Optional Exceptions to the Prohibition Against Treating Incarceration as Voluntary Unemployment Under Child Support Guidelines, 58029-58032 [2020-17747]
Download as PDF
<![CDATA[
Federal Register / Vol. 85, No. 181 / Thursday, September 17, 2020 / Proposed Rules
Question 10: Are there ways to
articulate objective criteria and/or a
rubric for independent testing of how
financial institutions would conduct
their risk-assessment processes and
report in accordance with those
assessments, based on the regulatory
proposals under consideration in this
ANPRM?
FinCEN appreciates that the
regulatory proposals described in this
ANPRM may require changes in the
implementation of independent testing
by financial institutions in order to
achieve the objectives as described in
this ANPRM. Therefore, FinCEN also
seeks comments on how a future
rulemaking could best facilitate effective
independent testing of risk assessments
and other financial institution
processes, as may be revised consistent
with the proposals set forth in this
ANPRM.
Question 11: A core objective of the
incorporation of a requirement for an
‘‘effective and reasonably designed’’
AML program would be to provide
financial institutions with greater
flexibility to reallocate resources
towards Strategic AML Priorities, as
appropriate. FinCEN seeks comment on
whether such regulatory changes would
increase or decrease the regulatory
burden on financial institutions. How
can FinCEN, through future rulemaking
or any other mechanisms, best ensure a
clear and shared understanding in the
financial industry that AML resources
should not merely be reduced as a result
of such regulatory amendments, but
rather should, as appropriate, be
reallocated to higher priority areas?
FinCEN specifically encourages
commenters to provide quantifiable
data, if available, that supports any
views on whether the regulatory
proposals under consideration would
impact financial institutions’ regulatory
burden. FinCEN also invites comment
with regard to how FinCEN and other
supervisory authorities could best
reinforce the importance of maintaining
an appropriate level of BSA compliance
resources if regulatory amendments are
promulgated as described in this
ANPRM.
jbell on DSKJLSW7X2PROD with PROPOSALS
V. Conclusion
With this ANPRM, FinCEN is seeking
input on the questions set forth above.
FinCEN is soliciting comments on the
impact to the public, including
industry, law enforcement, regulators,
other consumers of BSA data, and any
other interested parties, and welcomes
comments on all aspects of the ANPRM.
All interested parties are encouraged to
provide their views.
VerDate Sep<11>2014
16:42 Sep 16, 2020
Jkt 250001
VI. Special Analysis
This advance notice of proposed
rulemaking is a significant regulatory
action under Executive Order 12866 and
has been reviewed by the Office of
Management and Budget.
Dated: September 14, 2020.
Michael Mosier,
Deputy Director, Financial Crimes
Enforcement Network.
[FR Doc. 2020–20527 Filed 9–16–20; 8:45 am]
BILLING CODE 4810–02–P
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
Office of Child Support
Enforcement (OCSE), Administration for
Children and Families (ACF),
Department of Health and Human
Services (HHS).
ACTION: Notice of proposed rulemaking.
AGENCY:
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: https://
www.regulations.gov. Follow the
instructions for submitting comments.
SUMMARY:
PO 00000
Frm 00032
Fmt 4702
Sfmt 4702
58029
• 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 ocse.dpt@
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:
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.
E:\FR\FM\17SEP1.SGM
17SEP1
jbell on DSKJLSW7X2PROD with PROPOSALS
58030
Federal Register / Vol. 85, No. 181 / Thursday, September 17, 2020 / Proposed Rules
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
VerDate Sep<11>2014
16:42 Sep 16, 2020
Jkt 250001
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
PO 00000
Frm 00033
Fmt 4702
Sfmt 4702
noncustodial parents who are
incarcerated and do not have an ability
to pay child support.
We propose to revise § 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 § 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 § 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 § 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 § 302.56(c)(3)(i) for
incarceration related to intentional
nonpayment of support in civil
contempt actions would apply the same
requirements under § 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.
E:\FR\FM\17SEP1.SGM
17SEP1
Federal Register / Vol. 85, No. 181 / Thursday, September 17, 2020 / Proposed Rules
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
§ 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 § 302.56
does not affect regulations for review
and adjustment of support orders,
including notice requirements under
§ 303.8(b)(2) and (b)(7)(ii). We are not
proposing to revise the notice
requirements in § 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 § 302.56(c)(3), a review
and adjustment under the State’s
guidelines in § 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.
jbell on DSKJLSW7X2PROD with PROPOSALS
Section-by-Section Discussion of the
Provisions of This Proposed Rule
16:42 Sep 16, 2020
Jkt 250001
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
Section 302.56: Guidelines for Setting
Child Support Orders
We propose to revise § 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
§ 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 § 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
VerDate Sep<11>2014
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.
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
PO 00000
Frm 00034
Fmt 4702
Sfmt 4702
58031
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.)
E:\FR\FM\17SEP1.SGM
17SEP1
58032
Federal Register / Vol. 85, No. 181 / Thursday, September 17, 2020 / Proposed Rules
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:
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).
2. Amend § 302.56 by revising
paragraph (c)(3) to read as follows:
■
FEDERAL COMMUNICATIONS
COMMISSION
*
*
*
*
*
(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
§ 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
Jkt 250001
Updating the Commission’s Ex Parte
Rules; Correction
Federal Communications
Commission
ACTION: Proposed rule; correction.
AGENCY:
In this document, the
Commission is correcting a date that
appeared in the Federal Register on
September 2, 2020. In this document,
the Commission begins a new
proceeding to consider several updates
to the Commission’s ex parte rules.
First, the Commission seeks comment
on a proposal to exempt from its ex
parte rules, in certain proceedings,
government-to-government
consultations between the Commission
and federally recognized Tribal Nations.
Second, the Commission seeks comment
on a proposal to extend the exemption
to its ex parte rules for communications
with certain program administrators,
such as the Universal Service
SUMMARY:
§ 302.56 Guidelines for setting child
support orders.
jbell on DSKJLSW7X2PROD with PROPOSALS
BILLING CODE 4184–42–P
[GC Docket No. 20–221; FCC 20–92; FRS
17053]
1. The authority citation for part 302
continues to read as follows:
■
16:42 Sep 16, 2020
[FR Doc. 2020–17747 Filed 9–16–20; 8:45 am]
47 CFR Part 1
PART 302—STATE PLAN
REQUIREMENTS
VerDate Sep<11>2014
exception under this paragraph (c)(3)(ii)
to the individual’s other child support
cases.
*
*
*
*
*
PO 00000
Frm 00035
Fmt 4702
Sfmt 9990
Administrative Company, to include the
Toll-Free Numbering Administrator and
the Reassigned Numbers Database
Administrator, and to clarify the
conditions under which this exemption
applies. Third, the Commission seeks
comment on a proposal to require that
all written ex parte presentations and
written summaries of oral ex parte
presentations (other than presentations
that are permitted during the Sunshine
period) be submitted before the
Sunshine period begins and to require
that replies to these ex parte
presentations be filed within the first
day of the Sunshine period. The
document contained incorrect dates.
FOR FURTHER INFORMATION CONTACT:
Mr.
Max Staloff of the Office of General
Counsel, at (202) 418–1764, or
Max.Staloff@fcc.gov.
SUPPLEMENTARY INFORMATION:
Correction
In the Federal Register of September
2, 2020 in FR Doc. 20–17266, on page
54523, in the second column, correct
the DATES caption to read:
Comments due on or before
October 2, 2020; reply comments due on
or before October 19, 2020.
DATES:
Dated: September 2, 2020.
Federal Communications Commission.
Marlene Dortch,
Secretary.
[FR Doc. 2020–19949 Filed 9–16–20; 8:45 am]
BILLING CODE 6712–01–P
E:\FR\FM\17SEP1.SGM
17SEP1
]]>Agencies
[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]
=======================================================================
-----------------------------------------------------------------------
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.
-----------------------------------------------------------------------
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: https://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
