[Federal Register: May 23, 2006 (Volume 71, Number 99)]
[Rules and Regulations]
[Page 29590-29592]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr23my06-10]
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DEPARTMENT OF HEALTH AND HUMAN SERVICES
Administration for Children and Families
45 CFR Part 303
RIN 0970-AC19
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: Final rule.
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SUMMARY: This rule finalizes without change the provisions of the
Interim Final Rule published on December 28, 2004 and responds to
public comments received as a result of the interim final rule. The
rule permits States to use a reasonable quantitative standard to
determine whether or not to proceed with an adjustment of 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 May 23, 2006.
FOR FURTHER INFORMATION CONTACT: Paige Biava, Division of Policy, OCSE,
202-401-5635, e-mail: phbiava@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
[[Page 29591]]
466(a)(10) of the Act is one of the required procedures.
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. This
regulation is considered a ``significant regulatory action'' under 3(f)
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 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 addressing 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 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. 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.
Summary Description of Regulatory Provisions
This rule finalizes without change provisions of the Interim Final
Rule published in the Federal Register on December 28, 2004 (60 FR
77659) and permits States to use a reasonable quantitative standard to
determine whether or not to adjust an existing child support award
amount after conducting a review of the order, regardless of the method
of review used.
Under this final 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 as determined as a result of a review is adequate
grounds for petitioning for adjustment of the order, regardless of the
method of review. This allows States to manage their limited resources
and refrain from seeking unreasonably small order adjustments whenever
the existing order amount varies by any amount, however small, from the
amount calculated under the State's guidelines. Very few States have
automated review processes in place. The application of child support
guidelines often involves far more than a simple calculation based upon
one parent's income, and may include decisions with respect to child
care, health insurance and extraordinary medical expenses. This rule
minimizes the burden, stress and uncertainty families would face in
opening up their orders to change despite little anticipated gain. In
addition, the rule reduces complex agency and 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.
Section 303.8 continues to require State child support enforcement
(IV-D) agencies to review child support orders at least every 3 years,
upon request of a parent in any IV-D 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, i.e. 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, for
adjusting the order in accordance with its support guidelines.
We note that the Deficit Reduction Act of 2005 (Pub. L. 109-171)
amended the child support statute (42 U.S.C. 666(a)(10)) related to
review and adjustment of support orders to require States, effective
October 1, 2007, to review all cases with an assignment of support
rights under title IV-A every three years. We will issue separate
regulations addressing this change.
Response to Comments
We received two comments from an advocate. Responses to these
comments follow. We also received comments in favor of the regulation
from four State IV-D agencies.
Section 303.8--Review and adjustment of child support orders
Comment: One commenter stated that the interim final rule is not
consistent with Federal statute.
Response: We disagree. The regulation is consistent with Federal
statute as originally interpreted in 1993 and as construed in OCSE-AT-
97-10, on July 30, 1997. Section 466(a)(10)(A)(i)(I) of the Act, as
amended by section 351 of Public Law 104-193, does not preclude a State
law
[[Page 29592]]
from providing a threshold deviation before an adjustment of an order
is appropriate. Under 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
difference between the current order and the order amount calculated
during a review, might not be in the child's best interests. The rule
that allowed states to apply a reasonable quantitative standard for
adjustment of an order was in effect for ten years. During that period
there was no indication or evidence that the best interest of children
would have been better served by requiring even incremental adjustments
to orders (whether increases or decreases). On the contrary, we believe
such frequent small changes to orders would have caused stress,
uncertainty and confusion, and would have imposed an unreasonable
administrative burden upon state agencies. In summary, such changes
would not have been ``appropriate.''
(As previously noted, we will be issuing separate regulations to
address the changes made to section 466(a)(10) by the Deficit Reduction
Act.)
2. Comment: This commenter also said that the interim final rule
has the potential to harm needy children and parents. If the amount of
the potential increase doesn't meet the quantitative standard, the
child would be deprived of an amount of money that isn't insignificant
over a year. The same commenter also stated that, if a change in the
order amount would be a decrease and isn't sought, the low income
obligor would be burdened with an excessive order or fall into arrears.
Response: We do not agree. Since the issuance of the Action
Transmittal, we are aware of no evidence of harm done to families or
obligated parents. We believe authority given to States by this
regulatory change is necessary and consistent with the law.
As outlined in the preamble to the Interim Rule, OCSE issued policy
on review and adjustment of orders in OCSE-AT-97-10 on July 30, 1997.
Under section 466(a)(10)(A)(i)(I) of the Act, the language ``if
appropriate, adjust the order'' is consistent with regulations which
say 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 existing 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. The state
should, of course, continue to take into account any significant
changes.
Either party may still ask for a review and modification of the
child support order notwithstanding the state's threshold rule limiting
mandatory procedures requiring the IV-D agency to seek such small
adjustments. The thresholds established by each state avoid de minimus
actions which a court may reject anyway. This rule minimizes the
burden, stress and uncertainty families would face in opening-up the
order to change despite little anticipated gain.
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)
PART 303--STANDARDS FOR PROGRAM OPERATIONS
0
Therefore, the interim final rule amending 45 CFR part 303 which was
published on December 28, 2004 (69 FR 77659) is adopted as final
without change.
Dated: January 20, 2006.
Wade F. Horn,
Assistant Secretary for Children and Families.
Date Approved: February 17, 2006.
Michael O. Leavitt,
Secretary of Health and Human Services.
[FR Doc. 06-4731 Filed 5-22-06; 8:45 am]
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