[Federal Register: December 28, 2004 (Volume 69, Number 248)]
[Rules and Regulations]
[Page 77659-77661]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr28de04-14]
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DEPARTMENT OF HEALTH AND HUMAN SERVICES
Administration for Children and Families
45 CFR Part 303
Child Support Enforcement Program; Reasonable Quantitative
Standard for Review and Adjustment of Child Support Orders
AGENCY: Office of Child Support Enforcement (OCSE), Health and Human
Services (HHS).
ACTION: Interim final rule with comment period.
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SUMMARY: This interim final rule revises existing regulations on review
and adjustment of child support orders to reinstate a rule which was in
place since 1993. The change permits States to once again use
reasonable quantitative standards in adjusting an existing child
support award amount after conducting a review of the order, regardless
of the method of review used.
DATES: These regulations are effective December 28, 2004. Consideration
will be given to comments received February 28, 2005.
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. To download an
electronic version of the rule, you may access http://www.regulations.gov.
You may also transmit written comments
electronically via the Internet at http://www.regulations.acf.hhs.gov.
FOR FURTHER INFORMATION CONTACT: Elizabeth Matheson, Division of
Policy, OCSE, 202-401-9386, e-mail: ematheson@acf.hhs.gov. 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
The provisions of this regulation pertaining to review and
adjustment of child support orders are published under the authority
granted to the Secretary by section 466(a) of the Social Security Act
(the Act), 42 U.S.C. 666(a). Section 466(a) requires each State to have
in effect laws requiring the use of specified procedures, consistent
with this section of the Act and regulations of the Secretary, to
increase the effectiveness of the Child Support Enforcement program.
Review and adjustment of support orders at section 466(a)(10) of the
Act is one of the required procedures.
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 and contrary to the
public interest, because the rule is not imposing new requirements or
burdens on States, but is removing an administrative requirement and
burden on agencies and families that was added to the technical
corrections final regulation published in the Federal Register on May
12, 2003 (68 FR 25293). Without opportunity for public comment, that
regulation implemented a substantive change to prior policy that was
not warranted under any intervening amendment to the relevant statute.
The change required States to adjust an order for support after a
guidelines review, regardless of the amount by which the existing order
is found to deviate from the State's support guidelines. The statute,
as in effect before and after this change, provided that such
adjustments were only required ``if appropriate.'' Prior to that
regulation, since 1993, States could apply a reasonable quantitative
standard for adjustment of an order regardless of the method of their
review of the order. This regulation reinstates the prior rule with
opportunity for public comment. Because the regulatory change published
on May 12 did not allow for public comment, and this rule merely
reinstates the prior regulation which was issued pursuant to notice and
comment, advance notice is unnecessary.
Background
1992 Regulations
Under the authority of sections 466(a)(10) and 1102 of the Act,
OCSE published regulations on review and adjustment of child support
orders in 1992. They were effective in October, 1993. In the preamble
to that regulation, the basis for seeking an adjustment to an order was
described as paraphrased below.
In the 1992 regulation, 45 CFR 303.8(d) specified the requirements
States had to meet in seeking adjustments to child support orders in
IV-D cases. Paragraph (d)(1) required that an inconsistency between the
existent child support order amount and the amount of child support
which resulted from application of the State guidelines must be an
adequate basis, under State law, for petitioning for an adjustment of
an order in a IV-D case, whether or not the order was established using
guidelines.
Paragraph (d)(2) of the 1992 regulation provided for an exception
that allowed States to establish a quantitative standard based upon
either a fixed dollar amount or percentage, or both, as a basis for
determining whether an inconsistency is adequate grounds for
petitioning for adjustment of the order. That quantitative standard, or
threshold, was to be used as a basis for determining whether the
inconsistency was sufficient to justify proceeding with a petition or
motion for adjustment of an award, not as a criterion for deciding
whether to review. Threshold standards were not needed if States
adjusted all orders regardless of the degree of inconsistency with the
guidelines. However, thresholds could serve to prevent inundating the
adjustment process with cases in which the variance was minimal between
the current order amount and the amount that would result from an
application of the guidelines.
The quantitative standard permitted by the 1992 regulation was
meant to be used as a post-review decision-making tool. It was not
intended to restrict the use of guidelines in setting and modifying
support nor to limit the authority of the court or other authority to
find, in a particular case, that an award based on guidelines was
unfair or inappropriate. In making any adjustment to the amount of
support, the judicial or administrative process still had to apply the
State guidelines. Under regulations at 45 CFR 302.56, Guidelines for
setting child support awards, the child support award calculated to be
due under the guidelines was rebuttably presumed to be the correct
amount of support to be paid.
1997 Action Transmittal
OCSE issued policy on review and adjustment of orders in OCSE-AT-
97-10 on July 30, 1997, in response to
[[Page 77660]]
provisions of Pub. L. 104-193, the Personal Responsibility and Work
Opportunity Reconciliation Act of 1996, relating to review and
adjustment. In that action transmittal, OCSE continued to permit States
to use a reasonable quantitative standard for determining whether or
not to adjust an order. Pertinent questions and answers from the action
transmittal are summarized below.
Q. 4. Does the requirement to ``adjust the order in accordance with
the guidelines * * * if the amount * * * differs'' preclude a State law
providing a threshold deviation of, for example, 15% before an
adjustment is deemed appropriate?
A. No. Section 466(a)(10)(A)(i)(I) of the Act, as amended by
section 351 of Pub. L. 104-193, does not preclude a State law from
providing a threshold deviation before an adjustment of an order is
appropriate. First of all, according to section 466(a)(10)(A)(i) of the
Act, the State must take ``into account the best interests of the child
involved.'' A small reduction in support, or even an increase, because
of a deviation in the guidelines' amount might not be in the child's
best interests. Secondly, statute and regulations allow the State to
adjust the order, or determine that there should be no adjustment, if
appropriate, in accordance with the State's guidelines for setting
child support awards. Given the latitude States have to apply cost-of-
living adjustments, or to set thresholds if they use automated methods,
it was stated that there was similar latitude for States to determine
that small deviations are ``inappropriate'' for adjustment.
Given the complexity of the most States'' review and adjustment
process, as well as State child support guidelines, it may not be in
the child's best interest for parents, child support agencies, and
courts to wrangle over very small amounts of money. The application of
child support guidelines often involves far more than a simple
calculation of a portion of a parent's income. Both the review process
and the adjustment process are time-consuming and involve multiple
parties in most States. Despite authority in the Federal statute, very
few States have automated review processes in place and about half the
States have court-based systems for adjusting orders.
Q. 7. Under section 466(a)(10)(A)(i)(I) of the Act, does ``if
appropriate'' mean that if a State reviews a case under the 3-year
cycle provision using State guidelines, it can determine not to adjust
the order if the inconsistency between the current order and the
guideline's amount does not meet the ``reasonable quantitative standard
established by the State''?
A. Yes. Under section 466(a)(10)(A)(i)(I) of the Act, the language
``if appropriate, adjust the order'' is consistent with regulations
which said that, if a State reviews a case under the 3-year cycle
provision using State guidelines, it can determine not to adjust the
order if the inconsistency between the current order and the guideline
amount does not meet the ``reasonable quantitative standard established
by the State''. Under the regulations, the State could establish a
reasonable quantitative standard based upon either a fixed dollar
amount or percentage, or both, as a basis for determining whether an
inconsistency between the existent child support award amount and the
amount of support which resulted from application of the guidelines was
adequate grounds for petitioning for adjustment of the order.
Therefore, a reasonable quantitative standard could be used to
determine not to adjust the order.
Q. 8. Is it only under section 466(a)(10)(A)(i)(III) that a State
can establish a standard for determining when an adjustment is
warranted?
A. No. Under both sections 466(a)(10)(A)(i)(I) (guidelines review)
and (III) (automated review), as amended by section 351 of Pub. L. 104-
193, it is appropriate for the State to use its threshold standard to
determine if an adjustment is appropriate.
Q. 10. Under section 466(a)(10)(A)(ii) of the Act does ``if
appropriate'' mean that a State can determine not to (re)adjust the
order if the inconsistency between current and guideline support does
not merit an adjustment based on the ``reasonable quantitative standard
established by the State''?
A. Yes. Under section 466(a)(10)(A)(ii) of the Act (opportunity to
contest an adjustment), a State can determine not to (re)adjust the
order if the inconsistency between current and guideline support does
not merit an adjustment based on the reasonable quantitative standard
established by the State.
Provisions of the Regulation
In OCSE-AT-97-10, OCSE said it was working on a regulation to
eliminate inconsistencies between title IV-D regulations and Pub. L.
104-193. That regulation was published in the Federal Register on May
12, 2003. (68 FR 25293). That regulation did not retain the regulatory
policy described above. Rather, it limited use of the reasonable
quantitative standard to adjustments in cases that were reviewed by
automated methods. In the preamble to the May 12 rule, we said: ``We
are revising paragraph (c) to clarify that States may use a
quantitative standard only in cases involving the use of automated
methods in accordance with section 466(a)(10)(A)(i)(III) of the Act.
That section alone refers to orders being ``eligible for adjustment,''
recognizing there might be some standard set to determine eligibility
for adjustment. The other two methods of review (guidelines and cost-
of-living) do not contain this language. Sections 303.8(a) and (d)
through (f) remain as published in the interim final rule.''
The change to paragraph (c) in the May 12 final rule was not
required by any change in the underlying statute, and it clearly was
not mandated by Pub. L. 104-193, as the statute was interpreted in
OCSE-AT-97-10. Nor should the change have been issued in a final rule
without opportunity for comment. The interim final regulation in
today's Federal Register reinstates the original rule with opportunity
for public comment.
Under this interim rule a State may establish a reasonable
quantitative standard, based on either a fixed dollar amount or
percentage, or both, as a basis for determining whether an
inconsistency between the existent child support award amount and the
amount of support determined as a result of a review is adequate
grounds for petitioning for adjustment of the order, regardless of the
method of review. This interim final rule allows States to manage their
resources and refrain from unreasonably small order adjustments that
may be costly and perhaps involve changes to States' automated systems.
Most States' review and adjustment process, as well as State child
support guidelines, are complex and lengthy. The application of child
support guidelines often involves far more than a simple calculation of
a portion of a parent's income, including decisions with respect to
child care, health insurance, and extraordinary medical expenses. Both
the review process and the adjustment process are time-consuming and
involve multiple parties in most states. Despite authority in the
Federal statute for automated review and adjustment and cost-of-living
increases, very few States have these automated review processes in
place and about half the States have court-based, rather than
administrative, systems for adjusting orders.
The rule minimizes the burden, stress and uncertainty families
would face in opening up the orders to change despite little
anticipated gain. In addition, the rule reduces complex agency and
[[Page 77661]]
tribunal record-keeping that could lead to errors and lessens the
burden on employers who would need to respond to constantly adjusting
income withholding orders to address small differences in the amount
withheld.
It is important to note that Sec. 303.8 continues to require
States to review child support orders at least every 3 years, upon
request of a parent in any case, and upon request of the State if there
is an assignment of support rights under title IV-A of the Act, and
make adjustments, if appropriate, if the reasonable quantitative
standard for an adjustment is met. Further, under paragraph (b)(5) of
this section, a State must have procedures under which a parent or
other person who has standing may request a review and adjustment
outside the regular 3-year (or shorter) cycle, and if the requesting
party demonstrates a substantial change in circumstance, the State must
adjust the order in accordance with its support guidelines.
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 because there
is broad agreement among state IV-D agencies that removal of the
burden, and reinstatement of prior policy, is necessary. Individuals,
either those owing or those entitled to receive child support, will not
be harmed, as only small adjustments (either up or down) in the amount
of the child support obligation will be avoided. This regulation is
considered a ``significant regulatory action'' under 3f of the
Executive Order, and therefore has been reviewed by the Office of
Management and Budget.
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.
If a covered agency must prepare a budgetary impact statement,
section 205 further requires that it select the most cost-effective and
least burdensome alternative that achieves the objectives of the rule
and is consistent with the statutory requirements. In addition, section
203 requires a plan for informing and advising any small governments
that may be significantly or uniquely impacted by the rule.
We have determined that the interim final rule will not 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. Accordingly, we have not prepared a budgetary impact
statement, specifically addressed the regulatory alternatives
considered, or prepared a plan for informing and advising any
significantly or uniquely impacted small governments.
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: May 25, 2004.
Wade F. Horn,
Assistant Secretary for Children and Families.
Date Approved: September 29, 2004.
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), 1396b(d)(2), 1396b(o), 1396b(p) and 1396(k).
Sec. 303.8 [Amended]
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2. In Sec. 303.8, paragraph (c) is amended by removing ``using
automated methods under paragraph (b)(1)(iii) of this section''.
[FR Doc. 04-28410 Filed 12-27-04; 8:45 am]
BILLING CODE 4184-01-P