse of funds (refer to Sec. 286.170) will apply. The
penalty will be the amount spent on administrative costs in excess of
20 percent. We will take an additional penalty in the amount of 5
percent of the adjusted TFAG if we find that a Tribe has intentionally
exceeded the 20 percent limit.
Tribes must allocate costs to proper programs. Under the Federal
Appropriations Law, grantees must use funds in accordance with the
purpose for which they were appropriated. In addition, as stated
previously, the grants administration regulations at part 92, and OMB
Circular A-87, ``Cost Principles for State, Local, and Indian Tribal
Governments'', apply to the TANF program. OMB Circular A-87, in
particular, establishes the procedures and rules applicable to the
allocation of costs among programs and the allowability of costs under
Federal grant programs such as TANF.
What types of costs are subject to the administrative cost limit on
Tribal Family Assistance Grants? (Sec. 286.45)
Of particular interest to our Tribal partners and other interested
parties will be the definition of the costs that are included as
administrative costs because of the proposed rule at Sec. 286.40 that
places a limit on administrative expenditures. In the development of
the NPRM for the State TANF program, we consulted with State and local
representatives and other parties and organizations on the extent to
which we should define administrative costs.
Just as with the State TANF program, we considered not proposing a
Federal definition. That option had appeal because: (1) It is
consistent with the philosophy of a block grant; (2) we took a similar
approach in some other policy areas (i.e., in not defining individual
work activities); (3) we support the idea that we should focus on
outcomes, rather than process; and (4) the same definition might not
work for each Tribe. Also, we were concerned we could exacerbate
consistency problems if we created a Federal definition. Because of the
wide variety of definitions in other related Federal programs, adoption
of a single national definition could create variances in operational
procedures within Tribal agencies and add to the complexities
administrators would face in operating these programs.
At the same time, we were hesitant to defer totally to Tribal
definitions. The philosophy underlying this provision is very
important; in the interest of protecting needy families and children,
it is critical that the substantial majority of Federal TANF funds go
towards helping needy families. If we did not provide some definition,
it would be impossible to ensure that the limit had meaning. Also, we
felt that it would be better to give general guidance to Tribes than to
get into disputes with individual Tribes about whether their
definitions represented a ``reasonable interpretation of the statute.''
We thought that it was very important that any definition be
flexible enough not to unnecessarily constrain Tribal choices on how
they deliver services. We believe a traditional definition of
administrative costs would be inappropriate because the TANF program is
unique, and we expect TANF to evolve into something significantly
different from its predecessors and from other welfare-related
programs. Specifically, we expect TANF to be a more service-oriented
program, with substantially more resources devoted to case management
and fewer distinctions between administrative activities and services
provided to recipients.
The definition we have proposed does not directly address case
management or eligibility determination. We understand that, especially
for Tribal programs, the same individuals may be performing both
activities. In such cases, to the extent that a worker's activities are
essentially administrative in nature (e.g., traditional eligibility
determinations or verifications), the portion of the worker's time
spent on such activities can be treated as administrative costs.
However, to the extent that a worker's time is spent on case-management
functions or delivering services to clients, that

[[Page 39373]]

portion of the worker's time can be charged as program costs.
We believe that the definition we have proposed will not create a
significant new administrative burden on Tribes. We believe that it is
flexible enough to facilitate effective case management, accommodate
evolving TANF program designs, and support innovation and diversity
among Tribal TANF programs. It also has the significant advantage of
being closely related to the definition in effect under the Job
Training Partnership Act (JTPA). Thus, it should facilitate the
coordination of Welfare-to-Work and TANF activities and support the
transition of hard-to-employ TANF recipients into the work force.
We have not included specific language in the proposed rule about
treatment of costs incurred by subgrantees, contractors, community
service providers, and other third parties. Neither the statute nor the
proposed regulations make any provision for special treatment of such
costs. Thus, the expectation is that administrative costs incurred by
these entities would be part of the total administrative cost cap. In
other words, it is irrelevant whether costs are incurred by the TANF
agency directly or by other parties.
We realize this policy may create additional administrative burdens
for the Tribe and do not want to unnecessarily divert resources to
administrative activities. At the same time, we do not want to distort
agency incentives to contract for administrative or program services.
In seeking possible solutions for this problem, we looked at the JTPA
approach (which allows expenditures on services that are available
``off-the-shelf'' to be treated entirely as program costs), but did not
think that it provided an adequate solution. We thought that too few of
the service contracts under TANF would qualify for simplified treatment
on that basis.
We welcome comments on how to deal with this latter dilemma, as
well as comments on our overall approach to the definition of
administrative costs.
Must Tribes obligate all Tribal Family Assistance Grant funds by
the end of the fiscal year in which they are awarded? (Sec. 286.50)
Section 404(e) of the statute does not apply to Tribal TANF or NEW
programs. Section 404(e) allows States to reserve amounts paid to the
State for any fiscal year for the purpose of providing TANF assistance
without fiscal year limitation. Section 412 is silent on an obligation
period for Tribal TANF or NEW program funds. However, Federal
Appropriations Law (at 31 U.S.C. 1301(c)) states ``An appropriation in
a regular, annual appropriation law may be construed to be permanent or
available continuously only if the appropriation-- (1) is for rivers
and harbors, lighthouses, public buildings, or the pay of the Navy and
Marine Corps; or (2) expressly provides that it is available after the
fiscal year covered by the law in which it appears.'' This statutory
provision precludes us granting to Tribes the authority to reserve
TFAGs grants paid to them without fiscal year limitation. Therefore,
Tribes must obligate their TFAGs by the end of the fiscal year in which
they are awarded. In accordance with the authority granted to us by 45
CFR 92.23(b), we propose to extend to 12 months the period of time when
unliquidated obligations must be liquidated by Tribes.
Subpart C--Tribal TANF Plan Content and Processing
How can a Tribe apply to administer a Tribal TANF program?
(Sec. 286.55)
Any eligible Indian tribe or Alaska Native regional non-profit
corporation or intertribal consortium that wishes to administer a
Tribal TANF program must submit a three-year Tribal Family Assistance
Plan to the Secretary of the Department of Health and Human Services.
This requirement extends to those Tribes that are operating a Pub. L.
102-477 employment and training program (please refer to Sec. 286.140
for information on this).
Who submits a Tribal Family Assistance Plan? (Sec. 286.60)
The chief executive officer of the Tribe, eligible Alaska Tribal
entity, or Tribal consortium must sign and submit the TFAP. This is
generally the Tribal Chairperson. The TFAP must also be accompanied by
a Tribal resolution indicating Tribal Council support for the proposed
Tribal TANF program. In the case of a Tribal consortium, the TFAP must
be accompanied by Tribal resolutions from all members of the
consortium. These Tribal Council resolutions must demonstrate each
individual Tribe's support of the consortium, the delegation of
decision-making authority to the consortium's governing board, and the
Tribe's recognition that matters involving relationships between the
Tribal TANF consortia and the State and/or Federal government on TANF
matters are the express responsibility of the consortium's governing
board.
We recognize that changes in the leadership of a Tribe or some
other event may cause a participating Tribe to rethink its
participation in the consortium and/or in Tribal TANF. If, for example,
a subsequently elected Council decided to terminate participation in
the consortium and in TANF, that decision might create a need for time
to reintegrate a Tribal program or a part of the Tribal program into
the State program. Thus, we propose at Sec. 286.60(c) that, when one of
the participating Tribes in a consortium wishes to withdraw from the
consortium for purposes of either withdrawing from Tribal TANF
altogether or to operate its own Tribal TANF program, that the Tribe
needs to notify both the consortium and us of this fact at least 120
days prior to the planned effective date. This notification time frame
is especially applicable if the Tribe was withdrawing from Tribal TANF
altogether and the Tribe's withdrawal will cause a change to the
service area or population of the consortium.
A Tribe withdrawing from a consortium for purposes of operating its
own program must, in addition to the notification specified in the
previous paragraph, submit its own Tribal TANF plan that meets the plan
requirements at Sec. 286.65 and the time frames specified at
Sec. 286.140.
What must be included in the Tribal Family Assistance Plan?
(Sec. 286.65)
The TANF program concerns work, responsibility, and self-
sufficiency for families. To that end, section 412(b) of the Act lists
six features of a Tribal Family Assistance Plan.

Approach to Providing Welfare-Related Services

The TFAP must outline the Tribe's strategy for providing welfare-
related services. The Act does not specify what this outline must
entail; however, we believe it is important that it includes
information necessary for anyone to understand what services will be
provided and to whom the services will be provided.
To that end, we propose that the Tribal Family Assistance Plan must
include, but is not limited to, information such as general eligibility
criteria and special populations to be served, a description of the
assistance and services to be offered, and the means by which they will
be offered using TANF funds.
The description of general eligibility requirements consists of the
Tribe's definition of ``eligible family,'' including income and
resource limits that make a family ``needy,'' and the Tribe's
definition of ``Tribal member family'' or ``Indian family''. The
description of the services and

[[Page 39374]]

assistance to be provided includes whether the Tribe will provide cash
assistance, and what other assistance and services will be provided.
The PRWORA discusses a variety of special populations who can
benefit from a TANF Program. While the statute does not require a
Tribal TANF program to provide specific or targeted services to these
populations, if the Tribe opts to do so, it must include a discussion
of those services in the TFAP. For example, teen parents without a
secondary degree are a special target population for State TANF-related
services. If a Tribe wants to provide specific services to teen
parents, it needs to describe the specific services in the plan.
We are proposing to require information in the Tribal TANF plan
regarding whether services will be provided to families who are
transitioning off TANF assistance due to employment. Section 411(a)(5)
requires Tribes to report, on a quarterly basis, the total amount of
TANF funds expended to provide transitional services to families that
have ceased to receive assistance because of employment, along with a
description of such services. Therefore, we believe it prudent for ACF
and the public to know whether the Tribe's TANF program provides
transitional services and, if so, what types of services will be
offered.
Questions have been raised about the potential dual eligibility of
Indians for State and Tribal TANF programs. It is the position of the
Department that section 417 of the Act precludes our regulating the
conduct of States in this area. Nonetheless, we note that the issue of
the dual eligibility of Indians raises constitutional concerns about
the denial of state citizenship rights under the fourteenth amendment.
We also note that, under section 408(c) of the Act, State TANF programs
are subject to title VI of the Civil Rights Act of 1964 and certain
other Federal non-discrimination provisions.
As TANF focuses on outcomes, we believe a TFAP needs to identify
the Tribe's goals for its TANF program and indicate how it will measure
progress towards those goals. We believe this will help focus efforts
on achieving positive outcomes for families. Progress can be measured
longitudinally over time or over the short term, but should be clearly
targeted on those being served by the Tribal TANF program. For example:
The incidence of teen pregnancy will be reduced by approximately X %
over the three-year period of the TFAP, or educational achievement by
teen parents receiving TANF assistance will experience an overall gain
of at least one grade level over the three year-period of the TFAP.
Sections 402(a)(4)(A) and (B) of the Act require States to certify
that local governments and private sector organizations have been
consulted regarding the State TANF plan and design of welfare services
and have had at least 45 days to submit comments on the plan. We
propose similar requirements as part of the Tribal TANF plan process.
We propose a public comment period as a means of soliciting input into
the design of the Tribal TANF program and providing a means through
which Tribes may design a program which truly meets the community's
needs. This public comment period should afford affected parties the
opportunity to review and comment on a Tribe's TFAP. While the Act does
not specifically require Tribes to conduct a public comment period
prior to submission of the TFAP, previous experience demonstrates the
value of such a comment period towards tailoring the program to meet
the individual circumstances of those who will be affected by the
program and its far-reaching impact on Tribal children and families.
Furthermore, we discern Congressional recognition in the Act of the
value of public comment on the content of TANF plans and the design of
welfare services. We believe that this is equally applicable to Tribal
TANF plans.
Finally, it is important that individuals who apply for and/or
receive TANF are afforded due process should the Tribe take an adverse
action against them. Therefore, the TFAP must include an assurance that
the Tribe has developed a specific TANF dispute resolution process.
This process must be used when individuals or families dispute the
Tribe's decision to deny, reduce, suspend, sanction or terminate
assistance.

Child Support Enforcement

Just as the enactment of PRWORA created opportunities for Tribes to
operate their own TANF programs, it provided new opportunities to
ensure that Tribal families receive child support from responsible
parents. The relationship between TANF and child support enforcement
programs is important, regardless of whether the State or Tribe
operates one or both of these programs. In addition, the relationship
between self-sufficiency and child support becomes extremely important
for TANF families because of the time-limited nature of TANF
assistance.
Under PRWORA, in order to receive a TANF block grant, a State must
certify that it operates a child support enforcement program meeting
requirements under title IV-D of the Act. A State child support
enforcement program must provide the following services to TANF and
former TANF recipients and to others who apply for services: Location
of parents, establishment of paternity and support orders and
enforcement of orders. In order to receive TANF assistance from a
State, a TANF applicant or recipient must assign any rights to support
to the State and cooperate with the child support enforcement program
in establishing paternity and securing support. Collections of assigned
support are used to reduce State and Federal costs of the TANF program.
PRWORA does not place similar requirements on Tribes or families
receiving Tribal TANF assistance. Tribes are not required to certify
that they are operating a child support enforcement program as a
condition of receiving a Tribal TANF grant. Nor is there any
requirement that Tribal TANF applicants and recipients assign all
rights to support as a condition of receipt of Tribal TANF. There are,
therefore, no penalties to the Tribe for failing to operate a child
support enforcement program nor to a Tribal TANF recipient for failing
to cooperate with child support efforts. However, several Tribes with
approved Tribal TANF plans are requiring Tribal TANF recipients to
cooperate with child support efforts.
Prior to enactment of PRWORA, title IV-D of the Act placed
responsibility for the delivery of child support enforcement services
with the States. Consequently, States have attempted to provide child
support services on Tribal lands but have generally been constrained in
their abilities to establish paternity, or establish or enforce child
support orders with respect to noncustodial parents who reside within
the jurisdiction of a Tribe because of sovereignty and jurisdictional
issues. Therefore, arrangements for child support services on Tribal
lands may involve a specific agreement to recognize State or county
jurisdiction on Tribal lands for the narrow purpose of child support
enforcement. In such agreements, Tribes agree to allow the child
support agency to extend State program procedures to the reservation.
Alternatively, some States and Tribes have entered into cooperative
agreements under which a Tribal entity provides child support services
on Tribal lands and receives funding from the State.
Under PRWORA, requirements for State/Tribal cooperative agreements,
as

[[Page 39375]]

well as direct Federal funding of Tribes for operating child support
enforcement programs, were addressed for the first time in title IV-D
of the Act. Section 5546 of the Balanced Budget Act of 1997 made
technical amendments to the cooperative agreements language in section
454(33) of the Act and to direct funding of Tribal child support
enforcement programs under section 455(f) of the Act.
Issues relating to responsibilities for providing child support
enforcement services for Tribal TANF assistance cases and distribution
of support collections in such cases have already been raised in
several States and Tribes must work together to determine how Tribal
TANF and State child support programs will work best for Tribal
families. More than ever before, this collaboration is critical.
Since child support is a critical component of self-sufficiency for
many single parent families, Tribes need to determine whether they want
to condition a family's eligibility for Tribal TANF assistance on
cooperation with the State child support enforcement program. If the
Tribe will so condition eligibility, the TFAP should so specify.
Tribes that have entered into, or will enter into, cooperative
agreements with their States on child support matters have decided that
child support is a critical issue for families. Likewise, Tribes that
will decide, after regulations have been issued, to operate their own
child support enforcement programs know the importance of child
support. We invite comments from readers as to whether Tribes should be
required to condition Tribal TANF eligibility on cooperation with child
support enforcement efforts if they either operate their own child
support enforcement programs or have cooperative agreements with their
States.

Provision of Services

As required by section 412(b)(1)(B), the TFAP must indicate whether
the welfare-related services provided under this plan will be provided
by the Indian tribe or through agreements, contracts or compacts with
inter-Tribal consortia, States, or other entities. The Tribe determines
which Tribal agency will have the lead responsibility for the overall
administration of the Tribal TANF program. The designated lead agency
plans, directs and operates the Tribal TANF Program on behalf of the
Tribe. While it has the flexibility to contract many portions of the
Tribal TANF program with public and/or private entities, the lead
agency must maintain overall administrative control of the program. The
lead agency is required to administer the Tribal TANF plans, submit the
Tribal TANF Family Assistance Plan, coordinate Tribal TANF services
with other Tribal and State programs, and collect and submit required
data. Although not required by statute, we are proposing at
Sec. 286.65(b) to require Tribes to identify the lead agency in the
TFAP because of its importance in the overall administration of and
responsibility for the Tribal TANF program. The plan must also include
a description of the administrative structure for supervision of the
Tribal TANF program, including the designated unit responsible for the
program and its location within the Tribal government.
For lead agencies that wish to enter into agreements or contracts
with other entities, the TFAP needs to specify how the welfare-related
services will be provided, e.g., through sub-contracts. In the instance
of Tribal consortia, the lead agency fulfills the same responsibility
as the designated unit discussed above.

Population/Service Area

Section 412(b)(1)(C) requires that a TFAP identify the population
and service area or areas to be served by the plan. Yet the statute
defines neither of these terms.
In our consultation with Tribes on how service area and population
should be defined, we heard from Tribes that they should be given
flexibility to define their own Tribal TANF service area and
population. We have also heard that, at least in the case of Oklahoma,
we might expect disagreements between Tribes to arise if service area
parameters were not established for Tribes in that State. This concern
is due to the fact that none of the Tribes in Oklahoma, except for one,
have reservations. Our intent in this proposed rule is to balance
Tribal flexibility with the need to afford consideration to Tribes who
disagree with another Tribe's proposed service area or population.
Therefore, with regards to service population, Tribes have the
flexibility to decide whether their TFAP will serve all Indian families
within the service area or solely the enrolled members of the Tribe. A
Tribe would convey its decision in the TFAP. If the TFAP provides for
services to all Indian families within the service area, then the Tribe
agrees to provide such services. If the TFAP provides for services
solely to families of enrolled members of the Tribe, then the Tribe
does not agree to provide services to the families of non-enrolled
Indians residing in the service area of the Tribe.
Regardless of the decision reached by the Tribe in this matter, the
responsibility for TANF services to non-Indian families in the Tribal
service area resides with the State TANF program, unless the Tribe has
negotiated an agreement with the State to allow the Tribe to serve non-
Indian families within the Tribal service area. If such an agreement
has been reached, the Tribe must include a copy of the agreement or
other such documentation of State concurrence, such as a letter from
the State, with the TFAP.
There may be various reasons why both a Tribe and the State would
want the Tribe to provide TANF assistance to all needy families in its
service area (for example, there are very few non-Indian families in
the service area). We believe this flexibility to allow a Tribe to
include non-Indians in its service population, with State agreement,
benefits both Tribes and States.
In those instances where non-enrolled Indians or non-Indians are
served by the Tribal TANF Program, the Tribal TANF program is the final
authority on the services to be provided. The non-enrolled member's
Tribe or the State(s) cannot decide on the nature of the services to be
provided by the Tribal TANF program.
With regards to service area, a Tribal TANF service area could
include the Tribe's reservation or just portions of the reservation. It
could also include ``near reservation areas'' meeting BIA requirements
as outlined at 25 CFR 20.1(r). For Tribes without land bases, the
service area could include all or part of the Tribe's service area as
defined by BIA.
In the case of claimed service areas extending beyond the Tribe's
``near reservation area'' or BIA-defined service area, we are concerned
about possible complications resulting from misunderstandings on the
scope of the service area. Therefore, if a Tribe claims an alternative
service area, the TFAP should clearly define the demographic extent of
such areas and include a memorandum of understanding with the
appropriate State(s) agency or Tribal government reflecting State(s) or
Tribal agreement to the servicing of the Tribal TANF service population
by the Tribal TANF Program in the extended area.
Likewise, for Tribes in Oklahoma, if the Tribe defines its service
area as other than just its ``tribal jurisdiction statistical area''
(TJSA), the Tribe must include an agreement with the appropriate Tribal
government reflecting that Tribe's agreement to the service area. TJSAs
are areas delineated for each federally-recognized Tribe in

[[Page 39376]]

Oklahoma without a reservation by the Census Bureau.

Duplicative Assistance

Section 412(b)(1)(D) indicates that an individual receiving
assistance from a Tribal TANF program may not receive assistance from
another State or Tribal TANF program for the same purpose. The TFAP
must contain an assurance that families receiving assistance under the
Tribal TANF plan will not receive duplicative services under any other
State or Tribal TANF plan. The Tribe must develop a process to ensure
that duplication does not occur and must include a description of that
process in the TFAP. We believe any process the Tribe develops should
include a mutual information exchange between the Tribe and State(s)
and other nearby Tribal TANF grantees.

Employment Opportunities

Section 412(b)(1)(E) requires that Tribes identify in their TFAPs
the employment opportunities in and near the service area or areas of
the Indian tribe. Section 286.65(g) of the proposed rule reiterates
this requirement. The employment opportunities within and near the
Tribal TANF service area will greatly impact the service population's
ability to obtain and maintain employment. In designing the Tribal TANF
program, Tribes should consider current unemployment rates, public and
private sector employment opportunities, and education and training
resources. These factors should provide a basis for the Tribe's
proposed work activities, work participation requirements, penalties
against individuals, and time limits.
Section 412(b)(1)(D) also requires that TFAPs identify the manner
in which the Indian tribe will cooperate and participate in enhancing
employment opportunities for TANF recipients consistent with any
applicable State standards. At Sec. 286.65(g)(2) we reiterate the
statutory requirement that the TFAPs describe how the Tribe will
enhance employment opportunities for their TANF recipients. Tribes
should consider the best means by which they can work with other Tribal
or State agencies, and other private and public sector entities on or
near the reservation, to enhance employment opportunities. These
efforts may be through memoranda of understanding or other public-
private partnerships. These activities should also be consistent with
any State employment standards (for example, a State minimum wage
requirement).

Fiscal Accountability

As required by section 412(b)(1)(F), the TFAP must provide an
assurance that the Tribe applies the fiscal accountability provisions
of section 5(f)(1) of the Indian Self-Determination and Education
Assistance Act (25 U.S.C. 450c(f)(1)), relating to the submission of a
single-agency audit report required by chapter 75 of title 31, United
States Code.

Establishing Minimum Work Participation Requirements, Time Limits for
the Receipt of Welfare-Related Services and Penalties Against
Individuals

PRWORA promotes self-sufficiency and independence while holding
individuals to a higher standard of personal responsibility for the
support of their children than prior law. The legislation expands the
concept of mutual responsibility, introduced under the Family Support
Act of 1988, that income assistance to families with able-bodied adults
should be transitional and conditioned upon their efforts to become
self-sufficient. These goals are reflected in the State TANF provisions
requiring individuals to participate in work activities, limiting the
number of months that assistance will be provided, and penalizing
individuals for failure to participate in work activities as required.
Minimum work participation requirements, time limits for the
receipt of assistance and penalties against individuals who refuse to
participate in work activities as required are explicitly stated for
the State TANF programs in the statute. For the Tribal TANF programs,
these three components are not specified. Instead, section 412(c) of
the Act provides that for each Tribal TANF grantee Tribal TANF minimum
work participation requirements, time limits for the receipt of
welfare-related services, and penalties against individuals are to be
established by the Secretary with the participation of the Tribes.
The statute further specifies that Tribal TANF work participation
requirements and time limits are to be consistent with the purposes of
TANF and consistent with the economic conditions and resources
available to each Tribe. In addition, penalties against individuals are
to be similar to those found in section 407(e) of the statute. However,
the statute does not specify a process or procedure to be used to
establish minimum work participation requirements, appropriate time
limits for the receipt of welfare-related services, and penalties
against individuals for each Tribal TANF grantee.
During discussions with Tribes and States as to what process should
be used to establish these requirements for each Tribal TANF grantee,
many suggested that we use the proposal a Tribe includes in its Tribal
TANF plan as the basis for negotiating and establishing these
requirements. We agree that it would be prudent to establish these
requirements as part of the TANF plan process so that Tribes will know
in advance of accepting the TANF program grant the requirements to
which they are committing and for which they will be held accountable.
Thus, we propose that each Tribe specify its proposal for minimum
work participation requirements, time limits for the receipt of
welfare-related services, penalties against individuals who refuse to
participate in work activities as required, and related policies in its
Tribal TANF plan. In addition, the Tribe must include a rationale for
its proposals and related policies in the plan. The rationale should
address how the Tribe's proposal is consistent with the purposes of
TANF and is consistent with the economic conditions and resources
available to the Tribe. In addition, for its proposal for penalties
against individuals, the rationale should indicate how they are similar
to the requirements applicable to States as specified at section 407(e)
of the Act.
Examples of the information that we would expect to be included to
illustrate the Tribe's proposal include, but are not limited to:
Poverty, unemployment, jobless and job surplus rates; education levels
of adults in the service area; availability of and/or accessibility to
resources (educational facilities, transportation) to help families
become employable and find employment; and employment opportunities on
and near the service area.
We propose to review and evaluate a Tribe's proposal for these
components as part of the review and approval process for the entire
plan. Additional information or discussion about a Tribe's proposal may
be necessary before we approve the plan.
Minimum work participation requirements are further detailed at
Secs. 286.70-105 of the proposed regulation. The proposed rules at
Secs. 286.110-120 contain additional information on time limits.
Information on penalties against individuals is outlined at
Secs. 286.125-135.
What information on minimum work participation requirements must a
Tribe include in its Tribal Family Assistance Plan? (Sec. 286.70)

[[Page 39377]]

As Tribes focus on assisting adults in obtaining work and earning
paychecks quickly, parents receiving assistance from a Tribal TANF
program are also expected to meet new and more stringent work
requirements.
Section 401(a)(2) of the Act states that one of the purposes of
TANF is to promote job preparation and work to help needy families
become self-sufficient. The statute, at section 407, provides specific
individual work participation requirements and participation rate goals
to ensure this purpose is carried out under State TANF programs. For
State TANF programs, work participation requirements encompass (1) the
proportion of TANF families participating in the activities
(participation rate targets); (2) the activity level to be required of
families, e.g., average number of hours of work per week; (3) the
activities that families must be engaged in, e.g., subsidized
employment, vocational training, etc.; and (4) exemptions, limitations
and special rules related to work requirements.
In providing flexibility in establishing work participation
requirements, Congress recognized that Tribal economies and resources
will vary and affect a Tribal TANF family's and program's ability to
meet the work requirements imposed upon State TANF recipients and State
TANF programs. Since the statutory language requires that the work
requirements take into consideration the economic conditions and
resources available to each Tribe, we cannot establish across-the board
minimum work requirements that would be applied to all Tribes.
Additionally, written and verbal feedback from Tribes indicated
overwhelming support for negotiating on a case-by-case basis with each
individual Tribe (as opposed to applying an across-the-board minimum)
that will reflect the differences among Tribal economies and resources.
In order to have the information needed to establish minimum work
participation requirements for each Tribal grantee, we propose at
Sec. 286.70 that each Tribe specify in its TFAP: (1) The targeted
participation rates for each of the fiscal years covered by the plan;
(2) the minimum number of hours families will be required to
participate in work activities for each of the fiscal years covered by
the plan; (3) the work activities that count towards the work
requirement; (4) any limitations and special rules related to work
requirements; and (5) if the targeted rates, the minimum number of
required hours, or the work activities are different from those
required of State TANF programs, the rationale for the Tribe's proposed
work requirements, including how they are consistent with the purposes
of TANF and with the economic conditions and resources available to the
Tribe.
Considering that many Tribal families reside in remote areas and
lack of adequate transportation is a major concern, the proposed
regulation at Sec. 286.70(b)(2)(i) allows a Tribe to include reasonable
transportation time to and from the activity site in determining the
number of hours of participation. Counting transportation time may be
indicative of the economic conditions and resources available to a
Tribe, and transportation is an economic resource.
Therefore, if a Tribe proposes to count reasonable transportation
time towards the minimum number of hours individuals participate, the
Tribe's TFAP will need to so specify. The Tribe's definition of
``reasonable'' would also have to be included in the plan. However, we
would also expect Tribes proposing to include reasonable transportation
time in determining the number of hours of work participation, to
demonstrate that their overall proposal for number of hours is
consistent with the purposes of TANF.
As discussed above, the Tribe's rationale for its proposed work
participation requirements could include, but is not limited to:
Poverty, unemployment, jobless and job surplus rates; education levels
of adults in the service area; availability and/or accessibility to
resources (educational facilities, transportation) to help families
become employable and find employment; and employment opportunities on
and near the service area.
We are proposing not to require an explanation for any element of a
Tribe's minimum work participation requirements proposal if a Tribe
chooses to adopt the requirements, the limitations or special rules
related to work requirements applicable to the State TANF programs.
There would be no need for us to negotiate on this element; we would,
in these cases, defer to the Tribe's decision to target the
requirements/limitations/special rules established for States. However,
as noted above, any Tribe proposing to include reasonable
transportation time as part of its proposal on minimum hours of
participation will have to include a rationale for this decision.
What additional information on minimum work participation rates
must be included in a Tribal Family Assistance Plan? (Sec. 286.75)
We recognize that the statute requires two separate participation
rate targets that State TANF programs must meet; one for all families
and a separate one for two-parent families. However, the statute
pertaining to Tribal TANF programs does not stipulate that there be two
separate Tribal TANF participation rates to meet; rather, we interpret
the flexibility in negotiating work requirements with Tribes pursuant
to section 412(c) of the statute to include whether there should be one
or more participation rates. We propose at Sec. 286.70(c)(1) that it
will be at the Tribe's option to propose one rate for all families; a
rate for all families and two-parent families (the two rates States are
subject to); or two separate rates for one-parent families and two-
parent families. A Tribe that proposes more than one rate would be held
accountable for achieving both rates; failing either could result in
the participation rate penalty. A Tribe that proposed only the overall
rate would be held accountable for only one. We invite the reader's
comments to these proposals.
We have decided not to reiterate in this proposed rule the work
participation rates for State TANF programs; Tribes should refer to
section 407(a) of the Act for this information. Tribes can use these
rates as a guide in determining their own proposal for participation
rate targets. The proposed rule at Sec. 286.75(a) requires a rationale
from the Tribe if it proposes work participation rates other than those
required of State TANF programs.
The proposed regulation at Sec. 286.75(b) suggests, but does not
require, that Tribes propose rates that increase over time. While the
Act does not specify that rates increase over time, we believe that,
consistent with the intent of the statute, increasing rates reflect the
need to ensure that increasing numbers of families are progressively
engaged in necessary activities before they reach their time limit.
We recognize that many Tribes may not have experience in operating
a welfare program that emphasizes placing a significant portion of the
caseload into work activities. Consequently, establishing realistic
participation rates may initially be a Tribe's ``best guess.''
Additionally, we recognize that resources available to Tribes as well
as Tribal economies may change significantly from year to year. We are,
therefore, proposing at Sec. 286.75(c) to allow Tribes the opportunity
to renegotiate rates in advance of each year's target.
How will we calculate the work participation rates? (Sec. 286.80)

[[Page 39378]]

Similar to the calculations for State participation rates, the
proposed regulations at Sec. 286.80 indicate that the yearly
participation rate will be the average of the monthly participation
rates. Monthly rates, for each rate approved in the Tribe's TANF plan,
will be determined by a ratio with the numerator and denominator
defined as follows:
Numerator: The number of families receiving assistance (including
minor heads-of-household) engaged in work activities as defined in the
Tribe's approved TANF plan for the required number of hours.
Denominator: The number of families with an adult or minor head-of-
household receiving TANF assistance from the Tribe.
This calculation will be appropriately modified depending upon
whether the Tribe chooses to target (1) an all-family rate, (2) an all-
family rate and a two-parent rate, or (3) a one-parent rate and a two-
parent rate.
We have also made it clear in this proposed rule that a Tribe may
count as a month of participation any partial months of assistance, if
an adult in the family is engaged in work activities for the minimum
average number of hours in each full week that the family receives
assistance in that month. These families are already included in the
denominator since they are recipients of assistance in that month.

Exclusions From Work Participation Rate Calculations

The PRWORA does not specify exclusions from the participation rate
calculations for Tribal TANF programs. However, consistent with the
flexibility provided State TANF programs, we are proposing at
Sec. 286.80(c)(2) to allow Tribes to exclude from the total number of
TANF families (the denominator): (1) those families who have a child
under the age of one if the Tribe opts to exempt these families from
participating in activities (and so specified in the Tribe's TANF
plan); and (2) on a limited basis, those families who are sanctioned
for non-compliance.
The statute at section 407(b)(1)(B)(i)(II) precludes States from
excluding families sanctioned for non-compliance with the work
participation requirements from the denominator if the families have
been sanctioned for more than three months out of a twelve-month
period. We considered whether to apply the same restriction to Tribal
TANF work participation rate calculations. We were concerned that if we
did not apply the same restriction and allowed Tribes to exclude
sanctioned families indefinitely, then we would be inadvertently
encouraging Tribes to discontinue their efforts in bringing those
families into compliance and working towards self-sufficiency.
Therefore, we are proposing at Sec. 286.80(c)(2)(A) that families
sanctioned for non-compliance with the work participation requirements
are to be excluded from the denominator only if they have not been
sanctioned for more than three months (whether or not consecutively)
out of the last twelve months.
The proposed regulations do not provide for any other exclusions in
calculating the Tribal TANF participation rate. However, in light of
the Secretary's authority to negotiate work participation requirements
that reflect economic conditions and resources available to a Tribe, we
welcome comments about whether there should be additional exclusions.
We considered whether we should negotiate exclusions from the work
participation rate calculations on a case-by-case basis with each
individual Tribe. We rejected this approach because we believe a
uniform method for calculating Tribal TANF work participation rates
will help ensure that penalties are applied equitably across Tribes
administering a TANF program. Additionally, since the rates themselves
will be negotiated with each individual Tribe, such negotiations will
already take into account unique circumstances which may make it
difficult for certain families to participate in work activities.
However, we welcome comments about whether exclusions should be
negotiated on a case-by-case basis.

Two-Parent Families

Section 407(b)(2) of the Act, as amended by the Balanced Budget Act
of 1997, requires a State to not consider as a two-parent family a
family in which one of the parents is disabled for purposes of the work
participation rate. Thus, a two-parent family in which one of the
parents is disabled will be treated as a single-parent family for
purposes of calculating the work participation rate. We propose at
Sec. 286.80(e) to make this provision applicable to Tribal TANF
programs as well.
How many hours per week must an adult or minor head-of-household
participate in work-related activities to count in the numerator of the
work participation rate? (Sec. 286.85)
For Tribal TANF programs the statute does not specify the minimum
number of hours individuals must participate in order to be counted for
participation rate calculations. The Act gives us the authority to
negotiate these requirements with Tribes. The draft regulation at
Sec. 286.85 proposes that the minimum average number of hours per week
for State TANF families presumptuously applies to Tribal TANF families
as well. However, unlike the State requirements, we propose to provide
Tribes the opportunity to rebut this presumption. Tribes will be
permitted to establish fewer minimally required hours for families if a
Tribe provides appropriate justification in its TANF plan. For example,
the availability and accessibility of resources may not enable Tribal
individuals to participate at the minimum number of hours per week
required of State TANF recipients.
What, if any, are the special rules concerning counting work for
single custodial parents, caretaker relatives and two-parent families?
(Sec. 286.90)
Section 407(c)(2)(B) of the Act enables States to consider as
engaged in work a custodial parent or caretaker relative with a child
under age 6, who is the only parent or caretaker relative in the
family, if s(he) participates for an average of 20 hours per week. We
propose to extend this provision to Tribal TANF programs.
The Balanced Budget Act of 1997 amended section 407(c)(1)(B)(i) of
the Act to allow both parents in a two-parent family to share the
number of hours required to be considered as engaged in work for
purposes of meeting State TANF work requirements. The proposed
regulation at Sec. 286.90 indicates that Tribal TANF programs will also
be able to apply this policy.
What activities count towards the work participation rate?
(Sec. 286.95)
PRWORA does not specify the work activities required of Tribal TANF
recipients but instead authorizes the establishment of minimum work
participation requirements, which include work activities, for each
Tribal grantee. The overwhelming feedback we received in discussions
with Tribes suggested that the work activities identified for States in
the statute be considered activities that count toward a Tribal TANF
participation rate with two caveats: (1) That they not be limited to
those activities; and (2) that they not be further defined in the
regulations. Therefore, at Sec. 286.95 we are listing the same
activities found at section 407(b) of the Act. In addition, we are
providing Tribes further flexibility to identify additional activities
that they would consider acceptable and necessary in helping families
work towards self-sufficiency. For example, a Tribe may identify
subsistence activities or substance abuse treatment as activities the
Tribe believes necessary to help families achieve self-sufficiency.

[[Page 39379]]

Furthermore, since we are not defining the work activities in the
proposed regulations for States, but are instead asking States to
define them, we feel it is appropriate to afford Tribes the same
definition flexibility.
What limitations concerning vocational education, job search and
job readiness assistance exist with respect to the work participation
rate? (Sec. 286.100)
Comments we received recommended that Tribal TANF work activities
not be subject to the same restrictions on vocational training as are
placed on State TANF programs by statute (i.e., not be limited to 12
months). Because Tribal families may have minimal work skills and
experience, and Tribal work opportunities may be much more limited,
Tribes should have the flexibility to engage Tribal families in more
extensive training. Therefore, the proposed regulation at
Sec. 286.100(a) does not impose the same limitation that is imposed
upon States.
However, with respect to the job search/job readiness limitation
required of State TANF programs, we believe that Tribal TANF families
should also not simply be asked to job search or participate in job
readiness activities as their sole activity for lengthy periods of
time. Therefore, the proposed regulation at Sec. 286.100(b) is similar
to the provision found at section 407(c)(2)(A)(i) that limits to six
weeks in a fiscal year the length of time that a State can consider
participation in job search/job readiness in a fiscal year by any
individual to be considered engaged in work.
We are also proposing to afford Tribes the option afforded to
States that if the unemployment rate in a Tribal TANF service area is
at least 50 percent greater than the United States' total unemployment
rate for the fiscal year, then job search and job readiness assistance
can be counted for up to twelve weeks during that fiscal year.
However, unlike for State TANF programs, we are proposing at
Sec. 286.100(c) that if job search is conducted on an ancillary basis
as part of another activity, then time spent in job search activities
can count without limitation. We believe that as long as a family is
engaging in activities in addition to job searching, then including
hours spent in job search as part of their other activities is
consistent with the intent of the law, to help families reach their
goal of achieving self-sufficiency as soon as possible.
What safeguards are there to ensure that participants in Tribal
TANF work activities do not displace other workers? (Sec. 286.105)
Section 407(f)(2) of the Act contains two safeguards to ensure that
in helping welfare recipients become self-sufficient, we do not
jeopardize the economic well-being of non-TANF families through
displacement. First, a recipient may not be assigned to a vacant
position if the employer has placed other individuals on layoff from
the same or equivalent job. Second, an employer may not terminate the
employment of any regular employee in order to create a vacancy for the
employment of a TANF recipient. We believe these safeguards provide
important protection for all workers and need to be in place under both
Tribal and State TANF programs. Furthermore, we do not intend for these
provisions to preempt or supersede any Tribal laws providing greater
protection for employees.

Time Limits

In addition to promoting self-sufficiency and independence through
employment, PRWORA stresses the temporary nature of welfare and limits
the number of months that assistance can be provided with TANF funds.
PRWORA provides a 60-month (or less, at State option) time limit for
the receipt of TANF assistance under State TANF programs. The time
limit provisions include not only the length of time that assistance
can be provided, but also what months of assistance will count toward
the time limit and whether any categories of recipients are exempt from
the time limit rules. We have the authority, under section 412(c) of
the Act, to establish for each Tribe, with the participation of the
Tribe, appropriate time limits for receipt of welfare-related services.
Once established for each Tribe, the Tribe may not use its TFAG to
provide welfare-related services to a family that includes an adult
beyond the established time limit.
Section 412(c)(2) of the statute further provides that the time
limits established for Tribal TANF programs must be consistent with the
purposes of TANF and consistent with the economic conditions and
resources available to each Tribe. This principle has been echoed in
our on-going consultation with Tribes and Tribal organizations. The
comments we have received strongly suggests that the Tribal TANF time
limits should reflect the unique circumstances of each service area and
service population.
What information on time limits for the receipt of welfare-related
service must a Tribe include in its Tribal Family Assistance Plan?
(Sec. 286.110)
As part of its plan, a Tribe will propose a time limit for receipt
of Tribal TANF assistance that will apply to its service population and
provide a rationale for its proposal. By ``time limit,'' we mean the
maximum number of months (whether or not consecutive) that federally
funded assistance will be provided to a Tribal TANF family that
includes an adult. The proposed time limit should reflect the intent of
Congress that welfare should be temporary and not a way of life. The
proposal should also take into consideration those factors that may
impact on the length of time that a TANF family might be expected to
need in order to find employment and become self-sufficient.
To allow for maximum flexibility, we are not requiring that the
same time limit apply throughout the Tribal TANF service area. A Tribe
should have the option to decide that because economic conditions and
the availability and accessibility of services vary, it is appropriate
to establish different time limits by geographic area. For example, a
Tribe could choose to establish a shorter time limit for a part of the
service area that has many employment opportunities than for another
part of the service area with high unemployment.
If a Tribe proposes to use the 60-month time limit that applies
under State TANF programs, we would not expect a detailed explanation
of the rationale. However, if the Tribe proposes to provide assistance
for longer than 60 months, it should explain how that time limit was
determined. As mentioned earlier, examples of the information that we
would expect to be included to illustrate the Tribe's proposal include,
but are not limited to: Poverty, unemployment, jobless and job surplus
rates; education levels of adults in the service area; availability of
and/or accessibility to resources (educational facilities,
transportation) to help families become employable and find employment;
and employment opportunities on and near the service area.
As part of the negotiation process, we may ask for additional
information and/or further discussion before the proposed time limits
are approved. This would ensure that all factors are considered in
establishing appropriate time limits for a Tribal TANF program.

Determining if the Time Limit Has Been Exceeded

Section 408(a)(7) of the Act provides that States may not use
Federal funds to provide assistance to a family that includes an adult
who has received assistance for more than five years. In other words,
if a family does not include

[[Page 39380]]

any adults who are receiving assistance (i.e., only the children
receive assistance), then the time limit does not apply. We propose to
make the Tribal TANF requirements consistent with the State
requirements in this area. The intent of Congress is that families
should achieve self-sufficiency through employment. It does not seem
reasonable to apply the time limit requirement to cases where only
children are receiving assistance, and employment is not an option.
Section 408(a)(7)(B) of the Act requires States to disregard
certain months of assistance in determining if the 60-month time limit
has been exceeded. Specifically, State TANF programs do not count any
month during which a minor who was not head of the household or married
to the head of the household received assistance. For the reasons
explained below, we propose to apply this disregard provision to
Tribes.
The decision as to whether a family has met the time limit is based
on how long the adults have received assistance. Therefore, it does not
seem reasonable to include months when an individual received
assistance as a minor. However, Tribes, like States, would count months
when a minor received assistance as the head of a household or as the
spouse of the head of the household. The reason is that minor heads of
households and minors who are married to heads of household are
generally treated as adults in terms of other program requirements
under the Act.
Section 407(a)(7)(D) of the Act, as amended by the Balanced Budget
Act of 1997, requires that Tribes and States disregard as a month of
assistance any month during which an adult lived in Indian country or
an Alaskan Native village in which at least 50 percent of the adults
were not employed. To determine whether 50 percent of the adults were
not employed, the statute allows the use of any reliable data with
respect to the month. This would allow the use of the Labor Force
Report, which is issued every two years by the Bureau of Indian
Affairs, Department of Labor Unemployment Data, or any other reliable
data source or combination of data sources.
Can Tribes makes exceptions to the established time limit for
families? (Sec. 286.115)
For State TANF programs, section 408(a)(7)(C) of the Act allows for
two hardship exceptions from the 60-month time limit: (1) Families that
meet the State's definition of ``hardship''; and (2) families that
include an individual who has been battered or subjected to extreme
cruelty. A State may exempt no more than 20 percent of its average
monthly caseload under these exceptions.
Section 412(c) of the Act does not mention a similar exception for
Tribal TANF programs. However, because the time limit provisions
include not only how long a family may receive Tribal TANF benefits,
but also who is subject to the time limits, it is reasonable that
Tribes should have the option to provide for similar exceptions from
their established time limits. The proposed regulations provide that we
will negotiate the maximum percentage of cases in the Tribe's caseload
which may be exempted from the established time limits.
Although the proposed regulations include the same definition of
``battered or subjected to extreme cruelty'' as is set forth in section
408(a)(7)(C)(iii) for State TANF, we request comments as to whether
there are additional situations particular to Tribes that should be
included in this proposed definition. We also invite comments on
whether this exception should be defined in regulations at all or left
to each Tribe to define.
Does the receipt of TANF assistance under a State or other Tribal
TANF program count towards a Tribe's TANF time limit? (Sec. 286.120)
Under section 408(a)(7) of the Act, a State must consider receipt
of TANF benefits under other State programs in determining if the 60-
month time limit has been exceeded. Although section 412 of the Act
does not include a similar requirement for Tribal TANF programs, we
believe that prior receipt of TANF must also be counted by Tribes when
determining if the time limit has been exceeded. We do not believe the
intent of Congress was otherwise. Thus, a Tribe must count towards an
adult's time limit all prior months of TANF assistance funded with TANF
block grant funds, except for any month that was exempt or disregarded
by statute or regulation.

Penalties Against Individuals

As stated earlier, the PRWORA promotes self-sufficiency and
independence by providing people with more work opportunities while
holding individuals to a higher standard of personal responsibility for
the support of their children. The legislation expands the concept of
mutual responsibility, introduced under the Family Support Act of 1988,
that income assistance to families with able-bodied adults should be
transitional and conditioned upon their efforts to become self-
sufficient. As Tribes focus on helping adults get work and earn
paychecks quickly, parents are also expected to meet new, tougher work
requirements. We will expect Tribes to ensure that parents understand
what is required of them, and to develop proposals for penalties
against individuals that reflect the importance of those requirements.
What information on penalties against individuals must be included
in a Tribal Family Assistance Plan? (Sec. 286.125)
What is the penalty if an individual refuses to engage in work
activities? (Sec. 286.130)
Can a family, with a child under age 6, be penalized because a
parent refuses to work because (s)he cannot find child care?
(Sec. 286.135)
This proposed rule combines the discussions of these three sections
of this part because of the inter-relationship among them.
As mentioned above, section 412(c) of the Act gives flexibility to
establish penalties against individuals, and related policies, for each
Tribal TANF grantee. Section 412(c)(3) specifies that penalties against
individuals established for each Tribal TANF grantee must be similar to
comparable provisions in section 407(e). However, the statute does not
specify a process or procedure to accomplish this.
As discussed earlier, we propose to use the Tribal TANF plan
process to establish the requirements related to penalties against
individuals and related policies that will become a part of the Tribal
TANF program. In addition, the Tribe must include a rationale for its
proposal and related policies in the plan. The rationale needs to
address how the Tribe's proposal is: Consistent with the purposes of
section 412 of the Act; consistent with the economic conditions and
resources available to the Tribe; and similar to the requirements
applicable to States as specified at section 407(e) of the Act.
States are required to reduce the amount of assistance otherwise
payable to the family pro rata (or more at State option) for the period
during the month in which the individual refused to engage in work as
required, subject to good cause and other exceptions determined by the
State. The States also are given, by the statute at section
407(e)(1)(B), the option to terminate the case.
In addition, a State may establish, pursuant to section 407(e)(1)
of the Act, good cause exceptions to penalties for failure to engage in
work as required. We believe that Tribes must also be able to establish
reasonable good cause exceptions because penalties against individuals
established for each Tribal

[[Page 39381]]

TANF grantee must be comparable to those specified at section 407(e). A
Tribe must include a rationale for its good cause exceptions. The
rationale should address how the good cause exceptions are reasonable
and how they relate to the goals of the Tribe's TANF program.
As specified in the statute at section 407(e)(2), a State may not
reduce or terminate assistance to a single custodial parent caring for
a child under age six for refusing to engage in work as required, if
the parent demonstrates an inability (as determined by the State) to
obtain needed child care. The parent's demonstrated inability must be
for one of the following reasons:
Appropriate child care within a reasonable distance from
the individual's home or work site is unavailable;
Informal child care by a relative or under other
arrangements is unavailable or unsuitable; or
Appropriate and affordable formal child care arrangements
are unavailable.
We believe a comparable provision should apply to Tribal TANF
programs as the lack of child care may be even more acute on remote
Indian reservations.
Under section 402(a)(7) States may opt to establish and enforce
standards and procedures for identifying and helping victims of
domestic violence. If the State has chosen to establish these
standards, it may waive certain program requirements, including work
requirements, in cases where compliance would make it more difficult
for an individual receiving assistance to escape domestic violence or
would unfairly penalize victims or individuals who are at risk of
further violence. The State must determine that the individual
receiving the program waiver has good cause for failing to comply with
the requirements. Tribes may also wish to consider whether to establish
their own standards and procedures related to victims of domestic
violence.
There may be other reasons a Tribe may want to impose a penalty on
an individual who refuses to cooperate with program requirements other
than work activity requirements. For example, a Tribe may want to
impose a penalty on a custodial parent who refuses to cooperate with a
child support enforcement program.
Based on the above information, we believe the Tribe's TANF plan
must address the following questions:
(1) Will the Tribe impose a pro rata reduction, or more at Tribal
option, or will it terminate assistance to a family which includes an
adult or minor head-of-household that refuses to engage in work as
required?
(2) What will be the proposed Tribal policies with respect to a
single custodial parent, with a child under the age of 6, who refuses
to engage in work activities because of a demonstrated inability to
obtain child care?
(3) What good cause exceptions, if any, does the Tribe propose
which will allow individuals to avoid penalties for failure to engage
in work activities? What is the rationale for these exceptions?
(4) What other rules governing penalties does the Tribe propose?
(5) What, if any, will be the Tribe's policies in relation to
victims of domestic violence?
With respect to the prohibition on penalizing single custodial
parents with a child under age 6, we want to underscore the pivotal
role of child care in supporting work and that the lack of appropriate,
affordable child care can create unacceptable hardships on children and
families. To keep families moving toward self-sufficiency, Tribes may
want to consider adopting a process or procedure that enables a family
to demonstrate its inability to obtain needed child care. Just as
States must have policies for continuing benefits to a single-parent
family when it demonstrates that it is unable to work due to the lack
of child care for a child under the age of six, it is important for
Tribes to have policies too. Like States, Tribes should inform eligible
parents that the time during which they are excepted from the penalty
will count towards the time limit on benefits, unless the Tribe's
approved time limit proposal provides for an exception.
The proposed regulations for the Child Care and Development Fund
(CCDF) reinforce the importance of providing this vital information to
parents by requiring the child care Lead Agency, as part of its
consumer education efforts, to inform parents about the penalty
exception to the TANF work requirement. It must also provide parents
with the information outlined above concerning the process or
procedures for demonstrating an inability to obtain needed child care.
Because the Tribe will have the authority to determine whether the
individual has adequately demonstrated an inability to obtain needed
child care, we expect the Tribe to provide families with the criteria
that it will use to implement the exception and the means by which a
parent can demonstrate such an inability. In providing these criteria,
each Tribe needs to define the following terms: ``Appropriate child
care,'' ``reasonable distance,'' ``unsuitability of informal care,''
and ``affordable child care arrangements.'' In the proposed CCDF rule,
we require the Lead Agency for child care to coordinate with the TANF
agency in order to understand how the TANF agency defines and applies
the terms of the statute regarding the exception to the penalty and to
include those definitions and criteria in the CCDF plan.
As the role of child care is pivotal in supporting work activities,
it is important for the Tribal and State CCDF programs to coordinate
fully with the Tribal TANF program. Coordination between CCDF and TANF
is critical to the success of both programs.
In addressing the economic conditions and available resources in
support of its proposal for penalties against individuals, the Tribe
may refer back to the information already provided in the plan in
relation to the Tribe's proposal for minimum work participation
requirements and time limits. It may also offer additional information
in support of its proposal.

Tribal TANF Plan Processing

What are the applicable time frames and procedures for submitting a
Tribal Family Assistance Plan? (Sec. 286.140)
The PRWORA does not give a date by which a Tribe must submit a
Tribal Family Assistance Plan. In establishing the time frame within
which a Tribe must submit the TFAP, we have to consider two factors.
The first is the requirement found at section 405(b) of the Act that we
provide to a State timely notice of the amount of the reduction to its
State Family Assistance Grant (SFAG) that results from the operation of
a Tribal TANF program. The statute requires this notice to be made 3
months before we take the reduction in the State's SFAG quarterly
installment. The second consideration is the authority at section
412(b)(2) of the Act which provides for Secretarial approval of each
Tribal Family Assistance Plan.
As mentioned in the discussion on determining the amount of a
Tribal Family Assistance Grant, our experience to date has indicated
that we need sufficient time to request data from the State, receive
and process it, and resolve any issues, prior to making official notice
to the State. We have outlined time frames at Sec. 286.15 for
requesting State data and resolving any issues concerning the data. In
order to meet these time frames and meet the requirement for a three-
month notice to the State, the proposed regulation at Sec. 286.140
requires a Tribe to submit to us a letter of intent, unless the Tribes
have already requested, received and resolved any issues regarding the
State-

[[Page 39382]]

supplied data. We will use the letter of intent to request the data
from the State and thus will need to specify the Tribe's proposed
implementation date and proposed service area and population. We have
proposed time frames for the submission of the letter of intent at
Sec. 286.140(a).
In order to meet the approval requirement, including review,
discussion, and where appropriate, modification of the TFAP in
consultation with the Tribe, we have determined that we will need a
minimum of 120 days to accomplish these actions for Tribes who propose
to implement a program on the first day of a calendar quarter.
Therefore, the proposed regulation at Sec. 286.140(a) requires the
formal submission of a Tribal TANF plan to us based on the dates
specified in the table below.
A Tribe will be able to implement a Tribal TANF program on the
first day of any month. However, due to the requirement for a three-
month notification to the State of its adjusted quarterly SFAG amount,
a Tribe who wishes to implement a TANF program on other than the first
day of a calendar quarter, i.e., January 1, April 1, July 1 or October
1, will need to submit both its letter of intent and its formal plan as
if the proposed implementation date was the first day of a calendar
quarter. The following table illustrates, based on implementation
dates, when a Tribe needs to submit its letter of intent and formal
plan in order for us to meet the statutory requirement for notification
to the State.

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If proposed implementation date is: The letter of intent is due: The formal plan is due: And we must notify the State by:
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January 1, February 1 or March 1...... July 1 of previous year....... September 1 of previous year. October 1 of previous year.
April 1, May 1 or June 1.............. October 1 of previous year.... December 1 of previous year.. January 1 of same year.
July 1, August 1 or September 1....... January 1 of same year........ March 1 of same year......... April 1 of same year.
October 1, November 1 or December 1... April 1 of same year.......... June 1 of same year.......... July 1 of same year.
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We had considered whether to establish a format or preprint for the
Tribal TANF plans. In discussions with Tribes, we heard from some
Tribes that did not want us to dictate plan format. Yet we also heard
from some Tribes that indicated they would appreciate having a
preprint, similar to the one that was used for the Tribal JOBS program.
We invite additional comments from readers as to whether to develop and
require the use of a specific format or preprint for use by Tribes in
submitting TFAPs. One option would be to develop an optional plan
preprint.
As noted above, the Secretary has explicit authority to approve
Tribal TANF plans. In exercising this authority, we plan to work with
each Tribe that submits a TFAP to ensure that plans contain the
information required by statute and regulation. A Tribe may make
revisions to its plan during the review process. In instances where we
disapprove a plan, the proposed regulation at Sec. 286.140(e) provides
an appeal process.

Public Law 102-477

Pub. L. 102-477, the Indian Employment, Training and

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A98-19007. Public record. Not legal advice.