[Federal Register Volume 83, Number 242 (Tuesday, December 18, 2018)]
[Proposed Rules]
[Pages 64803-64807]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-27224]
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DEPARTMENT OF HEALTH AND HUMAN SERVICES
Administration for Children and Families
45 CFR Parts 302, 303, 307, and 309
RIN 0970-AC50
Child Support Technical Corrections Notice of Proposed Rulemaking
AGENCY: Office of Child Support Enforcement (OCSE), Administration for
Children and Families (ACF), Department of Health and Human Services
(HHS).
ACTION: Notice of proposed rulemaking; delay of compliance date.
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SUMMARY: The Office of Child Support Enforcement proposes to eliminate
regulations rendered outdated or unnecessary and make technical
amendments to the Flexibility, Efficiency, and Modernization in Child
Support Enforcement (FEM) final rule, published on December 20, 2016,
including proposing to amend the compliance date for review and
adjustment of child support orders. We are also proposing conforming
amendments to the regulations as a result of Bipartisan Budget Act of
2018, Public Law 115-123.
DATES: In order to be considered, we must receive written comments on
this notice of proposed rulemaking (NPRM) on or before January 17,
2019.
ADDRESSES: You may submit comments, identified by [docket number and/or
Regulatory Information Number (RIN) number], by one of the following
methods:
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments.
Mail: Written comments may be submitted to: Office of
Child Support Enforcement, Attention: Director of Policy and Training,
330 C Street SW, Washington, DC 20201.
Instructions: All submissions received must include the agency name
and docket number or RIN for this rulemaking. All comments received
will be posted without change to https://www.regulations.gov, including
any personal information provided.
FOR FURTHER INFORMATION CONTACT: Tricia John, Division of Policy and
Training, OCSE, telephone (202) 260-7143. Email inquiries to
[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 Standard Time.
SUPPLEMENTARY INFORMATION:
Submission of Comments
Comments should be specific, address issues raised by the proposed
rule, propose alternatives where appropriate, explain reasons for any
objections or recommended changes, and reference the specific action of
the proposed rule that is being addressed. Additionally, we will be
interested in comments that indicate agreement with changed or new
proposals. We will not acknowledge receipt of the comments we receive.
However, we will review and consider all comments that are germane and
are received during the comment period. We will respond to these
comments in the preamble to the Final Rule.
Statutory Authority
This NPRM is published under the authority granted to the Secretary
of Health and Human Services by section
[[Page 64804]]
1102 of the Social Security Act (Act), 42 U.S.C. 1302. Section 1102 of
the Act authorizes the Secretary to publish regulations, not
inconsistent with the Act, as may be necessary for the efficient
administration of the functions with which the Secretary is responsible
under the Act.
Background
These revisions are intended to carry out the President's
directives in Executive Orders (E.O.) 13771 and 13777. Executive Order
13777 requires each agency to establish a Regulatory Reform Task Force
that shall evaluate existing regulations (as defined in section 4 of
E.O. 13771) and make recommendations to the agency head regarding their
repeal, replacement, or modification, consistent with applicable law.
This rule proposes to eliminate identified regulatory requirements that
are outdated and unnecessary. Additionally, this regulation proposes to
make a few technical amendments that needed policy adjustments.
The OCSE is proposing to revise the compliance date for Review and
adjustment of child support orders in Sec. 303.8(b)(7)(ii). This
Federal requirement indicates that the State must, within 15 business
days of learning that the noncustodial parent will be incarcerated for
more than 180 calendar days, send notices to both parents informing
them of the right to request review and, if appropriate, adjustment of
the child support order. Currently, the FEM final rule indicates that
the compliance date for this Federal requirement is 1 year from the
date of publication of the final rule, or December 20, 2017, and if
State law changes are needed, the compliance date will be the first day
of the second calendar quarter beginning after the close of the first
regular session of the State legislature that begins after the
effective date of the final rule (January 20, 2017).
However, after issuing the FEM final rule, it was brought to our
attention that the compliance date for Sec. 303.8(b)(7)(ii) would be
impractical for those States that needed to revise their regulations to
prohibit incarceration from being considered voluntary unemployment in
accordance to Sec. 302.56(c)(3). As a result, we are amending the
compliance date for Sec. 303.8(b)(7)(ii) to add that for those States
that consider incarceration to be voluntary unemployment, the
compliance date is 1 year after completion of the first quadrennial
review of the State's guidelines that commences more than 1 year after
publication of the final rule (December 20, 2016).
On February 9, 2018, the President signed the Bipartisan Budget Act
of 2018 Public Law (Pub. L.) 115-123. Section 53117 of Public Law 115-
123, Modernizing child support enforcement fees, amends Section
454(6)(B)(ii) of the Social Security Act to increase the annual
collection fee from $25 to $35. The law also revises the amount from
$500 to $550 that the State must collect and disburse to the family
before imposing the fee each Federal fiscal year. Additionally, to
obtain more timely National Directory of New Hires (NDNH) data, we are
proposing in Sec. 303.108(c) to reduce the timeframe to report wage
information to the NDNH from the end of the fourth month following the
reporting period to the end of the first month following the reporting
period, which would align the timeframes for when States must report
wage data and unemployment compensation claims data.
Effective and Compliance Dates
The proposed effective date would be 60 days from the date of
publication of this final rule. However, we are proposing delayed
compliance dates, or the dates that States must comply with the final
rule, for the following proposed regulatory changes:
Review and adjustment of child support orders [Sec.
303.8(b)(7)(ii)]: Currently, the compliance date for sending notices
to both parents within 15 business days of when the IV-D agency
learns that the noncustodial parent will be incarcerated for more
than 180 days is 1 year from the date of publication of the FEM
final rule (December 20, 2016). If State law revisions are needed,
the compliance date is the first day of the second calendar quarter
beginning after the close of the first regular session of the state
legislature that begins after the effective date of the regulation
(January 20, 2017). However, for those States that consider
incarceration to be voluntary unemployment, this proposed rule will
delay the compliance date for sending these notices [Sec.
303.8(b)(7)(ii)] to 1 year after completion of the first quadrennial
review of the State's guidelines that commences more than 1 year
after publication of the FEM final rule (December 20, 2016).
Annual collection fee for individuals not receiving
title IV-A assistance [Sec. 302.33(e)]: The compliance date is the
first day of the first fiscal year that begins on or after the date
of the enactment of the Bipartisan Budget Act of 2018, or October 1,
2018. If the Secretary of Health and Human Services determines that
State legislation (other than legislation appropriating funds) is
required for a State to meet the requirements imposed by the
amendment in Section 454(6)(B)(ii) of the Social Security Act [42
U.S.C. 654(6)(B)(ii)], then the State shall not be regarded as
failing to meet such requirements before the first day of the first
calendar quarter beginning after the first regular session of the
State legislature that begins after the date of the enactment of
Public Law 115-123. However, if a State has a 2-year legislative
session, each year of the session is deemed to be a separate regular
session of the state legislature.
Quarterly wage and unemployment compensation claims
reporting to the National Directory of New Hires [Sec. 303.108(c)]:
The compliance date is one year after the publication of the final
rule.
We are inviting comments concerning the proposed effective and
compliance dates.
Section-by-Section Discussion of the Provisions of This Proposed Rule
Section 302.33: Services to Individuals Not Receiving Title IV-A
Assistance
We propose to revise Sec. 302.33(e) because Section 454(6)(B)(ii)
of the Social Security Act was amended by Section 53117 of Public Law
115-123, Modernizing Child Support Enforcement Fees. The $25 annual fee
was increased to $35. The amount the State must collect and disburse to
the family each year before imposing the collection of the annual fee
was changed from $500 to $550.
Section 303.11: Case Closure Criteria
We propose to revise paragraph (b)(9)(ii) to allow case closure
when the noncustodial parent is also receiving concurrent Supplemental
Security Income (SSI) and Social Security Retirement (SSR) benefits.
The rationale for closing concurrent SSI/Social Security Disability
Income (SSDI) cases applies equally to concurrent SSI/SSR cases because
the noncustodial parent meets the low-income means-tested criteria for
the SSI program. The concurrent SSI/SSR noncustodial parent receives no
more income than a SSI/SSDI recipient. SSDI and SSR benefits are
related in that SSR benefits take the place of SSDI when an individual
reaches retirement age.
SSDI benefits are available to individuals who are disabled, have
enough work income, and under the age of 65 or retirement age. When an
individual turns 65 or retirement age, they become eligible for SSR
benefits, which are also based on their work income. A recipient
receives concurrent SSI and either SSDI or SSR benefits under title II
of the Act when the disabled noncustodial parent qualifies for the
means-tested SSI benefits on the basis of his or her income and assets,
but also qualifies for the SSDI or SSR benefits. In these cases, the
Social Security Administration pays a combination of benefits up to the
SSI benefit level. Given that a noncustodial parent who is eligible for
concurrent benefits meets the SSI means-tested criteria and receives
the same benefit
[[Page 64805]]
amount as a SSI beneficiary, it is appropriate to close these cases on
the same basis as an SSI case.
Section 303.71: Requests for Full-Collection Services by the Secretary
of the Treasury
We propose to remove Sec. 303.71, ``Requests for full collection
services by the Secretary of the Treasury.'' Currently, there are only
23 cases that have been certified under this procedure between 2008 and
2013. Based on the Internal Revenue Service's statute of limitations,
they will close a full-collection case after 10 years if there is no
payment activity. States have not submitted any new cases for this
enforcement procedure since 2013. Because the number of other more
effective enforcement procedures available to States has grown, and
given that States are no longer widely using this enforcement tool, we
propose streamlining the regulations by removing the provision. Because
the procedure is statutory, the removal of Sec. 303.71 will not impact
a State's ability to use this procedure, pursuant to section 452(b) of
the Act, if it so chooses.
Section 303.73: Applications To Use the Courts of the United States To
Enforce Court Orders
We propose to remove Sec. 303.73, ``Applications to use the courts
of the United States to enforce court orders,'' because it is no longer
necessary. Sections 452(a)(8) and 460 of the Act permit the use of the
courts of the United States, without regard to any amount in
controversy, when another State has not undertaken to enforce a court
order of an originating State against an absent parent within a
reasonable time and the Secretary finds that use of the Federal courts
is the only reasonable method of enforcing such order. Federal
regulations at Sec. 303.73 prescribe that a State seeking to use the
Federal courts to enforce a child support order against an absent
parent in another State may apply to the Secretary for permission to
use a United States district court for such purpose based on
instructions issued by OCSE. This regulation, originally promulgated at
45 CFR 302.72 in 1975, was needed to enforce interstate orders. An
Action Transmittal (AT) issued February 6, 1976 (OCSE-AT-76-1) and
revised May 12, 1976 (OCSE-AT-76-8) provides guidance for use of
Federal courts and instructions to State IV-D agencies for preparation
and submission of applications for certification to use a U.S. district
court.
However, the ``Preventing Sex Trafficking and Strengthening
Families Act,'' enacted on September 29, 2014 (Pub. L. 113-183),
amended section 466(f) of the Social Security Act, requiring all States
to enact 2008 amendments to the Uniform Interstate Family Support Act
``officially adopted as of September 30, 2008 by the National
Conference of Commissioners on Uniform State Laws'' (referred to as
UIFSA 2008). As a result, UIFSA 2008 makes this requirement obsolete
since it establishes procedures for enforcing interstate orders. UIFSA
2008 defines a tribunal as a court, administrative agency, or quasi-
judicial entity authorized to establish, enforce, or modify support
orders or to determine parentage of a child. UIFSA also establishes
rules/standards related to personal, subject matter, and long-arm
jurisdiction and establishes procedures on registering/enforcing
foreign orders.
Section 303.108: Quarterly Wage and Unemployment Compensation Claims
Reporting to the National Directory of New Hires
Section 453A(g)(2)(B) of the Act, requires that the State Directory
of New Hires shall, on a quarterly basis, furnish to the NDNH
information concerning the wages and unemployment compensation paid to
individuals, by such dates, in such format, and containing such
information as the Secretary of Health and Human Services shall specify
in regulations. In accordance with Sec. 303.108(c), the State must
report quarterly wage information no later than the end of the fourth
month following the reporting period. However, the State reports
quarterly unemployment compensation claim information no later than the
end of the first month following the reporting period.
We propose to revise Sec. 303.108(c) to reduce the timeframe for
reporting quarterly wage data to the end of the first month following
the reporting period. This will align the time frames for when States
must report wage data and unemployment compensation claims data to the
NDNH and help ensure State child support programs receive data more
timely to locate parents and to establish and enforce support orders
and medical support orders.
Section 307.11: Functional Requirements for Computerized Support
Enforcement Systems in Operation by October 1, 2000
We propose to revise paragraph (c)(3) as a technical correction to
the FEM final rule to include noncustodial parents who receive
concurrent Supplemental Security Income (SSI) and Social Security
Retirement (SSR) benefits under title II of the Act. Additionally, we
are adding ``or through an income withholding order'' so the State
should be preventing garnishment from the noncustodial parent's
financial accounts or through an income withholding order. In other
words, if a noncustodial parent is receiving concurrent SSI and either
SSDI or SSR benefits, the State should not be sending an income
withholding order directing the Social Security Administration to
garnish the SSDI or SSR portion of the concurrent benefits.
As we indicated under the Case closure criteria section (Sec.
303.11), a recipient receives concurrent SSI and either SSDI or SSR
benefits under title II of the Act when the disabled noncustodial
parent qualifies for the means-tested SSI benefits on the basis of his
or her income and assets, but also qualifies for the SSDI or SSR
benefits. In these cases, the Social Security Administration pays a
combination of benefits up to the SSI benefit level. Given that a
noncustodial parent who is eligible for concurrent benefits meets the
SSI means-tested criteria and receives the same benefit amount as a SSI
beneficiary, it is appropriate that neither the SSDI nor the SSR
benefit is garnished by the State through either an income withholding
order or from his or her financial accounts. However, if the
noncustodial parent only receives a SSDI or SSR benefit, the State
child support agency may continue to garnish these benefits.
Likewise, we are making similar changes to paragraph (c)(3)(ii). If
the State incorrectly garnishes a noncustodial parent concurrent
benefits from SSI and either SSDI or SSR either from his or her
financial account or directly through an income withholding order, the
State must promptly return the monies within 5 business days after the
State becomes aware that the noncustodial parent was receiving
concurrent SSI and either SSDI or SSR benefits.
Section 307.30: Federal Financial Participation at the 90 Percent Rate
for Statewide Computerized Support Enforcement Systems
We propose to remove Sec. 307.30 because this section is outdated.
We no longer have the authority to provide enhanced Federal financial
participation (FFP) funding at the 90 percent rate for statewide
computerized support enforcement systems. The 90 percent enhanced
funding was only available for expenditures for the
[[Page 64806]]
planning, design, development, installation, or enhancement of a
statewide computerized support enforcement system during the Federal
fiscal years 1996 and 1997.
Section 307.31: Federal Financial Participation at the 80 Percent Rate
for Computerized Support Enforcement Systems
We propose to remove Sec. 307.31 because this section is outdated.
We no longer have the authority to provide enhanced FFP funding at the
80 percent rate for statewide computerized support enforcement systems.
The 80 percent enhanced funding was only available for expenditures for
the planning, design, development, installation, or enhancement of a
statewide computerized support enforcement system until September 30,
2001.
Section 309.20: Who submits a Tribal IV-D program application and
where?
We propose to revise Sec. 309.20(b) to remove an outdated address.
Section 309.75: What administrative and management procedures must a
Tribe or Tribal organization include in a Tribal IV-D plan?
An Interim Final Rule effective December 26, 2014 (79 FR 75871),
issued jointly by the Office of Management and Budget (OMB), HHS, and a
number of Federal agencies, implements final guidance regarding
``Uniform Administrative Requirements, Cost Principles and Audit
Requirements for Federal Awards'' (Uniform Guidance). We are revising
the reference regarding OMB Circular A-133, which was superseded by the
Uniform Guidance effective December 26, 2014 (79 FR 75871), to the
updated reference 45 CFR part 75, subpart F.
Section 309.155: What uses of Tribal IV-D program funds are not
allowable?
We are revising the reference in Sec. 309.155(g) regarding OMB
Circular A-87, which was superseded by the Uniform Guidance effective
December 26, 2014 (79 FR 75871) to the updated reference 45 CFR part
75, subpart E.
Paperwork Reduction Act
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 that, under 5 U.S.C. 605(b), as enacted by
the Regulatory Flexibility Act (Pub. L. 96-354), 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 Orders 12866, 13563, and 13771
Executive Orders 12866 and 13563 direct agencies to assess all
costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health and safety effects, distributive impacts, and equity). Executive
Order 13563 emphasizes the importance of quantifying both costs and
benefits, of reducing costs, of harmonizing rules, and of promoting
flexibility. ACF consulted with the OMB and determined that this rule
does meet the criteria for a significant regulatory action under E.O.
12866. Thus, it was subject to OMB review. ACF determined that the
costs to title IV-D agencies as a result of this rule will not be
significant as defined in E.O. 12866 (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). Because the rule is not economically
significant as defined in E.O. 12866, no cost-benefit analysis needs to
be included in this NPRM. This proposed rule, if finalized as proposed,
would be considered an E.O. 13771 deregulatory action.
Unfunded Mandates Reform Act of 1995
The Unfunded Mandates Reform Act (Pub. L. 104-4) requires agencies
to prepare an assessment of anticipated costs and benefits before
proposing any rule that may result in an annual expenditure by State,
local, and tribal governments, in the aggregate, or by the private
sector, of $100 million or more (adjusted annually for inflation). That
threshold level is currently approximately $150 million. This proposed
rule does not impose any mandates on State, local, or tribal
governments, or the private sector that will result in an annual
expenditure of $146 million or more.
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 regulation 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. This
regulation makes technical changes in the child support regulations.
This regulation will not have an adverse impact on family well-being as
defined in the legislation.
Executive Order 13132
Executive Order 13132 prohibits an agency from publishing any rule
that has federalism implications if the rule either imposes substantial
direct compliance costs on State and local governments and is not
required by statute, or the rule preempts State law, unless the agency
meets the consultation and funding requirements of section 6 of the
Executive Order. This rule does not have federalism impact as defined
in the Executive Order.
List of Subjects
45 CFR Part 302
Child support, State Plan Requirements.
45 CFR Part 303
Child support, Standards for program operations.
45 CFR Part 307
Child support, Computerized support enforcement systems.
45 CFR Part 309
Child support, Tribal child support enforcement (IV-D) program.
(Catalog of Federal Domestic Assistance Programs No. 93.563, Child
Support Enforcement Program.)
Lynn A. Johnson,
Assistant Secretary for Children and Families.
Approved: November 19, 2018.
Alex M. Azar II,
Secretary.
For the reasons set forth in the preamble, we propose to amend 45
CFR Chapter III, as set follows:
[[Page 64807]]
PART 302--STATE PLAN REQUIREMENTS
0
1. The authority citation for part 302 continues to read as follows:
Authority: 42 U.S.C. 651 through 658, 659a, 660, 664, 666, 667,
1302, 1396a(a)(25), 1396b(d)(2), 1396b(o), 1396b(p), and 1396(k).
Sec. 302.33 [Amended]
0
2. Amend Sec. 302.33 by:
0
a. Revising (e) intro text paragraph;
0
b. Removing in paragraph (e)(1), (2), (4), (5) wherever it appears the
dollar amount ``$25'' and replacing it with ``$35''; and
0
c. Removing in paragraphs (e)(1)(i) and (3), wherever it appears the
dollar amount ``$500'' and replacing it with ``$550''.
The revision reads as follows:
Sec. 302.33 Services to individuals not receiving title IV-A
assistance.
* * * * *
(e) Annual collection fee. * * *
* * * * *
PART 303--STANDARDS FOR PROGRAM OPERATIONS
0
3. The authority citation for part 303 reads as follows:
Authority: 42 U.S.C. 651 through 658, 659a, 660, 663, 664, 666,
667, 1302, 1396a(a)(25), 1396b(d)(2), 1396b(o), 1396b(p), and
1396(k), and 25 U.S.C. 1603(12) and 1621e.
0
4. Revise Sec. 303.11 paragraph (b)(9)(ii) to read as follows:
Sec. 303.11 Case closure criteria.
* * * * *
(b) * * *
(9) * * *
(i) * * *
(ii) Both SSI payments and either Social Security Disability
Insurance (SSDI) or Social Security Retirement (SSR) benefits under
title II of the Act.
* * * * *
Sec. 303.71 [Removed]
0
5. Remove Sec. 303.71.
Sec. 303.73 [Removed]
0
6. Remove Sec. 303.73.
0
7. Amend Sec. 303.108 by revising paragraph (c) to read as follows:
Sec. 303.108 Quarterly wage and unemployment compensation claims
reporting to the National Directory of New Hires
* * * * *
(c) What timeframes apply for reporting quarterly wage and
unemployment compensation claims data? The State shall report wage and
claim information for the reporting period no later than the end of the
first month following the reporting period.
* * * * *
PART 307--COMPUTERIZED SUPPORT ENFORCEMENT SYSTEMS
0
8. The authority for part 307 continues to read as follows:
Authority: 42 U.S.C. 652 through 658, 664, 666 through 669A,
and 1302.
0
9. Amend Sec. 307.11 by revising paragraphs (c)(3)(i) and (ii) as
follows:
Sec. 307.11 Functional requirements for computerized support
enforcement systems in operation by October 1, 2000
* * * * *
(c) * * *
(3) * * *
(i) Identify cases that have been previously identified as
involving a noncustodial parent who is a recipient of SSI payments or
concurrent SSI payments and either Social Security Disability Insurance
(SSDI) or Social Security retirement (SSR) benefits under title II of
the Act, to prevent garnishment of these funds from the noncustodial
parent's financial account or through an income withholding order; and
(ii) Return funds to a noncustodial parent within 5 business days
after the agency determines that SSI payments or concurrent SSI
payments and either SSDI or SSR benefits under title II of the Act have
been incorrectly garnished from the noncustodial parent's financial
account or through an income withholding order.
* * * * *
Sec. 307.30 [Removed]
0
10. Remove Sec. 307.30.
Sec. 307.31 [Removed]
0
11. Remove Sec. 307.31.
PART 309--TRIBAL CHILD SUPPORT ENFORCEMENT (IV-D) PROGRAM
0
12. The authority for part 309 continues to read as follows:
Authority: 42 U.S.C. 655(f) and 1302.
Sec. 309.20 [Amended]
0
13. Amend Sec. 309.20 paragraph (b) by removing the words ``Tribal
Child Support Enforcement Program, 370 L'Enfant Promenade SW,
Washington, DC 20447'' and adding in its place, the words ``Federal
Office of Child Support Enforcement''.
Sec. 309.75 [Amended]
0
14. Amend Sec. 309.75 paragraph (d) by removing the citation wording
``OMB Circular A-133'' and adding in its place, the words ``45 CFR part
75, Subpart F''.
Sec. 309.155 [Amended]
0
15. Amend Sec. 309.155 paragraph (g) by removing the words ``OMB
Circular A-87'' and adding in its place, the words ``45 CFR part 75,
Subpart E''.
[FR Doc. 2018-27224 Filed 12-17-18; 8:45 am]
BILLING CODE 4184-42-P