[Federal Register Volume 64, Number 199 (Friday, October 15, 1999)]
[Rules and Regulations]
[Pages 55843-55858]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-26820]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF HEALTH AND HUMAN SERVICES
Office of the Secretary
45 CFR Part 96
RIN 0991-AA97
Block Grant Programs
AGENCY: Department of Health and Human Services (HHS).
ACTION: Final rule with comment period.
-----------------------------------------------------------------------
SUMMARY: This final rule amends the regulations of the Department of
Health and Human Services (HHS) governing the administration of block
grant programs. It updates the current regulations to reflect current
statutory citations for the block grants. It establishes a requirement
for grantees to submit obligation and expenditure reports for all of
the block grants. Additionally, this rule establishes submission dates
and completion dates for applications for funding from States and
territories for Low-Income Home Energy Assistance Program (LIHEAP) and
Social Services Block Grant Program (SSBG). It also establishes a
completion date for applications for direct funding from Indian tribes
and tribal organizations for LIHEAP and clarifies procedures related to
the withholding of funds for these programs. In addition, it modifies
the requirements for reallotment of funds under LIHEAP. This regulation
also includes an amendment to Sec. 96.82, regarding the required
submission of reports on households applying for and receiving LIHEAP
assistance that is being issued as an interim final rule with
opportunity for comment.
DATES: Effective Date: This final rule and the interim Sec. 96.82 are
effective November 15, 1999, except that Secs. 96.10(c), 96.10(d) and
96.49, are effective March 1, 2000. The information collection
requirements contained in Sec. 96.30 will take effect upon OMB
approval.
Comment Period: Comments on Sec. 96.82 will be considered, if
received at the appropriate address, as provided below, no later than 5
p.m on December 14, 1999. We will not consider comments concerning
provisions that remain unchanged from the July 17, 1992 or November 16,
1993 proposed rules or that were revised based on public comment.
ADDRESSES: Mail written comments on Sec. 96.82 to Janet M. Fox,
Director, Division of Energy Assistance, Office of Community Services,
Administration for Children and Families, 370 L'Enfant Promenade SW,
Washington, DC 20447.
The comments received in response to the requirements in Sec. 96.82
may be inspected or reviewed at the above address, Monday through
Friday, between 9 a.m. and 5 p.m., beginning one week after the
publication of this rule.
FOR FURTHER INFORMATION CONTACT: Mike Herrell, 202/690-5739.
SUPPLEMENTARY INFORMATION:
Background
The Omnibus Budget Reconciliation Act of 1981 (Pub. L. 97-35)
established seven block grants to be administered by the Department of
Health and Human Services (HHS). Subsequent legislation repealed the
Primary Care Block Grant. Additional legislation divided the Alcohol
and Drug Abuse and Mental Health Services Block Grant into two,
resulting in the Community Mental Health Services Block Grant and the
Substance Abuse Prevention and Treatment Block Grant. An interim final
regulation to implement the block grants was published in the Federal
Register on October 1, 1981 (46 FR 48582) and the final regulation was
issued on July 6, 1982 (47 FR 29472). Subsequent legislation changed
certain provisions of the block grants and the regulation was modified
several times. The regulation was modified most recently on May 1, 1995
(60 FR 21332) to address requirements for LIHEAP. Based on our
experience in administering the block grants, we have identified
several aspects of the block grant rules that require, or would benefit
from, clarification. Some of those changes were proposed in a notice of
proposed rulemaking (NPRM) issued by HHS for block grant programs dated
July 17, 1992 (57 FR 31685) and are discussed below.
The Augustus F. Hawkins Human Services Reauthorization Act of 1990,
Public Law 101-501, was enacted on November 3, 1990. Title VII of this
public law contains amendments to the Low-Income Home Energy Assistance
Act of 1981 (title XXVI of Pub. L. 97-35, as amended), including
several changes affecting LIHEAP grantee program administration. An
interim final rule published January 16, 1992, in the Federal Register
(57 FR 1960 et seq.) promulgated regulatory changes for several
provisions which were effective for fiscal years (FY) 1991 and FY 1992,
including a leveraging incentive program. It also indicated that
regulations concerning additional changes resulting from Public Law
101-501 would be issued at a later date. A final rule relating to the
provisions included in the interim final rule was published on May 1,
1995 (60 FR 21332). An NPRM dated November 16, 1993 (58 FR 60498)
proposed additional regulatory changes for provisions included in
Public Law 101-501 that were scheduled to become effective in FY 1993
and FY 1994. The later changes concerned ``forward funding'' and the
end of authority to transfer LIHEAP funds to other HHS block grants.
Other provisions relating to application submission and completion
dates were included in the NPRM. Some of the provisions included in the
Department's NPRM of July 17, 1992, were also included in the November
16, 1993 NPRM.
This final rule includes provisions which were originally contained
in both the NPRM issued by the Department of Health and Human Services
on July 17, 1992 (57 FR 31685) and the NPRM issued on November 16, 1993
(58 FR 60498) concerning LIHEAP, CSBG and SSBG, all of which are
administered by the Administration for Children and Families (ACF). It
includes a due date for completion of applications for direct funding
of Indian tribes and tribal organizations under LIHEAP. Other issues
proposed in the NPRM of July 17, 1992 which address LIHEAP, CSBG, and
SSBG as well as some of the other block grant programs which are
administered by agencies of the Public Health Service (PHS), are also
finalized in this rule. It clarifies procedures related to the
withholding and reallotment of funds and requires obligation and
expenditure reports. Some of those items in the July 17, 1992 NPRM
which relate to the block grants that are administered by agencies of
the PHS may be addressed in a separate action. Therefore, this final
rule excludes the following sections relating to the block grants
administered by the PHS contained in the July 1992 NPRM: 96.121,
96.122, 96.123 and 96.124. In addition, this final rule finalizes
proposals from the November
[[Page 55844]]
16, 1993 NPRM. It establishes submission and completion dates for block
grant applications from States and territories for LIHEAP and SSBG. It
also codifies the end of transfer authority under LIHEAP. Since the
publication of the November 16, 1993 NPRM, legislation changed the
forward funding program year for LIHEAP to October 1 through September
30, the same dates as the current Federal fiscal year, but funded one
year in advance. The issue of forward funding for LIHEAP is discussed
below. Also, this final rule adds new provisions to update the
regulation to reflect the current names and statutory citations for the
block grants. The NPRM dated November 16, 1993 also included technical
changes to Sec. 96.82, concerning a statutorily required report on
households assisted under the LIHEAP program. Subsequently, however,
the Human Services Amendments of 1994 (Pub. L. 103-252) amended the
statutory requirements applying to that report. This amendment includes
changes to the existing regulations to reflect implementation of those
new requirements, which we are issuing as an interim final rule with
opportunity for comment.
Provisions in both the July 17, 1992 NPRM and the November 16, 1993
NPRM included provisions relating to requirements for CSBG. Since the
publication of those NPRMs, new legislation has significantly amended
certain provisions of the Community Services Block Grant Act.
Accordingly, this final rule deletes the following provisions relating
to CSBG: Sections 96.49(a), 96.92 and 96.95 of the July 17, 1992 NPRM
and Secs. 96.10(c)(1), 96.10(d)(1) and 96.49(a) of the November 16,
1993 NPRM.
The NPRM dated July 17, 1992 (57 FR 31682) allowed a comment period
of 60 days. Thirteen letters were received in response to that NPRM and
are discussed below. The NPRM dated November 16, 1993 allowed a 45-day
comment period. Three letters were received in response to that NPRM
and are also discussed below.
A final rule to replace the interim final rule of January 16, 1992
on the leveraging incentive program and other issues was published on
May 1, 1995 (60 FR 21322). In some cases, provisions from the July 1992
and November 1993 NPRM's were included in that final rule, if they were
related to issues already being addressed in that rule. This applies to
Secs. 96.14, 96.83, 96.84 and 96.87.
Waiver of Notice and Comment Procedures
The Human Services Amendments of 1994 (Pub. L. 103-252) amended
section 2605(c)(1)(G) of the LIHEAP statute regarding data required to
be submitted to the Department as part of a grantee's annual
application for funds under the LIHEAP program. Section 96.82 of this
amendment to the block grant statute, which implements these statutory
changes, is being published in interim final form. The Administrative
Procedures Act (5 U.S.C. 553(b)(B)) provides that, if the Department
for good cause finds that a notice of proposed rulemaking (NPRM) is
unnecessary, impracticable, or contrary to public interest, it may
dispense with the NPRM if it incorporates a brief statement in the
interim final rule of the reasons for doing so.
The Department finds that there is good cause to dispense with an
NPRM with respect to proposed changes to Sec. 96.82 of the block grant
regulations. First, it is important that grantees have timely notice of
the rules for operating their LIHEAP programs consistent with the 1994
statutory provisions. Second, LIHEAP grantees and interested parties
were notified by information memorandum of the opportunity to comment
on these requirements as part of the Department's request for approval
by the Office of Management and Budget of the collection of the
information. No objections were submitted to the information collection
approval request.
We are interested in receiving formal comments on this interim
final rule for Sec. 96.82. We will review any comments which we receive
by December 14, 1999. We will revise the rule, as appropriate, based on
the comments we receive and our experience in implementing the
requirement.
Forward Funding of LIHEAP. Sections in the November 16, 1993 NPRM
relating to the program year dates are being deleted because of a
change in the law. A new section, 2602(c), was added to the LIHEAP
statute by Public Law 101-501. This section provided that LIHEAP funds
would be available for obligation on the basis of a new ``program
year'' of July 1 through June 30, rather than on the normal Federal
fiscal year basis of October 1 to September 30. The law provided that
this change from a fiscal year to a program year basis, known as
``forward funding'', would take place beginning in fiscal year (FY)
1993, and that it would be implemented by appropriating funds in the FY
1993 HHS appropriations law for a nine-month transition period of
October 1, 1992 to June 30, 1993, and also for the new program year of
July 1, 1993 to June 30, 1994, a period of 21 months.
The FY 1993 appropriations law for HHS (Pub. L. 102-394) provided
funding for the regular Federal fiscal year 1993, which began October
1, 1992 and ended September 30, 1993. It also provided advance funding
for FY 1994 to operate the program for a nine-month transition period
of October 1, 1993 to June 30, 1994, thus providing partial
implementation of forward funding a year later than authorized.
The FY 1994 appropriations law, Public Law 103-112, provided
advance FY 1995 funds for the period beginning October 1, 1994. This
left a three-month funding gap of July 1 to September 30, 1994. To
eliminate that funding gap, an amendment to the Emergency Supplemental
Appropriations Act of 1994 (Pub. L. 103-211) made the FY 1994 funds
available until September 30, 1994.
The Budget of the United States Government for Fiscal Year 1995
requested funds for the normal Federal fiscal year of October 1, 1994
to September 30, 1995. Subsequently, Title III of the Human Services
Amendments of 1994, Public Law 103-252, reauthorized LIHEAP and
provided that the program year shall begin on October 1 of the fiscal
year following the year in which the appropriation is made. Therefore,
the reauthorization law, Public Law 103-252, opted for funding a
program year that is on the same time frame as the Federal fiscal year,
but funded one year in advance. Consequently, the changes which related
to forward funding which were proposed in the NPRM dated November 16,
1993 (58 FR 60498) will not be implemented, since due dates for reports
and other actions do not need to be changed to be consistent with the
timetable for a new program year. Therefore, the information concerning
forward funding and the resultant technical changes contained in that
NPRM are deleted from Secs. 96.10, 96.42, 96.49, 96.80, 96.81, 96.85
and 96.87. Throughout this current regulation, the dates proposed in
the NPRM dated November 16, 1993 (58 FR 60498) for implementation
during forward funding are deleted and the dates included are based on
the Federal fiscal year.
Section-by-Section Analysis of Changes in the Regulations
Subpart A--Introduction
Section 96.1 Scope
Several changes have taken place in the block grants since these
regulations
[[Page 55845]]
were first issued in 1981. We are amending this section, which
specifies which programs are subject to the regulations, to reflect the
current names and legal status of the block grants. Although these
amendments were not in either the July 17, 1992 or the November 16,
1993 NPRMs, we are including them in the final rule since the changes
are only technical in nature and reflect the statutory situation.
Specifically, we are revising paragraph (a) to show that the CSBG
program is now covered by sections 671-683 of Public Law 97-35, as
amended; deleting reference in paragraph (d) to the Primary Care Block
Grant, which was repealed; and amending paragraph (e) to reflect the
fact that the Maternal and Child Health Services Block Grant (MCH)
program is found at 42 U.S.C. 701-709. We are also deleting reference
in paragraph (c) to the Alcohol and Drug Abuse and Mental Health
Services Block Grant, which has been repealed and replaced by the
Community Mental Health Services Block Grant (CMHS) and the Substance
Abuse Prevention and Treatment Block Grant (SAPT). CMHS and SAPT are
now referenced in revised paragraphs (c) and (d).
Finally, we are revising paragraph (f) to clarify that these
regulations also apply to the Empowerment Zones and Enterprise
Communities programs enacted in 1993 as a part of the Social Services
Block Grant statute. A question had been raised by eligible entities as
to whether the block grant regulations or parts 74 and 92 of
Departmental regulations applied to the Empowerment Zones and
Enterprise Communities. This amendment will make clear that part 96,
the block grant regulations, are applicable. This is consistent with
guidance previously issued by the Department.
Section 96.2 Definitions
The Trust Territory of the Pacific Islands (TTPI) consisted of
Micronesia, the Marshall Islands, and Palau for the first five years of
the LIHEAP and CSBG programs. Two of the components of the TTPI, the
Marshall Islands and Micronesia, entered into Compacts of Free
Association with the United States in 1986, under which they were
declared independent nations that will be associated with the United
States for defense purposes during a 15-year transition period. Under
the terms of those Compacts, allocations to the new Federated States of
Micronesia and the Republic of the Marshall Islands under LIHEAP, CSBG,
and several other Federal assistance programs were phased out over a
three-year period, beginning in FY 1987. Beginning with FY 1990, they
were no longer eligible to receive any LIHEAP or CSBG funding. Palau
has also signed a Compact of Free Association, which went into effect
at noon on October 1, 1994. As a result, no remaining entity is
encompassed by the term, ``Trust Territory of the Pacific Islands''.
The LIHEAP and CSBG allocations for the new Republic of Palau were also
phased out over a three-year period, beginning in FY 1996. The
allocation for the Republic of Palau was no more than 75% of its FY
1995 amount in FY 1996, no more than 50% in FY 1997, and no more than
25% in FY 1998. Beginning in FY 1999, no LIHEAP or CSBG funds will be
allocated to the Republic of Palau. All three original components of
TTPI (the Federated States of Micronesia, the Republic of the Marshall
Islands, and the Republic of Palau) continue to receive funding under
the block grants administered by agencies of the PHS, since they were
exempt from the compacts' requirements to phase out funding.
To take account of changes in the Trust Territory, the NPRM dated
July 17, 1992 (57 FR 31682) proposed to modify the definition of
``State'' as used in the block grant rule. This final rule will further
modify that definition by deleting ``the Trust Territory of the Pacific
Islands comprised of Palau'' since Palau's Compact of Free Association
became effective after the publication of the July 1992 NPRM. We are
also adding a statement that, for block grants administered by agencies
of the PHS, ``States'' will include the Federated States of Micronesia,
the Republic of the Marshall Islands, and the Republic of Palau.
No comments were received in response to Sec. 96.2 of the NPRM.
Therefore, the final rule is revised as described above.
Subpart B--General Procedures
Section 96.10 Prerequisites To Obtain Block Grant Funds
Form of application. In general, the block grant regulations
provide States and other grantees with substantial discretion in
preparing applications and related forms. The current section reads:
``No particular form is required for a State's application or the
related submission required by statute.'' This language may be
misleading, however, inasmuch as some block grant statutes do, in fact,
require grantees to submit applications and other information in a
particular form in order to ensure that the information is useful for
statutorily intended purposes, e.g., Congressional oversight. Examples
are the application requirements for MCH, CMHS and SAPT. The NPRM dated
July 17, 1992 (57 FR 31682) proposed to modify subsection (a) to allow
the Department to specify the form of an application when this is
required or clearly contemplated by the authorizing statute.
Comments: Two comments were received in response to the proposal
concerning the form of an application. One commenter indicated that the
Department was proposing to specify the form of application to be
submitted for CSBG funding. The other commenter indicated the fact that
adding ``except where prescribed elsewhere in this rule'' to the
current language is not all inclusive, especially since the above
example omitted at least one other block grant statute, MCH, which
explicitly requires the Secretary to provide a specific ``standard
form'' for the States' applications. The commenter recommended that the
rule be amended either to add this example or to clarify that
exceptions include any program where the authorizing legislation
specifically requires a particular form.
Response: Although the CSBG statute requires the specific content
to be included in CSBG applications, no particular format is required.
The format by regulation is at the discretion of the grantee.
The Department agrees with the commenter that the above example
should include an additional statement that Title V of the MCH statute
requires the Secretary to provide a specific ``standard form'' for the
States' applications. Therefore, section 96.10(a) is amended to include
this specific requirement. Furthermore, we have added a clarification
to allow specific formats when authorizing legislation requires it.
In support of its commitment to Federalism, the Department will
continue to make every effort to develop its application requirements
and forms in close cooperation with the States, and where possible, the
communities. For example, when developing the MCH application and
annual report, the Maternal and Child Health Bureau developed new
guidance and an automated reporting system based on the emerging
concept of ``Performance Partnerships''. Not only did the Bureau meet
regularly with a Block Grant Guidance Work Group made up largely of
State and local MCH representatives, but the Bureau field tested the
guidance and information system with 9 states and held a number of
sessions at three separate national meetings with representatives of
all State MCH and Children with Special Health Care
[[Page 55846]]
Needs Directors, as well as many local directors. The initial national
sessions focused on discussing and reviewing the proposed guidance and
performance partnership measures. Later sessions included hands on
training in using the guidance that was provided by the Bureau and the
nine test States.
Application Submission and Completion Dates for States and
Territories For Block Grants. Due dates for submission and completion
of State and territorial applications for LIHEAP, CSBG and SSBG were
proposed by the November 16, 1993 NPRM to be added to the block grant
regulations so that grant awards can be issued as close as possible to
the beginning of a grant period.
The Cash Management Improvement Act of 1990, (CMIA, Pub. L. 101-
453) imposes requirements for the timely transfer of funds between a
Federal agency and a State and for the exchange of interest where
transfers are not made in a timely fashion. The CMIA also requires
States to minimize the time between the receipt of Federal funds and
their disbursement by the State for program purposes. The CMIA applies
to States and territories, but it does not apply to Indian tribes or
tribal organizations.
The establishment of application due dates for States and
territories will allow the agency sufficient time to process
applications and issue awards in a timely manner, in order to minimize
interest charges associated with the CMIA. The NPRM issued by the
Department on July 17, 1992 (57 FR 31685) also proposed completion
dates for tribal applications for the CSBG and LIHEAP. See below under
Sec. 96.49 for further discussion of tribal applications.
Because significant changes to the CSBG Act have been enacted since
the publication of the NPRMs, we have deleted the provisions relating
to CSBG application submission and completion dates from this final
rule.
SSBG: The November 16, 1993 NPRM also proposed to establish the due
date for SSBG applications as one month prior to the beginning of the
SSBG State program year. State SSBG allocations are established by a
formula based on population. Each fall, individual State allocations
for the following Federal fiscal year, based on the projected
Congressional appropriation, are published in the Federal Register.
Unless the appropriation is enacted at a different level, the
allocations published in the Federal Register the previous fall are the
basis for determining the amount of the grant awards for the following
fiscal year. For example, FY 1999 allocations were published in the
Federal Register in the fall of 1998 for distribution to the States in
Federal fiscal year 1999, beginning October 1, 1998. This approach
gives the grantee plenty of time to plan its program activities.
For SSBG, accordingly, it was proposed that States and territories
which operate on a Federal fiscal year basis submit applications (pre-
expenditure reports) for funding by September 1 of the preceding fiscal
year. It was also proposed that States and territories which operate
their SSBG program on a July 1--June 30 basis submit their applications
for funding by June 1 of the preceding funding period. For example, for
States and territories which operate on the basis of the fiscal year
which begins on October 1, 2000, and ends on September 30, 2001, the
date of submission for applications would be September 1, 2000. For
SSBG programs with a funding period which begins on July 1, 2000, and
ends on June 30, 2001, the date of submission would be June 1, 2000. No
date was proposed for completion of SSBG applications.
No comments were received in response to the proposal for
submission dates for the SSBG program. Thus, the provision is adopted
as proposed, with two exceptions. We have added the authority to allow
the Department to agree to a later application submission date, in
order to allow for unusual circumstances that may make meeting these
deadlines difficult or impossible. In addition, we have changed the
term ``Secretary'' used in the NPRM to ``Department'', to better
reflect actual working relationships.
Therefore, the date for submission of SSBG applications is
September 1 of the preceding fiscal year for those States which operate
on a Federal fiscal year basis unless the Department agrees to a later
date. The date for submission of applications for those States which
operate on a July 1--June 30 basis is the preceding June 1 unless the
Department agrees to a later date. States requesting a later submission
date should provide proper documentation to the Department.
LIHEAP: For LIHEAP, it was proposed in the NPRM dated November 16,
1993 (58 FR 60498) that the submission date for applications be
established as one month before the beginning of the new ``program
year'' of July 1 to June 30. Thus, the due date for submission of the
applications would be June 1, if forward funding were implemented.
Also in the NPRM, for LIHEAP, the final date for completion of
applications from States and territories was proposed to be established
as December 31 of the program year for which they were requesting
funds, almost seven months after the due date for the submission of the
applications.
Comment: One comment was received in response to the proposed
LIHEAP submission dates and completion dates for States and
territories. The commenter was in favor of the proposed LIHEAP
submission date but did not think the completion date should be more
than 60 days after submittal. The commenter expressed the belief that
the Department was attempting to circumvent the requirements under the
Cash Management Improvement Act (CMIA) and that grantees should receive
a grant award notification before October 1 or December 31 of the
program year.
Response: The Department disagrees with the assertion that we are
trying to circumvent the requirements under the CMIA. If States submit
their applications earlier, the Department will review them as soon as
possible. Departmental review will be delayed only if the grantee fails
to submit all the information required. The December 31 completion date
requirement was proposed in order to give grantees the time to submit
the required information, not to give the Department more time to
review it.
It is the conclusion of the Department that since LIHEAP will
continue to be operated on a normal fiscal year basis of October 1 to
September 30, with funding scheduled to be appropriated one year in
advance, the due date for submission of funding applications from
States and territories will be established as September 1, one month
prior to the beginning of the fiscal year, unless the Department agrees
to a later date. We believe it is appropriate to require submission of
the funding application prior to the start of the funding period, since
the grantees will have been advised of the amount of their allocations
(they should know the level or amount) one year in advance and thus
will have had sufficient time for planning and to hold the required
public hearings. The submission date of September 1 is also consistent
with the submission date for applications for tribal grantees.
The Department agrees with the commenter that a period of almost
seven months is not needed for review of the applications. However,
based on past experience, since numerous applications from both States
and tribes will be received at the same time, sixty days may not be
sufficient time for the completion of reviews, notification of grantees
concerning deficiencies in applications, and receipt of the grantees'
responses. Therefore, as a compromise,
[[Page 55847]]
the due date for the completion of all information required by States
and territories is being established as December 15 of the fiscal year
for which they are requesting funds, 3\1/2\ months after the due date
for the submission of the applications. For example, for fiscal year
2000, which begins on October 1, 1999 and ends on September 30, 2000,
applications must be submitted by September 1, 1999 and must be
completed by December 15, 1999, unless the Department agrees to a later
date after proper documentation from the State.
As with the SSBG program, we have added the authority to allow the
Department to agree to a later application submission or completion
date, in order to allow for unusual circumstances that may make meeting
these deadlines difficult or impossible, and we have changed the term
``Secretary'' to ``Department''.
Effective Date: Given the timing of publication of this final rule,
there will not be time for grantees to meet the new schedule for
submission and completion of FY 2000 SSBG and LIHEAP applications,
which will be due on September 1 (or June 1 for some SSBG applications)
of each year. Accordingly, Secs. 96.10(c) (1) and (2) and 96.10(d) of
this rule, relating to the submission deadlines for SSBG applications
and the submission and completion deadlines for LIHEAP applications,
will become effective on March 1, 2000, and will apply beginning with
FY 2001 plans for SSBG and LIHEAP. Under these provisions, for example,
SSBG applications for FY 2001 must be submitted by September 1, 2000
for States that operate their programs on a federal fiscal year basis,
and by June 1, 2000 for States that operate on a July 1-June 30 program
year basis. LIHEAP applications for FY 2001 must be submitted by
September 1, 2000 and must be completed by December 15, 2000.
Section 96.15 Waivers
The LIHEAP statute provides that grantees may request waivers of
the limit on the amount of funds that may be spent on weatherization
activities and other energy-related home repairs and of certain crisis
assistance performance standards.
The LIHEAP statute provides that, in general, not more than 15
percent of funds allotted to or available to a grantee for any fiscal
year may be used for weatherization activities and other energy-related
home repairs. Section 705 of Public Law 101-501 (42 U.S.C. 8624(k))
amended section 2605(k) of the LIHEAP statute to allow the Department,
under certain circumstances, to grant a waiver to increase the maximum
amount of LIHEAP funds a grantee may use for low cost weatherization or
other energy-related home repairs from 15 percent to up to 25 percent
of the funds allotted or available to the grantee.
Section 2604(c) of the LIHEAP statute provides that a ``reasonable
amount'' of LIHEAP funds (based on data from prior years) shall be
reserved until March 15 of each year by each grantee for energy crisis
intervention. This section describes performance standards for time
frames for the provision of assistance, in addition to performance
standards for geographical accessibility and obtaining applications
from individuals who are physically infirm. However, the statute
provides for a waiver of the performance standards for a program in a
geographical area affected by a natural disaster designated by the
Secretary or affected by a major disaster or emergency designated by
the President for as long as the designation remains in effect, when
the emergency makes compliance with the standards impracticable.
Detailed criteria for a waiver of the crisis assistance performance
standards are described in 45 CFR, part 96, Sec. 96.89.
Currently, no mention is made in Sec. 96.15 of the regulations to
indicate to whom applications for waivers that are permitted by statute
should be submitted for the LIHEAP program. Current regulation requires
that waivers under the CSBG program are to be submitted to the
Director, Office of Community Services. It was proposed in the NPRM
dated November 16, 1993 (58 FR 60498) that waiver applications for SSBG
(formerly submitted to the defunct Office of Human Development
Services) and for LIHEAP should also be submitted to the Director,
Office of Community Services. This section also currently specifies
that applications for waivers for block grants administered by agencies
of the PHS should be submitted to the Assistant Secretary of Health.
With the reorganization of the Office of the Assistant Secretary for
Health in 1995, this responsibility was delegated to the cognizant
Agencies of the PHS. Accordingly, this section has been revised to
specify that waiver requests should be submitted to the Director of the
Centers for Disease Control and Prevention for PHS, to the
Administrator of the Substance Abuse and Mental Health Services
Administration for CMHS and SAPT, and to the Director of the Maternal
and Child Health Bureau for MCH. The new titles of the CMHS and SAPT
block grants are also reflected in this section.
No comments were received in response to Sec. 96.15 of the NPRM.
Therefore, this rule is adopted as proposed, with the changes discussed
above for the titles and waiver approving authorities for the block
grants administered by agencies of the PHS.
Subpart C--Financial Management
Section 96.30 Fiscal and Administrative Requirements
The NPRM issued by the Department dated July 17, 1992 proposed to
add a new paragraph that would require block grant recipients to submit
information on the obligation and expenditure status of each block
grant allocation. For block grants whose statutory authorizations
include time limits on both obligation and expenditure of funds, this
information would include: (1) The dollar amount of the funds obligated
by the grantee and the date of the last obligation; and (2) the dollar
amount of the funds expended by the grantee and the date of the last
expenditure.
For block grant statutes which have time limits on the obligation
of funds but not on the expenditure of funds, this information would
include the dollar amount of the funds obligated during the period
funds were available for obligation and the date of the last
obligation.
For block grant statutes which have time limits only on the
expenditure of funds, this information would include the dollar amount
of the funds expended and the date of the last expenditure.
The information would be required for each block grant award
allocation after the close of the statutory period(s) for obligation of
funds and/or expenditure of funds.
As proposed in the NPRM, grantees would be required to answer an
inquiry issued to the grantee by the Department's Office of Payment
Management Systems. This letter would be sent at the end of the
statutory period for obligation or expenditure of funds. Grantees would
have 90 days after the end of the applicable statutory period (or 90
days after receipt of the letter, whichever is the later date) to
return the letter with the required information.
This information would allow HHS and the grantee to verify the
financial status of block grant funds and allow the Department to
determine aggregate obligations, expenditures, and available balances.
The reporting requirement would not affect a grantee's right to
subsequent reimbursement or to draw down funds for authorized
obligations or expenditures made within the allowable statutory
periods.
[[Page 55848]]
Comments: Three commenters wrote in response to this section of the
NPRM. One commenter indicated that, although submission of a letter to
the Department at the end of the year on the expenditure of CSBG funds
would not be a significant burden, it seemed to be a duplication of
information which the States provide in the expenditure reports
submitted at the end of the year. The commenter continued by stating
that it would have no adverse impact for this report to be submitted
concerning LIHEAP expenditures.
The second commenter wrote that the imposition of new reporting
requirements is contrary to the original intent of the block grant
legislation that sought to minimize Federal administrative requirements
by placing greater reliance on State government. The writer stated that
the current block grant reporting requirements are adequate and should
not be changed.
The final commenter asserted that the CSBG Act is administered
exclusively by subgrantees, and the proposed section does not make it
clear what requirements would be placed on subgrantees to report to a
State in order for the State to be able to file the information the new
section will require. The commenter stated the hope that any
requirements placed on subgrantees to provide information to the State
would conform to the system HHS now imposes on its direct grantees to
file various financial reports.
Response: Currently, the Department does not require obligation or
expenditure reports for the block grants (although some grantees submit
them voluntarily.) This has caused problems in the past because there
is no clear-cut information as to when a grantee has completely used
its grant funds, thus allowing the Department to close the grant
account. Public Law 101-510 (signed into law on November 5, 1990)
amended 31 U.S.C. Chapter 15 to provide that, by the end of the fifth
fiscal year after the fiscal year in which the Federal government
obligated the funds, the account will be canceled. If valid charges to
a canceled account are presented after cancellation, they may be
honored only by charging them to a current appropriation account, not
to exceed an amount equal to 1 percent of the total appropriations of
that account.
Because of our need to determine the status of grant accounts, we
have determined that it is appropriate to require an annual report on
obligations and/or expenditures from all grantees under the block grant
programs. We do not believe this requirement would be a significant
burden on block grant recipients, as they are already required to
maintain this information under current requirements of section 96.30.
This section of the block grant regulations currently states that
recipients are to maintain information sufficient to: ``* * * (b)
permit the tracing of funds to a level of expenditure adequate to
establish that such funds have not been used in violation of the
restrictions and prohibitions of the statute authorizing the block
grant.'' Furthermore, the Department now periodically sends grantees
letters indicating the status of their block grant funds and asks
grantees to confirm this information. However, since the publication of
the July 17, 1992 NPRM, the Department considered designating the use
of OMB Standard Form 269A, Financial Status Report (short form), to
collect this information because it would be less burdensome on the
grantees and the Department. The first comment reinforced this thought.
By using Form 269A, grantees would be submitting the information on a
familiar form and in a familiar format.
At least 90% of the CSBG funds are administered by subgrantees. It
continues to be the policy of the Department to defer to the State for
the type and frequency of reporting requirements a State mandates of
subgrantees, so long as the reporting requirements are reasonable and
provide the necessary information the State needs to comply with
Federal regulations.
The Amendments enacted in 1998 (section 678D of Pub. L. 105-285)
mandate that for CSBG grantees, ``a State shall ensure that cost and
accounting standards of the Office of Management and Budget (OMB) apply
to a recipient of funds under this subtitle.'' These standards are
reflected in OMB Circulars A-110 and A-122.
Therefore, Sec. 96.30 is adopted, with several changes from the
version proposed in the NPRM, in order to make the requirement more
consistent with other programs and thus reduce the burden on grantees.
Rather than have a letter of inquiry sent to grantees at the end of the
applicable statutory grant period, the final rule establishes a
requirement that grantees submit, within 90 days of the end of the
grant period, OMB Standard Form 269A, Financial Status Report (short
form). This will allow grantees to submit the required information
without a need to wait for a request from the Department, using a form
with which they are familiar because it is used for most other
Departmental grant programs. In addition, we have made modifications to
change the term ``recipient'' to ``grantee''. These are technical
changes to use a more accurate term, since ``recipients'' are often
considered to be individual beneficiaries.
Subpart D--Direct Funding of Indian Tribes and Tribal Organizations
Section 96.41 General Determination
Each of the block grant statutes provides direct funding for States
and territories. Statutes for four block grants--LIHEAP, CSBG, PHHS,
and SAPT--authorize the Secretary to fund certain Indian tribes and
tribal organizations directly if the Secretary determines that tribal
members would be better served by the tribe than by the State(s) in
which the tribe is located. In the case of SAPT, this authority is
limited by statute to tribes that were funded in FY 1991 under the
Alcohol and Drug Abuse and Mental Health Services Block Grant, the
predecessor to SAPT and CMHS. Under this statutory provision, only one
tribe qualifies for direct funding under SAPT. By law, Indian tribes
may not apply for direct funding under MCH, CMHS, or SSBG.
Section 96.41(a) provides that the Department will award block
grant funds directly to an eligible Indian tribe or tribal organization
upon receipt of a complete application for funds that meets the
statutory requirements. The preamble to the original block grant final
rule dated July 6, 1982 (47 FR 29480) states the Department's policy on
direct funding of Indian tribes as follows: ``By regulation, the
Secretary has determined that members of Indian tribes and tribal
organizations would be better served by direct Federal funding than by
funding through the States in every instance that the Indian tribe or
tribal organization requests direct funding.''
This language reflects our view that, as a general rule, tribal
rather than State priorities and program administration will result in
better service to tribal members. The final rule published in July 1982
established the primacy of the Indian tribe in determining the services
to be provided and how best to provide them. It avoided the need for a
Departmental assessment of the relative efficiency and effectiveness of
alternative services systems, lodged primary responsibility with the
tribe for administering the programs, and established the tribe's
accountability for providing appropriate services to its service
population.
The NPRM dated July 17, 1992 (57 FR 31682) proposed to add a
paragraph (c) to the existing rule to clarify that under limited
circumstances, the Secretary may use his or her discretionary authority
to determine that the members
[[Page 55849]]
of a particular Indian tribe eligible for block grant funds would be
better served by the State in which the tribe is located. The proposed
amendment included in the NPRM would clarify the block grant
regulations and apply only to the circumstances specified in paragraph
(c):
(1) The Department has determined that the tribe has not used its
block grant funds substantially in accordance with the block grant
statute; and
(2) The Department has withheld block grant funds from the tribe
based on that determination and in accordance with procedures
established by the block grant regulations; and
(3) The tribe has not provided sufficient evidence that it has
taken action to correct the problems leading to the withholding of
funds.
The Secretary's determination to award funds to the State rather
than directly to the tribe would be limited to the situation described
above. If a tribe is located in more than one State, funds that had
been set aside for a direct grant to the tribe would be awarded to
these States in the same proportion as they were offset from the
States' allotments for direct award to the tribe. When the Department
withholds block grant funds from a tribe, the Department would make the
determination to award funds to the State only after allowing as much
time as it determines to be reasonable for the tribe to correct the
conditions that led to withholding, consistent with provision of timely
and meaningful services to the tribe's service population during the
fiscal year. For example, if LIHEAP funds were withheld from a tribe
effective October 1, the first day of the Federal fiscal year, but
funds were not yet available to the Department for distribution to
grantees, the Department probably would allow additional time for the
tribe to correct these conditions. However, if LIHEAP funds were
withheld later in the fiscal year, for example, effective as late as
December 1, during the winter heating season, and funds were then
available to the Department for distribution to grantees, the
Department probably would make the determination to award funds to the
State at the same time that it took the official withholding action, in
order to ensure that tribal members received needed services during the
winter months.
To assure that well-planned, uninterrupted, and timely services are
provided to the service population of a tribe from which funds are
withheld, the proposed amendment provided that the State would receive
all remaining funds reserved for the tribe for that fiscal year and all
funds for subsequent fiscal years until the Secretary determines that
the tribe has corrected the problems which resulted in the withholding.
Where funds have been withheld and the tribe has not taken satisfactory
corrective action by the first day of the following fiscal year, all of
the funds to serve the tribe's service population for the following
fiscal year would be awarded to the State. The State would then be
responsible for serving the tribe's service population.
If the tribe takes satisfactory corrective action during the
following fiscal year, the tribe may receive direct funding for that
fiscal year with the concurrence of the State. This is consistent with
45 CFR 96.42(e), which provides for acceptance of a tribal application
submitted after September 1 only with the concurrence of the State(s)
in which the tribe is located. For example, if the State had provided
LIHEAP services for a fiscal year to the tribe's service population
before the tribe took corrective action, the State would be unlikely to
concur in the acceptance of an application from the tribe for that
fiscal year.
The July 17, 1992 NPRM (57 FR 31682) was intended to clarify the
responsibility for serving these tribal households and assure that
services would be provided in a timely manner. The NPRM was intended to
provide clear, published notice so that all parties concerned--
including the tribe or tribal organization, the tribe's service
population and the State--would understand the actions that the
Department would take and understand the State's responsibility to
serve the tribal service population while funds are withheld from the
tribe or tribal organization.
The preamble to the original block grant final rule affirms the
Department's commitment to continue the government-to-government
relationship between the United States and Indian tribes and affirms
the policy of self-determination for tribes. The Department continues
to be committed to these policies; it is neither the intent nor the
effect of the clarification in this final rule to change them.
The Department will withhold block grant funds from a grantee only
after determining, in accordance with the due process procedures
specified in the block grant statutes and regulations, that the grantee
is not using its block grant funds substantially in accordance with
statutory requirements to which the grantee has agreed. In such a case,
the grantee has violated its agreement to abide by the terms and
conditions of the grant, and the Department must act, in accordance
with the law, to assure accountability for public funds.
The NPRM dated July 17, 1992 (57 FR 31682) also proposed to amend
paragraph (a) to clarify that paragraph (c) constitutes a limited
exception to the principle of direct funding of Indian tribes and
tribal organizations. The proposed rule would apply when funds are
withheld from a tribal organization, as well as from a tribe. (A tribe
that was to be served by a separate tribal organization from which
funds are withheld may rescind its resolution authorizing that role for
the tribal organization and, consistent with statutory and regulatory
requirements including Sec. 96.42(e), may request direct funding for
itself--on its own--or through another tribal organization. Because the
tribal organization would be the grantee from which funds are withheld,
a tribe separate from the tribal organization would be eligible for its
own funding).
We anticipate there would be very few instances in which the
exception to the Department's policy on direct tribal funding would
apply. Over the past 15 or 16 years of HHS administration of the block
grants with direct tribal funding--with over 100 tribes and tribal
organizations receiving direct funding each year--there has been only
one instance in which the Department has withheld block grant funds
from a tribe. The NPRM was consistent with the actions previously taken
by the Department.
Comments: Two comments were received in response to Sec. 96.41 of
the NPRM. One commenter (a tribe) stated that the proposed rule would
impact tribal self-determination and begin to close the existing policy
that in most Federal programs, tribes are treated as equals with the
States.
Response: We believe that the rule would reaffirm HHS policy to
directly fund tribes whenever it is authorized by a block grant
statute, so long as the tribes submit the applications required by the
statute and administer the block grant funds substantially in
accordance with the statute. The Department's intent of the new
language is to provide a means of continuing services to tribal
populations if tribal management of block grant funds is found to be
substantially out of compliance with statutory requirements to which
the tribe agreed when it applied for and accepted Federal funds, and
the tribe does not take corrective action during the period of a grant.
In essence, we are seeking a way to continue services uninterrupted
when we have no viable tribal alternative available. This has happened
only once in the history of the
[[Page 55850]]
block grants, and we do not anticipate that this procedure would be
used in the future until all reasonable efforts at assisting a tribe or
tribal organization to come into compliance would be exhausted.
Comment: The second commenter (a State) objected to having the
State be the alternative for providing services when funds are withheld
from a tribe located within that State; the commenter mistakenly
believed that the State would not have access to the withheld funds.
The commenter proposed that HHS assume the responsibility to serve such
a tribe.
Response: HHS has neither the authority nor the capacity to provide
direct block grant services; the State does. Also, the proposed rule
and its preamble specified that the State would receive any funds
withheld from a tribe, if the tribe did not correct the problems that
led to withholding within a reasonable period, so that the State could
then serve the tribe's service population until the tribe corrected
these problems. The State would serve this tribe's service population
as it serves its other residents, including the service populations of
tribes within the State that do not apply for direct Federal funding.
There is no requirement that the State provide more specialized
treatment or accessibility to members of this tribe than it does to its
other residents.
Therefore, the rule is adopted as proposed, with a technical
modification to change the term ``Secretary'' to ``Department''.
Section 96.42 General Procedures and Requirements
Paragraph (f) of subpart D, Sec. 96.42 of the block grant
regulations, provides that a State receiving block grant funds is not
required to use those funds to provide tangible benefits (e.g., cash or
goods) to American Indians who are within the service population of an
Indian tribe or tribal organization that received direct funding from
the Department under the same block grant program for the same fiscal
year. A State, however, may not deny tribal members access to
intangible services funded by block grant programs (e.g., treatment at
a community health center) even if they are members of an organization
receiving direct funding for a similar service.
The original preamble to the regulations (July 6, 1982, 47 FR
29482) provides the following clarification of this provision:
``Thus, for example, States are not required to provide cash
payments or weatherization assistance to Indians included in the
service population of a tribe receiving funds under the low-income home
energy assistance program.''
The proposed amendment in the July 17, 1992 NPRM clarified that
tribes receiving direct block grant funding are not required to use
those funds to provide tangible benefits to non-Indians residing within
the tribe's service area, unless a written tribe-State agreement so
provides. In the case of tangible benefits such as those provided under
the LIHEAP block grant, where the service unit is the household, the
clarification would apply to non-Indian households.
The justification for this policy is clear. The LIHEAP statute
authorizes the direct funding of Indian tribes for the provision of
benefits to Indian households. The statute specifies that a tribe with
a reservation is eligible to receive LIHEAP funds based on the number
of Indian households eligible for the program and residing on the
tribe's reservation or adjacent trust land, as a proportion of the
eligible households in the State, or a larger amount based on an
agreement between the tribe and its State. The tribe's allotment is to
be offset from the allotment of the State. Unless a tribe-State
agreement provides otherwise, the tribe's LIHEAP allotment is not based
on the total eligible population of its reservation and nearby trust
land. The tribe does not receive LIHEAP funds to serve non-Indian
households residing in these areas. This is the responsibility of the
State. Similarly, the statute provides that a tribe without a
reservation is to receive LIHEAP funds based on the number of Indian
households eligible for the program in its service population area, as
determined by the Secretary in consultation with the tribe and its
State.
Thus, unless a tribe-State agreement provides otherwise, tribes
receive LIHEAP funds based only on the number of eligible Indian
households in their service areas.
This amendment, therefore, would clarify that States have the
responsibility to serve the non-Indian households residing in the
service area of a direct grant tribe, unless the tribe and the State
agree that the tribe will do so.
No comments were received in response to Sec. 96.42 (f) as proposed
in the NPRM. Therefore, the rule is adopted as proposed.
Section 96.49 Due Date for Receipt of All Information Required for
Completion of Tribal Applications for the Low-Income Home Energy
Assistance Block Grants
Section 96.49 was proposed to be added to the block grant
regulations by the NPRM issued by the Department on July 17, 1992 (57
FR 31685). It proposed to establish completion dates for tribal
applications for CSBG and for LIHEAP. Because significant changes to
the CSBG statute have been enacted since the publication of the NPRM,
we are dropping the provision establishing completion dates for tribal
applications for CSBG.
LIHEAP: Section 96.49 of the NPRM dated July 17, 1992 proposed that
once the LIHEAP tribal applications are received by the Department,
additional information needed to complete the applications must be
received no later than January 31 for a given fiscal year. The July 17,
1992 proposed rule also indicated that after January 31, funds would
revert to the State(s) in which the tribe is located. This provision
was also included in the November 16, 1993 NPRM (58 FR 60498) in an
amended version. The later NPRM included a due date for completion of
tribal applications of October 1, once forward funding went into
effect.
Comments: In response to this part of Sec. 96.49 of the July 17,
1992 NPRM, three comments were received. A commenter from a northern
State indicated that the deadline should provide States with sufficient
notice in case they need to provide LIHEAP assistance to the service
population of a tribe that has not completed its application for a
direct grant. Additionally, the commenter stated that the State's
extremely cold weather necessitates that winter heating assistance
begin by November 1. Thus, it felt that the January 31 deadline was too
late, and suggested October 15 instead.
One commenter indicated that the requirement that tribal
applications be completed by January 31 or the State becomes
responsible to serve the tribe would result in funds being allocated to
the State after February. The commenter was concerned that, in addition
to the financial impact on the State, the State would not have
sufficient lead time to plan, staff and implement its program to serve
the tribe.
Another commenter indicated that the current regulatory due date of
September 1 for submission of a tribal application for both CSBG and
LIHEAP is satisfactory. The commenter was uncertain whether the due
date for completion of the tribal applications is
[[Page 55851]]
necessary. The commenter also expressed the need to receive LIHEAP
funding as early in the fiscal year as possible.
No comments were received in response to the LIHEAP completion date
proposed in Sec. 96.49 of the November 16, 1993 NPRM related to forward
funding. As mentioned earlier, the proposed dates related to forward
funding are being deleted because forward funding will not be
implemented. However, that NPRM proposed a completion date five months
after the submission date.
Response: The Department concludes, upon further review, that such
a lengthy period for completion of the applications should not be
needed. Because most LIHEAP funds are spent for winter heating
assistance, it would be preferable that States know by early winter at
the latest whether they will be required to serve a tribe's service
population. It should be mentioned that most tribes submit all the
information necessary to complete their applications in a timely
manner. However, in a few cases, tribes take many months to complete
their applications, or never complete their applications, despite
repeated communication from HHS about missing items.
Under this final rule, the due date for receipt of all information
necessary to complete LIHEAP tribal applications is December 15 unless
the State(s) in which the tribe is located agrees to a later completion
date. This is the same date set for completion of applications from
States and territories. We believe it balances the need to give tribes
a reasonable amount of time to provide all necessary information to
complete their applications with the need of the States to know as
early as possible whether they will be responsible for serving tribal
members. We have also made explicit that when funds revert to the State
because a tribe's application is not completed by the deadline, the
State is responsible for serving that tribe's members.
Effective Date: Given the timing of publication of this final rule,
there will not be time for tribal grantees to meet the new schedule for
completion of FY 2000 applications for LIHEAP. Accordingly, Sec. 96.49
of this rule, which applies to LIHEAP applications, will become
effective on March 1, 2000 and will apply beginning with FY 2001 plans.
For example, for FY 2001, LIHEAP tribal applications must be submitted
by September 1, 2000 and must be completed by December 15, 2000.
Subpart E--Enforcement
Section 96.53 Length of Withholding
Six of the seven block grant statutes provide for withholding of
funds from grantees under certain circumstances. (SSBG has no provision
for withholding of funds.)
The statutes for PHHS, CMHS, and SAPT provide that the Secretary
shall, after adequate notice and an opportunity for a hearing conducted
within the affected State, withhold funds from any State which does not
use its allotment in accordance with the requirements of the statute or
the certification provided under the statute. The Secretary shall
withhold such funds until the Secretary finds that the reason for the
withholding has been removed and there is reasonable assurance that it
will not recur.
The statute for MCH provides that the Secretary may, after notice
and opportunity for a hearing, withhold payment of funds to any State
which is not using its allotment under this title in accordance with
this title. The Secretary may withhold such funds until the Secretary
finds that the reason for the withholding has been removed and there is
reasonable assurance that it will not recur.
The LIHEAP and CSBG statutes provide that the Secretary shall,
after adequate notice and an opportunity for a hearing conducted within
the affected State, withhold funds from any State which does not
utilize its allotment substantially in accordance with the provisions
of this statute and the assurances such State provided under the
statute.
Section 96.53 was proposed in the NPRM issued by the Department on
July 17, 1992 (57 FR 31685). It clarifies that under LIHEAP and CSBG,
the Secretary may withhold funds until the Secretary finds that the
reason for withholding has been removed, as is the case with the other
block grants which provide for the withholding of funds. It proposed
making explicit authority which is implicit in the LIHEAP and CSBG
statutes. The proposed new language is similar to that of the other
four statutes which provide for withholding of funds.
Comment: In response to Sec. 96.53 in the NPRM dated July 17, 1992,
one comment was received. The commenter indicated agreement with the
proposed language, both because it is very similar to language in
several other block grant statutes and because it provides a time frame
for when the funds would be released once they have been withheld.
Response: The Department concludes that for the sake of
thoroughness and consistency with the other block grants, the proposed
language is needed to clarify for grantees authority which is implicit
in the LIHEAP and CSBG statutes. Therefore, the language proposed for
Sec. 96.53 is included in this final rule.
Subpart H--Low-Income Home Energy Assistance Program (LIHEAP)
Section 96.81 Carryover and Reallotment
Section 2607(b)(2) of the LIHEAP statute provides that grantees may
hold available (carry forward or carry over) for use or obligation in
the following fiscal year up to 10 percent of the amount payable to
them in a fiscal year and not transferred to another HHS block grant.
Section 2607(b)(l) provides for reallotment among all grantees in the
following fiscal year of any amounts unused (unobligated) as of the end
of a fiscal year that exceed the amount that may be held available for
use in the following fiscal year. Section 2604(f)(2) of the LIHEAP
statute, as amended by Public Law 101-501, provides that, beginning in
FY 1994, grantees may no longer transfer LIHEAP funds to other HHS
block grants.
--Required Carryover and Reallotment Report
As part of the reallotment procedure established by section
2607(b), LIHEAP grantees must report information annually on funds they
plan to hold available for obligation in the following fiscal year and
on excess unobligated funds available for reallotment among all
grantees in the following fiscal year. Section 96.81 of the block grant
regulations lists the requirements for these reports.
The January 16, 1992 (57 FR 1960) interim final rule amended
Sec. 96.81 to reflect the change made by Public Law 101-501 reducing
the maximum amount of LIHEAP funds that grantees may carry forward for
obligation in the succeeding fiscal year, from 15 percent to 10 percent
of the funds payable to the grantee and not transferred, pursuant to
section 2604(f) of the LIHEAP statute (as in effect prior to 1998), to
another HHS block grant. The change was effective beginning with FY
1991 funds carried over to FY 1992. The amended Sec. 96.81 required
that, as part of their annual carryover and reallotment reports,
grantees indicate the amount of LIHEAP funds they want to hold
available for obligation in the next fiscal year, ``not to exceed 10
percent of the funds payable to the grantee and not transferred * * *''
The November 16, 1993 (58 FR 60498) NPRM proposed to specify in
Sec. 96.81
[[Page 55852]]
that, beginning with funds appropriated for FY 1994, grantees would not
be able to transfer any LIHEAP funds to another block grant, consistent
with changes to the LIHEAP statute made by Public Law 101-501. We
received no comments on this proposed amendment.
Because the transfer authority has now expired, this final rule
deletes reference to it in the list of requirements for grantees'
future carryover and reallotment reports in Sec. 96.81. It codifies the
requirements for these reports at Sec. 96.81(b).
Title III of the Human Services Amendments of 1994, Public Law 103-
252, reauthorized LIHEAP and provided that the Department may not
release block grant funds to a grantee until its carryover and
reallotment report, which is due by August 1 of each year, has been
submitted for the previous year. This requirement was effective
beginning with fiscal year 1995 and has been added to this section.
--Conditions for Reallotment
In addition, we are making final a change relating to reallotment
of LIHEAP funds that we proposed in the July 17, 1992 (57 FR 31682)
NPRM.
The preamble to the NPRM noted that when grantees have had excess
unobligated funds available for reallotment, these amounts have usually
been small. For example, in FY 1987, a total of $16,706 in unobligated
FY 1986 LIHEAP funds were available for reallotment; in FY 1988, $2,858
in unobligated FY 1987 funds were available for reallotment; and in FY
1994, a total of $23,591 in unobligated FY 1993 funds were available
for reallotment. If HHS had reallotted these funds, many grantees would
have received grant awards of less than $1, and many others would have
received awards of less than $25. We therefore determined that it would
not be cost effective for HHS to award these small amounts to grantees,
or for grantees to account for and use them. HHS then published notices
in the Federal Register announcing its decision that no LIHEAP funds
from FY 1986, FY 1987, or FY 1993 would be reallotted.
Because similar situations are likely to occur in the future, the
NPRM proposed to amend Sec. 96.81 of the block grant regulations to
state that HHS will not reallot LIHEAP funds if less than $25,000 is
available. If $25,000 or more is available, HHS would reallot these
funds. However, HHS would not award less than $25 in reallotted funds
to a grantee. If $25,000 were available for reallotment, all States
would receive at least $25.
The NPRM's preamble proposed that if a tribe's share of reallotted
funds would be less than $25, the tribe's share would be awarded to the
State(s) in which the tribe is located. If a territory's share of
reallotted funds would be less than $25, the territory's share would be
distributed proportionately among the other territorial grantees
receiving shares of $25 or more.
We received one comment supporting this proposed amendment and none
opposing it.
We are adopting this change at section 96.81(c), as proposed in the
July 17, 1992 NPRM. If a tribe, tribal organization, or territory's
share of reallotted funds would be less than $25, HHS will follow the
procedures for such circumstances that are described above.
--Technical Amendments
We also are clarifying that Sec. 96.81 applies to regular LIHEAP
block grant funds and not to LIHEAP leveraging incentive funds.
(Section 96.87(k) of the regulations as established by the final rule
of May 1, 1995, sets the period of obligation for leveraging incentive
funds. Leveraging incentive funds are not subject to reallotment; all
leveraging incentive funds not obligated during the appropriate period
allowed for obligation must be returned to the Federal government.)
Finally, in minor technical amendments, we are dividing Sec. 96.81
into paragraphs ``(a) Scope'', ``(b) Required carryover and reallotment
report'', and ``(c) Conditions for reallotment'', as proposed in the
July 1992 NPRM. Also, we are changing the heading of the section from
``Reallotment report'' to ``Carryover and reallotment'', and making
several other minor technical changes, to accurately reflect the
contents of the LIHEAP statute and this section.
Section 96.82 Required Report on Households Assisted
The title of Sec. 96.82 was proposed to be revised in the November
16, 1993 NPRM (58 FR 60498) from ``Required report'' to ``Required
report on households assisted'' to reflect the contents of the report.
In addition, the NPRM included provisions related to the implementation
of forward funding, and proposed changing the term ``handicapped'' to
``disabled''. No comments were received in response to this section of
the NPRM.
Subsequently, however, the Human Services Amendments of 1994 (Pub.
L. 103-252) amended section 2605(c)(1)(G) of the LIHEAP statute to
provide that, beginning with fiscal year 1995, additional data must be
reported by grantees concerning the households applying for assistance,
as well as those households receiving assistance under the LIHEAP
program. Pub. L. 103-252 also required that the data for the prior year
must be submitted as part of the application for grant funds.
Accordingly, grant awards for the current fiscal year may not be made
until the data for the prior year is received.
The Office of Management and Budget has approved the collection of
the new data requirements (LIHEAP Household Report--OMB Control No.
0970-0060, expiration date 6/30/2000), beginning with data for FY 1998,
which must be submitted as part of the application for FY 1999 LIHEAP
funds. As required by the statute and approved by OMB, the data that
must be reported for each type of LIHEAP assistance provided by the
grantee is (1) the number and income levels of those households
applying for assistance and of those households receiving assistance;
and (2) for those households receiving assistance, the number of
households that contain one or more members who are elderly, disabled,
or a young child. In addition, OMB approved the collection of data on a
voluntary basis on the breakout of young children into two age
categories, as recommended in the legislative history for the law. As
part of the OMB clearance, insular areas that receive regular LIHEAP
block grant allocations of less than $200,000 annually and Indian
tribes and tribal organizations that receive direct funding from HHS
need to submit only data on the number of households assisted for each
type of LIHEAP assistance provided by the grantee. The OMB approval
included a recommended format that grantees may (but are not required)
to use to report the data.
Consistent with the amendments to the LIHEAP statute, the OMB
information collection approval provides that a grant award will not be
made until the LIHEAP Household Report for the previous fiscal year is
received.
We are adopting this section of the regulation, with several
changes to reflect the change in statutory requirements and the OMB
information collection approval. We have revised this section to
require grantees to submit a report on data required by the LIHEAP
statute, as approved by OMB for information collection under the
Paperwork Reduction Act of 1995. Rather than specify the information
required, we have referenced the information required by the statute,
so that the regulations will not need to be changed if this part of the
statute is
[[Page 55853]]
amended again. We have also included the reduced amount of information
required from insular areas with annual block allotments of less than
$200,000 and from tribal grantees under the OMB approval. The proposed
date changes which were related to forward funding are being deleted
since forward funding will not be implemented. A technical change is
being made to change the word ``handicapped'' to the word ``disabled''
in this section. The title of the section is being changed to
``Required LIHEAP household report'', to more accurately reflect its
content under the current statutory requirements.
Because the provisions in Sec. 96.82 that are included in this
notice were not previously included in a notice of proposed rulemaking,
we are issuing this part of the regulation as an interim final rule,
with an opportunity for comment. This means that this portion of the
regulation is effective November 15, 1999, after publication of this
notice in the Federal Register, but that we are interested in receiving
comments on the interim final provisions. We will review any comments
which we receive by December 14, 1999. We will revise the rule, as
appropriate, based on the comments we receive and on our experience in
implementing the provisions.
Section 96.84 Miscellaneous
End of Transfer Authority. At the time of publication of the NPRM
dated November 16, 1993 (58 FR 60498), grantees were no longer allowed
to transfer up to 10 per cent of LIHEAP funds payable in a fiscal year
to other HHS block grant programs. The 1990 amendments to the statute
provided that, beginning in fiscal year 1994, no LIHEAP funds payable
to a grantee may be transferred to other block grant programs.
Accordingly, the NPRM proposed to amend the block grant regulations to
specify that after September 30, 1993, grantees no longer may transfer
any of their LIHEAP funds to the block grant programs specified in
section 2604(f) of the statute.
The FY 1993 HHS appropriations law (Pub. L. 102-394) provided
advance funding for LIHEAP for the first nine months of FY 1994, and
allowed $141,950,240 of those funds to be used by grantees to reimburse
themselves for expenses incurred in FY 1993. Because they were
appropriated as advance funding for FY 1994, any such funds used by
grantees to reimburse themselves for FY 1993 expenses could not be
considered funds payable to grantees in FY 1993 and thus could not have
been used to calculate the maximum amount that could have been
transferred in FY 1993.
The authority for territories to consolidate funding for several
programs under one or more HHS programs is not considered a transfer
and thus did not terminate in FY 1994. Likewise, LIHEAP funds earmarked
by grantees for use for LIHEAP weatherization assistance or other
energy-related home repair, even if administered by another grantee
agency, are not considered to be transferred, and this authority did
not terminate in FY 1994.
No comments were received in response to Sec. 96.84 of the NPRM.
Therefore, the rule is adopted as proposed.
Section 96.85 Income Eligibility
The statute sets maximum and minimum income eligibility standards
for participation in the LIHEAP program that are tied to poverty income
guidelines and to State median income estimates as determined by the
Bureau of Census. The date for adoption of the current poverty income
guidelines is any time between the date of their publication in the
Federal Register and the beginning of the next fiscal year. The date
for adoption of the State median income estimates has been the first
day of the fiscal year after their publication, but that date had not
been reflected in the block grant regulations. The NPRM dated November
16, 1993 (58 FR 60498) proposed that the block grant regulations be
amended to incorporate an adoption date for the State median income
estimates that is consistent with the adoption date for the poverty
income guidelines and to amend that adoption date to reflect the shift
to forward funding, although the law subsequently deleted the concept
of forward funding. The poverty income guidelines and the State median
income estimates are published annually in the Federal Register,
generally in the month of February or March. Therefore, with the
amendment of this section, grantees could adopt the annual poverty
income guidelines and the annual State median income estimates at any
time between the date of publication in the Federal Register and the
first day of the next fiscal year, October 1, or the beginning of the
State fiscal year, whichever is later. Grantees could also choose to
implement the changes during the period between the heating and cooling
seasons.
No comments were received in response to Sec. 96.85 of the NPRM.
Therefore, the rule is adopted as proposed, except for deleting
references to dates under forward funding.
Regulatory Procedures
Paperwork Reduction Act of 1995
Sections 96.10, 96.49, 96.81, and 96.82 contain information
collections. As required by the Paperwork Reduction Act of 1995 (44
U.S.C. 3507 (d)), the Department submitted a copy of these sections to
the Office of Management and Budget (OMB) for its review. The following
data collection forms have been approved by OMB:
Section 96.10(a) (Maternal and Child Health Services Block Grant
guidance and Forms for the Title V Application/Annual Report, OMB
clearance number 0915-0172, expiration date 11/99);
Section 96.10(c) (LIHEAP Model Plan, OMB Clearance Number 0970-
0075, expiration date 12/31/2001);
Sections 96.49, LIHEAP Model Plan, OMB Clearance Number 0970-0075,
expiration date 12/31/2001);
Section 96.81 (LIHEAP Carryover and Reallotment Report, OMB
Clearance Number 0970-0106, expiration date 09/30/2001).
Section 96.82 (LIHEAP Report on Applicant and Recipient Households
(OMB Control Number 0970-0060, expiration date 6/30/2000).
Title: Maternal and Child Health Services Block Grant guidance and
Forms for the Title V Application/Annual Report (OMB clearance number
0915-0172, expiration date 11/99).
Summary: The rule modifies Sec. 96.10(a) to allow the Department to
specify the form of a block application when this is required or
clearly contemplated by the authorizing statute. It also states that
the MCH application shall be in the format specified by the Secretary,
as required by the MCH authorizing law. Previously, the rule stated
that no particular form was required. This information will be used to
obtain descriptions of grantee programs and to make grant awards.
Respondents: State and territorial grantees under the MCH block
grant. The number of likely respondents is 59.
Burden information: The MCH application and annual report are
required annually of each grantee. The application, annual report, and
guidance are currently undergoing revision and renewal of the OMB
clearance. The public reporting burden for the revised application and
annual report is estimated to be approximately 495 hours for each State
grantee and 200 hours for the District of Columbia and territories, for
4 out of every 5 years, for a total burden of 26,550 hours. In the 5th
year, a needs assessment is also required. In that year, the estimated
burden is 675 hours for each State grantee and 360 hours for the
District of
[[Page 55854]]
Columbia and territories, for a total burden of 36,990 hours. The
average annual burden over the next three years is 30,030 hours. This
includes time for reviewing instructions, searching existing data
sources, gathering and maintaining the data needed, and completing and
reviewing the collection of information. The changes in this final rule
are consistent with the notice of the request for OMB renewal of the
information collection for the MCH application and annual report,
published at 62 FR 17198. Furthermore, in the support of its commitment
to new Federalism, the Department has made every effort to develop its
application requirements and forms in close cooperation with the
States, and where possible the communities. With respect to the MCH
application and annual report, the Maternal and Child Health Bureau
developed new guidance and an automated reporting system based on the
emerging concept of ``Performance Partnerships.'' Not only did the
Bureau meet regularly with a Block Grant Guidance Work Group made up
largely of State and local MCH representatives, but the Bureau field
tested the guidance and information system with 9 states and held a
number of sessions at three separate national meetings with
representatives of all State MCH and Children with Special Health Care
Needs Directors, as well as many local directors. The initial national
sessions focused on discussing and reviewing the proposed guidance and
performance partnership measures. Later sessions included hands on
training in using the guidance that was provided by the Bureau and the
nine test States.
Title: LIHEAP Model Plan (OMB Clearance Number 0970-0075,
expiration date 12/31/2001).
Summary: Section 96.10(c) establishes application submission and
completion deadlines for annual applications for LIHEAP funds from
States and territories. This will allow the Department to issue grant
awards as close as possible to the beginning of a grant period and thus
meet its obligations under the Cash Management improvement Act to
minimize interest charges associated with that Act. Other than
establishing due dates, this final rule does not affect the information
collection.
Respondents: State, territorial, and tribal grantees under the
LIHEAP block grant.
Burden information: The LIHEAP application is required annually of
each grantee. We estimate the number of likely respondents to be 180.
The public reporting burden is estimated to be 1 hour for each of the
60 grantees that submit a detailed plan (required of each grantee every
three years) and 20 minutes for each of the 120 grantees that submit an
abbreviated form, for an estimated total annual reporting and
recordkeeping burden of 103 hours. This includes time for reviewing
instructions, searching existing data sources, gathering and
maintaining the data needed, and completing and reviewing the
collection of information.
Title: LIHEAP Model Plan (OMB Clearance Number 0970-0075,
expiration date 12/31/2001).
Summary: Section 96.49 establishes application completion deadlines
for annual applications for LIHEAP funds from Indian tribes and tribal
organizations. The current rule establishes an application submission
deadline for tribal grantees. This change will allow the Department to
advise States early in the heating season whether they will be
responsible for serving members of a tribe's service population, or
whether the tribe will do so. Other than establishing a completion
date, this final rule does not affect the information collection.
Respondents: State, territorial, and tribal grantees under the
LIHEAP block grant.
Burden information: The LIHEAP application is required annually of
each grantee. We estimate the number of likely respondents to be 180.
The public reporting burden is estimated to be 1 hour for each of the
60 grantees that submit a detailed plan (required of each grantee every
three years) and 20 minutes for each of the 120 grantees that submit an
abbreviated form, for an estimated total annual reporting and
recordkeeping burden of 103 hours. This includes time for reviewing
instructions, searching existing data sources, gathering and
maintaining the data needed, and completing and reviewing the
collection of information.
Title: LIHEAP Carryover and Reallotment Report (OMB Clearance
Number 0970-0106, expiration date 09/30/2001).
Summary: Section 96.81 amends requirements relating to a required
report on the amount of funds grantees wish to carry forward from the
year in which they are appropriated to the following fiscal year
(limited to 10% of funds payable to the grantee). The changes reflect
amendments to the LIHEAP statute. The data are used to determine
whether excess carryover funds will be available for reallotment to
other grantees. Other than making the regulations consistent with
statutory requirements, the changes do not affect the information
collection.
Respondents: State, territorial, and tribal grantees under the
LIHEAP block grant.
Burden information: The LIHEAP carryover and reallotment report is
required annually of each grantee. We estimate the number of likely
respondents to be 177. The public reporting burden is estimated to be 3
hours for each of the 177 grantees, for an estimated total annual
reporting and recordkeeping burden of 531 hours. This includes time for
reviewing instructions, searching existing data sources, gathering and
maintaining the data needed, and completing and reviewing the
collection of information.
Title: LIHEAP Report on Applicant and Recipient Households (OMB
Control Number 0970-0060, expiration date 6/30/2000).
Summary: Section 96.82 amends requirements for a required report on
LIHEAP households applying for and receiving assistance in the prior
fiscal year, in order to make them consistent with statutory provisions
enacted in 1994 (Pub. L. 103-252). The collection of the statutorily
required data has been approved by OMB. Other than making the
regulatory language consistent with the statute and the OMB approval,
this final rule does not affect the information collection.
Respondents: State, territorial, and tribal grantees under the
LIHEAP block grant.
Burden information: The report on households applying for and
receiving LIHEAP assistance the previous fiscal year must be submitted
as part of a grantee's LIHEAP application each fiscal year. We estimate
the number of likely respondents to be 183. The public reporting burden
is estimated to be 38 hours for each of the 52 grantees that must
submit all required data (all States, the District of Columbia, and
Puerto Rico). The reporting burden is estimated to be 1 hour for each
of the 131 grantees that submit information only on the number of
households assisted under each type of assistance offered by the
grantee (applicable to Indian tribes and tribal organizations, and to
those insular areas with annual allotments of less than $200,000). The
estimated total annual reporting and recordkeeping burden is 2,107
hours. This includes time for reviewing instructions, searching
existing data sources, gathering and maintaining the data needed, and
completing and reviewing the collection of information.
Section 96.30 also contains information collection requirements. As
required by the Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d), the
Department will submit a copy of this
[[Page 55855]]
section to the Office of Management and Budget (OMB) for its review.
Title: Financial Status Report, OMB Standard Form 269A.
Summary: Section 96.30 of this final rule establishes a new
requirement that grantees under block grants covered by these
regulations submit, within 90 days of the end of the grant period, OMB
Standard Form 269A, Financial Status Report (short form), reporting the
obligation and/or expenditure of block grant funds. Currently, the
Department does not require obligation or expenditure reports for the
block grants (although some grantees submit them voluntarily.) This has
caused problems in the past because there is no clear-cut information
as to when a grantee has completely used its grant funds, thus allowing
the Department to close the grant account. This information would allow
HHS and the grantee to verify the financial status of block grant funds
and allow the Department to determine aggregate obligations,
expenditures, and available balances.
Respondents: States, territories, and Indian tribes or tribal
organizations that receive funds under the block grants subject to
these regulations.
Burden Information: These obligation and expenditure reporting
requirements will be required annually for all State, territorial, and
tribal grantees under each of the block grant programs subject to these
regulations. We estimate the number of likely respondents to be 620,
based on the following number of grantees for each block grant: 180 for
LIHEAP, 130 for CSBG, 57 for SSBG, 75 for PHHS, 59 for MCH, 59 for
CMHS, and 60 for SAPT. The public reporting burden is estimated to be
less than an hour each for a grantee, including time for reviewing
instructions, searching existing data sources, gathering and
maintaining the data needed, and completing and reviewing the
collection of information, for an estimated total annual reporting and
recordkeeping burden of 620 hours.
The Department of Health and Human Services will consider comments
by the public on the proposed collection of information under
Sec. 96.30 in--
Evaluating whether the proposed collections are necessary
for the proper performance of the functions of the Department,
including whether the information will have practical utility;
Evaluating the accuracy of the Department's estimate of
the burden of the proposed collections of information, including the
validity of the methodology and assumptions used;
Enhancing the quality, usefulness, and clarity of the
information to be collected; and
Minimizing the burden of the collection of information on
those who are to respond, including through the use of appropriate
automated, electronic, mechanical, or other technology, e.g.,
permitting electronic submission of responses.
To ensure that public comments have maximum effect in developing
the final regulations, the Department urges that each comment clearly
identify the specific section or sections of the regulations that the
comment addresses and that comments be in the same order as the
regulations.
Under the Paperwork Reduction Act of 1995, we are required to
provide 60 day notice in the Federal Register and solicit public
comment before a collection of information requirement is submitted to
the Office of Management and budget (OMB) for review and approval. To
comment on this information collection and record keeping requirement,
please send comments to the following: Department of Health and Human
Services, Office of Planning and Evaluation, Room 447D, 200
Independence Ave., SW, Washington, DC 20201, Attn: Michael Herrell.
After receipt and full consideration of comments, the Department
will submit the information collection requirement to OMB for review
and approval. The requirement will take effect upon OMB approval.
Regulatory Impact Analysis
Executive Order 12866 requires preparation of a regulatory impact
analysis if the regulation will have an annual effect on the economy of
$100 million or more or adversely affect in a material way the economy,
a sector of the economy, productivity, competition, jobs, the
environment, public health or safety, or State, local or tribal
governments or communities. In this respect, the Department of Health
and Human Services believes that this final regulation will not have an
impact on the economy of $100 million or more or adversely affect in a
material way any of the sectors listed above, including State, local or
tribal governments.
Primarily this rule amends the regulation governing block grant
programs to clarify a number of administrative processes that include
submission and completion dates for applications, where to submit
waiver requests, direct funding of Indian tribes and other
organizations, and procedures for termination, reduction, suspension
and partial withholding of funding. In the case of application
submission and completion dates, we have provided substantial
flexibility in response to public comments to accommodate the varying
State cycles and believe setting these dates will have a positive
impact in allowing the Department to issue awards to States in a timely
manner. We also believe that our clarification of administrative
processes for waiver requests, direct funding and related items
provides only the minimum requirements and guidance needed and
therefore will not impose a burden, especially since it is expected
that these procedures will be needed only in rare circumstances.
The rule additionally codifies a number of statutory changes such
as program name changes, statutory citations and fund transfer
authorities. There is no burden associated with these changes.
Finally, the rule clarifies the authority of the Department to
specify block grant reporting requirements where authorized by
governing statutes and it requires some minimal financial reporting
requirements to allow the Department to comply with legal requirements
for fund management. Authority for establishing the content and format
of reports required under block grants continues to be governed by the
authorizing statutes and the clarification provided in this rule does
not set substantive requirements. The Department will continue to
solicit State input on the development of the format and content of
required reports as it has done under the MCH program.
With respect to the financial reporting requirement, the Department
believes the burden imposed is not significant. This information is
already collected by the States and periodically submitted to the
Department. This rule will provide a set process for submitting the
information in the future, giving States a predictable routine to
follow. The SF-269a is already used by States and is intended to
further reduce the report burden on grantees. We have adopted the short
form to acquire only the minimum information needed for our accounting
purposes.
In accordance with the provisions of Executive Order 12866, this
regulation was reviewed by the Office of Management and Budget.
Federalism
We have examined this rule under Executive Order 12612 on
Federalism and do not believe that the rule violates the principles or
policymaking criteria set forth by the Order. In several instances
under the rule, we are establishing standard administrative procedures
for actions such as application submission dates, direct funding of
Indian tribes and tribal
[[Page 55856]]
organizations, termination of funds, and financial reporting. In
establishing these procedures, the Department has tried to allow
maximum flexibility to States in the way they can meet these
requirements. For instance, the Department, in response to public
comment, has revised the regulations to allow the Department to
accommodate varying State and Tribal cycles in the submission of
applications. We also note that a number of States have commented in
support of various provisions of this rule. We will also continue to
consult with States and Tribes in the development and modification of
any standard reporting requirements and formats that are authorized by
the governing program statutes.
Regulatory Flexibility Act
The Regulatory Flexibility Act (Pub. L. 96-354) requires the
Federal government to anticipate and reduce the impact of regulations
and paperwork requirements on small entities. The primary impact of
this final rule is on State, tribal and territorial governments.
Therefore, the Department of Health and Human Services certifies that
these rules will not have a significant economic impact on a
substantial number of small entities because they affect payments to
States, tribes and territories. Thus, a regulatory flexibility analysis
is not required.
Catalog of Federal Domestic Assistance Program Numbers
The Catalog of Federal Domestic Assistance Program Numbers for
these programs are: 93.568 for the Low-Income Home Energy Assistance
Program (LIHEAP); 93.569 for the Community Services Block Grant (CSBG);
93.667 for the Social Services Block Grant (SSBG), 93.991 for the
Preventive Health and Health Services Block Grant (PHHS); 93.958 for
the Community Mental Health Services Block Grant (CMHS); 93.959 for the
Substance Abuse Prevention and Treatment Block Grant (SAPT); and 93.994
for the Maternal and Child Health Services Block Grant (MCH).
List of Subjects in 45 CFR Part 96
Child welfare, Community action program, Energy, Grant programs--
energy, Grant programs--Indians, Grant programs--social programs,
Health, Income assistance, Indians, Individuals with disabilities, Low
and moderate income housing, Maternal and child health, Mental health
programs, Public health, Reporting and record keeping requirements,
Substance Abuse, Transfers, Weatherization.
Dated: November 10, 1998.
Donna E. Shalala,
Secretary, Department of Health and Human Services.
Note: This document was received in the Office of the Federal
Register on October 8, 1999.
For the reasons set forth in the preamble, part 96 of title 45 of
the Code of Federal Regulations is amended as follows:
PART 96--BLOCK GRANTS
1. The authority citation for part 96 continues to read as follows:
Authority: 42 U.S.C. 300w et seq.; 42 U.S.C. 300x et seq.; 42
U.S.C. 300y et seq.; 42 U.S.C. 701 et seq.; 42 U.S.C. 8621 et seq.;
42 U.S.C. 9901 et seq.; 42 U.S.C. 1397 et seq.; 31 U.S.C. 1243 note.
Subpart A--Introduction
2. Section 96.1 is amended by revising paragraphs (a), (c), (d),
(e), and (f) to read as follows:
Sec. 96.1 Scope.
(a) Community services (Pub. L. 97-35, sections 671-683) (42 U.S.C.
9901-9912).
* * * * *
(c) Community mental health services (Public Health Service Act,
sections 1911-1920 and sections 1941-1954) (42 U.S.C. 300x-1-300x-9 and
300x-51-300x-64).
(d) Substance abuse prevention and treatment (Public Health Service
Act, sections 1921-1935 and sections 1941-1954) (42 U.S.C. 300x-21-
300x-35 and 300x-51-300x-64).
(e) Maternal and child health services (Social Security Act, Title
V) (42 U.S.C. 701-709).
(f) Social services, empowerment zones and enterprise communities
(Pub. L. 97-35, sections 2351-55; Pub. L. 103-66, section 1371) (42
U.S.C. 1397-1397f).
* * * * *
3. Section 96.2 is amended by revising paragraph (d) to read as
follows:
Sec. 96.2 Definitions.
* * * * *
(d) State includes the fifty States, the District of Columbia, and
as appropriate with respect to each block grant, the Commonwealth of
Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, the
Commonwealth of the Northern Mariana Islands, and for purposes of the
block grants administered by agencies of the Public Health Service, the
Federated States of Micronesia, the Republic of the Marshall Islands,
and the Republic of Palau.
Subpart B--General Procedures
3. Section 96.10 is amended by revising paragraph (a) and adding
paragraphs (c) and (d) to read as follows:
Sec. 96.10 Prerequisites to obtain block grant funds.
(a) Except where prescribed elsewhere in this rule or in
authorizing legislation, no particular form is required for a State's
application or the related submission required by the statute. For the
maternal and child health block grant, the application shall be in the
form specified by the Secretary, as provided by section 505(a) of the
Social Security Act (42 U.S.C. 705(a)).
(b) * * *
(c) Effective beginning in fiscal year 2001, submission dates for
applications under the social service and low-income home energy
assistance block grant programs are:
(1) for the social services block grant, States and territories
which operate on a Federal fiscal year basis, and make requests for
funding from the Department, must insure that their applications (pre-
expenditure reports) for funding are submitted by September 1 of the
preceding fiscal year unless the Department agrees to a later date.
States and territories which operate their social services block grant
on a July 1-June 30 basis, must insure that their applications are
submitted by June 1 of the preceding funding period unless the
Department agrees to a later date.
(2) for the low-income home energy assistance program, States and
territories which make requests for funding from the Department must
insure that their applications for a fiscal year are submitted by
September 1 of the preceding fiscal year unless the Department agrees
to a later date.
(d) Effective beginning in fiscal year 2001, for the low-income
home energy assistance program, States and territories which make
requests for funding from the Department must insure that all
information necessary to complete their applications is received by
December 15 of the fiscal year for which they are requesting funds
unless the Department agrees to a later date.
4. Section 96.15 is revised to read as follows:
Sec. 96.15 Waivers.
Applications for waivers that are permitted by statute for the
block grants should be submitted to the Director, Centers for Disease
Control and Prevention in the case of the preventive health and health
services block grant; to the Administrator, Substance Abuse and Mental
Health Services
[[Page 55857]]
Administration in the case of the community mental health services
block grant and the substance abuse prevention and treatment block
grant; to the Director, Maternal and Child Health Bureau in the case of
the maternal and child health services block grant; and to the
Director, Office of Community Services in the case of the community
services block grant, the low-income home energy assistance program and
the social services block grant. Beginning with fiscal year 1986, the
Secretary's authority to waive the provisions of section 2605(b) of
Public Law 97-35 (42 U.S.C. 8624(b)) under the low-income home energy
assistance program is repealed.
Subpart C--Financial Management
5. Section 96.30 is amended by designating text of the current
paragraph as paragraph (a), adding a heading to newly designated
paragraph (a), and adding a new paragraph (b) to read as follows:
Sec. 96.30 Fiscal and administrative requirements.
(a) Fiscal control and accounting procedures. * * *
(b) Financial summary of obligation and expenditure of block grant
funds.--(1) Block grants containing time limits on both the obligation
and the expenditure of funds. After the close of each statutory period
for the obligation of block grant funds and after the close of each
statutory period for the expenditure of block grant funds, each grantee
shall report to the Department:
(i) Total funds obligated and total funds expended by the grantee
during the applicable statutory periods; and
(ii) The date of the last obligation and the date of the last
expenditure.
(2) Block grants containing time limits only on obligation of
funds. After the close of each statutory period for the obligation of
block grant funds, each grantee shall report to the Department:
(i) Total funds obligated by the grantee during the applicable
statutory period; and
(ii) The date of the last obligation.
(3) Block grants containing time limits only on expenditure of
funds. After the close of each statutory period for the expenditure of
block grant funds, each grantee shall report to the Department:
(i) Total funds expended by the grantee during the statutory
period; and
(ii) The date of the last expenditure.
(4) Submission of information. Grantees shall submit the
information required by paragraph (b)(1), (2), and (3) of this section
on OMB Standard Form 269A, Financial Status Report (short form).
Grantees are to provide the requested information within 90 days of the
close of the applicable statutory grant periods.
Subpart D--Direct Funding of Indian Tribes and Tribal Organizations
6. Section 96.41 is amended by revising paragraph (a) and by adding
a new paragraph (c) to read as follows:
Sec. 96.41 General determination.
(a) The Department has determined that, with the exception of the
circumstances addressed in paragraph (c) of this section, Indian tribes
and tribal organizations would be better served by means of grants
provided directly by the Department to such tribes and organizations
out of their State's allotment of block grant funds than if the State
were awarded its entire allotment. Accordingly, with the exception of
situations described in paragraph (c) of this section, the Department
will, upon request of an eligible Indian tribe or tribal organization
and where provided for by statute, reserve a portion of the allotment
of the State(s) in which the tribe is located, and, upon receipt of a
complete application and related submission meeting statutory and
regulatory requirements, grant it directly to the tribe or
organization.
* * * * *
(c) The Department has determined that Indian tribal members
eligible for the funds or services provided through the block grants
would be better served by the State(s) in which the tribe is located
rather than by the tribe, where:
(1) The tribe has not used its block grant allotment substantially
in accordance with the provisions of the relevant statute(s); and
(2) Following the procedures of 45 CFR 96.51, the Department has
withheld tribal funds because of those deficiencies; and
(3) The tribe has not provided sufficient evidence that it has
removed or corrected the reason(s) for withholding. In these cases,
block grant funds reserved or set aside for a direct grant to the
Indian tribe will be awarded to the State(s), and the State(s) will
provide block grant services to the service population of the tribe.
Before awarding these funds to the State(s), the Department will allow
as much time as it determines to be reasonable for the tribe to correct
the conditions that led to withholding, consistent with provision of
timely and meaningful services to the tribe's service population during
the fiscal year. If a State(s) is awarded funds under this paragraph,
the State(s) will receive all remaining funds set aside for the tribe
for the Federal fiscal year for which the award is made. Where the
Department has withheld funds from a tribe and the tribe has not taken
satisfactory corrective action by the first day of the following fiscal
year, all of the funds to serve the tribe's service population for the
following fiscal year will be awarded to the State(s). The State(s) is
responsible for providing services to the service population of the
tribe in these cases. This paragraph also applies when funds are
withheld from a tribal organization.
7. Section 96.42 is amended by adding a new sentence to the end of
paragraph (f) to read as follows:
Sec. 96.42 General procedures and requirements.
* * * * *
(f) * * * A tribe receiving direct block grant funding is not
required to use those funds to provide tangible benefits to non-Indians
living within the tribe's service area unless the tribe and the
State(s) in which the tribe is located agree in writing that the tribe
will do so.
8. A new Sec. 96.49 is added to Subpart D to read as follows:
Sec. 96.49 Due date for receipt of all information required for
completion of tribal applications for the low-income home energy
assistance block grants.
Effective beginning in FY 2001, for the low-income home energy
assistance program, Indian tribes and tribal organizations that make
requests for direct funding from the Department must insure that all
information necessary to complete their application is received by
December 15 of the fiscal year for which funds are requested, unless
the State(s) in which the tribe is located agrees to a later date.
After December 15, funds will revert to the State(s) in which the tribe
is located, unless the State(s) agrees to a later date. If funds revert
to a State, the State is responsible for providing low-income home
energy assistance program services to the service population of the
tribe.
Subpart E--Enforcement
9. A new section 96.53 is added to subpart E to read as follows:
Sec. 96.53 Length of withholding.
Under the low-income home energy assistance program and community
services block grant, the Department may withhold funds until the
Department finds that the reason for the withholding has been removed.
[[Page 55858]]
Subpart H--Low-Income Home Energy Assistance Program
10. Section 96.81 is revised to read as follows:
Sec. 96.81 Carryover and reallotment.
(a) Scope. Pursuant to section 2607(b) of Public Law 97-35 (42
U.S.C. 8626(b)), this section concerns procedures relating to carryover
and reallotment of regular LIHEAP block grant funds authorized under
section 2602(b) of Public Law 97-35 (42 U.S.C. 8621(b)).
(b) Required carryover and reallotment report. Each grantee must
submit a report to the Department by August 1 of each year, containing
the information in paragraphs (b)(1) through (b)(4) of this section.
The Department shall make no payment to a grantee for a fiscal year
unless the grantee has complied with this paragraph with respect to the
prior fiscal year.
(1) The amount of funds that the grantee requests to hold available
for obligation in the next (following) fiscal year, not to exceed 10
percent of the funds payable to the grantee;
(2) A statement of the reasons that this amount to remain available
will not be used in the fiscal year for which it was allotted;
(3) A description of the types of assistance to be provided with
the amount held available; and
(4) The amount of funds, if any, to be subject to reallotment.
(c) Conditions for reallotment. If the total amount available for
reallotment for a fiscal year is less than $25,000, the Department will
not reallot such amount. If the total amount available for reallotment
for a fiscal year is $25,000 or more, the Department will reallot such
amount, except that the Department will not award less than $25 in
reallotted funds to a grantee.
11. Section 96.82 is revised to read as follows:
Sec. 96.82 Required report on households assisted.
(a) Each grantee which is a State or an insular area which receives
an annual allotment of at least $200,000 shall submit to the
Department, as part of its LIHEAP grant application, the data required
by section 2605(c)(1)(G) of Public Law 97-35 (42 U.S.C. 8624(c)(1)(G))
for the 12-month period corresponding to the Federal fiscal year
(October 1-September 30) preceding the fiscal year for which funds are
requested. The data shall be reported separately for LIHEAP heating,
cooling, crisis, and weatherization assistance.
(b) Each grantee which is an insular area which receives an annual
allotment of less than $200,000 or which is an Indian tribe or tribal
organization which receives direct funding from the Department shall
submit to the Department, as part of its LIHEAP grant application, data
on the number of households receiving LIHEAP assistance during the 12-
month period corresponding to the Federal fiscal year (October 1-
September 30) preceding the fiscal year for which funds are requested.
The data shall be reported separately for LIHEAP heating, cooling,
crisis, and weatherization assistance.
(c) Grantees will not receive their LIHEAP grant allotment for the
fiscal year until the Department has received the report required under
paragraph (a) or (b) of this section.
12. Section 96.84 is amended by adding paragraph (d) as follows:
Sec. 96.84 Miscellaneous.
* * * * *
(d) End of transfer authority. Beginning with funds appropriated
for FY 1994, grantees may not transfer any funds pursuant to section
2604(f) of Public Law 97-35 (42 U.S.C. 8623(f)) that are payable to
them under the LIHEAP program to the block grant programs specified in
section 2604(f).
13. Section 96.85 is amended by revising paragraph (a) to read as
follows:
Sec. 96.85 Income Eligibility.
(a) Application of poverty income guidelines and State median
income estimates. In implementing the income eligibility standards in
section 2605(b)(2) of Public Law 97-35 (42 U.S.C. 8624(b)(2)), grantees
using the Federal government's official poverty income guidelines and
State median income estimates for households as a basis for determining
eligibility for assistance shall, by October 1 of each year, or by the
beginning of the State fiscal year, whichever is later, adjust their
income eligibility criteria so that they are in accord with the most
recently published update of the guidelines or estimates. Grantees may
adjust their income eligibility criteria to accord with the most
recently published revision to the poverty income guidelines or State
median income estimates for households at any time between the
publication of the revision and the following October 1, or the
beginning of the State fiscal year, whichever is later.
* * * * *
[FR Doc. 99-26820 Filed 10-14-99; 8:45 am]
BILLING CODE 4150-04-U