Computerized Tribal IV-D Systems and Office Automation, 8508-8524 [2010-3572]

Agencies

• DEPARTMENT OF HEALTH AND HUMAN SERVICES
• Administration for Children and Families
• Children and Families Administration

[Federal Register Volume 75, Number 37 (Thursday, February 25, 2010)]
[Rules and Regulations]
[Pages 8508-8524]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-3572]



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DEPARTMENT OF HEALTH AND HUMAN SERVICES

Administration for Children and Families

45 CFR Parts 309 and 310

RIN 0970-AC32


Computerized Tribal IV-D Systems and Office Automation

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

ACTION: Final rule.

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SUMMARY: This rule enables Tribes and Tribal organizations currently 
operating comprehensive Tribal Child Support Enforcement programs under 
Title IV-D of the Social Security Act (the Act) to apply for and 
receive direct Federal funding for the costs of automated data 
processing. This rule addresses the Secretary's commitment to provide 
instructions and guidance to Tribes and Tribal organizations on 
requirements for applying for, and upon approval, securing Federal 
Financial Participation (FFP) in the costs of installing, operating, 
maintaining, and enhancing automated data processing systems.

DATES: Effective Date: This rule is effective February 25, 2010.

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

SUPPLEMENTARY INFORMATION:

Statutory Authority

    This final regulation is published under the authority granted to 
the Secretary (the Secretary) of the Department of Health and Human 
Services (the Department) by section 1102 of the Social Security Act 
(the Act), 42 U.S.C. 1302. Section 1102 of the Act authorizes the 
Secretary to publish regulations, not inconsistent with the Act, which 
may be necessary for the efficient administration of the Title IV-D 
program.
    This rule also is published in accordance with section 455(f) of 
the Act (42 U.S.C. 655(f)). Section 455(f) of the Act authorizes the 
Secretary to issue regulations governing grants to Tribes and Tribal 
organizations operating child support enforcement programs.

Background

    On March 30, 2004 the Tribal Child Support Enforcement Program 
final rule was published in the Federal Register (69 FR 16638). We 
stated in our response to comments to the final rule (69 FR at 16652) 
that we had begun consideration with stakeholders of appropriate 
minimum Tribal systems automation specifications in anticipation of 
Tribal IV-D programs moving toward high-speed automated data 
processing. A Federal/Tribal workgroup was convened and considered such 
automation issues as compatibility, scale, functionality and costs, 
with a goal of developing a Model Tribal IV-D System, designed by the 
Office of Child Support Enforcement (OCSE) to allow comprehensive 
Tribal IV-D agencies to effectively and efficiently automate Tribal 
child support enforcement operations.
    This regulation sets forth requirements for comprehensive Tribal 
IV-D programs that must be met in order for Tribes and Tribal 
organizations to receive direct funding under section 455(f) of the Act 
for automated data processing systems. This final regulation responds 
to public comments on the Notice of Proposed Rulemaking (NPRM) issued 
on June 11, 2008 (73 FR 33048).

Consultations/Public Comment Period on the Regulation

    To facilitate the communication and consultation process between 
the Federal government and Tribal governments, OCSE held one public 
informational meeting and three consultation sessions regarding the 
proposed rule on Computerized Tribal IV-D Systems and Office 
Automation. The informational meeting was held on June 11, 2008, when 
the NRPM was published, and the consultation sessions were held on June 
27, July 8, and July 9 of 2008. OCSE provided notice of open 
consultation regarding the proposed rule on Computerized Tribal IV-D 
Systems and Office Automation through informal and formal means. These 
included sending letters such as a Tribal Dear Colleague Letter (TDCL-
08-01: https://www.acf.hhs.gov/programs/cse/pol/TDCL/2008/tdcl-08-01.htm) to all Tribal IV-D Directors dated May 7, 2008, and a second 
letter addressing all Tribal leaders dated June 4, 2008 as well as 
publication of a notice of open consultation in the Federal Register on 
June 10, 2008 (73 FR 32668). The informational meeting and 
consultations were successful in eliciting questions and concerns.
    The government-to-government consultations were very useful in 
identifying key issues of Tribal concern including the Tribal 
consultation process, piloting the Model Tribal IV-D System, access to 
Federal resources for support enforcement, increased Federal funding of 
Tribal automation and Federal access to Tribal systems. These issues 
are discussed in the Response to Comments section of this rule.

Changes Made in Response to Comments

    We received 14 letters from 13 Tribal programs and one State, in 
addition to 12 comments from the participants in the three Tribal 
consultations on the NPRM. We made the following changes to the 
proposed regulation in response. We agreed with commenters' suggestion 
to increase FFP in the costs of installing the Model Tribal IV-D System 
to 90 percent matching of the pre-approved cost of installation by 
revising Sec.  309.130(c)(3). We also agreed with commenters that a 
Tribal IV-D agency seeking FFP in the operation and maintenance costs 
of a Tribally-funded system as described in Sec.  309.145(h)(5) should 
not be subject to all the license requirements in Sec.  310.25(c). 
Accordingly, we revised Sec.  309.145(h)(5) by narrowing the Software 
and Ownership Rights reference from Sec.  310.25(c) as stated in the 
NPRM to Sec.  310.25(c)(1) in this final rule. Under Sec.  
310.25(c)(1), a Tribal IV-D agency seeking FFP in operation and 
maintenance costs must ensure that all procurement and contract 
instruments include a clause that provides that the comprehensive 
Tribal IV-D agency will have all ownership rights to the Computerized 
Tribal IV-D System software or enhancements. The final rule does not 
require a Tribal IV-D agency to follow the licensing requirements in 
Sec.  310.25(c)(2) as a condition of receiving FFP in the costs of 
operation and maintenance of a Tribally-funded system. In addition, a 
technical change was made to Sec.  310.15(a) to clarify which 
safeguarding requirements a Tribal IV-D agency must include in written 
policies and procedures. These changes are discussed in more detail 
under the Response to Comments section of this preamble.

Provisions of the Regulation

Part 309--Tribal Child Support Enforcement (IV-D) Program

Section 309.130 How will Tribal IV-D programs be funded and what forms 
are required?
    This regulation revises paragraph (c) of Sec.  309.130 by 
referencing the Federal share of pre-approved installation costs for 
the Model Tribal IV-D System. As indicated earlier, in response to 
comments suggesting that FFP in the

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costs of Tribal automation be increased from the applicable matching 
rate as defined in Sec.  309.130(c), we have added subparagraphs (i) 
and (ii) to Sec.  309.130(c)(3) of the final rule. Section 
309.130(c)(3)(i) provides that for all periods following the three-year 
period (a timeframe under which a Tribal IV-D agency may receive 90 
percent Federal funding as specified in paragraph (c)(2)), a Tribe or 
Tribal organization will receive Federal grant funds equal to 80 
percent of the total amount of approved and allowable expenditures made 
for the administration of the Tribal child support enforcement program, 
except as provided in paragraph (ii). Under Sec.  309.130(c)(3)(ii), a 
Tribe or Tribal organization will receive Federal grant funds equal to 
90 percent of pre-approved costs of installing the Model Tribal IV-D 
System. The comments requesting increased Federal funding for Tribal 
automation and changes to the applicable matching rate are discussed in 
more detail in the Response to Comments section.
Section 309.145 What costs are allowable for Tribal IV-D programs 
carried out under Sec.  309.65(a) of this part?
    Under Sec.  309.145, Federal funds are available for the costs of 
operating a Tribal IV-D program under an approved Tribal IV-D 
application carried out under Sec.  309.65(a), provided that such costs 
are determined by the Secretary to be reasonable, necessary, and 
allocable to the program. Allowable activities and costs for Tribal 
automated data processing computer systems, addressed in paragraph (h) 
of this section, include planning efforts in the identification, 
evaluation, and selection of an automated data processing computer 
system solution meeting the program requirements defined in a Tribal 
IV-D plan and the automated systems requirements in part 310; 
installation, operation, maintenance and enhancement of a Model Tribal 
IV-D System as defined in and meeting the requirements of part 310; 
procurement, installation, operation and maintenance of essential 
Office Automation capability; establishment of Intergovernmental 
Service Agreements with a State and another comprehensive Tribal IV-D 
agency for access to the State or other Tribe's existing automated data 
processing computer system to support Tribal IV-D program operations, 
and reasonable costs associated with use of such a system; operation 
and maintenance of a Tribal automated data processing system funded 
entirely with Tribal funds if the software ownership rights and license 
requirements in Sec.  310.25(c)(1) are met; and other automation and 
automated data processing computer system costs in accordance with 
instructions and guidance issued by the Secretary.

Part 310--Computerized Tribal IV-D Systems and Office Automation

Section 310.0 What does this part cover?
    This section addresses the conditions for Federal funding and 
requirements governing Computerized Tribal IV-D Systems and Office 
Automation. These include the automated systems options for 
comprehensive Tribal IV-D programs; the functional requirements for the 
Model Tribal IV-D System; the security and privacy requirements for 
Computerized Tribal IV-D Systems and Office Automation; the conditions 
for funding the installation, operation, maintenance, and enhancement 
of Computerized Tribal IV-D Systems and Office Automation; the 
conditions that apply to acquisitions of Computerized Tribal IV-D 
Systems; and the accountability and monitoring of Computerized Tribal 
IV-D Systems.
Section 310.1 What definitions apply to this part?
    Section 310.1(a) defines the following terms used in Part 310: 
Automated Data Processing Services (ADP Services); Comprehensive Tribal 
IV-D Agency; Computerized Tribal IV-D System; Installation; 
Maintenance; Model Tribal IV-D System; Office Automation; Reasonable 
Cost; Service Agreement; and Simplified Acquisition Threshold.
    Section 310.1(b) references the following terms defined in 45 CFR 
95.605, General Administration--Grant Programs, and applies these terms 
to Part 310: Acquisition; Advance Planning Document (APD); Automated 
Data Processing (ADP); Design or System Design; Development; 
Enhancement; Federal Financial Participation (FFP); Operation; Project; 
Software; and Total Acquisition Cost. These terms are the terms in Part 
95 that are appropriately applicable to Tribal IV-D programs and will 
ensure that a reasonably consistent approach will be maintained among 
State, Local and Tribal grantees with regard to ADP systems 
acquisitions, while still maintaining flexibility for Tribes and Tribal 
organizations to determine their own best solution to automating their 
comprehensive Tribal IV-D programs.
    Section Sec.  310.1(c) cross-references all definitions of terms 
that apply to Tribal IV-D programs in Sec.  309.05 because these terms 
are also applicable in Part 310. Similarly, the definitions in this 
rule should apply to Part 309.

Subpart B--Requirements for Computerized Tribal IV-D Systems

Section 310.5 What options are available for Computerized Tribal IV-D 
Systems and Office Automation?
    This section of the rule sets forth options available to 
comprehensive Tribal IV-D agencies for the purpose of automating Tribal 
IV-D activities. We recognize the importance and benefits of 
integrating automation in the daily operations of comprehensive Tribal 
IV-D programs. To that end, Sec.  310.5(a) allows a comprehensive 
Tribal IV-D agency to have in effect an operational computerized 
support enforcement system that meets Federal requirements under Part 
310.
    Section 310.5(b) requires that a Computerized Tribal IV-D System 
must be one of the design options discussed in paragraphs (b)(1) and 
(b)(2). This provision would not preclude a Tribe from proposing a 
hybrid solution as long as the functional components are not 
duplicative or unreasonable in cost. In addition, OCSE recognizes that 
there may be situations wherein multiple systems may be in use during a 
reasonable transition period from one automated system to another. 
Under paragraph (b)(1), a comprehensive Tribal IV-D program may 
automate its case processing and record-keeping processes through 
installation, operation, maintenance, or enhancement of the Model 
Tribal IV-D System designed by OCSE to address the program requirements 
defined in a Tribal IV-D plan in accordance with Sec.  309.65(a) and 
the functional requirements in proposed Sec.  310.10.
    Under Sec.  310.5(b)(2), a comprehensive Tribal IV-D program may 
elect to automate its case processing and record-keeping processes 
through the establishment of Intergovernmental Service Agreements with 
a State or another comprehensive Tribal IV-D agency for access to that 
agency's existing automated data processing computer system to support 
comprehensive Tribal IV-D program operations.
    In Sec.  310.5(c), a comprehensive Tribal IV-D agency may opt to 
conduct automated data processing and record-keeping activities through 
Office Automation. Allowable activities under this paragraph include 
procurement, installation, operation and maintenance of essential 
Office Automation capability as defined in Sec.  310.1.
    In full recognition of Tribal sovereignty, Sec.  310.5(d) affirms 
that a

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comprehensive Tribal IV-D agency may design, develop, procure, or 
enhance an automated data processing system funded entirely with Tribal 
funds. An automated data processing system funded entirely with Tribal 
funds would not be obligated to meet the requirements detailed in this 
rule, although a comprehensive Tribal IV-D agency may adopt all or some 
of the system specifications laid-out in this rule in order to 
facilitate as much consistency in State and comprehensive Tribal IV-D 
automated data processing systems as possible.
Section 310.10 What are the functional requirements for the Model 
Tribal IV-D System?
    Section 310.10 identifies the minimum functional requirements which 
a comprehensive Tribal IV-D agency must meet in the operation of a 
Model Tribal IV-D System. Comprehensive Tribal IV-D agencies that have 
elected to automate case processing and recordkeeping activities 
through a manner other than the Model Tribal IV-D System, as defined in 
Sec.  310.1, will not be subject to the requirements presented in this 
section of the rule. All comprehensive Tribal IV-D agencies, regardless 
of automation choice, will continue to be responsible for meeting the 
programmatic requirements found in Part 309 titled Tribal Child Support 
Enforcement (IV-D) Program.
    The system requirements discussed in this section are based on the 
functional requirements for computerized support enforcement systems 
regulated in Sec. Sec.  307.10 and 307.11 for State IV-D programs. 
Determination of which functional requirements are mandatory in a Model 
Tribal IV-D System was based on careful examination of State automated 
systems, Tribal IV-D program regulations, and cost-effectiveness 
analyses, as well as strong consideration of which comprehensive Tribal 
IV-D activities would benefit most from automation, given the varying 
sizes of eligible Tribes and Tribal organizations.
    Under Sec.  310.10(a), a Model Tribal IV-D System must accept, 
maintain and process the actions in the child support collection and 
paternity determination processes under the Tribal IV-D plan, including 
identifying information; verifying information; maintaining 
information; and maintaining data. These are essential elements of 
automated case processing which are necessary to meet the fundamental 
objectives of the Tribal Child Support Enforcement program, including 
establishing paternity, establishing and enforcing support orders, and 
collecting child support payments.
    Under paragraph (b), a Model Tribal IV-D System must update, 
maintain and manage all IV-D cases under the Tribal IV-D plan from 
initial application or referral through collection and enforcement 
including any events, transactions, or actions taken therein. This 
requirement is especially critical in relation to Subpart D, Sec.  
310.40 which addresses accountability and monitoring procedures for 
Computerized Tribal IV-D Systems.
    Section 310.10(c) requires a Model Tribal IV-D System to record and 
report any fees collected, either directly or by interfacing with State 
or Tribal financial management and expenditure information. The Model 
Tribal IV-D System must have the capacity to record and report costs of 
any fees collected to help ensure accurate and complete accounting of 
expenditures under a Tribal IV-D program that are funded in part with 
Federal funds.
    Paragraph (d) requires that a Model Tribal IV-D System must have 
minimum system specifications which allow for the distribution of 
current support and arrearage collections in accordance with Federal 
regulations at Sec.  309.115 and Tribal laws. We consider distribution 
of collected child support payments to be one of the comprehensive 
Tribal IV-D activities that would benefit most from automation. 
Automated distribution of collections would ensure families receive the 
support owed to them and minimize the need for manual processing of 
child support payments, which can be a time-consuming and burdensome 
task for comprehensive Tribal IV-D programs. Additionally, automated 
distribution of collections would facilitate more efficient and cost-
effective communications in intra-tribal and intergovernmental case 
processing.
    Under paragraph (e)(1), the Model Tribal IV-D System must maintain, 
process and monitor accounts receivable on all amounts owed, collected, 
and distributed with regard to detailed payment histories that include 
the amount of each payment, date of each collection, method of payment, 
distribution of payments and date of each disbursement. Under paragraph 
(e)(2), the Model Tribal IV-D System must have the capacity to perform 
automated income withholding activities including recording and 
maintaining information on payment default, generating the Standard 
Federal Income Withholding Form and allocating amounts received by 
income withholding according to Sec. Sec.  309.110 and 309.115, which 
respectively cover procedures governing income withholding and 
distribution of child support collections as specified in each Tribal 
IV-D plan.
    Section Sec.  310.10(f) requires that a Model Tribal IV-D System 
maintain and automatically generate data necessary to meet Federal 
reporting requirements on a timely basis as prescribed by OCSE. At a 
minimum this includes (1) yearly notices on support collected, which 
are itemized by month of collection and provided to families receiving 
services under the comprehensive Tribal IV-D program as required in 
Sec.  309.75(c), to all case participants regarding support 
collections; and (2) reports submitted to OCSE for program monitoring 
and program performance as required in Sec.  309.170. Without the 
proposed Model Tribal IV-D System, comprehensive Tribal IV-D agencies 
would rely on manual systems or Office Automation to manage the Federal 
reporting requirements and payment records which require meticulous 
attention to detail.
    Under paragraph (g), a Model Tribal IV-D System will be required to 
provide automated processes to enable OCSE to monitor Tribal IV-D 
program operations and to assess program performance through the audit 
of financial and statistical data maintained by the system. This 
requirement is especially critical in relation to Subpart D, Sec.  
310.40 which addresses accountability and monitoring procedures for 
Computerized Tribal IV-D Systems.
    In paragraph (h), the Model Tribal IV-D System must provide 
security to prevent unauthorized access to, or use of, the data in the 
system as detailed in Sec.  310.15 discussed below. This requirement is 
necessary because comprehensive Tribal IV-D agencies may receive 
sensitive, personal information from Federal, State, or Tribal locate 
sources in inter-governmental cases or from parents seeking the Tribal 
IV-D program's assistance in securing support for children. This 
requirement compliments existing safeguarding requirements in Sec.  
309.80, What safeguarding procedures must a Tribe or Tribal 
organization include in a Tribal IV-D plan? which applies to all 
comprehensive Tribal IV-D agencies. Federal, State and Tribal programs 
are entrusted with personal information critical to accomplish program 
goals and it is imperative that personal data be safeguarded to ensure 
privacy and maintain the public trust. We also would emphasize that no 
Federal Tribal IV-D program requirement obligates comprehensive Tribal 
IV-D agencies to disclose, or otherwise make accessible, their Tribal

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enrollment records for the purposes of providing child support 
enforcement services or automating child support enforcement 
activities.
Section 310.15 What are the safeguards and processes that comprehensive 
Tribal IV-D agencies must have in place to ensure the security and 
privacy of Computerized Tribal IV-D Systems and Office Automation?
    This section details the safeguarding requirements that a 
comprehensive Tribal IV-D agency, which is using a Computerized Tribal 
IV-D System or Office Automation, must have in place to ensure the 
security and confidentiality of information accessible through Federal, 
State, and Tribal sources. This section is taken from Sec.  307.13 
which addresses security and confidentiality for State computerized 
support enforcement systems and is revised to apply to automation for 
comprehensive Tribal IV-D programs. A comprehensive Tribal IV-D agency 
must also follow the safeguarding requirements under the Tribal Child 
Support Enforcement (IV-D) program rule found in Sec.  309.80.
    Under paragraph (a) of this section, the comprehensive Tribal IV-D 
agency must safeguard the integrity, accuracy, completeness, access to, 
and use of data in the Computerized Tribal IV-D System and Office 
Automation. The Tribal IV-D agency should ensure that the Computerized 
Tribal IV-D Systems and Office Automation comply with the requirements 
of the Federal Information Security Management Act and the Privacy Act. 
These safeguards must include written policies and procedures 
concerning: (1) Periodic evaluations of the system for risk of security 
and privacy breaches; (2) procedures to allow Tribal IV-D personnel 
controlled access and use of IV-D data including (i) specifying the 
data which may be used for particular IV-D program purposes and the 
personnel permitted access to such data and (ii) permitting access to 
and use of data for the purpose of exchanging information with State 
and Tribal agencies administering programs under titles IV-A, IV-E and 
XIX of the Act to the extent necessary to carry out the comprehensive 
Tribal IV-D agency's responsibilities with respect to such programs; 
(3) maintenance and control of application software program data; (4) 
mechanisms to back-up and otherwise protect hardware, software, 
documents, and other communications; and (5) mechanisms to report 
breaches or suspected breaches of personally identifiable information 
to the Department of Homeland Security and respond. We added the phrase 
``or suspected breaches'' to the regulatory language in paragraph 
(a)(5) of this section for clarification and consistency with the 
preamble language. We also note that in response to comments that the 
introductory language in Sec.  310.15(a) needed clarification as to 
which safeguarding requirements must be included in written policies 
and procedures, we replaced `some of the required safeguards' with `the 
required safeguards' for clarity.
    Paragraph (b) requires that the comprehensive Tribal IV-D agency 
monitor routine access to and use of the Computerized Tribal IV-D 
System and Office Automation through methods such as audit trails and 
feedback mechanisms to guard against, and promptly identify, 
unauthorized access or use. This safeguard is consistent with the 
security and privacy measures required in the State computerized 
support enforcement systems found in Sec.  307.13 and is an appropriate 
aspect of information security.
    Section 310.15(c) requires a comprehensive Tribal IV-D agency to 
have procedures to ensure that all personnel, including Tribal IV-D 
staff and contractors, who may have access to or be required to use 
confidential program data in the Computerized Tribal IV-D System and 
Office Automation are adequately trained in security procedures. This 
safeguarding requirement is consistent with the security and privacy 
measures required in the State computerized support enforcement systems 
in Sec.  307.13 and is equally critical to Tribal automated systems. 
Staff members and contractors of comprehensive Tribal IV-D agencies 
using the Computerized Tribal IV-D System or Office Automation should 
demonstrate knowledge of strategies that would ensure the security and 
privacy of sensitive information.
    In paragraph (d) of this section, the comprehensive Tribal IV-D 
agency must have administrative penalties, including dismissal from 
employment, for unauthorized access to, disclosure or use of 
confidential information. This aspect of the security and privacy 
safeguarding requirements reflects our position that security and 
privacy of child support enforcement-related information is paramount 
to the integrity of the system.

Subpart C--Funding for Computerized Tribal IV-D Systems and Office 
Automation

Section 310.20 What are the conditions for funding the installation, 
operation, maintenance and enhancement of Computerized Tribal IV-D 
Systems and Office Automation?
    This section of the rule establishes conditions that must be met in 
order for a comprehensive Tribal IV-D agency to obtain Federal funding 
in the costs of installation, operation, maintenance and enhancement of 
Computerized Tribal IV-D Systems and Office Automation. This section is 
derived from Sec. Sec.  307.15 and 307.20, governing State automated 
systems, and is appropriately revised to specifically apply to the 
needs of comprehensive Tribal IV-D programs. Sections 307.15 and 
307.20, respectively, address conditions for approval of Advance 
Planning Documents (APD) and submittal of APDs for State computerized 
support enforcement systems. Section 310.20 addresses procedures for 
submittal of an APD to the Department. OCSE uses the APD process to 
help meet its fiduciary responsibility to ensure that the costs 
associated with all automated data processing systems acquisitions, 
including Computerized Tribal IV-D Systems, are reasonable and 
necessary. Just as OCSE requires States to request funding in an APD 
for acquisition of a computerized child support enforcement system, 
documenting such factors as project cost, risk, resources, and 
schedule, those same factors equally apply to OCSE's review and 
approval of the installation, operation, maintenance and enhancement of 
Computerized Tribal IV-D Systems. For this reason, the APD process is 
incorporated into this rule as applicable and necessary to acquisitions 
of such systems in comprehensive Tribal IV-D programs.
    Section 310.20(a) lays out conditions that must be met for 90 
percent FFP in the costs of installation of the Model Tribal IV-D 
System and 80 or 90 percent FFP (referred to as the applicable matching 
rate), as appropriate, in the costs of operation, maintenance, and 
enhancement of a Computerized Tribal IV-D System. The applicable 
matching rate as defined in Sec.  309.130(c) refers to the total amount 
of approved and allowable expenditures for which a comprehensive Tribal 
IV-D program would be eligible to receive Federal grant funds in the 
costs of administering the Tribal IV-D program, including Computerized 
Tribal IV-D Systems and Office Automation. Except for the costs of 
installation of the Model

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Tribal IV-D System described below, the applicable matching rate would 
be 90 percent for comprehensive Tribal IV-D programs that are operating 
within the first three-year period of Federal funding, and the 
applicable matching rate would be 80 percent for comprehensive Tribal 
IV-D programs operating in all periods following the first three-year 
period. As previously mentioned, paragraph Sec.  310.20(a) was revised 
in response to comments to reference 90 percent FFP for the pre-
approved costs of installation of the Model Tribal IV-D System under 
Sec.  309.130(c). This change is discussed in more detail under the 
Response to Comments section of the preamble.
    Paragraph (a)(1) states that a comprehensive Tribal IV-D agency 
must have submitted, and OCSE must have approved, an APD for the 
installation and enhancement of a Computerized Tribal IV-D System. 
Under paragraph (a)(2), an APD for installation of a Computerized 
Tribal IV-D System must: (i) Represent the sole systems effort being 
undertaken by the comprehensive Tribal IV-D agency under part 310; (ii) 
describe the projected resource requirements for staff, hardware, 
software, network connections and other needs and the resources 
available or expected to be available to meet the requirements; (iii) 
contain a proposed schedule of project milestones with detail 
sufficient to describe the tasks, activities, and complexity of the 
initial implementation project; (iv) contain a proposed budget 
including a description of expenditures by category and amount for 
items related to installing, operating, maintaining, and enhancing the 
Computerized Tribal IV-D System; and (v) contain a statement that the 
comprehensive Tribal IV-D agency agrees in writing to use the 
Computerized Tribal IV-D System for a minimum period of time. This last 
requirement, to agree in writing to use the Computerized Tribal IV-D 
System for a minimum period of time, is derived from 45 CFR 95.619. 
Under Sec.  95.619, automated data processing systems designed, 
developed, or installed with FFP shall be used for a period of time 
specified in the APD, unless the Department determines that a shorter 
period is justified. The requirement for the APD to contain an 
agreement by a Tribal IV-D program to use the Computerized Tribal IV-D 
System for a minimum period of time assures both the Federal and Tribal 
governments of a reasonable return on investment relative to the Total 
Acquisition Cost of the Computerized Tribal IV-D System.
    In addition to the above requirements, paragraph (a)(3) includes 
the following conditions which must be met to obtain FFP in the 
installation costs of access to a State or another comprehensive Tribal 
IV-D program's ADP system established under an Intergovernmental 
Service Agreement. The comprehensive Tribal IV-D agency must, under 
paragraph (i), maintain a copy of each intergovernmental cooperative 
agreement and Service Agreement in its files for Federal review. Under 
paragraph (ii), the comprehensive Tribal IV-D agency must ensure that: 
(A) The Service Agreement for which FFP is being sought meets the 
definition of a Service Agreement as defined in Sec.  310.1; (B) claims 
for FFP conform to the timely claim provisions of 45 CFR Part 95, 
Subpart A; and (C) the Service Agreement was not previously disapproved 
by the Department. In deriving from 45 CFR Part 95, Subpart A, the 
requirements to be met to obtain FFP in the cost of access to another 
State or Tribal IV-D program's ADP system, we are ensuring a common 
understanding and consistency of approach to securing, documenting and 
maintaining FFP approval of such intergovernmental cooperative 
agreements.
    Under paragraph (a)(4), the following conditions must be met in 
order for a comprehensive Tribal IV-D agency to obtain FFP in the costs 
of enhancements to its Computerized Tribal IV-D System: (i) the 
project's Total Acquisition Cost cannot exceed the comprehensive Tribal 
IV-D agency's total Tribal IV-D program grant award for the year in 
which the acquisition request is made; and (ii) the APD budget, 
schedule and commitment to use the Computerized Tribal IV-D System for 
a specified minimum period of time must be updated to reflect the 
enhancement project. These additional APD requirements to obtain FFP in 
the cost of enhancements to an existing Computerized Tribal IV-D System 
reflect the need to ensure both continued cost reasonableness and 
ongoing return on investment given a Computerized Tribal IV-D System's 
increased Total Acquisition Cost.
    Paragraph (a)(5) requires that to receive FFP in the costs of the 
operation and maintenance of a Computerized Tribal IV-D System 
installed under Sec.  310.20 or developed under Sec.  309.145(h)(5), 
which refers to a Tribal automated data processing system that is 
funded entirely with Tribal funds, the comprehensive Tribal IV-D agency 
must include operation and maintenance costs in its annual Title IV-D 
program budget submission in accordance with Sec.  309.15(c) wherein 
requirements for annual budget submissions are detailed.
    In addition, paragraph (a)(6) requires that in order to receive FFP 
in the costs of the installation, operation, and maintenance of 
essential Office Automation capabilities, the comprehensive Tribal IV-D 
agency must include such costs in its annual Title IV-D program budget 
submission in accordance with Sec.  309.15(c). Currently, States 
maintaining their computerized IV-D systems in an operation and 
maintenance-only mode may close their APD and thereafter request FFP 
for their operation and maintenance costs through specific line-item 
submissions in their ``Quarterly Report of Expenditures and 
Estimates,'' (OCSE Form 396A). Given the efficacy of this existing 
procedure used with States, and the predictability and general 
reasonableness of such costs, a similar process for Tribes to request 
FFP for operation and maintenance cost reimbursement is appropriate. 
Therefore, this rule allows Tribes to request FFP in the costs of 
installation, operation, and maintenance of essential Office Automation 
capabilities, an inherently operational activity, through a 
comprehensive Tribal IV-D agency's Title IV-D program budget 
submission, ``Budget Information--Non-Construction Programs,'' (OCSE 
Form SF 424A) in accordance with requirements listed at Sec.  
309.15(c).
    The gradated variation in conditions that must be met in order to 
obtain FFP in the costs of the activities under paragraph (a) are 
designed to reflect the varying automation levels of comprehensive 
Tribal IV-D agencies. For example, the conditions that a comprehensive 
Tribal IV-D agency will be required to meet in order to obtain FFP in 
the costs of installing Office Automation would be less involved than 
the conditions required for a comprehensive Tribal IV-D agency that is 
requesting FFP in the installation costs of accessing a State or 
another comprehensive Tribal IV-D program's ADP system. Section Sec.  
310.20 provides comprehensive Tribal IV-D agencies with the flexibility 
to determine which automation approaches and application procedures 
best suit the program-specific needs of that Tribe or Tribal 
organization. The provisions in Sec.  310.20 are consistent with Tribal 
IV-D program staff input to reduce the burden of the APD application 
process.
    Provisions under Sec.  310.20(b) describe the required procedures 
for submittal of an APD. Paragraph (b) states that the comprehensive 
Tribal IV-D agency must submit an APD for a Computerized Tribal IV-D 
System to the

[[Page 8513]]

Commissioner of OCSE, Attention: Division of State and Tribal Systems. 
The APD submitted by the comprehensive Tribal IV-D agency must be 
approved and signed by the comprehensive Tribal IV-D agency Director 
and the appropriate Tribal officials prior to submission to OCSE for 
approval. The above procedures for submitting an APD would ensure that 
the proper authorities representing the Tribe or Tribal organization 
agree with the details in the APD application documents and that the 
Program Director and appropriate Tribal officials are aware of the 
responsibilities in acquiring automation for the Tribal IV-D program.
Section 310.25 What conditions apply to acquisitions of Computerized 
Tribal IV-D Systems?
    This section details specific conditions that must be met in the 
acquisition process of Computerized Tribal IV-D Systems. This section 
is derived from and comparable to Sec.  307.31 and 45 CFR 95.617 which 
are respectively titled FFP at the 80 Percent Rate for Computerized 
[State] Support Enforcement Systems and Software and Ownership Rights. 
This section applies to Comprehensive Tribal IV-D agencies that have 
elected to automate program activities through the Model Tribal IV-D 
System or Intergovernmental Service Agreements. It does not apply to 
Comprehensive Tribal IV-D agencies that have elected to automate 
program activities through Office Automation or another alternative to 
Computerized Tribal IV-D Systems as discussed in Sec.  310.5.
    In paragraph (a), APD Approval, a comprehensive Tribal IV-D agency 
must have an approved APD in accordance with the applicable 
requirements of Sec.  310.20 prior to initiating acquisition of a 
Computerized Tribal IV-D System. This requirement safeguards all 
parties involved by ensuring that authorities from the Tribe or Tribal 
organization and the Department are in agreement about the use, 
funding, and parameters of each comprehensive Tribal IV-D agency's 
specific plan for automating case-processing and record-keeping program 
activities.
    Under Sec.  310.25(b), Procurements, Requests for Proposals (RFP) 
and similar procurement documents, contracts, and contract amendments 
involving costs eligible for FFP, must be submitted to OCSE for 
approval prior to release of the procurement document, and prior to the 
execution of the resultant contract when a procurement is anticipated 
to or will exceed the Simplified Acquisition Threshold. The Simplified 
Acquisition Threshold for ADP systems, equipment, and service 
acquisitions is defined in Sec.  310.1(a)(10) as a Tribe or Tribal 
organization's monetary threshold for determining whether competitive 
acquisition rules are required for a given procurement or $100,000, 
whichever is less. The Simplified Acquisition Threshold represents the 
maximum amount of monies that a comprehensive Tribal IV-D agency may 
expend without submitting the subject solicitation document (RFP, etc.) 
and resultant contract to OCSE for review and written approval prior to 
its execution. As previously stated in this rule, the Simplified 
Acquisition Threshold is derived from 45 CFR 92.36(d)(1), which 
references small purchase procedures as a procurement method for 
securing items of cost not exceeding the Simplified Acquisition 
Threshold fixed at 41 U.S.C. 403(11) (currently $100,000). This is 
appropriately adapted for this rule because of the need to ensure full 
and open competition in acquisitions in accordance with 45 CFR 
92.36(c), and to ensure consistency with regulations at 45 CFR 
95.611(b) governing State ADP acquisitions funded at enhanced FFP rates 
of reimbursement.
    Section 310.25(c) is titled Software and Ownership Rights. Under 
paragraph (c)(1) all procurement and contract instruments must include 
a clause that provides that the comprehensive Tribal IV-D agency will 
have all ownership rights to Computerized Tribal IV-D System software 
or enhancements thereof and all associated documentation designed, 
developed, or installed with FFP. Intergovernmental Service Agreements 
are not subject to this requirement. The exception for 
Intergovernmental Service Agreements ensures consistent application of 
current policy among all grantees, State and Tribal, and is derived 
from current Federal regulations at 45 CFR 95.613(b) that exempt 
Service Agreements from the procurement standards applicable to State 
acquisitions of ADP equipment and services. Paragraph (c)(2) states 
that OCSE reserves a royalty-free, nonexclusive, and irrevocable 
license to reproduce, publish, or otherwise use and to authorize others 
to use for Federal Government purposes, such software, modifications 
and documentation developed under this part. Under paragraph (c)(3) FFP 
is not available for the costs of rental or purchase of proprietary 
application software developed specifically for a Computerized Tribal 
IV-D System. Commercial-off-the-shelf (COTS) software packages that are 
sold or leased to the general public at established catalog or market 
prices are not subject to the ownership and license provisions of this 
requirement. These requirements are not unique to Child Support 
Enforcement regulations. Rather, these requirements are a restatement 
of current Departmental regulations that apply to all automated systems 
acquisitions. Federal policy in this area, as stated in Federal 
regulations at 45 CFR 92.34 and 95.617, and as restated in child 
support automation regulations for State IV-D programs at 45 CFR 307.30 
and 45 CFR 307.31, best protects Federal interest in IV-D and other 
Federal systems development efforts.
    Under paragraph (d) of this section, Requirements for acquisitions 
under the threshold amount, a comprehensive Tribal IV-D agency is not 
required to submit procurement documents, contracts, and contract 
amendments for acquisitions under the Simplified Acquisition Threshold, 
unless specifically requested to do so in writing by OCSE.
Section 310.30 Under what circumstances would FFP be suspended or 
disallowed in the costs of Computerized Tribal IV-D Systems?
    This section of the rule identifies circumstances under which OCSE 
would suspend or disallow FFP in the costs of Computerized Tribal IV-D 
Systems. The content of this section is derived from Sec.  307.40, 
which is titled Suspension of Approval of Advance Planning Documents 
for Computerized Support Enforcement Systems, and addresses suspension 
and disallowance of FFP in the costs of State computerized child 
support enforcement systems. This section applies to comprehensive 
Tribal IV-D agencies that have elected to automate program activities 
through the Model Tribal IV-D System or Intergovernmental Service 
Agreements. It does not apply to Office Automation enhancements or 
another alternative to Computerized Tribal IV-D Systems as discussed in 
Sec.  310.5.
    Paragraph (a) of this section, Suspension of APD approval, states 
that OCSE will suspend approval of the APD for a Computerized Tribal 
IV-D System approved under Part 310 as of the date that the system 
ceases to comply substantially with the criteria, requirements, and 
other provisions of the APD. OCSE will notify a Tribal IV-D agency in 
writing of a notice of suspension, with such suspension effective as of 
the date on which there is no longer substantial compliance. The intent 
of OCSE is to minimize the likelihood of suspension of a

[[Page 8514]]

comprehensive Tribal IV-D agency's APD by engaging in supportive 
efforts such as technical assistance, policy guidance, and on-going 
communication and collaboration between the comprehensive Tribal IV-D 
agency and OCSE. Such preventive efforts will likely facilitate early 
identification of difficulties associated with a Computerized Tribal 
IV-D System and the corresponding APD and thereby assist OCSE and the 
comprehensive Tribal IV-D agency in taking appropriate corrective 
action, before more serious measures, such as suspension of funding, 
become necessary.
    Paragraph (b), Suspension of FFP, states that if OCSE suspends 
approval of an APD in accordance with Part 310 during the installation, 
operation, or enhancement of a Computerized Tribal IV-D System, FFP 
will not be available in any expenditure incurred under the APD after 
the date of the suspension until the date OCSE determines that the 
comprehensive Tribal IV-D agency has taken the actions specified in the 
notice of suspension described in paragraph (a). OCSE will notify the 
comprehensive Tribal IV-D agency in writing upon making such a 
determination. This provision ensures that Federal funding is managed 
and distributed in the most productive, efficient and cost-effective 
manner possible, and that OCSE has the means necessary to enforce its 
fiduciary responsibilities.
Section 310.35 Under what circumstances would emergency FFP be 
available for Computerized Tribal IV-D Systems?
    Under this section, emergency FFP in the costs of Computerized 
Tribal IV-D Systems and Office Automation would be available for 
qualifying circumstances. This section is similar to 45 CFR 95.624, 
which is titled Consideration for FFP in Emergency Situations and which 
lays out procedures that must be followed in applying for emergency 
FFP.
    Under Sec.  310.35(a), Conditions that must be met for emergency 
FFP, OCSE will consider waiving the approval requirements for 
acquisitions in emergency situations, such as natural or man-made 
disasters, upon receipt of a written request from the comprehensive 
Tribal IV-D agency. In order for OCSE to consider waiving the approval 
requirements in Sec.  310.25 the comprehensive Tribal IV-D agency must 
submit a written request to OCSE prior to the acquisition of any ADP 
equipment or services. The written request must be sent by registered 
mail and include: (i) A brief description of the ADP equipment and/or 
services to be acquired and an estimate of their costs; (ii) a brief 
description of the circumstances which resulted in the comprehensive 
Tribal IV-D agency's need to proceed prior to obtaining approval from 
OCSE; and (iii) a description of the harm that will be caused if the 
comprehensive Tribal IV-D agency does not acquire immediately the ADP 
equipment and services.
    Under paragraph (a)(2), upon receipt of the information, OCSE will, 
within 14 working days of receipt, take one of the following actions: 
(i) Inform the comprehensive Tribal IV-D agency in writing that the 
request has been disapproved and the reason for disapproval; or (ii) 
inform the comprehensive Tribal IV-D agency in writing that OCSE 
recognizes that an emergency exists and that within 90 calendar days 
from the date of the initial written request under paragraph (a)(1) the 
comprehensive Tribal IV-D agency must submit a formal request for 
approval which includes the information specified at Sec.  310.25 in 
order for the ADP equipment or services acquisition to be considered 
for OCSE's approval.
    Paragraph (b) of this section, Effective date of emergency FFP, 
states that if OCSE approves the request submitted under paragraph 
(a)(2), FFP will be available from the date the comprehensive Tribal 
IV-D agency acquires the ADP equipment and services.

Subpart D--Accountability and Monitoring Procedures for Computerized 
Tribal IV-D Systems

Section 310.40 What requirements apply for accessing systems and 
records for monitoring Computerized Tribal IV-D Systems and Office 
Automation?
    Section 310.40 identifies requirements that would facilitate 
accountability and monitoring procedures of Computerized Tribal IV-D 
Systems and Office Automation, including accessing systems and records. 
This section of the rule is derived from 45 CFR 95.615, Access to 
Systems and Records, and addresses the Department's right to access 
State computerized support enforcement systems for the purposes of 
monitoring the conditions for approval, as well as the efficiency, 
economy and effectiveness of the State's automated system.
    Under Sec.  310.40 a comprehensive Tribal IV-D agency must allow 
OCSE access to the system in all of its aspects, including 
installation, operation, and cost records of contractors and 
subcontractors, and of Service Agreements at such intervals as are 
deemed necessary by OCSE to determine whether the conditions for FFP 
approval are being met and to determine the efficiency, effectiveness, 
reasonableness of the system and its cost.

Response to Comments

    Comments were received from 13 Tribes and Tribal organizations, 1 
State and the participants of three consultation sessions. A discussion 
of the comments received and our responses follows:

General Comments

    1. Comment: Three Tribal commenters stated that delaying this rule 
and release of the Model Tribal IV-D System would harm Tribes' 
progress.
    Response: We recognized from the initial consultations on the 
Tribal IV-D program that for Comprehensive Tribal IV-D programs, 
automation would eventually become necessary to accurately and 
efficiently process child support collections. However, Tribes would 
need adequate time to develop their IV-D programs and to determine 
appropriate approaches, levels of automation, and processes for 
delivering services before adequate information would be available to 
design a state-of-the art, culturally-appropriate automated system. We 
convened a Joint Federal/Tribal Workgroup (the Workgroup) and conducted 
market research, a feasibility study and the development of the Model 
Tribal IV-D System. We believe, based on our extensive consultation and 
work with Tribes over the past eight years, that publication of this 
final rule and making the Model Tribal IV-D System available to 
comprehensive Tribal IV-D programs is appropriate and timely.
    2. Comment: Five Tribal commenters requested that this rule be 
withdrawn because they believe OCSE did not comply with HHS Tribal 
consultation policy and offered to assist OCSE in better implementing 
Tribal consultation. Another seven commenters asserted that OCSE should 
better adhere to its own Tribal consultation policy, but did not 
request that this rule be withdrawn. One Tribal commenter stated that 
the consultation process was circumvented and should be addressed for 
future regulations and stressed that it is important to expedite 
release of the Model Tribal IV-D System.
    Response: OCSE followed Departmental policy on Tribal consultation. 
Three consultation sessions were held on June 27, July 8, and July 9 of 
2008 as well as an

[[Page 8515]]

informational meeting at the National Tribal Child Support Association 
conference on June 11, 2008. The input we received from the 
consultation sessions and other collaborative efforts helped to shape 
the final rule.
    3. Comment: Five Tribal commenters suggested that OCSE should 
proceed with pilot testing of the Model Tribal IV-D System so that 
Tribes will be able to assess whether it meets Tribal program needs. 
Six other Tribal commenters suggested that OCSE should proceed with the 
Model Tribal IV-D System pilot regardless of whether this final rule is 
published. Five Tribal commenters recommended that OCSE select at least 
three pilot sites and consult Tribes in the criteria for selection.
    Response: In response to comments, OCSE issued a Dear Colleague 
Letter (DCL-08-47: https://www.acf.hhs.gov/programs/cse/pol/DCL/2008/dcl-08-47.htm) to solicit interest in piloting the Model Tribal IV-D 
System from comprehensive Tribal IV-D programs. Based on the selection 
criteria outlined in the Dear Colleague Letter, OCSE selected Forest 
County Potawatomi as the pilot site. The pilot phase, once initiated, 
is expected to last two to three months. OCSE will provide training, 
technical assistance, operational oversight, and support during this 
critical testing process. Due to limited resources, additional pilots 
were not possible.

Subpart A--General Provisions

Section 310.0 What does this Part cover?
    1. Comment: Six Tribal commenters and one State requested that the 
scope of the regulation be expanded to include Tribes and Tribal 
organizations funded under start-up funding as specified in Sec.  
309.65(b) of this chapter, What must a Tribe or Tribal organization 
include in a Tribal IV-D plan in order to demonstrate capacity to 
operate a Tribal IV-D program?
    Response: We do not agree that it is appropriate to expand the 
scope of this regulation to include Tribal IV-D programs in the start-
up phase. Automated data processing is intended for comprehensive 
Tribal IV-D programs performing actions in the child support collection 
and paternity determination processes under the Tribal IV-D plan. 
Tribes receiving start-up funding are in the planning phase of 
developing an operational Tribal IV-D program and do not have adequate 
operational experience dealing with actual caseloads or case activities 
to determine the appropriate level or type of automation required for 
their specific comprehensive Tribal IV-D program. In addition, a start-
up Tribe's focus toward the end of its two-year development phase must 
be on preparing for and requesting approval to operate a comprehensive 
Tribal IV-D program. It would be premature for a start-up Tribe to 
anticipate approval of its application and divert the resources and 
time necessary to complete the automated system application process. 
However, once funding for a comprehensive Tribal IV-D program is 
approved, technical assistance is available to Tribal programs for 
developing and assessing the program's automation needs based on its 
caseload and developing the appropriate request for such automation 
funding.
    2. Comment: Three Tribal commenters stated that access to Federal 
Tax Refund Offset (FTRO), Multi-State Financial Institution Data Match 
(MSFIDM) and data from the Federal Parent Locator Service (FPLS) would 
enhance Tribal automation and should be addressed in this regulation.
    Response: We are aware that Tribal IV-D programs are interested in 
having access to FTRO, MSFIDM and the FPLS. However, Title IV-D of the 
Act does not currently authorize direct Tribal access to these 
enforcement tools, so expanding access to these systems cannot be 
addressed in this regulation.
    3. Comment: Six Tribal commenters criticized the proposed 
regulations as infringing on Tribal sovereignty and exceeding the 
Department's statutory authority under section 455(f) of the Act 
stating that the rule ``purports to regulate existing email, tribal 
computer networks and other office automation processes used in a 
Tribe's child support program.''
    Response: We do not believe this regulation, enabling Tribes to 
apply for and receive Federal funding for the costs of automated data 
processing, infringes on Tribal sovereignty. Office Automation is 
currently governed by existing regulations found in Sec.  309.145(h). 
This rule builds on the existing regulation to expand allowable 
activities and costs for Tribal IV-D program automation. Section 455(f) 
of the Act clearly states that the Secretary shall ``promulgate 
regulations establishing requirements which must be met by an Indian 
Tribe or Tribal organization to be eligible for a direct grant under 
title IV-D.'' The resulting regulation reflects the Federal 
government's determination of the minimum regulatory requirements 
necessary for the successful administration and operation of automated 
Tribal systems.
Section 310.1 What definitions apply to this Part?
    1. Comment: Five Tribal commenters stated that the terms Reasonable 
Cost, Essential Office Automation, Federal Financial Participation 
(FFP), Simplified Acquisition Threshold and the reference to Part 95 
titled General Administration--Grant Programs, should not be used in 
this regulation because they are inapplicable to Tribes.
    Response: The terms specified above are applicable to Tribes and 
Tribal organizations applying for Federal funding for Computerized 
Tribal IV-D Systems and Office Automation. Many of the terms such as 
Reasonable Cost, Essential Office Automation and FFP are familiar terms 
to the Tribal IV-D program and have been used in existing regulations 
and policy documents issued by OCSE. For example, Sec.  309.155 lists 
unallowable costs, including ``all other costs that are not reasonable, 
necessary, and allocable to Tribal IV-D programs under the costs 
principles of OMB Circular A-87.'' OMB Circular A-87 defines Reasonable 
Cost and applies to Tribes: ``This Circular establishes principles and 
standards for determining costs for Federal awards carried out through 
grants, cost reimbursement contracts, and other agreements with State 
and local governments and Federally-recognized Indian tribal 
governments (governmental units).''
    The term Essential Office Automation appears in Sec.  309.145 
titled, What costs are allowable for Tribal IV-D programs carried out 
under Sec.  309.65(a) of this part? as an allowable cost. In the final 
rule for the Tribal Child Support Enforcement program (69 FR 16638), 
the term Federal funding is used rather than FFP. However, we consider 
the two terms interchangeable.
    The term Simplified Acquisition Threshold is used in 45 CFR Part 92 
titled Uniform Administrative Requirements for Grants and Cooperative 
Agreements to State, Local and Tribal Governments which clearly applies 
to Tribes and Tribal organizations. The scope of 45 CFR Part 92 states 
that ``This part establishes uniform administrative rules for Federal 
grants and cooperative agreements and subawards to State, local and 
Indian tribal governments.'' The definition of Simplified Acquisition 
Threshold in this rule means ``a Tribe or Tribal organization's 
monetary threshold for determining whether competitive acquisition 
rules are required for a given procurement or $100,000, whichever is 
less.'' This provides flexibility in the definition of Simplified 
Acquisition

[[Page 8516]]

Threshold so that Tribes and Tribal organizations may apply their 
monetary threshold rather than the one defined in 41 U.S.C. (Public 
Contracts--Office of Federal Procurement Policy--Definitions), given 
that their threshold is the lesser of the two.
    With regard to Part 95, General Administration--Grant Programs, 
OCSE solicited comments in the proposed rule for the Tribal Child 
Support Enforcement program (65 FR 50800, 50825) stating that ``OCSE 
[the Office] is considering applying part 95 to Tribal child support 
systems efforts'' and that ``OCSE is, however, asking for comments on 
the appropriateness of applying 45 CFR part 95 to the Tribal child 
support program and on the modifications that might be necessary or 
desirable to adapt part 95 to the Tribal CSE program.'' In response to 
OCSE's request for feedback, one out of twenty-nine commenters opposed 
the application of 45 CFR Part 95 to Tribal IV-D programs. We took that 
commenter's suggestion into consideration in combination with comments 
from other stakeholders including members of the Federal/Tribal 
Workgroup. After careful deliberation, we determined that it would not 
be necessary to make all sections of Part 95 applicable to Tribal IV-D 
programs, but that certain terms identified in Subpart F of Part 95, 
Automated Data Processing Equipment and Services--Conditions for 
Federal Financial Participation (FFP), would be appropriately applied 
to this rule.
    2. Comment: One Tribal commenter expressed concern that Reasonable 
Cost may be interpreted differently and requested assurance that there 
would be consistency in the treatment for each Tribal IV-D agency.
    Response: This rule includes a very detailed definition of 
Reasonable Cost based on OMB Circular A-87, Cost Principles for State, 
Local, and Indian Tribal Governments which applies consistently to 
State, local and Federally-recognized Indian Tribal governments. A 
Tribal IV-D agency's systems or Office Automation expenditures will be 
assessed based on this measurable definition of Reasonable Cost.
    3. Comment: One Tribal commenter suggested revising the definition 
of Reasonable Cost by deleting the terms `ordinary', `arms-length 
bargaining', `market price' and `established practices'.
    Response: We did not revise the definition of Reasonable Cost under 
this regulation as each of the terms identified by the commenter is 
taken from the existing definition of Reasonable Cost under OMB 
Circular A-87, Cost Principles for State, Local and Indian Tribal 
Governments, which applies to Indian Tribal Governments.
    4. Comment: One Tribal commenter objected to the definition of 
Service Agreement stating that the Federal government cannot dictate 
how a Tribe executes contracts with outside agencies.
    Response: The definition recognizes the Federal government's 
fiduciary responsibility to ensure reasonable cost of services 
rendered, the effective and efficient use of Federally-funded 
resources, the safety and security of Federally-funded equipment, 
resources, and data, and the accurate accounting of the charges and 
expenditures under such a service agreement. Thus, we have not changed 
the definition in response to the comment.

Subpart B--Requirements for Computerized Tribal IV-D Systems and Office 
Automation

Section 310.5 What options are available for Computerized Tribal IV-D 
Systems and Office Automation?
    1. Comment: Eight Tribal commenters and one State commenter 
requested expanding Federal funding for the development of an 
alternative system designed, developed, procured or enhanced entirely 
with Tribal funds. One commenter suggested that Federal funding should 
be available for a Tribally-developed system, if the cost for that 
system is equal to or less than the highest cost of a Computerized 
Tribal IV-D System or Office Automation.
    Response: In our experience over many years with funding the 
development of automated systems in State IV-D programs, we are 
persuaded that the costs involved in the design and development of 
individual Tribal IV-D automated child support enforcement systems 
would be unreasonable relative to the size of the Tribal programs being 
served or compared to the costs of other automation options (i.e., 
installation costs of the Model Tribal IV-D System, Intergovernmental 
Service Agreement or Office Automation). To allow Federal funding in 
the cost of an alternative system would, therefore, be contrary to the 
funding prerequisite for cost reasonableness cited in OMB Circular A-
87.
    2. Comment: Two Tribal commenters questioned whether the Model 
Tribal IV-D System would be available as an option for Tribal IV-D 
automation since it is currently in the testing phase and has not been 
released to Tribes for their review.
    Response: OCSE completed development of the Model Tribal IV-D 
System in October 2008 and expects to complete the pilot phase in the 
fall of 2009. Many Tribes have reviewed the Model Tribal IV-D System by 
participating in one or more of the numerous live demonstrations of the 
system as it has been built. Additional demonstrations of the completed 
Model Tribal IV-D System are planned through 2009.
Section 310.10 What are the functional requirements for the Model 
Tribal IV-D System?
    1. Comment: Two Tribal commenters requested that the language in 
this section be revised to clarify that Tribes will not be required to 
interface with any other system.
    Response: This rule does not require Tribes to develop an automated 
interface with any other system. Section 310.10(c) refers to the Model 
Tribal IV-D System's capacity to add on an electronic interface with 
State or Tribal financial management and expenditure information at the 
Tribe's option versus manually reporting any fees. The requirement in 
Sec.  310.10(c) is that the Model Tribal IV-D System must record and 
report any fees collected. We have not made any changes to the 
regulatory language.
    2. Comment: Two Tribal commenters requested greater specificity as 
to the type of data OCSE would have access to based on Sec.  310.10(g),