[Federal Register Volume 85, Number 181 (Thursday, September 17, 2020)]
[Proposed Rules]
[Pages 58029-58032]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-17747]


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DEPARTMENT OF HEALTH AND HUMAN SERVICES

Administration for Children and Families

45 CFR Part 302

RIN 0970-AC81


Optional Exceptions to the Prohibition Against Treating 
Incarceration as Voluntary Unemployment Under Child Support Guidelines

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.

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SUMMARY: The Office of Child Support Enforcement proposes to provide 
States the flexibility to incorporate in their State child support 
guidelines two optional exceptions to the prohibition against treating 
incarceration as voluntary unemployment. Under the proposal, States 
have the option to exclude cases where the individual is incarcerated 
due to intentional nonpayment of child support resulting from a 
criminal case or civil contempt action in accordance with guidelines 
established by the state and/or incarceration for any offense of which 
the individual's dependent child or the child support recipient was a 
victim. The State may apply the second exception to the individual's 
other child support cases.

DATES: Consideration will be given to written comments on this notice 
of proposed rulemaking (NPRM) received on or before November 16, 2020.

ADDRESSES: You may submit comments, identified by [docket number ACF-
2020-0002 and/or Regulatory Information Number (RIN) number 0970-AC81], 
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: Anne Miller, Division of Policy and 
Training, OCSE, telephone (202) 401-1467. 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 Time.

SUPPLEMENTARY INFORMATION:

Submission of Comments

    Comments should be specific, address issues raised by the proposed 
rule, and explain reasons for any objections or recommended changes. 
Additionally, we will be interested in comments that indicate agreement 
with the 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 1102 of the Social Security Act 
(the Act) (42 U.S.C. 1302). Section 1102 of the Act authorizes the 
Secretary to publish regulations, not inconsistent with the Act, as may 
be necessary for the efficient administration of the functions with 
which the Secretary is responsible under the Act.

Background

    The purpose of the Flexibility, Efficiency and Modernization in 
Child Support Programs (FEM) final rule published in the Federal 
Register on December 20, 2016 (81 FR 93492) was to make Child Support 
Enforcement program operations and enforcement procedures more 
flexible, more effective, and more efficient by building on the 
strengths of existing State enforcement programs, recognizing 
advancements in technology, and incorporating technical fixes. The 
final rule was intended to improve and simplify program operations and 
remove outmoded limitations to program innovations, in order to better 
serve families.

[[Page 58030]]

    The FEM final rule revised the guidelines regulations under 45 CFR 
302.56--Guidelines for setting child support orders. The revisions 
ensure that States design their guidelines so that they result in 
orders that accurately reflect a noncustodial parent's ability to pay. 
Setting child support orders that reflect an actual ability to pay is 
crucial to encouraging compliance, increasing accountability, 
discouraging uncollectable arrears, and improving collections for 
families.
    One important change to the guidelines regulations was to prohibit 
States from treating incarceration as voluntary unemployment when 
establishing or modifying support orders. The rationale for this change 
was the concern that State policies that treat incarceration as 
voluntary unemployment effectively block application of the Federal 
review and adjustment law in section 466(a)(10) of the Act. This 
section of the Act requires review, and if appropriate, adjustment of a 
support order upward or downward upon a showing of a substantial change 
in circumstances. Voluntary unemployment, which States do not consider 
a substantial change in circumstances, occurs when an individual 
intentionally reduces income by quitting a job, failing to seek 
employment, or working in a job beneath their skill set or education 
level, in order to avoid child support obligations. Prior to issuance 
of the FEM final rule, some states treated incarceration as voluntary 
unemployment since it was the result of a conviction for an intentional 
criminal act and imputed income to the obligor in calculating the child 
support obligation. By prohibiting States from treating incarceration 
as voluntary unemployment, incarcerated individuals are provided the 
opportunity to have their child support order reviewed and adjusted in 
accordance with State child support guidelines and their actual income 
and ability to pay. The FEM final rule cited research noting the 
importance of ensuring that incarcerated individuals can adjust their 
child support orders to have the order reflect their actual ability to 
pay and prevent accumulation of arrears.
    During the FEM rulemaking process, OCSE received several comments 
in support of requiring exceptions to the prohibition against treating 
incarceration as voluntary unemployment in cases where the noncustodial 
parent has committed acts of violence against the children or a party 
in the child support case, or for willful failure to pay child support. 
In the final rule, OCSE did not agree with the commenters' requests to 
mandate exceptions, citing the overwhelming number of commenters in 
favor of the prohibition and the principle, as stated above, that 
treatment of incarceration as voluntary unemployment would block the 
fair application of Federal review and adjustment law and procedures.
    Since the publication of the FEM final rule, OCSE has received 
requests for flexible and optional exceptions in State guidelines from 
the prohibition against treating incarceration as voluntary 
unemployment. The requests were for limited exceptions for 
incarceration due to intentional nonpayment of child support and for 
any offense of which the individual's dependent child or the child 
support recipient was a victim. In contrast to the suggestions by 
commenters under the FEM rulemaking process, these requests were for 
optional, not mandatory, exceptions for States.
    In consideration of Administration priorities for de-regulation and 
State flexibility, and our expectation that these exceptions would 
affect very few cases, OCSE has determined that it is appropriate to 
provide States the option to adopt in their guidelines these limited 
exceptions to the regulatory prohibition against treating incarceration 
as voluntary unemployment. These proposed optional exceptions provide a 
narrow window of flexibility to address egregious cases of willful 
child support nonpayment (cases where the obligor has the ability to 
pay, but intentionally fails to do so) or violence or abuse against the 
child or child support recipient. This proposed rule does not impose 
mandates; rather, it provides states an option for limited exceptions. 
The rationale to the proposed change in policy is to provide states the 
option to prevent obligors from benefiting from two specific types of 
crimes committed against the child or child support recipient. Some 
states, based on moral and societal values of justice and fairness, may 
reasonably determine that persons found guilty of intentional 
nonsupport, or who show a disregard for the well-being of the custodial 
parent or child by abusing them, should not benefit from those acts by 
having their child support obligation suspended or reduced while 
incarcerated for those crimes--even if that policy risks accumulation 
of arrears, child support debt, and recidivism. The proposed optional 
exceptions are narrow and do not change the overall policy goal that, 
in the majority of cases, it is important to prevent the accumulation 
of arrears by noncustodial parents who are incarcerated and do not have 
an ability to pay child support.
    We propose to revise Sec.  302.56(c)(3) to allow a State the option 
to adopt limited exceptions in their guidelines to the regulatory 
prohibition against treating incarceration as voluntary unemployment. 
These proposed exceptions, under Sec.  302.56(c)(3)(i) and (ii), would 
be for incarceration (1) due to intentional nonpayment of child support 
resulting from a criminal case or civil contempt action in accordance 
with guidelines established by the State under Sec.  303.6(c)(4); and/
or (2) for any offense of which the individual's dependent child or the 
child support recipient was a victim. The state would be able to apply 
the second exception to the individual's other child support cases, if 
any. States, not the Federal Government, are in the best position to 
decide whether or not it is prudent public policy to afford relief from 
child support payment obligations to individuals who are incarcerated 
for intentional nonpayment of support or for offenses for which the 
individual's dependent children or the child support recipient are 
victims.
    Federal regulations at Sec.  303.6(c)(4)--Enforcement of support 
obligations, require States to establish guidelines for the use of 
civil contempt citations in child support cases. The guidelines must 
include requirements that the child support agency screen cases for 
information regarding the noncustodial parent's ability to pay or 
otherwise comply with the order. To ensure consistency with these 
existing civil contempt guidelines, the proposed exception in Sec.  
302.56(c)(3)(i) for incarceration related to intentional nonpayment of 
support in civil contempt actions would apply the same requirements 
under Sec.  303.6(c)(4) to ensure that incarceration is for individuals 
that have the ability to pay, but choose not to do so. This proposed 
exception would not apply where nonpayment of support is due to 
inability to pay. Such cases should not result in incarceration of the 
obligor. This exception is consistent with the principles of the FEM 
final rule that child support orders are based on the noncustodial 
parent's ability to pay and that civil contempt procedures must take 
into account present ability to pay. A State that adopts the proposed 
exception for incarceration due to intentional nonpayment of child 
support would be able to treat the incarcerated noncustodial parent as 
voluntarily unemployed when establishing or modifying a support order.

[[Page 58031]]

    Since States are more knowledgeable about their caseloads and the 
specific circumstances affecting families, they should have the option 
to determine if these limited exceptions should apply to the regulatory 
prohibition against treating incarceration as voluntary unemployment. 
Under proposed Sec.  302.56(c)(3)(ii), in cases where incarceration is 
for offenses against the individual's dependent children or the child 
support recipient, States should have maximum flexibility to decide if 
the exception may apply to the individual's other child support cases.
    This proposal for optional, limited exceptions to a provision under 
Sec.  302.56 does not affect regulations for review and adjustment of 
support orders, including notice requirements under Sec.  303.8(b)(2) 
and (b)(7)(ii). We are not proposing to revise the notice requirements 
in Sec.  303.8(b)(2) and (b)(7)(ii), because it is our view that states 
should continue to provide notice to both parents in cases where these 
exceptions might apply. Even if a State were to elect one of the 
proposed exceptions in Sec.  302.56(c)(3), a review and adjustment 
under the State's guidelines in Sec.  302.56 may still be appropriate, 
given the circumstances in the case. For example, a noncustodial parent 
may have or recently acquired additional sources of income or resources 
that should be taken into account in the review process.

Section-by-Section Discussion of the Provisions of This Proposed Rule

Section 302.56: Guidelines for Setting Child Support Orders

    We propose to revise Sec.  302.56(c)(3) to allow a State the option 
to adopt limited exceptions in their child support guidelines to the 
regulatory prohibition against treating incarceration as voluntary 
unemployment. These proposed optional exceptions in Sec.  
302.56(c)(3)(i) and (ii) are for cases that include incarceration (1) 
due to intentional nonpayment of child support resulting from a 
criminal case or civil contempt action in accordance with guidelines 
established by the State under Sec.  303.6(c)(4); and/or (2) for any 
offense of which the individual's dependent child or the child support 
recipient was a victim. We ensure that the exercise of the first 
exception is consistent with guidelines for the use of civil contempt 
citations in child support cases--which requires that the child support 
agency screen cases for information regarding the noncustodial parent's 
ability to pay or otherwise comply with the order--by proposing to 
specify that the exception must be exercised in accordance with such 
guidelines. The State would be able to apply the second exception to 
the individual's other child support cases, if any. The rationale for 
allowing limited, optional exceptions to the prohibition against 
treating incarceration as voluntary unemployment is to ensure that 
States have flexibility to manage caseloads and their guidelines 
requirements. We expect these exceptions would affect very few cases.

Paperwork Reduction Act

    No new information collection requirements are imposed by these 
regulations. However, under the proposal, all States would need to 
resubmit the state plan preprint page 3.11. This Paperwork Reduction 
Act activity is already approved under OMB Control No. 0970-0017. 
Therefore, the requirements of the Paperwork Reduction Act of 1995 (44 
U.S.C. 3507(d)), regarding reporting and record keeping, are fulfilled.

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 Regulatory Flexibility 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 determined that the costs to title IV-D agencies as a 
result of this rule will not be significant as defined in Executive 
Order 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). Executive Order 13771, titled Reducing Regulation and 
Controlling Regulatory Costs, was issued on January 30, 2017 and 
requires that the costs associated with significant new regulations 
``shall, to the extent permitted by law, be offset by the elimination 
of existing costs associated with at least two prior regulations.'' 
This proposed rule is expected to be an Executive Order 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 $156 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 $156 million or more.

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 does not impose requirements on States or families. 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 in 45 CFR Part 302

    Child support, State plan requirements.

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


[[Page 58032]]


    Dated: August 7, 2020.
Lynn A. Johnson,
Assistant Secretary for Children and Families.
    Approved: August 7, 2020.
Alex M. Azar II,
Secretary.

    For the reasons stated in the preamble, the Department of Health 
and Human Services proposes to amend 45 CFR part 302 as set forth 
below:

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).

0
2. Amend Sec.  302.56 by revising paragraph (c)(3) to read as follows:


Sec.  302.56  Guidelines for setting child support orders.

* * * * *
    (c) * * *
    (3) Provide that incarceration may not be treated as voluntary 
unemployment in establishing or modifying support orders. The state may 
elect to exclude:
    (i) Incarceration due to intentional nonpayment of child support 
resulting from a criminal case or civil contempt action, in accordance 
with guidelines established by the State under Sec.  303.6(c)(4); and/
or
    (ii) Incarceration for any offense of which the individual's 
dependent child or the child support recipient was a victim. The State 
may apply the exception under this paragraph (c)(3)(ii) to the 
individual's other child support cases.
* * * * *
[FR Doc. 2020-17747 Filed 9-16-20; 8:45 am]
BILLING CODE 4184-42-P