[Federal Register Volume 68, Number 123 (Thursday, June 26, 2003)]
[Rules and Regulations]
[Pages 37978-37981]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-14883]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF HEALTH AND HUMAN SERVICES

Administration for Children and Families

45 CFR Part 303

RIN 0970-AC09


Child Support Enforcement Program; Federal Tax Refund Offset

AGENCY: Office of Child Support Enforcement (OCSE), Health and Human 
Services (HHS).

ACTION: Interim final rule with comment period.

-----------------------------------------------------------------------

SUMMARY: This interim final rule revises existing regulations on 
collecting child support arrears through the Federal Tax Refund Offset 
process. The revisions are needed to reflect changes in OCSE's data 
processing protocols with the Department of the Treasury. We are also 
taking this opportunity to update the regulation to reflect current 
business practices and requests from State Child Support Enforcement 
agencies.

DATES: These regulations are effective June 26, 2003. Consideration 
will be given to comments received by August 25, 2003.

ADDRESSES: Send comments to: Office of Child Support Enforcement, 
Administration for Children and Families, 370 L'Enfant Promenade, SW., 
4th floor, Washington, DC 20447. Attention: Director, Division of 
Policy, Mail Stop: OCSE/DP. Comments will be available for public 
inspection Monday through Friday 8:30 a.m. to 5 p.m. on the 4th floor 
of the Department's offices at the above address. You may also transmit 
written comments electronically via the Internet at:
http://www.acf.hhs.gov/hypernews/. To download an electronic version of 
the rule, you may access the Office of Child Support Enforcement Policy 
page at: http://www.acf.hhs.gov/programs/cse/csepol_r.htm.

FOR FURTHER INFORMATION CONTACT: Eileen Brooks, Division of Policy, 
OCSE, 202-401-5369, e-mail: [email protected]. Deaf and hearing-
impaired individuals may call the Federal Dual Party Relay Service at 
1-800-877-8339 between 8 a.m. and 7 p.m. eastern time.

SUPPLEMENTARY INFORMATION:

Statutory Authority

    This regulation is issued under the authority granted to the 
Secretary of Health and Human Services (the Secretary) by section 1102 
of the Social Security Act (the Act), 42 U.S.C. 1302. Section 1102 of 
the Act authorizes the Secretary to publish regulations that may be 
necessary for the efficient administration of the functions for which 
he is responsible under the Act.

Justification for Interim Final Rule

    The Administrative Procedure Act requirements for notice of 
proposed rulemaking do not apply to rules when the agency finds that 
notice is impracticable, unnecessary or contrary to the public 
interest. We find proposed rulemaking unnecessary because the rule is 
not imposing new requirements or burdens on States, but is removing 
administrative requirements and burdens, principally the requirement 
that the support be 3 months delinquent before the debt is referred for 
Federal tax refund offset. The rule also removes the requirement to 
submit written notices, which requires the States to transmit a 
separate paper response or to submit referrals by magnetic tape. Under 
the new procedures, notices and referrals will be sent electronically 
which is much simpler for the States. Finally, the rule incorporates 
several policies which are already in effect and, therefore, advance 
notice and comment is unnecessary. The policies are being included in 
the regulations in order to have all the information pertaining to the 
submission of Federal tax refund offset cases in one place.

Background

    The Federal Tax Refund Offset program collects past-due child 
support payments from the Federal tax refunds of parents who have been 
ordered to pay child support. The program is a collaborative effort 
between OCSE, the Internal Revenue Service, the Financial Management 
Service of the Department of the Treasury and State Child Support 
Enforcement agencies.
    The Federal Tax Refund Offset program was enacted by Congress in 
1981 and was originally restricted to child support debts owed in 
public assistance cases. It was expanded in 1984 to include child 
support debts in non-assistance cases. Federal Tax Refund Offset is a 
mandatory child support enforcement tool and must be used if a case 
meets the criteria found at 45 CFR 303.72. Essentially, in order for 
the Federal Tax Refund Offset remedy to be applied, the amount of 
unpaid child support (arrears) must meet a minimum threshold: $150 if 
the custodial parent is receiving services under title IV-A of the Act 
(assigned arrears) or $500 if services are provided in a non-assistance 
case under title IV-D (unassigned arrears). After ensuring that the 
case information is current, the State IV-D agency notifies OCSE which 
reviews the request. If it qualifies, OCSE forwards the request to the 
Treasury to offset any Federal tax refund due to the noncustodial 
parent. The noncustodial parent is notified at the time the case is 
initially submitted by the State to OCSE

[[Page 37979]]

that the past-due support will be reported to the Treasury for tax 
refund offset. When the offset is made, the Treasury notifies the 
noncustodial parent that it has occurred. Included in the process are 
opportunities for the noncustodial parent to contest and provisions for 
administrative review and notification of the noncustodial parent's 
spouse in cases of joint tax refunds.
    Several years ago, OCSE formed a regulation workgroup to exchange 
views, information, and advice on existing regulations in order to 
eliminate or revise outdated, unduly burdensome, or unproductive 
regulations. This group was made up of representatives of Federal, 
State and local government staff and officials. The workgroup conducted 
its review which resulted in a final rule issued December 20, 1996 (61 
FR 67235) which made both substantive and technical changes. However, 
not all of the workgroup's recommendations were included at that time, 
owing to the unknown nature of changes that might result from welfare 
reform proposals then circulating. Some of the changes in this rule 
result from those initial workgroup discussions and consultations, as 
well as from suggestions from a tax refund offset workgroup of Federal 
and State staff under the auspices of OCSE's Office of Automation and 
Program Operations.

Provisions of the Regulation

    We are amending Sec.  303.72(a)(2) to remove the requirement that 
support be at least 3 months delinquent in a case involving a recipient 
of title IV-A services before a State refers the case for Federal Tax 
Refund offset. There is no such requirement for non-title-IV-A cases. 
In our consultations, States requested the elimination of the 3-month 
delinquency rule, maintaining that it is difficult to track 
delinquencies in this way. For instance, how should the State count a 
month in which a token payment is received? Should a small payment 
toward the ordered amount of support allow a non-custodial parent to 
avoid offset for another 3-month period? There also has been confusion 
among the States about how the 3-month period should be computed. Under 
current procedures, pre-offset notices are sent to the obligor either 
by the State or, if the State requests it, by OCSE. The State tells 
OCSE how long to hold its cases (30, 45, 60, or 90 days) before 
forwarding them to the Treasury, so that the combination of State hold 
and OCSE hold will meet the 90-day delinquency requirement. OCSE agrees 
with the States that Treasury's regulatory requirement for a 30-day 
hold period beginning with the date of the pre-offset notice to the 
obligor is sufficient to ensure opportunity for appeal and that the 
additional 90-day delinquency period required by OCSE regulations 
before sending the case to Treasury is unnecessary and causes delay in 
the collection of support.
    We have retained the requirement that the total amount of arrears 
assigned to the State in a Tax Refund Offset case must be a minimum of 
$150. We have added a clarification at the redesignated provision at 
Sec.  303.72(a)(2) that States may combine assigned support arrears 
together to reach the $150 threshold in those instances where an 
obligor has more than one title IV-A case. We have added a parallel 
clarification on unassigned arrears at Sec.  303.72(a)(3)(ii). However, 
different types of arrears (i.e., assigned arrears and unassigned 
arrears) may not be combined to reach the thresholds of $150 for 
assigned arrears or $500 for unassigned arrears for Federal Tax Refund 
Offset. Paragraph (a)(3)(ii) now reads: `` The amount of support is not 
less than $500. The State may combine support amounts from the same 
obligor in multiple cases where the IV-D agency is providing IV-D 
services under Sec.  302.33 of this chapter to reach $500. Amounts 
under this paragraph may not be combined with amounts under paragraph 
(a)(2) to reach the minimum amounts required under this paragraph or 
under paragraph (a)(2).'' These clarifications incorporate in 
regulation the policy already articulated in OCSE's policy 
interpretation question, PIQ-01-06, published July 9, 2001.
    The regulation at Sec.  303.72(b)(1) requires States to notify OCSE 
of a liability for past-due support by means of magnetic tape. We are 
amending this provision to reflect the fact that notification to OCSE 
is no longer done by magnetic tape. Hence the phrase ``on a magnetic 
tape'' is changed to the more general ``in the manner specified by the 
Office in instructions'' to allow for changing technology. Section 
303.72(b)(2) lists specific information that must be included in the 
notification of liability for past-due support that the IV-D agency 
sends to OCSE regarding each delinquency submitted for offset. We are 
amending paragraph (b)(2) by adding ``to the extent specified by the 
Office in instructions'' before the list to allow OCSE to easily remove 
current requirements if they become unnecessary. Section 303.72(b)(3) 
permits the IV-D agency to add in its submittal the taxpayer's IV-D 
case number and FIPS code for the local IV-D agency where the case 
originated. We are amending the language to eliminate the specific 
types of identifiers permitted, so that States who wish to submit this 
optional item can submit the IV-D identifier of their choice. The 
information submitted is passed back to the States for their own use 
after Federal processing is complete.
    Provisions at Sec.  303.72(c)(2) and (4) and (g)(4) are amended to 
delete the requirement that notifications to States by OCSE are ``in 
writing'' or that ``written'' explanations from the IV-D agency are 
returned to OCSE, as the transmission of administrative review results 
is now done electronically.
    Similarly, in Sec.  303.72(d)(2) and (f)(3), the requirement for 
State IV-D agencies to inform OCSE ``in writing'' of changes in case 
status or the amount referred for collection is deleted. In addition, 
we are amending these sections to recognize that the amount to be 
offset may increase as well as decrease after the submittal, due to the 
transition from annual updates to a continuous data processing 
schedule. In both these sections, and at Sec.  303.72(g)(4), where an 
administrative review may lead to an increase rather than a reduction 
in the amount due, the regulation is amended by replacing the word 
``decrease'' with the word ``change''.
    Paragraph (g) sets forth procedures for contesting an offset in 
interstate cases. The existing regulation at paragraph (g)(4) calls for 
the State having the order to report any change in the amount of past-
due support to OCSE. This is in conflict with the overall goal that 
only one State be the submitting State for purposes of Tax Refund 
Offset. The submitting State controls every aspect of the submission. 
State officials have informed us that they prefer that any updates 
based on administrative review be conveyed to OCSE by the submitting 
State. Thus, we are amending Sec.  303.72(g)(4) to require that changes 
based on administrative review in interstate cases be reported to the 
submitting State and that the submitting State in turn notifies OCSE.
    We made a technical conforming change to update the reference at 
Sec.  303.72(g)(8) to reflect the current regulatory citation for the 
State performance measure on collections of arrears.
    The requirements at Sec.  303.72(h)(6) are amended to clarify that 
collections from offset may only be applied to cases that were being 
enforced by the IV-D agency at the time the advance notice described in 
paragraph (e)(1) of this section was sent. Paragraph (h)(6) had 
provided that collections from offset could be applied only against the 
past-due support amount that was specified in the

[[Page 37980]]

advance notice to the obligor. Because cases are now certified on an 
ongoing basis--rather than once a year--that requirement is no longer 
appropriate. Collections should be applied against the balance 
certified as of the date of offset. That amount may vary up and down 
throughout the year as arrears change and States send in updated 
information. The current model pre-offset letter makes it clear to the 
obligor that the arrears balance may fluctuate up and down and that the 
debt will be offset at the amount which is certified as of the date of 
offset, not necessarily the amount shown in the notice. As noted 
earlier, a notice of offset is sent by the Treasury at the time of the 
offset, giving the exact amount offset and a contact at the State child 
support office for questions. This notice is required by Treasury 
regulations. However, if a new case is established, the IV-D agency 
must send an advance notice to the obligor before referring the 
associated debt for offset.

Paperwork Reduction Act of 1995

    No new information collection requirements are imposed by these 
regulations, nor are any existing requirements changed as a result of 
their promulgation. Therefore, the requirements of the Paperwork 
Reduction Act of 1995 (44 U.S.C. 3507(d)), regarding reporting and 
record keeping, do not apply.

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 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.

Regulatory Impact Analysis

    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.

Unfunded Mandates Reform Act of 1995

    Section 202 of the Unfunded Mandates Reform Act of 1995 requires 
that a covered agency prepare a budgetary impact statement before 
promulgating a rule that includes any Federal mandate that may result 
in the expenditure by State, local, and Tribal governments, in the 
aggregate, or by the private sector, of $100 million or more in any one 
year.
    The Department has determined that this rule would not impose a 
mandate that will result in the expenditure by State, local, and Tribal 
governments, in the aggregate, or by the private sector, of more than 
$100 million in any one year.

Congressional Review

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

Assessment of Federal Regulations and Policies on Families

    Section 654 of the Treasury and General Government Appropriations 
Act of 1999 requires Federal agencies to determine whether a proposed 
policy or regulations may affect family well being. If the agency's 
determination is affirmative, then the agency must prepare an impact 
assessment addressing seven criteria specified in the law. These 
regulations will not have an impact on family well being as defined in 
the legislation.

Executive Order 13132

    Executive Order 13132 on Federalism applies to policies that have 
Federalism implications, defined as ``regulations, legislative comments 
or proposed legislation, and other policy statements or actions that 
have substantial direct effects on the States, or on the distributions 
of power and responsibilities among the various levels of government''.
    This rule does not have Federalism implications for State or local 
governments as defined in the Executive Order.

List of Subjects in 45 CFR Part 303

    Child support, Grant programs-social programs.

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

    Dated: January 9, 2003.
Wade F. Horn,
Assistant Secretary for Children and Families.
    Date Approved: May 30, 2003.
Tommy G. Thompson,
Secretary of Health and Human Services.

0
For the reasons discussed above, title 45 CFR chapter III is amended as 
follows:

PART 303--STANDARDS FOR PROGRAM OPERATIONS

0
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(b)(d)(2), 1396b(o), 1396b(p) and 1396(k).

0
2. Amend Sec.  303.72 by revising paragraphs (a)(2), (a)(3)(ii), 
(b)(1), (b)(2) introductory text, and (b)(3), (c)(2), (c)(4), (d)(2), 
(g)(4), (g)(8) and (h)(6) to read as follows:


Sec.  303.72  Requests for collection of past-due support by Federal 
tax refund offset.

    (a) * * *
    (2) For support that has been assigned to the State under section 
408(a)(3) of the Act or section 471(a)(17) of the Act, the amount of 
the support is not less than $150. The State may combine assigned 
support amounts from the same obligor in multiple cases to reach $150. 
Amounts under this paragraph may not be combined with amounts under 
paragraph (a)(3) of this section to reach the minimum amounts required 
under this paragraph or under paragraph (a)(3) of this section.
    (3) * * *
    (ii) The amount of support is not less than $500. The State may 
combine support amounts from the same obligor in multiple cases where 
the IV-D agency is providing IV-D services under Sec.  302.33 of this 
chapter to reach $500. Amounts under this paragraph may not be combined 
with amounts under paragraph (a)(2) of this section to reach the 
minimum amounts required under this paragraph or under paragraph (a)(2) 
of this section.
    (b) Notification to OCSE of liability for past-due support. (1) A 
State IV-D agency shall submit a notification or (notifications) of 
liability for past-due support to the Office according to the 
timeframes and in the manner specified by the Office in instructions.
    (2) To the extent specified by the Office in instructions, the 
notification of liability for past-due support shall contain with 
respect to each:
* * * * *
    (3) The notification of liability for past-due support may contain 
with respect to each delinquency the taxpayer's IV-D identifier.
* * * * *
    (c) * * *
    (2) If a request meets all requirements, the Deputy Director will 
transmit the request to the Secretary of the Treasury and will notify 
the State IV-D agency of the transmittal.
* * * * *
    (4) If a request cannot be corrected through consultation, the 
Deputy Director will return it to the State IV-D agency with an 
explanation of why the request could not be transmitted to the 
Secretary of the Treasury.
    (d) * * *
    (2) The State IV-D agency shall within time frames established by 
the Office in instructions, notify the Deputy Director of any deletion 
of an amount

[[Page 37981]]

referred for collection by Federal tax offset or any decrease in the 
amount if the decrease is significant according to the guidelines 
developed by the State. The notification shall contain the information 
specified in paragraph (b) of this section.
* * * * *
    (f) * * *
    (3) If the administrative review results in a deletion of, or 
decrease in, the amount referred for offset, the IV-D agency must 
notify OCSE within time frames established by the Office and include 
the information specified in paragraph (b) of this section.
* * * * *
    (g) * * *
    (4) If the administrative review results in a deletion of, or 
change in, the amount referred for offset, the State with the order 
must notify the submitting State within time frames established by the 
Office and include the information specified in paragraph (b) of this 
section. The submitting State must then notify the Office within 
timeframes established by the Office and include the information 
specified in paragraph (b) of this section.
* * * * *
    (8) In computing the arrearage collection performance level under 
Sec.  305.2(a)(4) of this chapter, if the case is referred to the State 
with the order for an administrative review, the collections made as a 
result of Federal tax refund offset will be treated as having been 
collected in full by both the submitting State and the State with the 
order.
* * * * *
    (h) * * *
    (6) Collections from offset may be applied only to cases that were 
being enforced by the IV-D agency at the time the advance notice 
described in paragraph (e)(1) of this section was sent.

[FR Doc. 03-14883 Filed 6-25-03; 8:45 am]
BILLING CODE 4184-01-P