[Federal Register Volume 64, Number 46 (Wednesday, March 10, 1999)]
[Rules and Regulations]
[Pages 11810-11818]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-5831]


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DEPARTMENT OF HEALTH AND HUMAN SERVICES

Administration for Children and Families

45 CFR Part 303

RIN 0970-AB82


Child Support Enforcement Program; Standards for Program 
Operations

AGENCY: Office of Child Support Enforcement (OCSE), Administration for 
Children and Families, HHS.

ACTION: Final rule.

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SUMMARY: This final rule amends Federal regulations which govern the 
case closure procedures for the child support enforcement program. The 
final rule clarifies the situations in which States may close child 
support cases and makes other technical changes.

EFFECTIVE DATE: The final rule is effective: April 9, 1999.

FOR FURTHER INFORMATION CONTACT: Betsy Matheson, Director, Division for 
Policy and Planning, Office of Child Support Enforcement, 202-401-9386. 
Hearing-impaired individuals may call the Federal Dual Party Relay 
Service at 1-800-877-8339 between 8:00 A.M. and 7:00 P.M.

SUPPLEMENTARY INFORMATION:

Paperwork Reduction Act

    This rule does not contain information collection provisions 
subject to review by the Office of

[[Page 11811]]

Management and Budget under the Paperwork Reduction Act of 1995 (44 
U.S.C. 3507(d)).

Statutory Authority

    This regulation is issued under the authority granted to the 
Secretary by section 1102 of the Social Security Act (the Act). Section 
1102 of the Act requires the Secretary to publish regulations that may 
be necessary for the efficient administration of the functions for 
which she is responsible under the Act.

Background

    The Child Support Enforcement program was established under Title 
IV-D by the Social Services Amendments of 1974, for the purpose of 
establishing paternity and child support obligations, and enforcing 
support owed by noncustodial parents. At the request of the States, 
OCSE originally promulgated regulations in 1989 which established 
criteria for States to follow in determining whether and how to close 
child support cases. In the final Program Standards regulations dated 
August 4, 1989 (54 FR 32284), and issued in OCSE-AT-89-15, we gave 
examples of appropriate instances in which to close cases. In the 
Supplementary Information section accompanying the final regulations, 
we stated that the goal of the case closure regulations was not to 
mandate that cases be closed, but rather to clarify conditions under 
which cases may be closed. The regulations allowed States to close 
cases that were not likely to result in any collection and to 
concentrate their efforts on the cases that presented a likelihood of 
collection.
    In an effort to be responsive to the President's Memorandum of 
March 4, 1995, which announced a government-wide Regulatory Reinvention 
Initiative to reduce or eliminate burdens on States, other governmental 
agencies or the private sector, and in compliance with section 204 of 
the Unfunded Mandates Reform Act of 1995, Pub. L. 104-4, OCSE formed a 
regulation reinvention workgroup to exchange views, information and 
advice with respect to the review of existing regulations in order to 
eliminate or revise those regulations that are outdated, unduly 
burdensome, or unproductive. This group is made up of representatives 
of Federal, State and local government elected officials and their 
staffs.
    As part of the regulation reinvention effort, Sec. 303.11 on case 
closure criteria was reviewed to determine what changes could be made 
to help States with their case closure process, while ensuring that all 
viable cases remained open. Somewhat earlier, the State IV-D Directors' 
Association had established a committee to examine the case closure 
issue. The committee developed several recommendations, which were 
considered in the development of the notice of proposed rulemaking, 
published in the Federal Register on February 24, 1998 (63 FR 9172). In 
preparing the notice of proposed rulemaking, we also consulted with 
several advocates and other interested parties and stakeholders, 
including custodial parents and groups advocating on their behalf, to 
discuss their concerns with the IV-D Directors' Association 
recommendations and about the case closure criteria in general. Thirty-
one individuals or organizations provided comments to the proposed 
rule.
    This final rule balances our concern that all children receive the 
help they need in establishing paternity and securing support, while 
being responsive to administrative concerns for maintaining caseloads 
that include only those cases in which there is adequate information or 
likelihood of successfully providing services. The circumstances under 
which a case could be closed include, for example, instances in which 
legitimate and repeated efforts over time to locate putative fathers or 
obligors are unsuccessful because of inadequate identifying or location 
information, or in interstate cases in which the responding State lacks 
jurisdiction to work a case and the initiating State has not responded 
to a request for additional information or case closure. Decisions to 
close cases are linked with notice to recipients of the intent to close 
the case and an opportunity to respond with information or a request 
that the case be kept open. The final rule balances good case 
management and workable administrative decisions with providing needed 
services, always erring in favor of including any case in which there 
is any chance of success. For example, cases must remain open even if 
there is no likelihood of immediate or great success in securing 
support, perhaps because of a period of incarceration.

Discussion of the Regulation

Description of Regulatory Provisions---Sec. 303.11; Case Closure 
Criteria

    This final rule revises Sec. 303.11 to eliminate the term ``absent 
parent'' and replace it with the term ``noncustodial parent'' 
throughout, for consistency with preferred statutory terminology under 
the Personal Responsibility and Work Opportunity Reconciliation Act of 
1996 (PRWORA), Public Law 104-193.
    Section 303.11(b)(1) as revised, provides that, ``There is no 
longer a current support order and arrearages are under $500 or 
unenforceable under State law[.]'' Previously, the only distinction 
between paragraphs (b)(1) and (b)(2) was whether the child had reached 
the age of majority. Since the criteria is the same for both 
subsections, the distinction is unnecessary. Therefore, the final rule 
removes the reference to the child's age, thereby eliminating any 
distinction between paragraphs (b)(1) and (b)(2). Accordingly, 
paragraph (b)(2) is removed. The removal of (b)(2) necessitates that 
paragraphs (b)(3) and (b)(4) be redesignated as paragraphs (b)(2) and 
(b)(3).
    This final rule amends redesignated paragraph (b)(3) to include a 
new subparagraph (iv). Paragraph (b)(3)(iv) allows a case to be closed 
when the identity of the biological father is unknown, and cannot be 
identified after diligent efforts, including at least one interview by 
the Title IV-D agency with the recipient of services.
    Paragraph (b)(5) is redesignated as paragraph (b)(4). This final 
rule amends redesignated paragraph (b)(4) by adding new subparagraphs 
(i) and (ii). Paragraph (b)(4) allows a case to be closed when the 
noncustodial parent's location is unknown, and the State has made 
diligent efforts in accordance with Section 303.3 of this part, all of 
which have been unsuccessful, to locate the noncustodial parent ``(i) 
over a three-year period when there is sufficient information to 
initiate automated locate efforts; or (ii) over a one-year period when 
there is not sufficient information to initiate automated locate 
efforts.''
    Paragraphs (b)(6) through (b)(12) are renumbered as (b)(5) through 
(b)(11). In redesignated paragraphs (b)(8), (b)(10) and (b)(11) the 
term ``custodial parent'' is revised to read ``recipient of services'' 
to reflect that Title IV-D child support enforcement services may be 
requested by either the custodial or noncustodial parent.
    Redesignated paragraph (b)(9) adds IV-D and food stamp agencies to 
the list of State agencies with the authority to make good cause 
determinations. The addition of the Title IV-D and food stamp agencies 
to this list is required by section 454(29) of the Act, which provides 
flexibility to the States in selecting the agency authorized to make 
good cause determinations. The Act allows States to place the 
responsibility for making the good cause determination in either the 
State IV-D agency or the State agency funded under part A, part E or 
Title XIX. In the case of the food stamp program, the Act

[[Page 11812]]

requires that the good cause determination in food stamp cases subject 
to referral to the State IV-D agency be administered by the food stamp 
agency itself. In addition, the final rule revises paragraph (b)(9) to 
expand good cause to include ``other exceptions'' from cooperation, to 
more accurately implement the requirements of section 454(29) of the 
Act. Finally, redesignated paragraph (b)(9) removes the reference to 
Federal AFDC regulations concerning the good cause determination 
because that regulation is obsolete.
    Redesignated paragraph (b)(10) allows a nonassistance case to be 
closed when the State IV-D agency is unable to contact the service 
recipient within a 60 calendar day period despite an attempt by at 
least one letter, sent by first class, to the service recipient's last 
known address. In order to actually close the case, the State IV-D 
agency must send the letter required by paragraph (c) notifying the 
service recipient of the intent to close the case. This second letter 
is separate from the letter of contact described in paragraph (b)(10).
    The final rule adds a new paragraph, (b)(12) to Sec. 303.11. 
Paragraph (b)(12) allows a case to be closed when ``the IV-D agency 
documents failure by the initiating State to take an action which is 
essential for the next step in providing services.'' Under the previous 
case closure regulations, a responding State was not free to close a 
case without the permission of the initiating State. In some of these 
cases, the responding State may have been unable to locate the 
noncustodial parent, or may have located him or her in another State. 
If, in these instances, the initiating State failed to respond to the 
responding State's request for case closure, the responding State was 
obligated to leave the case open in its system. Similarly, if the 
initiating State failed to provide necessary information to enable the 
responding State to provide services, and failed to respond to requests 
to provide the information, the responding State was required to keep 
the case open, although it was unable to take any action on it. The 
final rule permits the responding State to close the case if it is 
unable to process the case due to lack of cooperation by the initiating 
State.
    Paragraph (c) is revised to incorporate the renumbering of 
paragraph (b). In the first sentence, the reference to ``paragraphs 
(b)(1) through (7) and (11) and (12) of this section'' is changed to 
read ``paragraphs (b)(1) through (6) and (10) through (12) of this 
section[.]'' Paragraph (c) was also revised to clarify that the 
responding State, upon deciding to close a case pursuant to the 
authority of paragraph (b)(12) must send a notice of case closure to 
the initiating State. In addition, the references to ``custodial 
parent'' are revised to read ``recipient of services,'' for the reasons 
explained above. Also, in the second sentence, the reference to 
``paragraph (b)(11)'' is changed to ``paragraph (b)(10),'' based upon 
the renumbering of paragraph (b).
    In paragraph (d), we are making a technical amendment to the rule 
by removing the reference to ``subpart D,'' as that subpart has been 
reassigned and no longer addresses the issue of record retention.

Response to Comments

    We received thirty-one comments from representatives of State and 
local IV-D agencies, national organizations, advocacy groups and 
private citizens on the proposed rule published February 24, 1998 in 
the Federal Register (63 FR 9172). A summary of the comments received 
and our responses follows:

General Comments

    1. Comment: One commenter suggested the addition of a new criterion 
for case closure. This commenter suggested that the State IV-D agency 
be authorized to close a case when the obligor presented a risk of 
serious harm to State or local IV-D staff.
    Response: The State is obligated under the Title IV-D program to 
provide child support enforcement services to eligible families. The 
protection of IV-D staff is the responsibility of the State, and States 
should develop procedures to deal with such situations. However, 
families needing child support enforcement services should not be 
punished for the possible threats or actions of obligors. Each State 
has laws designed to afford protection to the general public, including 
civil servants. In addition, IV-D offices can be designed in such a 
fashion to heighten the personal safety and security of staff. In light 
of these considerations, this recommendation was not adopted.
    2. Comment: One commenter suggested that this regulation allow a 
State to close the non-IV-D case that remains in existence (e.g., 
payment registry responsibility) after a IV-D case is closed.
    Response: We are unable to adopt this recommendation because it is 
inconsistent with Federal law. Specifically, section 454B(a)(1)(B) of 
the Social Security Act (the Act) requires that payment registry 
services be provided to non-IV-D orders meeting the eligibility 
criteria.
    3. Comment: Two commenters objected to the incorporation of the 
term ``recipient of services'' into the case closure regulation. One 
commenter objected because he saw this term as subject to change within 
a case. Another commenter objected that this term was too broad and 
recommended that the term ``custodial parent'' be retained.
    Response: These comments will not be incorporated because we 
believe that the term ``recipient of services'' best describes the 
individual at issue. Under section 454(4) of the Act, a IV-D case is 
established in response to two scenarios: (1) an individual applies 
for, and receives, certain forms of public assistance (TANF, IV-E 
foster care, medical assistance under Title XIX, and when cooperation 
with IV-D is required of a Food Stamp recipient) and good cause or 
another exception to cooperation with IV-D does not exist; or (2) when 
an individual not receiving the aforementioned types of public 
assistance makes an application for such services. IV-D services are 
available to both custodial and noncustodial parents. Finally, once a 
IV-D case is established, it is inappropriate to ``change'' the service 
recipient to another individual who neither received the appropriate 
form of public assistance nor applied for IV-D services.
    4. Comment: One commenter recommended that OCSE consider a ``soft 
closure'' case type, for use in removing certain cases (low collection 
potential or where payments are legally being made directly to the 
family outside of the IV-D program) from the State's open case count.
    Response: This comment will not be incorporated. The rule, as 
revised, provides the IV-D agencies with sufficient flexibility to 
manage cases with ``low collection potential.'' At 
Sec. 303.11(b)(3)(iv), the final rule allows a case to be closed when 
paternity is in issue and the identity of the biological father cannot 
be identified after diligent efforts, which include at least one 
interview of the service recipient by the IV-D agency. In addition, 
Sec. 303.11(b)(4) allows the IV-D agency to close cases in one year 
when the location of the noncustodial parent is unknown and the State 
has been unsuccessful, after regular attempts of multiple sources, to 
locate the parent, and insufficient information exists to allow the 
agency to conduct automated locate efforts. This paragraph also allows 
the IV-D agencies to close cases after three years where the 
noncustodial parent's location is unknown and the State has been 
unsuccessful, after regular attempts of multiple sources, to locate the 
parent when there is sufficient information to

[[Page 11813]]

allow the agency to conduct automated locate efforts.
    With respect to the example in the comment of payments being made 
directly to the family, in IV-D cases, payments must be made through 
the State IV-D agency and then forwarded to the family. Therefore, we 
are unaware of any circumstances in which payments in a IV-D case flow 
directly from the obligor to obligee.
    OCSE believes that attempts to further define cases with ``low 
collection potential'' in regulation is inappropriate. PRWORA has 
greatly expanded the pool of locate resources which, when all States 
are automated, will have a significant impact upon this universe of 
cases. Finally, the term ``low collection potential'' is extremely 
difficult to define in an objective fashion. As stated in the preamble 
to the proposed rule, although OCSE is revising this regulation to 
provide the States with additional flexibility to manage their IV-D 
caseloads, we are aware of the necessity to balance this flexibility 
against the program's mission to ensure that the public receives needed 
child support enforcement services. When these two factors came into 
direct conflict, we attempted to resolve the issue in favor of keeping 
a case open if there is a chance of success.
    5.Comment: One commenter suggested that, in light of PRWORA, a 
reduction in the time required for automated searches was unreasonable.
    Response: The reduction of the case closure time frame, from three 
years to one year, appears in Sec. 303.11(b)(4)(ii). In order for a 
case to be eligible for closure under this authority there are three 
requirements. First, the location of the noncustodial parent must be 
unknown. Second, the State must have made diligent efforts in 
accordance with the Federal locate requirements in cection 303.3, using 
multiple sources, to locate the noncustodial parent. Finally, there 
must be insufficient information concerning this noncustodial parent to 
perform an automated locate search. OCSE reminds States that 
enhancements to the Enumeration Verification System (EVS) frequently 
allow unknown or incomplete social security numbers to be identified by 
the Social Security Administration when the State has an individual's 
full name and date of birth. OCSE Central Office coordinates the EVS 
program with the Social Security Administration. In addition, 
information provided by the custodial parent such as former addresses 
or employers could lead to identification of the noncustodial parent's 
social security number.
    Although it is true that PRWORA provides expansive new locate 
resources to the IV-D community, the fact remains that you must have 
sufficient identifying information concerning the individual you are 
trying to locate in order to take advantage of these new locate tools. 
The reduction in this case closure time frame only applies to those 
cases where the IV-D agency is unable to make an automated locate 
effort.
    6. Comment: One commenter raised the concern that the NPRM's 
proposed revisions to the case closure regulation would result in the 
closure of many cases that should not be closed.
    Response: As stated in the preamble to the NPRM, one of the 
objectives of this revision to the case closure regulation was to 
provide the States with additional flexibility to manage their IV-D 
caseloads in an efficient manner. However, the NPRM also noted that any 
additional flexibility provided to the States was always balanced 
against the need to provide families with effective child support 
enforcement services. OCSE believes that this final rule is successful 
in striking a good balance between these two factors and, as a result, 
we expect that the public will receive improved services from the IV-D 
program.

Comments to Paragraph 303.11(b)(1)

    1. Comment: One reviewer questioned whether a temporary order would 
apply to the requirement at paragraph (b)(1) that ``there is no longer 
a current support order?''
    Response: Under the appropriate circumstances, a temporary order 
could apply to this requirement in paragraph (b)(1). State law governs 
the particular circumstances and duration for which a temporary child 
support order is enforceable. However, if the application of State law 
resulted in the termination of a temporary child support order during 
the minority of a child, it would be incumbent upon the State IV-D 
agency to attempt to establish a final order, provided the parent's 
legal liability to provide child support continued beyond the 
termination of the temporary order. If the next appropriate action in 
the case was the establishment of a final order, then the case could 
not be closed.
    2. Comment: One commenter asked if paragraph (b)(1) could be used 
as authority for a IV-D agency to close a case that was opened after a 
child attained the age of majority, during which there was no need for 
a child support order, but subsequently (after emancipation) became 
disabled and under State law a support order was entered against this 
individual's parents?
    Response: Under the IV-D program, the State is not required to open 
a case under these circumstances and this individual is not entitled to 
receive IV-D services because the obligation to provide support did not 
arise until after the child became emancipated. A State would not be 
entitled to receive FFP under the IV-D program for its efforts to 
establish and/or enforce such an order.
    3. Comment: One commenter requested that paragraph (b)(1) be 
expanded to allow for the closure of a case which has a valid 
enforceable current support order, but where there has been no 
collection for a period of three years, to allow a State to close cases 
with low collection potential.
    Response: This suggestion was not incorporated into the final rule 
because the reviewer is confusing ``unenforceable'' to mean ``low 
collection potential.'' The purpose of the case closure rule is to 
allow States to close unworkable cases thereby allowing each State to 
focus its resources on those cases which are workable. According to 
paragraph (b)(1), a case is ``unworkable'' if there is no current 
support order and the arrears are either under $500, or unenforceable 
under State law. Clearly, a case with a current child support order 
that does not qualify for closure under any other criteria in 
Sec. 303.11(b), cannot be closed pursuant to paragraph (b)(1) simply 
because it has been deemed a low collection potential case.

Comments to Subparagraph 303.11(b)(3)(iv)

    1. Comment: Two commenters requested clarification of the 
requirement in subparagraph (b)(3)(iv) that at least one interview of 
the recipient of services be conducted by IV-D staff. Specifically, 
these commenters asked if an entity working with the IV-D agency via a 
cooperative agreement would qualify as IV-D staff?
    Response: If the IV-D agency enters into a cooperative agreement to 
implement this requirement in accordance with the authority at 45 CFR 
302.12(a)(3), then the other entity would perform this interview as IV-
D staff. As stated in the NPRM's Description of Regulatory Provisions, 
the purpose of this requirement was to clarify that the eligibility 
interview conducted by staff associated with the State's public 
assistance agency would not be sufficient for purposes of this 
subparagraph.
    2. Comment: Nine commenters asked for clarification of the nature 
of the interview of the recipient of IV-D

[[Page 11814]]

services. Specifically, they asked if the interview was required to be 
conducted ``face-to-face,'' or could a separate IV-D interview be 
conducted over the telephone?
    Response: OCSE recommends that, when logistically practicable, the 
interview of the recipient of services be conducted in-person. However, 
we recognize that in many States there are great distances between the 
public and the closest IV-D office and working parents may not be able 
to take time off for a face-to-face interview. Therefore, the IV-D 
interview of the recipient of services need not be a face-to-face 
interview, but may be conducted via the telephone, when appropriate.
    3. Comment: Two commenters requested clarification of the 
application of subparagraph (b)(3)(iv) with respect to TANF recipients. 
These commenters were concerned that, in the event the identity of the 
biological father remained unknown following the IV-D interview of the 
recipient of services, the recipient of services would be determined to 
be not cooperating with the State IV-D agency for purposes of TANF 
eligibility.
    Response: Under sections 408(a)(2) and 454(29)(A) of the Act, the 
State's IV-D agency is responsible for making the determination as to 
whether or not a TANF recipient is cooperating with the IV-D agency. 
Clearly, not every TANF recipient will be able to provide the IV-D 
agency with sufficient information about the biological father to allow 
the IV-D agency to proceed with an action to establish paternity. 
Because of this, not every individual who is unable to provide the IV-D 
agency with sufficient information should be determined to be not 
cooperating with the IV-D agency. Similarly, should the State close a 
IV-D case in accordance with paragraph (b)(3) or (4), for example, 
because the location of the individual being sought is unknown, IV-D 
case closure alone may not be used to determine noncooperation by a 
TANF recipient.
    4. Comment: One commenter asked that the term ``identity'' be 
clarified in the final rule. The commenter was questioning whether this 
term meant more than a name.
    Response: For purposes of subparagraph (b)(3)(iv), the term 
``identity'' means the name of the biological father. That is, a case 
may be closed under the authority of this subparagraph only when, after 
diligent efforts (including at least one interview by the IV-D agency 
with the recipient of services), the name of the biological father 
remains unknown. If the IV-D agency knows the name of the biological 
father but cannot proceed because it does not have any additional 
information to locate this individual, then the case would be eligible 
for closure under the authority of subparagraph (b)(4)(ii).
    5. Comment: Two commenters requested that the final rule clarify 
the use of the term ``diligent efforts'' in subparagraph (b)(3)(iv).
    Response: In order for a paternity establishment case to be 
eligible for closure under subparagraph (b)(3)(iv), a State must make a 
meaningful attempt to identify the biological father. Under this 
subparagraph, this attempt to identify the biological father must 
include an interview of the recipient of services by IV-D staff. If, 
for example, the interview with the recipient of services failed to 
result in the identity of the biological father, but did result in a 
last known address or employer, a ``diligent effort'' to identify the 
biological father requires the IV-D agency to pursue these leads in an 
attempt to identify the biological father. States are required to 
comply with Federal locate requirements in 45 CFR 303.3 and to make a 
serious and meaningful attempt to identify the biological father (or 
any individual sought by the IV-D agency.)

Comments to Paragraph 303.11(b)(4)

    1. Comment: One commenter requested a clarification of the term 
``regular'' attempts to locate.
    Response: Use of the term ``regular'' attempts in the proposed rule 
was intended to include attempts conducted in accordance with the 
program standards set forth in 45 CFR 303.3, which contains Federal 
location requirements. However, for clarity and consistency with 
terminology used in paragraph (b)(3)(iv), we have replaced ``regular 
attempts'' with ``diligent efforts'', and added a cross reference to 
locate regulations at 45 CFR 303.3.
    2. Comment: Four commenters requested a clarification of the term 
``sufficient information to initiate an automated locate effort.''
    Response: As a general rule, the data elements needed to conduct an 
automated locate effort include an individual's name and social 
security number. It is possible that additional data elements will be 
required to undertake some automated locate efforts. For example, some 
entities identify individuals by name and date of birth. However, for 
purposes of this paragraph the data elements required for an automated 
locate effort are simply the individual's name and social security 
number. As stated above, in response to comment #5 (General Comments), 
the Enumeration Verification System will assist States in the 
identification of missing or incomplete social security numbers. Also, 
since States must meet Federal location requirements set forth in 45 
CFR 303.3, diligent efforts to obtain the data elements critical for an 
automated search must occur and be unsuccessful before a State may 
consider closing the case using criteria in paragraph (b)(4).
    3. Comment: One commenter asks if paragraph (b)(4)'s use of the 
term ``noncustodial parent's location is unknown'' means the physical 
address and the location of any assets attributable to the noncustodial 
parent?
    Response: For purposes of paragraph (b)(4), the term ``noncustodial 
parent's location'' means the resident or employment address of the 
noncustodial parent. Under this paragraph, a case would not be 
available for closure if the resident address of the noncustodial 
parent was known but the IV-D agency was unable to locate any assets 
attributable to the noncustodial parent.
    4. Comment: One commenter objected to paragraph (b)(4) on the basis 
that it assumes a level of State automation which does not currently 
exist.
    Response: Automated location attempts do not require statewide 
automated systems. While it is true that, as of the date of this final 
rule, not all States have certified statewide automated systems in 
place, States do have automated locate systems capability and the 
majority of States have Statewide systems mandated by section 454(16) 
of the Social Security Act. In addition, this final rule is intended to 
provide program guidance well into the future. Because OCSE expects 
that all States will implement certified statewide automated systems as 
required by law, we are confident that this rule's reliance upon 
enhanced automated locate resources will prove beneficial to both the 
IV-D program and the families we serve.
    5. Comment: One commenter suggested adding to the case closure 
criteria set forth in paragraph (b)(4) that the IV-D agency interview 
the recipient of services.
    Response: In this final rule OCSE makes a distinction between 
``identifying'' and ``locating'' the noncustodial parent. When the IV-D 
agency is unable to identify the noncustodial parent, the only resource 
available to assist the IV-D agency is the recipient of services. 
However, if the identity of the noncustodial parent is known, but his/
her location is unknown, then there are multiple locate resources 
available to the IV-D agency.

[[Page 11815]]

Certainly one of these resources is the recipient of services. In fact, 
45 CFR 303.2(b)(1) requires the IV-D agency to ``solicit necessary and 
relevant information from the custodial parent.''
    6. Comment: Two commenters questioned the wisdom of the one-year 
waiting period before a case can be closed under the authority of 
subparagraph (b)(4)(ii) when the noncustodial parent's location is 
unknown and the IV-D agency does not have sufficient information to 
initiate an automated locate effort. Conversely, another commenter 
objected to reducing the existing three-year period to one year.
    Response: As discussed in the preamble to the NPRM, the 
establishment of the new case closure criterion that appears at 
subparagraph (b)(4)(ii), which allows a case to be closed after one 
year when the location of the noncustodial parent is unknown and 
insufficient information exists to conduct an automate locate effort, 
was made at the request of the IV-D Directors' Association. We believe 
a one-year waiting period achieves a reasonable balance between the 
desire to assure that workable cases remain open and the desire to 
close those cases which show no promise of being workable. During that 
time period, a State IV-D agency must meet location requirements within 
specified timeframes as set forth in section 303.3. As stated in the 
preamble to the NPRM, we continue to believe that PRWORA's cooperation 
requirements will provide adequate safeguards against the premature 
closing of cases where a reasonable potential for establishment or 
enforcement exists. Should the recipient of services provide additional 
information that allows the State IV-D agency to locate the 
noncustodial parent, the case will remain open.

Comments to Paragraph 303.11(b)(9)

    1. Comment: One commenter requested the final rule include a 
definition of the term ``good cause.''
    Response: Section 454(29) of the Act provides the States the option 
to have good cause determined by either the State IV-D agency, or the 
agencies administering the State's TANF, IV-E or Title XIX funded 
program. For the food stamp program, the State agency responsible for 
administering that program is also responsible for determining good 
cause. Congress made it clear that determinations of good cause were to 
be ``defined, taking into account the best interests of the child, and 
applied'' by the State agency. Because of this directive OCSE is unable 
to adopt the suggestion of this commenter.
    2. Comment: One commenter recommended that the reference to 45 CFR 
232.40 be removed from paragraph (b)(9) because this Federal regulation 
was obsolete.
    Response: OCSE concurs with this suggestion and the reference to 45 
CFR 232.40 is removed from the final rule.
    3. Comment: Two commenters observed that section 454(29) of the Act 
exempts a public assistance recipient from the requirement to cooperate 
with the IV-D program for good cause ``and other exceptions.'' Both 
commenters recommended that a reference to ``other exceptions'' be 
included in paragraph (b)(9) when the final rule was issued.
    Response: OCSE concurs with this recommendation and the final rule 
revises paragraph (b)(9) to expand good cause to include ``other 
exceptions.''

Comments to Paragraph 303.11(b)(10)

    1. Comment: One commenter asked if a State could retain a 
requirement that one attempt to contact the service recipient be by 
certified mail?
    Response: A State is free to continue the requirement that at least 
one attempt to contact the service recipient be conducted by certified 
mail. The Federal regulations set forth the minimum program standards 
with which the States must comply. As previously stated in the preamble 
to the final case closure rule issued on August 4, 1989, (54 FR 32284) 
and in OCSE-AT-89-15, there is nothing to prohibit a State from 
establishing criteria which make it harder to close a case than those 
established in paragraph (b).
    2. Comment: Five commenters asked if the 60 calendar day period 
(related to time frame in which the IV-D agency is unable to contact 
the recipient of services) referenced in paragraph (b)(10) could be 
viewed as satisfying the 60 calendar day period (related to the notice 
of case closure time frame during which the recipient of services may 
respond to the notice) referenced in paragraph (c). Conversely, one 
commenter expressed a concern that the States would compress these two 
60 calendar day time frames into a single 60 calendar day period.
    Response: The 60 calendar day time periods that appear in paragraph 
(b)(10) and paragraph (c) are independent time frames. It is not 
appropriate for a State to close a case upon the occurrence of the 
criterion set forth in paragraph (b)(10) without fully complying with 
the requirements of paragraph (c). In other words, when the IV-D agency 
is unable to contact the non-IV-A recipient of services during a 60 
calendar day period, the IV-D agency may not automatically close that 
case without first complying with the requirement in paragraph (c) by 
providing the recipient of services 60 calendar days to respond to a 
written notice of the State's intent to close the case.
    3. Comment: One commenter objected to the criterion of (b)(10) on 
the basis that this would allow the States to close many ``workable'' 
cases.
    Response: By definition, the criterion for closing a case set forth 
in paragraph (b)(10) applies only to non-IV-A cases. In non-IV-A cases 
the IV-D program is required to distribute child support collections to 
the recipient of services. If the recipient of services fails to keep 
the IV-D program apprised of his/her mailing address, child support 
cannot be distributed. In these instances the case is no longer 
``workable'' under the requirements of IV-D, and, therefore, it is 
appropriate for the IV-D agency to close the case. If, following the 
closure of the case, the former recipient of services wishes to reapply 
for IV-D services, he/she may do so.
    4. Comment: One commenter requested an explanation as to what 
triggered the start of the 60 calendar day time period referenced in 
paragraph (b)(10).
    Response: The 60 calendar day time period appearing in paragraph 
(b)(10) commences with the date the letter is mailed to the recipient 
of services.
    5. Comment: One commenter asked that if the letter sent to the 
recipient of services in accordance with paragraph (b)(10) is returned 
to the IV-D agency with a notation by the Postal Service that the 
addressee has moved and left no forwarding address, is it still 
necessary to wait 60 calendar days before commencing the case closure 
process detailed in paragraph (c)?
    Response: Yes, it is appropriate to provide the 60 calendar day 
time frame in instances where the letter sent to the recipient of 
services is returned marked ``moved, left no forwarding address.'' The 
reason for this is to allow the recipient of services, who may have 
just moved, sufficient time to contact the IV-D agency to provide his/
her new address. In addition, if the paragraph (b)(10), 60 calendar day 
time frame was waived in these instances, and the IV-D agency 
immediately issued the written closure notice required in paragraph 
(c), this notice would undoubtedly be sent to the very same address 
reported by the Postal Service to be obsolete. OCSE recognizes that in 
some cases the recipient of services will fail to contact the IV-D 
agency during the paragraph (b)(10), 60 day time period and the agency 
will be required

[[Page 11816]]

to issue a notice to an address they know to be obsolete. However, OCSE 
believes that a good number of these service recipients will contact 
the IV-D program and provide their new addresses. By waiting an 
additional 60 calendar days, a State will be able to save itself the 
time and trouble of closing and then reopening a great number of cases.
    6. Comment: One commenter objected to the replacement of the former 
``certified'' mailing requirement with the current ``regular'' mailing 
requirement.
    Response: As stated in the preamble to the NPRM, the allowance of 
the first class letter is in accord with the new requirements in 
welfare reform. In addition, it must be kept in mind that the 
individuals the IV-D agency is attempting to contact with this mailing 
are recipients of services who are not receiving public assistance. 
These are the individuals to whom the IV-D agency is required to send 
the child support collection. If non-IV-A recipients of services fail 
to keep the IV-D agency apprised of their current addresses, they 
effectively deny that agency the ability to provide child support 
enforcement services to them.
    7. Comment: One commenter objected to the minimum requirement of 
``one'' attempt to contact the non-IV-A recipient of services by 
regular mail on the basis of the commenter's belief that the Postal 
Service provides poor mail service to low income communities.
    Response: OCSE is not aware of any authority for the statement that 
the Postal Service provides poor mail service to low income 
communities. As previously stated in the preamble to the NPRM for this 
rule, the trend is moving toward a reduction in the mailing standard. 
Both PRWORA and the Uniform Interstate Family Support Act (UIFSA) 
frequently allow notices to be sent by regular mail. For these reasons, 
OCSE has determined that a regular first class mailing is appropriate 
for the purposes of paragraph (b)(10).

Comments to Paragraph 303.11(b)(12)

    1. Comment: Two commenters objected to what they perceived to be a 
subjective standard in paragraph (b)(12) under which the responding 
State is authorized to close an interstate case when it documents a 
failure on the part of the initiating State to take an action which is 
essential for the next step in providing services.
    Response: This standard of review, as to when an action is 
``essential'' for taking the next step in a IV-AD case, is not new. In 
fact, this standard has been in existence since 1989, when the Federal 
case closure regulation was originally promulgated and remains the 
basis for case closure under former paragraph (b)(12)/new paragraph 
(b)(11). The States have been successful in implementing this standard 
of review and OCSE has no reason to believe that this standard, when 
applied to an initiating State as opposed to a custodial parent, will 
become problematic.
    One example which would not meet the condition for case closure 
under section 303.11(b)(12) involves direct withholding under the 
Uniform Interstate Family Support Act. Under UIFSA, States may send a 
withholding notice directly to an employer in another State. 
Traditionally, interstate case processing goes from a IV-AD agency in 
one State to a IV-AD agency in another State, which then forwards a 
withholding order to an employer in its State. However, if a State, 
using authority under its UIFSA statute, sends a withholding notice 
directly to an employer in another State, it cannot be considered 
noncooperation and a rationale for case closure under section 
303.11(b)(12) by the employer's State which is otherwise processing an 
interstate case for the State that sends the direct withholding.
    2. Comment: Two commenters requested a revision to paragraph 
(b)(12) to provide for specific criteria which would support the case 
closure decision made by a responding State. Three other commenters 
offered related recommendations that the final rule clarify that the 
interstate program standards in 45 CFR 303.7 apply to the application 
of paragraph (b)(12).
    Response: Because this paragraph only applies to interstate cases, 
the program standards appearing at Sec. 303.7 apply and will drive the 
decision as to whether or not an initiating State has failed to take an 
action that is essential to the next step in providing services. The 
requirements and time frames of Sec. 303.7 are to be used by the 
responding State in making this determination.
    3. Comment: One commenter requested that the final rule require the 
responding State, upon deciding to close a case pursuant to the 
authority of paragraph (b)(12), to send a notice of case closure to the 
initiating State.
    Response: Yes, OCSE concurs with this recommendation and the final 
rule revises paragraph (c) to require the responding State, upon 
deciding to close a case pursuant to the authority of paragraph 
(b)(12), to send a notice of case closure to the initiating State.
    4. Comment: One commenter suggested that the final rule incorporate 
a 60 calendar day time frame to the paragraph (b)(12) interstate case 
closure criterion.
    Response: Yes, this recommendation was adopted by including 
paragraph (b)(12) closures in the sections referenced by paragraph (c), 
which incorporates a 60 calendar day case closure time frame.
    5. Comment: One commenter requested that the final rule clarify 
that paragraph (b)(12) applied in both assistance and nonassistance 
cases.
    Response: Paragraph (b)(12) applies to all interstate IV-D cases, 
assistance and nonassistance alike.
    6. Comment: One commenter recommended that the final rule require 
the responding State to send a notice of case closure directly to the 
custodial parent in the initiating State.
    Response: This suggestion is inconsistent with OCSE's long-standing 
interstate policy that the responding State not have direct contact 
with the custodial parent residing in, and receiving IV-D services 
from, the initiating State. In OCSE-AT-88-02, in response to a similar 
suggestion, OCSE announced that ``it is not the responding State's 
responsibility to be in direct contact with the custodial parent and it 
would be overly burdensome to require them to do so.'' Another reason 
why it would be imprudent to adopt this recommendation is that the 
interstate request for services may be based solely upon an arrearage 
owed to the initiating State, and the whereabouts of the custodial 
parent may be unknown to both States.

Comments to Paragraph 303.11(c)

    1. Comment: One commenter requested that the 60 calendar day notice 
of case closure time frame appearing in paragraph (c) be reduced to a 
period of 30 calendar days.
    Response: The 60 calendar day time frame the commenter is 
addressing has been required under Federal case closure regulations 
since the original final rule was promulgated on August 4, 1989. The 60 
calendar day time frame has worked well for the past ten years and, at 
this time, OCSE does not believe that it would be appropriate to reduce 
it to 30 days.
    2. Comment: One commenter requested that the final rule expressly 
provide that the paragraph (c) notice of case closure may be sent by 
first class mail.
    Response: OCSE believes that, by remaining silent on the manner in 
which the notice of case closure is to be sent, the States are provided 
the maximum amount of flexibility. As noted above, one State responded 
to the NPRM with the request that they be

[[Page 11817]]

allowed to continue to use certified mailings for their case closure 
notices. As currently drafted, the paragraph (c) notice of case closure 
may be sent by either first class or certified mail. For these reasons 
OCSE decided not to adopt this recommendation.
    3. Comment: Two commenters responded to the NPRM by asking that 
paragraph (c) exempt a number of factual situations from the 
requirement that a notice of case closure be sent. The following 
examples of such fact patterns were received: when the obligor, obligee 
or child has died; when the obligor's duty to support the child has 
been terminated by a court; when the obligor and obligee reconcile; and 
when the child leaves a IV-E funded foster care placement.
    Response: OCSE has decided not to adopt this suggestion. In fact, 
in some of these situations, it may not be appropriate to close the 
case, let alone send the notice of case closure. For example, the 
obligor's duty to provide child support survives the death of the 
obligee. If arrears are owed in the case, the obligor's duty to repay 
these arrears will survive the death of a child. The existing 
regulations have included the requirement to send this notice in 
situations where the case is closed under former paragraph (b)(3)/new 
paragraph (b)(2) which is based upon the death of the obligor because 
the recipient of services may have knowledge of available assets in the 
decedent's estate. OCSE is addressing the continuation of services 
issue in IV-E cases in another rulemaking activity. In addition to what 
has already been stated in this response, OCSE believes that it is 
important for the IV-D agency to notify the recipient of services of 
its intention to close a case based upon the criteria identified in 
paragraph (c).
    4. Comment: One commenter recommended that paragraphs (b) (1), (2) 
and (3) be removed from the requirement to send the notice of case 
closure in paragraph (c) because those criteria did not pertain to the 
recipient of services' cooperation.
    Response: The reasoning behind the paragraph (c) requirement that 
the recipient of services receive notice of the case closure is based 
upon the duty of the IV-D agency to keep the recipient of services 
informed of the actions undertaken on his/her child support case. The 
notice of case closure is not to be limited solely to instances where 
the case is being closed due to the noncooperation of the recipient of 
services. For these reasons, OCSE has decided not to adopt this 
recommendation.
    5. Comment: Two commenters requested that the final rule clarify 
that, should a former recipient of services contact the IV-D agency to 
request child support enforcement services subsequent to the closure of 
his/her case, then this former recipient of services would be required 
to complete a new application and pay any applicable application fee. 
Another commenter offered a related suggestion. This commenter 
requested that paragraph (c) be revised to indicate that the 
``recipient of services'' is, in fact, the ``former'' recipient of 
services when this term is referencing an individual whose case has 
been closed.
    Response: OCSE concurs with both of these suggestions. After a IV-D 
agency has closed a case pursuant to the procedures outlined in 45 CFR 
303.11, the former recipient of services may reapply for services at 
any time, provided this individual is otherwise eligible to receive IV-
D services. Should a former recipient of services request IV-D services 
be resumed, this individual would be required to complete a new 
application for IV-D services and pay any applicable application fee.
    6. Comment: One commenter noted the change in terminology from 
``custodial parent'' to ``recipient of services'' and asked if this 
meant the States needed to change this term on all of their local 
forms.
    Response: It is not necessary for a State to change the terminology 
within its local forms to comply with such changes OCSE is making in 
this final rule. However, OCSE encourages the States to keep this issue 
in mind when they are otherwise revising their local forms. If the term 
``recipient of services'' more accurately reflects the individual at 
issue, then the States should consider making a change in this 
terminology at that time.

Regulatory Impact Analyses

Paperwork Reduction Act

    This rule does not contain information collection provisions 
subject to review by the Office of Management and Budget under the 
Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)).

Regulatory Flexibility Analysis

    The Secretary certifies, under 5 U.S.C. 605(b), as enacted by the 
Regulatory Flexibility Act (Pub. L. 96-354), that this final rule will 
not result in a significant impact on a substantial number of small 
entities. The primary impact is on State governments. State governments 
are not considered small entities under the Act.

Executive Order 12866

    Executive Order 12866 requires that regulations be reviewed to 
ensure that they are consistent with the priorities and principles set 
forth in the Executive Order. The Department has determined that this 
rule is consistent with these priorities and principles. No costs are 
associated with this final rule.

Unfunded Mandates Act

    The Department has determined that this final rule is not a 
significant regulatory action within the meaning of the Unfunded 
Mandates Reform Act of 1995.

Congressional Review of Rulemaking

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

List of Subjects in 45 CFR Part 303

    Child support, Grant programs/social programs, Reporting and 
recordkeeping requirements.

(Catalog of Federal Domestic Assistance Programs No. 93.563, Child 
Support Enforcement Program)

    Dated: October 21, 1998.
Olivia A. Golden,
Assistant Secretary for Children and Families.

    Approved: November 30, 1998.
Donna E. Shalala,
Secretary, Department of Health and Human Services.

    For the reasons set forth in the preamble, 45 CFR Part 303 is 
amended as follows:

PART 303--STANDARDS FOR PROGRAM OPERATIONS

    1. The authority citation for Part 303 continues to read as 
follows:

    Authority: 42 U.S.C. 651 through 658, 660, 663, 664, 666, 667, 
1302, 1396a(a)(25), 1396(d)(2), 1396b(o), 1396b(p), and 1396(k).


Sec. 303.11  [Amended]

    2. Section 303.11 is amended as follows:
    a. Paragraph (b)(1) is revised and paragraph (b)(2) is removed to 
read as follows:
* * * * *
    (b) * * *
    (1) There is no longer a current support order and arrearages are 
under $500 or unenforceable under State law;
* * * * *
    b. Paragraph (b)(3) is redesignated as paragraph (b)(2).
    c. Paragraph (b)(4) is redesignated as paragraph (b)(3) and amended 
by adding paragraph (b)(3)(iv) to read as follows:
* * * * *
    (b) * * *
    (3) * * *

[[Page 11818]]

    (iv) The identity of the biological father is unknown and cannot be 
identified after diligent efforts, including at least one interview by 
the IV-D agency with the recipient of services;
* * * * *
    d. Paragraph (b)(5) is redesignated as paragraph (b)(4) and revised 
to read as follows:
* * * * *
    (b) * * *
    (4) The noncustodial parent's location is unknown, and the State 
has made diligent efforts using multiple sources, in accordance with 
Sec. 303.3, all of which have been unsuccessful, to locate the 
noncustodial parent:
    (i) Over a three-year period when there is sufficient information 
to initiate an automated locate effort, or
    (ii) Over a one-year period when there is not sufficient 
information to initiate an automated locate effort;
* * * * *
    e. Paragraphs (b)(6) through (b)(12) are redesignated as paragraphs 
(b)(5) through (b)(11), respectively.
    f. Newly redesignated paragraph (b)(9) is revised to read as 
follows:
* * * * *
    (b) * * *
    (9) There has been a finding by the responsible State agency of 
good cause or other exceptions to cooperation with the IV-D agency and 
the State or local IV-A, IV-D, IV-E, Medicaid or food stamp agency has 
determined that support enforcement may not proceed without risk of 
harm to the child or caretaker relative;
* * * * *
    g. Newly redesignated paragraph (b)(10) is revised to read as 
follows:
* * * * *
    (b) * * *
    (10) In a non-IV-A case receiving services under Sec. 302.33(a)(1) 
(i) or (iii), the IV-D agency is unable to contact the recipient of 
services within a 60 calendar day period despite an attempt of at least 
one letter sent by first class mail to the last known address;
* * * * *
    h. Paragraph (b)(12) is added to read as follows:
* * * * *
    (b) * * *
    (12) The IV-D agency documents failure by the initiating State to 
take an action which is essential for the next step in providing 
services.
* * * * *
    i. Paragraph (c) is revised to read as follows:
* * * * *
    (c) In cases meeting the criteria in paragraphs (b) (1) through (6) 
and (10) through (12) of this section, the State must notify the 
recipient of services, or in an interstate case meeting the criteria 
for closure under (b)(12), the initiating State, in writing 60 calendar 
days prior to closure of the case of the State's intent to close the 
case. The case must be kept open if the recipient of services or the 
initiating State supplies information in response to the notice which 
could lead to the establishment of paternity or a support order or 
enforcement of an order, or, in the instance of paragraph (b)(10) of 
this section, if contact is reestablished with the recipient of 
services. If the case is closed, the former recipient of services may 
request at a later date that the case be reopened if there is a change 
in circumstances which could lead to the establishment of paternity or 
a support order or enforcement of an order by completing a new 
application for IV-D services and paying any applicable application 
fee.
* * * * *
    j. Paragraph (d) is revised to read as follows:
* * * * *
    (d) The IV-D agency must retain all records for cases closed 
pursuant to this section for a minimum of three years, in accordance 
with 45 CFR part 74.
* * * * *
    k. In addition to the amendments set forth above, remove the words 
``absent parent('s)'', and add, in their place, the words 
``noncustodial parent('s)'' in the following places:
    (1) Newly redesignated paragraph (b)(2);
    (2) Newly redesignated paragraph (b)(4);
    (3) Newly redesignated paragraph (b)(5); and
    (4) Newly redesignated paragraph (b)(6).
    l. In addition to the amendments set forth above, remove the words 
``custodial parent('s)'', and add, in their place, the words 
``recipient('s) of services'' in the following places:
    (1) Newly redesignated paragraph (b)(8);
    (2) Newly redesignated paragraph (b)(10); and
    (3) Newly redesignated paragraph (b)(11).

[FR Doc. 99-5831 Filed 3-9-99; 8:45 am]
BILLING CODE 4184-01-P