Paternity Establishment Percentage Performance Relief, 57770-57773 [2021-22553]
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57770
Federal Register / Vol. 86, No. 199 / Tuesday, October 19, 2021 / Proposed Rules
to find that the Arizona SIP is
substantially inadequate to attain or
maintain the PM10 standard and to issue
a SIP call requiring Arizona to revise the
SIP to address this inadequacy. We
proposed to require Arizona to submit
this Moderate nonattainment plan SIP
submission within 18 months of
finalizing the SIP call and to set a new
attainment date of no later than
December 31, 2025, because the original
maximum attainment date for this area
under Clean Air Act (CAA) section
188(c)(1) was December 31, 1994
(approximately four years from the
original designation).2 We proposed a
deadline for reasonably available
control measures to be fully
implemented in the area by January 1,
2025, but also recommended that
reasonable controls be fully
implemented as early as January 1,
2023. Earlier implementation of
reasonable controls would allow highwind dust events during the three-year
period preceding the proposed
attainment date potentially to be
considered ‘‘natural events’’ under the
EPA’s exceptional events rule.3
The public comment period for the
proposed rule started on June 1, 2021,
and ended on July 1, 2021. Due to an
inadvertent administrative oversight,
the EPA did not post all the documents
contained in the docket until June 23,
2021. The EPA is re-opening the
comment period for the proposed rule
for an additional 30 days, to allow for
a full comment period with access to the
docket.
During the comment period, the EPA
received comments from seven
commenters including the Arizona
Department of Environmental Quality
(ADEQ). In its comment letter, ADEQ
noted that the EPA’s authority to
establish a new attainment date is
contained in section 110(k)(5), which
allows the EPA to adjust any dates
applicable to the relevant requirements
‘‘as appropriate;’’ that such adjusted
dates could include the attainment date
if the original attainment date had
elapsed; and that CAA section 188(c)(1)
‘‘establishes two alternative attainment
deadlines for moderate PM10
nonattainment areas: four years after
designation for areas designated in
1990, and six years after designation for
all other areas.’’ 4 ADEQ asserted that
the CAA does not require the EPA to set
2 86
FR 29221.
at footnote 40 (citing 40 CFR 50.14(b)(5)(ii)).
4 Letter dated June 30, 2021 from Daniel
Czecholinski, Air Quality Division Director, ADEQ,
RE: Proposed Rescission of Clean Data
Determination and Call for Attainment Plan
Revision for the Yuma, AZ PM10 Moderate
Nonattainment Area, 2.
3 Id.
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the new maximum attainment date
according to the shorter deadline and
that ‘‘the six-year deadline would be
more ‘appropriate’’’ for the Yuma PM10
nonattainment area.5 In particular,
ADEQ asserted that the EPA’s
recommended schedule for
implementation of reasonable controls
by January 1, 2023, ‘‘which envisions
implementation nineteen months after
EPA’s proposed finding is completely
unrealistic.’’ 6
In response to ADEQ’s comment, we
are now also seeking comment on a
possible alternative attainment date for
the Yuma PM10 nonattainment area. As
noted by ADEQ, given that the original
attainment date of December 31, 1994,
has elapsed, CAA section 110(k)(5)
provides the EPA with discretion to
adjust this date ‘‘as appropriate.’’ 7 We
initially proposed an attainment date of
December 31, 2025, based on the fact
that the Yuma area’s original attainment
date was approximately four years from
its designation as a nonattainment area
in 1990. However, as also noted by
ADEQ, for other Moderate PM10
nonattainment areas, CAA section
188(c)(1) sets a maximum attainment
date of the end of the sixth calendar
year after the area’s designation as
nonattainment. Therefore, we are
specifically seeking comment on
whether we should set a maximum
attainment date of December 31, 2027
(roughly six years from the expected SIP
call effective date), rather than
December 31, 2025 (roughly four years
from the expected SIP call effective
date), for the Yuma PM10 nonattainment
area, if we finalize our proposed finding
of inadequacy and SIP call.
We are also again soliciting public
comments on all issues discussed in our
June 1, 2021 proposal. We will accept
comments from the public on that
proposal until the date listed in the
DATES section above. We will consider
all comments received during both the
initial comment period and this second
comment period before taking final
action.
List of Subjects in 40 CFR Part 52
Environmental protection, Air
pollution control, Incorporation by
5 Id.
(quoting CAA section 110(k)(5)).
(emphasis in original).
7 CAA section 110(k)(5) (‘‘Any finding under this
paragraph shall, to the extent the Administrator
deems appropriate, subject the State to the
requirements of this chapter to which the State was
subject when it developed and submitted the plan
for which such finding was made, except that the
Administrator may adjust any dates applicable
under such requirements as appropriate (except that
the Administrator may not adjust any attainment
date prescribed under part D of this subchapter,
unless such date has elapsed).’’).
6 Id.
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reference, Intergovernmental relations,
Particulate matter, Pollution.
Authority: 42 U.S.C. 7401 et seq.
Dated: October 5, 2021.
Deborah Jordan,
Acting Regional Administrator, Region IX.
[FR Doc. 2021–22167 Filed 10–18–21; 8:45 am]
BILLING CODE 6560–50–P
DEPARTMENT OF HEALTH AND
HUMAN SERVICES
Administration for Children and
Families
45 CFR Part 305
RIN 0970–AC86
Paternity Establishment Percentage
Performance Relief
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:
Due to the impact of the
COVID–19 public health emergency on
state child support program operations,
the Office of Child Support Enforcement
(OCSE) proposes to modify the Paternity
Establishment Percentage (PEP) from the
90 percent performance threshold to 50
percent for Federal Fiscal Years (FFY)
2020 and 2021 in order for a state to
avoid a financial penalty. OCSE also
proposes to provide that adverse
findings of data reliability audits of a
state’s paternity establishment data will
not result in a financial penalty.
DATES: Consideration will be given to
written comments on this notice of
proposed rulemaking (NPRM) received
on or before November 18, 2021.
ADDRESSES: You may submit comments,
identified by [docket number and/or
Regulatory Information Number (RIN)
number], by one of the following
methods:
• Federal eRulemaking Portal: 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.
SUMMARY:
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Federal Register / Vol. 86, No. 199 / Tuesday, October 19, 2021 / Proposed Rules
FOR FURTHER INFORMATION CONTACT:
Eliza Lowe, Senior Policy Specialist, the
OCSE Division of Policy and Training,
at 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. In this NPRM, we specifically
seek public comment on the timeframe
for the relief proposed, and whether the
relief period should extend to include
FFY 2022.
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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. The proposed relief from
the Paternity Establishment Percentage
performance penalty under this NPRM
is based on statutory authority granted
under section 452(g)(3)(A) of the Act (42
U.S.C. 652(g)(3)(A)).
Justification
The purpose of this proposed rule is
to provide targeted and time-limited
relief to states from penalties due to the
impact of the national public health
emergency (PHE) caused by COVID–19
on state program performance. The
pandemic has had an enormous adverse
impact on child support services
delivered by states under Title IV–D of
the Act. Due to disruptions to state child
support operations and to court
operations during the PHE, states are
experiencing significant workload
burdens and service backlogs.
In particular, states have indicated
that the PHE has created numerous
challenges in their ability to establish
paternity/parentage in child support
cases. Establishing paternity, a core
function of the child support program as
stated in section 452(a)(1) of the Act, is
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an essential step in securing a support
order and ultimately support for a child.
Because of the importance of paternity/
parentage establishment in the success
of the child support program, a state’s
paternity establishment performance,
measured using the Paternity
Establishment Percentage (PEP), is a
federally-required performance measure
under section 452(g) of the Act.
While states have some discretion
under their Title IV–D State Plan for
their paternity and parentage
establishment procedures and have
developed programs that range from
highly-administrative to more
judicially-based, they also have
commonalities in these procedures.
States are required, for example, to have
hospital-based, voluntary paternity
acknowledgement programs to establish
parentage for non-marital birth families
in uncontested cases and to have
procedures for genetic testing in
contested cases.
The pandemic has made it difficult
for state child support programs to
perform many of the in-person functions
needed to establish paternity/parentage.
Barriers to this process include the
limitations of on-site genetic-testing
operations, office-staffing issues due to
staff telework or illness, and people’s
inability to visit offices for case intake
or genetic testing. In addition, many
hospitals have limited visitation
policies during the PHE, which led
many states to suspend their hospitalbased voluntary paternity/parentage
establishment programs. Finally, in
many jurisdictions, courts halted certain
civil proceedings, including child
support cases requiring paternity/
parentage establishment.1 While most
courts are now operational, child
support cases remain backlogged.2 The
situation continues to impact state’s
paternity establishment performance for
FFY 2021.
Since the start of the pandemic in
early 2020, states have appealed for
relief from program requirements in
order to support their operations during
the crisis. OCSE is able to provide
certain flexibilities for administrative
requirements under the Robert T.
Stafford Disaster Relief and Emergency
Assistance Act (42 U.S.C. 5170) (See
OCSE Dear Colleague Letter 20–04:
Flexibilities for State and Tribal Child
Support Agencies during COVID–19
1 Hurst, John, ‘‘PEP in a Pandemic Environment,’’
NCSEA Child Support CommuiniQue, (April, 2021)
and Fickler, Wade and Sarah Scherer, ‘‘The NCSL
Blog: COVID–19’s Snowballing Effect on Child
Support, Custody, Visitation, Economic Security’’
(April 21, 2020).
2 Ibid.
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Pandemic 3). However, these flexibilities
do not extend to relief for financial
penalties related to performance or
adverse data reliability audit findings.
States are concerned that PEP-related
financial penalties, which like all child
support performance penalties are
imposed in the form of a reduction in
the Temporary Assistance for Needy
Families (TANF) program funding to
states, place an undue burden on state
budgets and threaten funding that
supports the very families who are most
in need during this time of crisis.
The adverse impact of the pandemic
on paternity establishment is evident in
the data. According to OCSE’s FFY 2020
data, which are based on data that states
submit and OCSE compiles, 41 out of
the 54 states (50 states and the District
of Columbia, Guam, Puerto Rico, and
the Virgin Islands) experienced a
decrease in their paternity
establishment performance as measured
by their PEP percentage. More
problematic, according to these data, as
many as 18 states appear to have failed
to meet the 90 percent threshold and
may be subject to financial penalties if
they fail to take sufficient corrective
action to achieve the appropriate PEP
performance level in the subsequent
year.
This regulatory action is time
sensitive because it must be in effect
before states are subject to penalties and
adverse data reliability audit findings.
States are desperately seeking
confirmation from OCSE that they will
have relief from these penalties against
their state TANF grants. Such penalties
would be an overwhelming burden on
state budgets and threaten critical
funding needed during this COVID–19
PHE.
Background: PEP Performance
Requirement
The PEP performance requirement,
which is part of the overall
performance, audit, penalties, and
incentives system for child support, is
established under 452(g) of the Act and
45 CFR 305.40. Section 452(a)(4)(C)(i) of
the Act requires the Secretary to
determine whether State-reported data
used to determine the performance
levels are complete and reliable.
Additionally, section 409(a)(8)(A) of the
Act and 45 CFR 305.61(a)(1) provides
for a financial penalty if there is a
failure to achieve the required level of
performance or an audit determines that
the data is incomplete or unreliable.
3 https://www.acf.hhs.gov/css/policy-guidance/
flexibilities-state-and-tribal-child-support-agenciesduring-covid-19-pandemic.
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The minimum acceptable level of
performance for the PEP is 90 percent or
an improvement of 2 to 6 percentage
points over the previous year’s level of
performance. Section 409(a)(8) of the
Act and 45 CFR 305.61(a)(2) impose
automatic corrective action for the
subsequent fiscal year. A state also must
submit complete and reliable data used
in the PEP calculation, which will be
audited according to 45 CFR 305.60.
If a state fails to meet the annual 90
percent PEP standard, or to show
improvement in the subsequent year (2
to 6 percentage points), the amount of
the initial penalty will be equal to one
percent of the adjusted State Family
Assistance Grant for the TANF program.
A penalty against the TANF grant will
also be imposed if the state fails to
submit complete and reliable PEP data
and there is an adverse data reliability
audit finding for PEP in the subsequent
year. The penalty will continue to be
assessed in accordance with section
409(a)(8)(B) of the Act and 45 CFR
305.61 until the state is determined to
have submitted complete and reliable
data and achieved the required
performance level. In accordance with
45 CFR 262.1(e)(1), the state must
expend additional state funds equal to
the amount of the penalty (which will
not count toward the maintenance-ofeffort requirement under TANF) the
year after the TANF penalty is assessed.
In recent years prior to the pandemic,
OCSE has imposed an average of one
penalty for PEP performance annually,
as nearly all states have consistently met
or exceeded the PEP performance
measure. This indicates that the failure
in performance in FFY 2020 is due to
the unprecedented circumstances of the
PHE. In addition, in the last ten years,
OCSE has imposed no penalties due to
adverse data reliability audit findings
related to the PEP measure.
Proposed PEP Penalty Relief
OCSE proposes providing relief
through this regulation by modifying the
requirements related to the PEP
performance measure. Section 452(g)(3)
of the Act authorizes the Secretary ‘‘to
take into account such additional
variables as the Secretary identifies
(including the percentage of children in
a State who are born out of wedlock or
for whom support has not been
established) that affect the ability of a
State to meet the requirements of
[section 452(g) of the Act].’’ OCSE
proposes that the effect of the COVID–
19 PHE on states is one such additional
variable, due to the unprecedented
nature and scope of the pandemic’s
impact on the child support program as
described above. Therefore, OCSE
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proposes modifying the required PEP to
a lower performance threshold and
setting aside adverse data reliability
audit findings related to PEP, thereby
allowing states that are not able to meet
data performance and data reliability
audit requirements to avoid the
financial penalty for the years when the
pandemic had its greatest impact on the
child support program.
OCSE proposes modifying the PEP
threshold of 90 percent to a lower
threshold of 50 percent for FFYs 2020
and 2021. The rationale for choosing 50
percent is based on the value of this
percentage in Table 1 under 45 CFR
305.33, Determination of applicable
percentages based on performance
levels. Fifty percent is the lowest
possible PEP level in the table that still
has performance value because it is the
lowest PEP performance for which a
state still gets credit in the calculation
of incentives. Below 50 percent, the
state’s applicable percentage for PEP
performance is valued at zero. In
addition, we propose a 50 percent
threshold because, according to OCSE’s
FFY 2020 data, no state has a FFY 2020
PEP level below 65 percent. Therefore,
a PEP level of 50 percent will ensure
that no state will be subject to a
financial penalty while state agency
operations are disrupted due to the
ongoing PHE.
This proposed rule is time limited
and data informed to provide relief
narrowly and specifically in response to
the ongoing PHE. We propose modifying
the PEP threshold for FFYs 2020 and
2021 to align with the timeframe when
states experienced the greatest impact of
the public health emergency. After the
relief period, starting for FFY 2022, the
PEP performance thresholds will revert
back to the usual levels described under
45 CFR 305.40(a)(1), and states will
once again be subject to penalties for
adverse data reliability audit findings
related to the PEP measure after an
automatic corrective action year as
specified in 45 CFR 305.42. In this
NPRM, we specifically seek public
comment on the timeframe for the relief
proposed, and whether the relief period
should extend to include FFY 2022.
Finally, this proposed relief maintains
the integrity of the system of
performance, audit, penalties, and
incentives that has driven success and
accountability in the child support
program for over two decades. The
proposed regulation provides relief from
the PEP measure and data reliability
audit penalties but does not otherwise
change the process for other
performance measures, data collection
and reporting, audits, or incentives.
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Section-by-Section Discussion of the
Provisions of This Proposed Rule
Section 305.61: Penalty for Failure To
Meet IV–D Requirements.
We propose to add a new provision to
Part 305 Program Performance
Measures, Standards, Financial
Incentives and Penalties, to provide
short-term relief from financial penalties
related to the paternity establishment
percentage measure, due to the impact
of the COVID–19 pandemic on state IV–
D operations. We propose adding a new
paragraph (e) to § 305.61, Penalty for
failure to meet IV–D requirements, to
modify the criteria by which states are
subject to financial penalties for the PEP
requirements. The proposed modified
criteria are that the acceptable
performance level of paternity
establishment percentage under
§ 305.40(a)(1) is reduced from 90
percent to 50 percent and the adverse
findings of data reliability audits of a
state’s paternity establishment data
under § 305.60 will not result in a
financial penalty. The proposed
modifications are applicable to FFYs
2020 and 2021.
In summary, the rationale for this
NPRM, which proposes modifying the
PEP requirements, is based on the
statutory allowance under section
452(g)(3)(A) of the Act that the Secretary
may consider additional variables that
affect a state’s ability to meet PEP
requirements due to the COVID–19 PHE.
However, the proposed modifications
are only for FFYs 2020 and 2021. In
addition, the proposed modifications
are based on data that indicate PEP
declined for 41 states during the
pandemic, and approximately one third
of states will be subject to a financial
penalty related to these declines if they
do not take sufficient corrective action
in the subsequent corrective action year.
During this COVID–19 PHE, OCSE has
carefully considered the impact of the
pandemic on state performance. The
proposed regulation limits adding
further burden on states by providing
relief from penalties against state public
assistance funding.
Paperwork Reduction Act
No new information collection
requirements are imposed by these
regulations.
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
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Federal Register / Vol. 86, No. 199 / Tuesday, October 19, 2021 / Proposed Rules
governments are not considered small
entities under the Regulatory Flexibility
Act.
private sector, that will result in an
annual expenditure of $164 million or
more.
Regulatory Impact Analysis
Assessment of Federal Regulations and
Policies on Families
Executive Orders 12866 and 13563
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. This rule
meets the standards of Executive Order
13563 because it creates a short-term
public benefit, at minimal cost to the
Federal Government, by not imposing
penalties against a state’s TANF grant,
during a time when public assistance
funds are critically needed.
Executive Order 12866 provides that
the Office of Information and Regulatory
Affairs (OIRA) at the Office of
Management and Budget (OMB) will
review all significant rules. OIRA has
determined that this NPRM is
significant and was accordingly
reviewed by OMB.
A regulatory impact analysis (RIA)
must be prepared for major rules with
economically significant effects ($100
million or more in any one year). ACF
does not anticipate that this proposed
rulemaking is likely to have an
economic impact of $100 million or
more in any one year, and therefore
does not meet the definition of
‘‘economically significant’’ under
Executive Order 12866. Accordingly,
OIRA has determined that this
rulemaking is ‘not major’ under Subtitle
E of the Small Business Regulatory
Enforcement Fairness Act of 1996 (also
known as the Congressional Review
Act).
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Unfunded Mandates Reform Act of
1995
The Unfunded Mandates Reform Act
of 1995 (Pub. L. 104–4) requires
agencies to prepare an assessment of
anticipated costs and benefits before
issuing 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 $164 million. This rule
does not impose any mandates on state,
local, or tribal governments, or the
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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
57773
(e) COVID–19 paternity establishment
percentage penalty relief. Due to the
adverse impact of the COVID–19
pandemic on State IV–D operations, the
criteria by which states are subject to
financial penalties for the paternity
establishment percentage under
paragraph (a) of this section are
temporarily modified for fiscal years
2020 and 2021 as follows:
(1) The acceptable level of paternity
establishment percentage performance
under § 305.40(a)(1) is modified for
fiscal years 2020 and 2021 from 90
percent to 50 percent, and
(2) The adverse findings of data
reliability audits of a State’s paternity
establishment data under § 305.60 will
not result in a financial penalty for
fiscal years 2020 and 2021.
*
*
*
*
*
[FR Doc. 2021–22553 Filed 10–18–21; 8:45 am]
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 305
Child support, Program performance
measures, standards, financial
incentives, and penalties.
BILLING CODE 4184–42–P
DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS–R8–ES–2021–0060;
FF09E21000 FXES1111090FEDR 223]
RIN 1018–BE49
Endangered and Threatened Wildlife
and Plants; Designation of Critical
Habitat for the Southern Sierra Nevada
Distinct Population Segment of Fisher
Fish and Wildlife Service,
Interior.
ACTION: Proposed rule.
(Catalog of Federal Domestic Assistance
Programs No. 93.563, Child Support
Enforcement Program.)
AGENCY:
JooYeun Chang,
Acting Assistant Secretary for Children and
Families.
Xavier Becerra,
Secretary.
We, the U.S. Fish and
Wildlife Service (Service), propose to
designate critical habitat for the
federally endangered Southern Sierra
Nevada distinct population segment
(DPS) of fisher (Pekania pennanti)
under the Endangered Species Act of
1973, as amended (Act). In total, we
propose to designate approximately
554,454 acres (ac) (224,379 hectares
(ha)) in six units in California as critical
habitat for the Southern Sierra Nevada
DPS of fisher. We also announce the
availability of a draft economic analysis
of the proposed critical habitat
designation.
DATES: We will accept comments
received or postmarked on or before
December 20, 2021. Comments
submitted electronically using the
Federal eRulemaking Portal (see
ADDRESSES, below) must be received by
11:59 p.m. Eastern Time on the closing
date. We must receive requests for a
public hearing, in writing, at the address
For the reasons stated in the
preamble, the Department of Health and
Human Services proposes to amend 45
CFR part 305 as set forth below:
PART 305—PROGRAM
PERFORMANCE MEASURES,
STANDARDS, FINANCIAL
INCENTIVES, AND PENALTIES
1. The authority citation for part 305
continues to read as follows:
■
Authority: 42 U.S.C. 609(a)(8), 652(a)(4)
and (g), 658a, and 1302.
2. In § 305.61 revise paragraph (e) to
read as follows:
■
§ 305.61 Penalty for failure to meet IV–D
requirements.
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SUMMARY:
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]]>Agencies
[Federal Register Volume 86, Number 199 (Tuesday, October 19, 2021)]
[Proposed Rules]
[Pages 57770-57773]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-22553]
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DEPARTMENT OF HEALTH AND HUMAN SERVICES
Administration for Children and Families
45 CFR Part 305
RIN 0970-AC86
Paternity Establishment Percentage Performance Relief
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: Due to the impact of the COVID-19 public health emergency on
state child support program operations, the Office of Child Support
Enforcement (OCSE) proposes to modify the Paternity Establishment
Percentage (PEP) from the 90 percent performance threshold to 50
percent for Federal Fiscal Years (FFY) 2020 and 2021 in order for a
state to avoid a financial penalty. OCSE also proposes to provide that
adverse findings of data reliability audits of a state's paternity
establishment data will not result in a financial penalty.
DATES: Consideration will be given to written comments on this notice
of proposed rulemaking (NPRM) received on or before November 18, 2021.
ADDRESSES: You may submit comments, identified by [docket number and/or
Regulatory Information Number (RIN) number], by one of the following
methods:
Federal eRulemaking Portal: 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.
[[Page 57771]]
FOR FURTHER INFORMATION CONTACT: Eliza Lowe, Senior Policy Specialist,
the OCSE Division of Policy and Training, at [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. In this NPRM, we
specifically seek public comment on the timeframe for the relief
proposed, and whether the relief period should extend to include FFY
2022.
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. The proposed relief
from the Paternity Establishment Percentage performance penalty under
this NPRM is based on statutory authority granted under section
452(g)(3)(A) of the Act (42 U.S.C. 652(g)(3)(A)).
Justification
The purpose of this proposed rule is to provide targeted and time-
limited relief to states from penalties due to the impact of the
national public health emergency (PHE) caused by COVID-19 on state
program performance. The pandemic has had an enormous adverse impact on
child support services delivered by states under Title IV-D of the Act.
Due to disruptions to state child support operations and to court
operations during the PHE, states are experiencing significant workload
burdens and service backlogs.
In particular, states have indicated that the PHE has created
numerous challenges in their ability to establish paternity/parentage
in child support cases. Establishing paternity, a core function of the
child support program as stated in section 452(a)(1) of the Act, is an
essential step in securing a support order and ultimately support for a
child. Because of the importance of paternity/parentage establishment
in the success of the child support program, a state's paternity
establishment performance, measured using the Paternity Establishment
Percentage (PEP), is a federally-required performance measure under
section 452(g) of the Act.
While states have some discretion under their Title IV-D State Plan
for their paternity and parentage establishment procedures and have
developed programs that range from highly-administrative to more
judicially-based, they also have commonalities in these procedures.
States are required, for example, to have hospital-based, voluntary
paternity acknowledgement programs to establish parentage for non-
marital birth families in uncontested cases and to have procedures for
genetic testing in contested cases.
The pandemic has made it difficult for state child support programs
to perform many of the in-person functions needed to establish
paternity/parentage. Barriers to this process include the limitations
of on-site genetic-testing operations, office-staffing issues due to
staff telework or illness, and people's inability to visit offices for
case intake or genetic testing. In addition, many hospitals have
limited visitation policies during the PHE, which led many states to
suspend their hospital-based voluntary paternity/parentage
establishment programs. Finally, in many jurisdictions, courts halted
certain civil proceedings, including child support cases requiring
paternity/parentage establishment.\1\ While most courts are now
operational, child support cases remain backlogged.\2\ The situation
continues to impact state's paternity establishment performance for FFY
2021.
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\1\ Hurst, John, ``PEP in a Pandemic Environment,'' NCSEA Child
Support CommuiniQue, (April, 2021) and Fickler, Wade and Sarah
Scherer, ``The NCSL Blog: COVID-19's Snowballing Effect on Child
Support, Custody, Visitation, Economic Security'' (April 21, 2020).
\2\ Ibid.
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Since the start of the pandemic in early 2020, states have appealed
for relief from program requirements in order to support their
operations during the crisis. OCSE is able to provide certain
flexibilities for administrative requirements under the Robert T.
Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. 5170)
(See OCSE Dear Colleague Letter 20-04: Flexibilities for State and
Tribal Child Support Agencies during COVID-19 Pandemic \3\). However,
these flexibilities do not extend to relief for financial penalties
related to performance or adverse data reliability audit findings.
States are concerned that PEP-related financial penalties, which like
all child support performance penalties are imposed in the form of a
reduction in the Temporary Assistance for Needy Families (TANF) program
funding to states, place an undue burden on state budgets and threaten
funding that supports the very families who are most in need during
this time of crisis.
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\3\ https://www.acf.hhs.gov/css/policy-guidance/flexibilities-state-and-tribal-child-support-agencies-during-covid-19-pandemic.
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The adverse impact of the pandemic on paternity establishment is
evident in the data. According to OCSE's FFY 2020 data, which are based
on data that states submit and OCSE compiles, 41 out of the 54 states
(50 states and the District of Columbia, Guam, Puerto Rico, and the
Virgin Islands) experienced a decrease in their paternity establishment
performance as measured by their PEP percentage. More problematic,
according to these data, as many as 18 states appear to have failed to
meet the 90 percent threshold and may be subject to financial penalties
if they fail to take sufficient corrective action to achieve the
appropriate PEP performance level in the subsequent year.
This regulatory action is time sensitive because it must be in
effect before states are subject to penalties and adverse data
reliability audit findings. States are desperately seeking confirmation
from OCSE that they will have relief from these penalties against their
state TANF grants. Such penalties would be an overwhelming burden on
state budgets and threaten critical funding needed during this COVID-19
PHE.
Background: PEP Performance Requirement
The PEP performance requirement, which is part of the overall
performance, audit, penalties, and incentives system for child support,
is established under 452(g) of the Act and 45 CFR 305.40. Section
452(a)(4)(C)(i) of the Act requires the Secretary to determine whether
State-reported data used to determine the performance levels are
complete and reliable. Additionally, section 409(a)(8)(A) of the Act
and 45 CFR 305.61(a)(1) provides for a financial penalty if there is a
failure to achieve the required level of performance or an audit
determines that the data is incomplete or unreliable.
[[Page 57772]]
The minimum acceptable level of performance for the PEP is 90
percent or an improvement of 2 to 6 percentage points over the previous
year's level of performance. Section 409(a)(8) of the Act and 45 CFR
305.61(a)(2) impose automatic corrective action for the subsequent
fiscal year. A state also must submit complete and reliable data used
in the PEP calculation, which will be audited according to 45 CFR
305.60.
If a state fails to meet the annual 90 percent PEP standard, or to
show improvement in the subsequent year (2 to 6 percentage points), the
amount of the initial penalty will be equal to one percent of the
adjusted State Family Assistance Grant for the TANF program. A penalty
against the TANF grant will also be imposed if the state fails to
submit complete and reliable PEP data and there is an adverse data
reliability audit finding for PEP in the subsequent year. The penalty
will continue to be assessed in accordance with section 409(a)(8)(B) of
the Act and 45 CFR 305.61 until the state is determined to have
submitted complete and reliable data and achieved the required
performance level. In accordance with 45 CFR 262.1(e)(1), the state
must expend additional state funds equal to the amount of the penalty
(which will not count toward the maintenance-of-effort requirement
under TANF) the year after the TANF penalty is assessed.
In recent years prior to the pandemic, OCSE has imposed an average
of one penalty for PEP performance annually, as nearly all states have
consistently met or exceeded the PEP performance measure. This
indicates that the failure in performance in FFY 2020 is due to the
unprecedented circumstances of the PHE. In addition, in the last ten
years, OCSE has imposed no penalties due to adverse data reliability
audit findings related to the PEP measure.
Proposed PEP Penalty Relief
OCSE proposes providing relief through this regulation by modifying
the requirements related to the PEP performance measure. Section
452(g)(3) of the Act authorizes the Secretary ``to take into account
such additional variables as the Secretary identifies (including the
percentage of children in a State who are born out of wedlock or for
whom support has not been established) that affect the ability of a
State to meet the requirements of [section 452(g) of the Act].'' OCSE
proposes that the effect of the COVID-19 PHE on states is one such
additional variable, due to the unprecedented nature and scope of the
pandemic's impact on the child support program as described above.
Therefore, OCSE proposes modifying the required PEP to a lower
performance threshold and setting aside adverse data reliability audit
findings related to PEP, thereby allowing states that are not able to
meet data performance and data reliability audit requirements to avoid
the financial penalty for the years when the pandemic had its greatest
impact on the child support program.
OCSE proposes modifying the PEP threshold of 90 percent to a lower
threshold of 50 percent for FFYs 2020 and 2021. The rationale for
choosing 50 percent is based on the value of this percentage in Table 1
under 45 CFR 305.33, Determination of applicable percentages based on
performance levels. Fifty percent is the lowest possible PEP level in
the table that still has performance value because it is the lowest PEP
performance for which a state still gets credit in the calculation of
incentives. Below 50 percent, the state's applicable percentage for PEP
performance is valued at zero. In addition, we propose a 50 percent
threshold because, according to OCSE's FFY 2020 data, no state has a
FFY 2020 PEP level below 65 percent. Therefore, a PEP level of 50
percent will ensure that no state will be subject to a financial
penalty while state agency operations are disrupted due to the ongoing
PHE.
This proposed rule is time limited and data informed to provide
relief narrowly and specifically in response to the ongoing PHE. We
propose modifying the PEP threshold for FFYs 2020 and 2021 to align
with the timeframe when states experienced the greatest impact of the
public health emergency. After the relief period, starting for FFY
2022, the PEP performance thresholds will revert back to the usual
levels described under 45 CFR 305.40(a)(1), and states will once again
be subject to penalties for adverse data reliability audit findings
related to the PEP measure after an automatic corrective action year as
specified in 45 CFR 305.42. In this NPRM, we specifically seek public
comment on the timeframe for the relief proposed, and whether the
relief period should extend to include FFY 2022.
Finally, this proposed relief maintains the integrity of the system
of performance, audit, penalties, and incentives that has driven
success and accountability in the child support program for over two
decades. The proposed regulation provides relief from the PEP measure
and data reliability audit penalties but does not otherwise change the
process for other performance measures, data collection and reporting,
audits, or incentives.
Section-by-Section Discussion of the Provisions of This Proposed Rule
Section 305.61: Penalty for Failure To Meet IV-D Requirements.
We propose to add a new provision to Part 305 Program Performance
Measures, Standards, Financial Incentives and Penalties, to provide
short-term relief from financial penalties related to the paternity
establishment percentage measure, due to the impact of the COVID-19
pandemic on state IV-D operations. We propose adding a new paragraph
(e) to Sec. 305.61, Penalty for failure to meet IV-D requirements, to
modify the criteria by which states are subject to financial penalties
for the PEP requirements. The proposed modified criteria are that the
acceptable performance level of paternity establishment percentage
under Sec. 305.40(a)(1) is reduced from 90 percent to 50 percent and
the adverse findings of data reliability audits of a state's paternity
establishment data under Sec. 305.60 will not result in a financial
penalty. The proposed modifications are applicable to FFYs 2020 and
2021.
In summary, the rationale for this NPRM, which proposes modifying
the PEP requirements, is based on the statutory allowance under section
452(g)(3)(A) of the Act that the Secretary may consider additional
variables that affect a state's ability to meet PEP requirements due to
the COVID-19 PHE. However, the proposed modifications are only for FFYs
2020 and 2021. In addition, the proposed modifications are based on
data that indicate PEP declined for 41 states during the pandemic, and
approximately one third of states will be subject to a financial
penalty related to these declines if they do not take sufficient
corrective action in the subsequent corrective action year. During this
COVID-19 PHE, OCSE has carefully considered the impact of the pandemic
on state performance. The proposed regulation limits adding further
burden on states by providing relief from penalties against state
public assistance funding.
Paperwork Reduction Act
No new information collection requirements are imposed by these
regulations.
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
[[Page 57773]]
governments are not considered small entities under the Regulatory
Flexibility Act.
Regulatory Impact Analysis
Executive Orders 12866 and 13563
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. This rule meets the standards of Executive Order 13563
because it creates a short-term public benefit, at minimal cost to the
Federal Government, by not imposing penalties against a state's TANF
grant, during a time when public assistance funds are critically
needed.
Executive Order 12866 provides that the Office of Information and
Regulatory Affairs (OIRA) at the Office of Management and Budget (OMB)
will review all significant rules. OIRA has determined that this NPRM
is significant and was accordingly reviewed by OMB.
A regulatory impact analysis (RIA) must be prepared for major rules
with economically significant effects ($100 million or more in any one
year). ACF does not anticipate that this proposed rulemaking is likely
to have an economic impact of $100 million or more in any one year, and
therefore does not meet the definition of ``economically significant''
under Executive Order 12866. Accordingly, OIRA has determined that this
rulemaking is `not major' under Subtitle E of the Small Business
Regulatory Enforcement Fairness Act of 1996 (also known as the
Congressional Review Act).
Unfunded Mandates Reform Act of 1995
The Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) requires
agencies to prepare an assessment of anticipated costs and benefits
before issuing 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 $164
million. This rule does not impose any mandates on state, local, or
tribal governments, or the private sector, that will result in an
annual expenditure of $164 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 305
Child support, Program performance measures, standards, financial
incentives, and penalties.
(Catalog of Federal Domestic Assistance Programs No. 93.563, Child
Support Enforcement Program.)
JooYeun Chang,
Acting Assistant Secretary for Children and Families.
Xavier Becerra,
Secretary.
For the reasons stated in the preamble, the Department of Health
and Human Services proposes to amend 45 CFR part 305 as set forth
below:
PART 305--PROGRAM PERFORMANCE MEASURES, STANDARDS, FINANCIAL
INCENTIVES, AND PENALTIES
0
1. The authority citation for part 305 continues to read as follows:
Authority: 42 U.S.C. 609(a)(8), 652(a)(4) and (g), 658a, and
1302.
0
2. In Sec. 305.61 revise paragraph (e) to read as follows:
Sec. 305.61 Penalty for failure to meet IV-D requirements.
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(e) COVID-19 paternity establishment percentage penalty relief. Due
to the adverse impact of the COVID-19 pandemic on State IV-D
operations, the criteria by which states are subject to financial
penalties for the paternity establishment percentage under paragraph
(a) of this section are temporarily modified for fiscal years 2020 and
2021 as follows:
(1) The acceptable level of paternity establishment percentage
performance under Sec. 305.40(a)(1) is modified for fiscal years 2020
and 2021 from 90 percent to 50 percent, and
(2) The adverse findings of data reliability audits of a State's
paternity establishment data under Sec. 305.60 will not result in a
financial penalty for fiscal years 2020 and 2021.
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[FR Doc. 2021-22553 Filed 10-18-21; 8:45 am]
BILLING CODE 4184-42-P
