Child Support Enforcement Program; Standards for Program Operations

DEPARTMENT OF HEALTH AND HUMAN SERVICES

Administration for Children and Families

45 CFR Part 303

RIN 0970-AB82

Child Support Enforcement Program; Standards for Program

Operations

AGENCY: Office of Child Support Enforcement (OCSE), Administration for

Children and Families, HHS.

ACTION: Final rule.

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SUMMARY: This final rule amends Federal regulations which govern the

case closure procedures for the child support enforcement program. The

final rule clarifies the situations in which States may close child

support cases and makes other technical changes.

EFFECTIVE DATE: The final rule is effective: April 9, 1999.

FOR FURTHER INFORMATION CONTACT: Betsy Matheson, Director, Division for

Policy and Planning, Office of Child Support Enforcement, 202-401-9386.

Hearing-impaired individuals may call the Federal Dual Party Relay

Service at 1-800-877-8339 between 8:00 A.M. and 7:00 P.M.

SUPPLEMENTARY INFORMATION:

Paperwork Reduction Act

This rule does not contain information collection provisions

subject to review by the Office of

[[Page 11811]]

Management and Budget under the Paperwork Reduction Act of 1995 (44

U.S.C. 3507(d)).

Statutory Authority

This regulation is issued under the authority granted to the

Secretary by section 1102 of the Social Security Act (the Act). Section

1102 of the Act requires the Secretary to publish regulations that may

be necessary for the efficient administration of the functions for

which she is responsible under the Act.

Background

The Child Support Enforcement program was established under Title

IV-D by the Social Services Amendments of 1974, for the purpose of

establishing paternity and child support obligations, and enforcing

support owed by noncustodial parents. At the request of the States,

OCSE originally promulgated regulations in 1989 which established

criteria for States to follow in determining whether and how to close

child support cases. In the final Program Standards regulations dated

August 4, 1989 (54 FR 32284), and issued in OCSE-AT-89-15, we gave

examples of appropriate instances in which to close cases. In the

Supplementary Information section accompanying the final regulations,

we stated that the goal of the case closure regulations was not to

mandate that cases be closed, but rather to clarify conditions under

which cases may be closed. The regulations allowed States to close

cases that were not likely to result in any collection and to

concentrate their efforts on the cases that presented a likelihood of

collection.

In an effort to be responsive to the President's Memorandum of

March 4, 1995, which announced a government-wide Regulatory Reinvention

Initiative to reduce or eliminate burdens on States, other governmental

agencies or the private sector, and in compliance with section 204 of

the Unfunded Mandates Reform Act of 1995, Pub. L. 104-4, OCSE formed a

regulation reinvention workgroup to exchange views, information and

advice with respect to the review of existing regulations in order to

eliminate or revise those regulations that are outdated, unduly

burdensome, or unproductive. This group is made up of representatives

of Federal, State and local government elected officials and their

staffs.

As part of the regulation reinvention effort, Sec. 303.11 on case

closure criteria was reviewed to determine what changes could be made

to help States with their case closure process, while ensuring that all

viable cases remained open. Somewhat earlier, the State IV-D Directors'

Association had established a committee to examine the case closure

issue. The committee developed several recommendations, which were

considered in the development of the notice of proposed rulemaking,

published in the Federal Register on February 24, 1998 (63 FR 9172). In

preparing the notice of proposed rulemaking, we also consulted with

several advocates and other interested parties and stakeholders,

including custodial parents and groups advocating on their behalf, to

discuss their concerns with the IV-D Directors' Association

recommendations and about the case closure criteria in general. Thirty-

one individuals or organizations provided comments to the proposed

rule.

This final rule balances our concern that all children receive the

help they need in establishing paternity and securing support, while

being responsive to administrative concerns for maintaining caseloads

that include only those cases in which there is adequate information or

likelihood of successfully providing services. The circumstances under

which a case could be closed include, for example, instances in which

legitimate and repeated efforts over time to locate putative fathers or

obligors are unsuccessful because of inadequate identifying or location

information, or in interstate cases in which the responding State lacks

jurisdiction to work a case and the initiating State has not responded

to a request for additional information or case closure. Decisions to

close cases are linked with notice to recipients of the intent to close

the case and an opportunity to respond with information or a request

that the case be kept open. The final rule balances good case

management and workable administrative decisions with providing needed

services, always erring in favor of including any case in which there

is any chance of success. For example, cases must remain open even if

there is no likelihood of immediate or great success in securing

support, perhaps because of a period of incarceration.

Discussion of the Regulation

Description of Regulatory Provisions---Sec. 303.11; Case Closure

Criteria

This final rule revises Sec. 303.11 to eliminate the term ``absent

parent'' and replace it with the term ``noncustodial parent''

throughout, for consistency with preferred statutory terminology under

the Personal Responsibility and Work Opportunity Reconciliation Act of

1996 (PRWORA), Public Law 104-193.

Section 303.11(b)(1) as revised, provides that, ``There is no

longer a current support order and arrearages are under $500 or

unenforceable under State law[.]'' Previously, the only distinction

between paragraphs (b)(1) and (b)(2) was whether the child had reached

the age of majority. Since the criteria is the same for both

subsections, the distinction is unnecessary. Therefore, the final rule

removes the reference to the child's age, thereby eliminating any

distinction between paragraphs (b)(1) and (b)(2). Accordingly,

paragraph (b)(2) is removed. The removal of (b)(2) necessitates that

paragraphs (b)(3) and (b)(4) be redesignated as paragraphs (b)(2) and

(b)(3).

This final rule amends redesignated paragraph (b)(3) to include a

new subparagraph (iv). Paragraph (b)(3)(iv) allows a case to be closed

when the identity of the biological father is unknown, and cannot be

identified after diligent efforts, including at least one interview by

the Title IV-D agency with the recipient of services.

Paragraph (b)(5) is redesignated as paragraph (b)(4). This final

rule amends redesignated paragraph (b)(4) by adding new subparagraphs

(i) and (ii). Paragraph (b)(4) allows a case to be closed when the

noncustodial parent's location is unknown, and the State has made

diligent efforts in accordance with Section 303.3 of this part, all of

which have been unsuccessful, to locate the noncustodial parent ``(i)

over a three-year period when there is sufficient information to

initiate automated locate efforts; or (ii) over a one-year period when

there is not sufficient information to initiate automated locate

efforts.''

Paragraphs (b)(6) through (b)(12) are renumbered as (b)(5) through

(b)(11). In redesignated paragraphs (b)(8), (b)(10) and (b)(11) the

term ``custodial parent'' is revised to read ``recipient of services''

to reflect that Title IV-D child support enforcement services may be

requested by either the custodial or noncustodial parent.

Redesignated paragraph (b)(9) adds IV-D and food stamp agencies to

the list of State agencies with the authority to make good cause

determinations. The addition of the Title IV-D and food stamp agencies

to this list is required by section 454(29) of the Act, which provides

flexibility to the States in selecting the agency authorized to make

good cause determinations. The Act allows States to place the

responsibility for making the good cause determination in either the

State IV-D agency or the State agency funded under part A, part E or

Title XIX. In the case of the food stamp program, the Act

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requires that the good cause determination in food stamp cases subject

to referral to the State IV-D agency be administered by the food stamp

agency itself. In addition, the final rule revises paragraph (b)(9) to

expand good cause to include ``other exceptions'' from cooperation, to

more accurately implement the requirements of section 454(29) of the

Act. Finally, redesignated paragraph (b)(9) removes the reference to

Federal AFDC regulations concerning the good cause determination

because that regulation is obsolete.

Redesignated paragraph (b)(10) allows a nonassistance case to be

closed when the State IV-D agency is unable to contact the service

recipient within a 60 calendar day period despite an attempt by at

least one letter, sent by first class, to the service recipient's last

known address. In order to actually close the case, the State IV-D

agency must send the letter required by paragraph (c) notifying the

service recipient of the intent to close the case. This second letter

is separate from the letter of contact described in paragraph (b)(10).

The final rule adds a new paragraph, (b)(12) to Sec. 303.11.

Paragraph (b)(12) allows a case to be closed when ``the IV-D agency

documents failure by the initiating State to take an action which is

essential for the next step in providing services.'' Under the previous

case closure regulations, a responding State was not free to close a

case without the permission of the initiating State. In some of these

cases, the responding State may have been unable to locate the

noncustodial parent, or may have located him or her in another State.

If, in these instances, the initiating State failed to respond to the

responding State's request for case closure, the responding State was

obligated to leave the case open in its system. Similarly, if the

initiating State failed to provide necessary information to enable the

responding State to provide services, and failed to respond to requests

to provide the information, the responding State was required to keep

the case open, although it was unable to take any action on it. The

final rule permits the responding State to close the case if it is

unable to process the case due to lack of cooperation by the initiating

State.

Paragraph (c) is revised to incorporate the renumbering of

paragraph (b). In the first sentence, the reference to ``paragraphs

(b)(1) through (7) and (11) and (12) of this section'' is changed to

read ``paragraphs (b)(1) through (6) and (10) through (12) of this

section[.]'' Paragraph (c) was also revised to clarify that the

responding State, upon deciding to close a case pursuant to the

authority of paragraph (b)(12) must send a notice of case closure to

the initiating State. In addition, the references to ``custodial

parent'' are revised to read ``recipient of services,'' for the reasons

explained above. Also, in the second sentence, the reference to

``paragraph (b)(11)'' is changed to ``paragraph (b)(10),'' based upon

the renumbering of paragraph (b).

In paragraph (d), we are making a technical amendment to the rule

by removing the reference to ``subpart D,'' as that subpart has been

reassigned and no longer addresses the issue of record retention.

Response to Comments

We received thirty-one comments from representatives of State and

local IV-D agencies, national organizations, advocacy groups and

private citizens on the proposed rule published February 24, 1998 in

the Federal Register (63 FR 9172). A summary of the comments received

and our responses follows:

General Comments

1. Comment: One commenter suggested the addition of a new criterion

for case closure. This commenter suggested that the State IV-D agency

be authorized to close a case when the obligor presented a risk of

serious harm to State or local IV-D staff.

Response: The State is obligated under the Title IV-D program to

provide child support enforcement services to eligible families. The

protection of IV-D staff is the responsibility of the State, and States

should develop procedures to deal with such situations. However,

families needing child support enforcement services should not be

punished for the possible threats or actions of obligors. Each State

has laws designed to afford protection to the general public, including

civil servants. In addition, IV-D offices can be designed in such a

fashion to heighten the personal safety and security of staff. In light

of these considerations, this recommendation was not adopted.

2. Comment: One commenter suggested that this regulation allow a

State to close the non-IV-D case that remains in existence (e.g.,

payment registry responsibility) after a IV-D case is closed.

Response: We are unable to adopt this recommendation because it is

inconsistent with Federal law. Specifically, section 454B(a)(1)(B) of

the Social Security Act (the Act) requires that payment registry

services be provided to non-IV-D orders meeting the eligibility

criteria.

3. Comment: Two commenters objected to the incorporation of the

term ``recipient of services'' into the case closure regulation. One

commenter objected because he saw this term as subject to change within

a case. Another commenter objected that this term was too broad and

recommended that the term ``custodial parent'' be retained.

Response: These comments will not be incorporated because we

believe that the term ``recipient of services'' best describes the

individual at issue. Under section 454(4) of the Act, a IV-D case is

established in response to two scenarios: (1) an individual applies

for, and receives, certain forms of public assistance (TANF, IV-E

foster care, medical assistance under Title XIX, and when cooperation

with IV-D is required of a Food Stamp recipient) and good cause or

another exception to cooperation with IV-D does not exist; or (2) when

an individual not receiving the aforementioned types of public

assistance makes an application for such services. IV-D services are

available to both custodial and noncustodial parents. Finally, once a

IV-D case is established, it is inappropriate to ``change'' the service

recipient to another individual who neither received the appropriate

form of public assistance nor applied for IV-D services.

4. Comment: One commenter recommended that OCSE consider a ``soft

closure'' case type, for use in removing certain cases (low collection

potential or where payments are legally being made directly to the

family outside of the IV-D program) from the State's open case count.

Response: This comment will not be incorporated. The rule, as

revised, provides the IV-D agencies with sufficient flexibility to

manage cases with ``low collection potential.'' At

Sec. 303.11(b)(3)(iv), the final rule allows a case to be closed when

paternity is in issue and the identity of the biological father cannot

be identified after diligent efforts, which include at least one

interview of the service recipient by the IV-D agency. In addition,

Sec. 303.11(b)(4) allows the IV-D agency to close cases in one year

when the location of the noncustodial parent is unknown and the State

has been unsuccessful, after regular attempts of multiple sources, to

locate the parent, and insufficient information exists to allow the

agency to conduct automated locate efforts. This paragraph also allows

the IV-D agencies to close cases after three years where the

noncustodial parent's location is unknown and the State has been

unsuccessful, after regular attempts of multiple sources, to locate the

parent when there is sufficient information to

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allow the agency to conduct automated locate efforts.

With respect to the example in the comment of payments being made

directly to the family, in IV-D cases, payments must be made through

the State IV-D agency and then forwarded to the family. Therefore, we

are unaware of any circumstances in which payments in a IV-D case flow

directly from the obligor to obligee.

OCSE believes that attempts to further define cases with ``low

collection potential'' in regulation is inappropriate. PRWORA has

greatly expanded the pool of locate resources which, when all States

are automated, will have a significant impact upon this universe of

cases. Finally, the term ``low collection potential'' is extremely

difficult to define in an objective fashion. As stated in the preamble

to the proposed rule, although OCSE is revising this regulation to

provide the States with additional flexibility to manage their IV-D

caseloads, we are aware of the necessity to balance this flexibility

against the program's mission to ensure that the public receives needed

child support enforcement services. When these two factors came into

direct conflict, we attempted to resolve the issue in favor of keeping

a case open if there is a chance of success.

5.Comment: One commenter suggested that, in light of PRWORA, a

reduction in the time required for automated searches was unreasonable.

Response: The reduction of the case closure time frame, from three

years to one year, appears in Sec. 303.11(b)(4)(ii). In order for a

case to be eligible for closure under this authority there are three

requirements. First, the location of the noncustodial parent must be

unknown. Second, the State must have made diligent efforts in

accordance with the Federal locate requirements in cection 303.3, using

multiple sources, to locate the noncustodial parent. Finally, there

must be insufficient information concerning this noncustodial parent to

perform an automated locate search. OCSE reminds States that

enhancements to the Enumeration Verification System (EVS) frequently

allow unknown or incomplete social security numbers to be identified by

the Social Security Administration when the State has an individual's

full name and date of birth. OCSE Central Office coordinates the EVS

program with the Social Security Administration. In addition,

information provided by the custodial parent such as former addresses

or employers could lead to identification of the noncustodial parent's

social security number.

Although it is true that PRWORA provides expansive new locate

resources to the IV-D community, the fact remains that you must have

sufficient identifying information concerning the individual you are

trying to locate in order to take advantage of these new locate tools.

The reduction in this case closure time frame only applies to those

cases where the IV-D agency is unable to make an automated locate

effort.

6. Comment: One commenter raised the concern that the NPRM's

proposed revisions to the case closure regulation would result in the

closure of many cases that should not be closed.

Response: As stated in the preamble to the NPRM, one of the

objectives of this revision to the case closure regulation was to

provide the States with additional flexibility to manage their IV-D

caseloads in an efficient manner. However, the NPRM also noted that any

additional flexibility provided to the States was always balanced

against the need to provide families with effective child support

enforcement services. OCSE believes that this final rule is successful

in striking a good balance between these two factors and, as a result,

we expect that the public will receive improved services from the IV-D

program.

Comments to Paragraph 303.11(b)(1)

1. Comment: One reviewer questioned whether a temporary order would

apply to the requirement at paragraph (b)(1) that ``there is no longer

a current support order?''

Response: Under the appropriate circumstances, a temporary order

could apply to this requirement in paragraph (b)(1). State law governs

the particular circumstances and duration for which a temporary child

support order is enforceable. However, if the application of State law

resulted in the termination of a temporary child support order during

the minority of a child, it would be incumbent upon the State IV-D

agency to attempt to establish a final order, provided the parent's

legal liability to provide child support continued beyond the

termination of the temporary order. If the next appropriate action in

the case was the establishment of a final order, then the case could

not be closed.

2. Comment: One commenter asked if paragraph (b)(1) could be used

as authority for a IV-D agency to close a case that was opened after a

child attained the age of majority, during which there was no need for

a child support order, but subsequently (after emancipation) became

disabled and under State law a support order was entered against this

individual's parents?

Response: Under the IV-D program, the State is not required to open

a case under these circumstances and this individual is not entitled to

receive IV-D services because the obligation to provide support did not

arise until after the child became emancipated. A State would not be

entitled to receive FFP under the IV-D program for its efforts to

establish and/or enforce such an order.

3. Comment: One commenter requested that paragraph (b)(1) be

expanded to allow for the closure of a case which has a valid

enforceable current support order, but where there has been no

collection for a period of three years, to allow a State to close cases

with low collection potential.

Response: This suggestion was not incorporated into the final rule

because the reviewer is confusing ``unenforceable'' to mean ``low

collection potential.'' The purpose of the case closure rule is to

allow States to close unworkable cases thereby allowing each State to

focus its resources on those cases which are workable. According to

paragraph (b)(1), a case is ``unworkable'' if there is no current

support order and the arrears are either under $500, or unenforceable

under State law. Clearly, a case with a current child support order

that does not qualify for closure under any other criteria in

Sec. 303.11(b), cannot be closed pursuant to paragraph (b)(1) simply

because it has been deemed a low collection potential case.

Comments to Subparagraph 303.11(b)(3)(iv)

1. Comment: Two commenters requested clarification of the

requirement in subparagraph (b)(3)(iv) that at least one interview of

the recipient of services be conducted by IV-D staff. Specifically,

these commenters asked if an entity working with the IV-D agency via a

cooperative agreement would qualify as IV-D staff?

Response: If the IV-D agency enters into a cooperative agreement to

implement this requirement in accordance with the authority at 45 CFR

302.12(a)(3), then the other entity would perform this interview as IV-

D staff. As stated in the NPRM's Description of Regulatory Provisions,

the purpose of this requirement was to clarify that the eligibility

interview conducted by staff associated with the State's public

assistance agency would not be sufficient for purposes of this

subparagraph.

2. Comment: Nine commenters asked for clarification of the nature

of the interview of the recipient of IV-D

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services. Specifically, they asked if the interview was required to be

conducted ``face-to-face,'' or could a separate IV-D interview be

conducted over the telephone?

Response: OCSE recommends that, when logistically practicable, the

interview of the recipient of services be conducted in-person. However,

we recognize that in many States there are great distances between the

public and the closest IV-D office and working parents may not be able

to take time off for a face-to-face interview. Therefore, the IV-D

interview of the recipient of services need not be a face-to-face

interview, but may be conducted via the telephone, when appropriate.

3. Comment: Two commenters requested clarification of the

application of subparagraph (b)(3)(iv) with respect to TANF recipients.

These commenters were concerned that, in the event the identity of the

biological father remained unknown following the IV-D interview of the

recipient of services, the recipient of services would be determined to

be not cooperating with the State IV-D agency for purposes of TANF

eligibility.

Response: Under sections 408(a)(2) and 454(29)(A) of the Act, the

State's IV-D agency is responsible for making the determination as to

whether or not a TANF recipient is cooperating with the IV-D agency.

Clearly, not every TANF recipient will be able to provide the IV-D

agency with sufficient information about the biological father to allow

the IV-D agency to proceed with an action to establish paternity.

Because of this, not every individual who is unable to provide the IV-D

agency with sufficient information should be determined to be not

cooperating with the IV-D agency. Similarly, should the State close a

IV-D case in accordance with paragraph (b)(3) or (4), for example,

because the location of the individual being sought is unknown, IV-D

case closure alone may not be used to determine noncooperation by a

TANF recipient.

4. Comment: One commenter asked that the term ``identity'' be

clarified in the final rule. The commenter was questioning whether this

term meant more than a name.

Response: For purposes of subparagraph (b)(3)(iv), the term

``identity'' means the name of the biological father. That is, a case

may be closed under the authority of this subparagraph only when, after

diligent efforts (including at least one interview by the IV-D agency

with the recipient of services), the name of the biological father

remains unknown. If the IV-D agency knows the name of the biological

father but cannot proceed because it does not have any additional

information to locate this individual, then the case would be eligible

for closure under the authority of subparagraph (b)(4)(ii).

5. Comment: Two commenters requested that the final rule clarify

the use of the term ``diligent efforts'' in subparagraph (b)(3)(iv).

Response: In order for a paternity establishment case to be

eligible for closure under subparagraph (b)(3)(iv), a State must make a

meaningful attempt to identify the biological father. Under this

subparagraph, this attempt to identify the biological father must

include an interview of the recipient of services by IV-D staff. If,

for example, the interview with the recipient of services failed to

result in the identity of the biological father, but did result in a

last known address or employer, a ``diligent effort'' to identify the

biological father requires the IV-D agency to pursue these leads in an

attempt to identify the biological father. States are required to

comply with Federal locate requirements in 45 CFR 303.3 and to make a

serious and meaningful attempt to identify the biological father (or

any individual sought by the IV-D agency.)

Comments to Paragraph 303.11(b)(4)

1. Comment: One commenter requested a clarification of the term

``regular'' attempts to locate.

Response: Use of the term ``regular'' attempts in the proposed rule

was intended to include attempts conducted in accordance with the

program standards set forth in 45 CFR 303.3, which contains Federal

location requirements. However, for clarity and consistency with

terminology used in paragraph (b)(3)(iv), we have replaced ``regular

attempts'' with ``diligent efforts'', and added a cross reference to

locate regulations at 45 CFR 303.3.

2. Comment: Four commenters requested a clarification of the term

``sufficient information to initiate an automated locate effort.''

Response: As a general rule, the data elements needed to conduct an

automated locate effort include an individual's name and social

security number. It is possible that additional data elements will be

required to undertake some automated locate efforts. For example, some

entities identify individuals by name and date of birth. However, for

purposes of this paragraph the data elements required for an automated

locate effort are simply the individual's name and social security

number. As stated above, in response to comment #5 (General Comments),

the Enumeration Verification System will assist States in the

identification of missing or incomplete social security numbers. Also,

since States must meet Federal location requirements set forth in 45

CFR 303.3, diligent efforts to obtain the data elements critical for an

automated search must occur and be unsuccessful before a State may

consider closing the case using criteria in paragraph (b)(4).

3. Comment: One commenter asks if paragraph (b)(4)'s use of the

term ``noncustodial parent's location is unknown'' means the physical

address and the location of any assets attributable to the noncustodial

parent?

Response: For purposes of paragraph (b)(4), the term ``noncustodial

parent's location'' means the resident or employment address of the

noncustodial parent. Under this paragraph, a case would not be

available for closure if the resident address of the noncustodial

parent was known but the IV-D agency was unable to locate any assets

attributable to the noncustodial parent.

4. Comment: One commenter objected to paragraph (b)(4) on the basis

that it assumes a level of State automation which does not currently

exist.

Response: Automated location attempts do not require statewide

automated systems. While it is true that, as of the date of this final

rule, not all States have certified statewide automated systems in

place, States do have automated locate systems capability and the

majority of States have Statewide systems mandated by section 454(16)

of the Social Security Act. In addition, this final rule is intended to

provide program guidance well into the future. Because OCSE expects

that all States will implement certified statewide automated systems as

required by law, we are confident that this rule's reliance upon

enhanced automated locate resources will prove beneficial to both the

IV-D program and the families we serve.

5. Comment: One commenter suggested adding to the case closure

criteria set forth in paragraph (b)(4) that the IV-D agency interview

the recipient of services.

Response: In this final rule OCSE makes a distinction between

``identifying'' and ``locating'' the noncustodial parent. When the IV-D

agency is unable to identify the noncustodial parent, the only resource

available to assist the IV-D agency is the recipient of services.

However, if the identity of the noncustodial parent is known, but his/

her location is unknown, then there are multiple locate resources

available to the IV-D agency.

[[Page 11815]]

Certainly one of these resources is the recipient of services. In fact,

45 CFR 303.2(b)(1) requires the IV-D agency to ``solicit necessary and

relevant information from the custodial parent.''

6. Comment: Two commenters questioned the wisdom of the one-year

waiting period before a case can be closed under the authority of

subparagraph (b)(4)(ii) when the noncustodial parent's location is

unknown and the IV-D agency does not have sufficient information to

initiate an automated locate effort. Conversely, another commenter

objected to reducing the existing three-year period to one year.

Response: As discussed in the preamble to the NPRM, the

establishment of the new case closure criterion that appears at

subparagraph (b)(4)(ii), which allows a case to be closed after one

year when the location of the noncustodial parent is unknown and

insufficient information exists to conduct an automate locate effort,

was made at the request of the IV-D Directors' Association. We believe

a one-year waiting period achieves a reasonable balance between the

desire to assure that workable cases remain open and the desire to

close those cases which show no promise of being workable. During that

time period, a State IV-D agency must meet location requirements within

specified timeframes as set forth in section 303.3. As stated in the

preamble to the NPRM, we continue to believe that PRWORA's cooperation

requirements will provide adequate safeguards against the premature

closing of cases where a reasonable potential for establishment or

enforcement exists. Should the recipient of services provide additional

information that allows the State IV-D agency to locate the

noncustodial parent, the case will remain open.

Comments to Paragraph 303.11(b)(9)

1. Comment: One commenter requested the final rule include a

definition of the term ``good cause.''

Response: Section 454(29) of the Act provides the States the option

to have good cause determined by either the State IV-D agency, or the

agencies administering the State's TANF, IV-E or Title XIX funded

program. For the food stamp program, the State agency responsible for

administering that program is also responsible for determining good

cause. Congress made it clear that determinations of good cause were to

be ``defined, taking into account the best interests of the child, and

applied'' by the State agency. Because of this directive OCSE is unable

to adopt the suggestion of this commenter.

2. Comment: One commenter recommended that the reference to 45 CFR

232.40 be removed from paragraph (b)(9) because this Federal regulation

was obsolete.

Response: OCSE concurs with this suggestion and the reference to 45

CFR 232.40 is removed from the final rule.

3. Comment: Two commenters observed that section 454(29) of the Act

exempts a public assistance recipient from the requirement to cooperate

with the IV-D program for good cause ``and other exceptions.'' Both

commenters recommended that a reference to ``other exceptions'' be

included in paragraph (b)(9) when the final rule was issued.

Response: OCSE concurs with this recommendation and the final rule

revises paragraph (b)(9) to expand good cause to include ``other

exceptions.''

Comments to Paragraph 303.11(b)(10)

1. Comment: One commenter asked if a State could retain a

requirement that one attempt to contact the service recipient be by

certified mail?

Response: A State is free to continue the requirement that at least

one attempt to contact the service recipient be conducted by certified

mail. The Federal regulations set forth the minimum program standards

with which the States must comply. As previously stated in the preamble

to the final case closure rule issued on August 4, 1989, (54 FR 32284)

and in OCSE-AT-89-15, there is nothing to prohibit a State from

establishing criteria which make it harder to close a case than those

established in paragraph (b).

2. Comment: Five commenters asked if the 60 calendar day period

(related to time frame in which the IV-D agency is unable to contact

the recipient of services) referenced in paragraph (b)(10) could be

viewed as satisfying the 60 calendar day period (related to the notice

of case closure time frame during which the recipient of services may

respond to the notice) referenced in paragraph (c). Conversely, one

commenter expressed a concern that the States would compress these two

60 calendar day time frames into a single 60 calendar day period.

Response: The 60 calendar day time periods that appear in paragraph

(b)(10) and paragraph (c) are independent time frames. It is not

appropriate for a State to close a case upon the occurrence of the

criterion set forth in paragraph (b)(10) without fully complying with

the requirements of paragraph (c). In other words, when the IV-D agency

is unable to contact the non-IV-A recipient of services during a 60

calendar day period, the IV-D agency may not automatically close that

case without first complying with the requirement in paragraph (c) by

providing the recipient of services 60 calendar days to respond to a

written notice of the State's intent to close the case.

3. Comment: One commenter objected to the criterion of (b)(10) on

the basis that this would allow the States to close many ``workable''

cases.

Response: By definition, the criterion for closing a case set forth

in paragraph (b)(10) applies only to non-IV-A cases. In non-IV-A cases

the IV-D program is required to distribute child support collections to

the recipient of services. If the recipient of services fails to keep

the IV-D program apprised of his/her mailing address, child support

cannot be distributed. In these instances the case is no longer

``workable'' under the requirements of IV-D, and, therefore, it is

appropriate for the IV-D agency to close the case. If, following the

closure of the case, the former recipient of services wishes to reapply

for IV-D services, he/she may do so.

4. Comment: One commenter requested an explanation as to what

triggered the start of the 60 calendar day time period referenced in

paragraph (b)(10).

Response: The 60 calendar day time period appearing in paragraph

(b)(10) commences with the date the letter is mailed to the recipient

of services.

5. Comment: One commenter asked that if the letter sent to the

recipient of services in accordance with paragraph (b)(10) is returned

to the IV-D agency with a notation by the Postal Service that the

addressee has moved and left no forwarding address, is it still

necessary to wait 60 calendar days before commencing the case closure

process detailed in paragraph (c)?

Response: Yes, it is appropriate to provide the 60 calendar day

time frame in instances where the letter sent to the recipient of

services is returned marked ``moved, left no forwarding address.'' The

reason for this is to allow the recipient of services, who may have

just moved, sufficient time to contact the IV-D agency to provide his/

her new address. In addition, if the paragraph (b)(10), 60 calendar day

time frame was waived in these instances, and the IV-D agency

immediately issued the written closure notice required in paragraph

(c), this notice would undoubtedly be sent to the very same address

reported by the Postal Service to be obsolete. OCSE recognizes that in

some cases the recipient of services will fail to contact the IV-D

agency during the paragraph (b)(10), 60 day time period and the agency

will be required

[[Page 11816]]

to issue a notice to an address they know to be obsolete. However, OCSE

believes that a good number of these service recipients will contact

the IV-D program and provide their new addresses. By waiting an

additional 60 calendar days, a State will be able to save itself the

time and trouble of closing and then reopening a great number of cases.

6. Comment: One commenter objected to the replacement of the former

``certified'' mailing requirement with the current ``regular'' mailing

requirement.

Response: As stated in the preamble to the NPRM, the allowance of

the first class letter is in accord with the new requirements in

welfare reform. In addition, it must be kept in mind that the

individuals the IV-D agency is attempting to contact with this mailing

are recipients of services who are not receiving public assistance.

These are the individuals to whom the IV-D agency is required to send

the child support collection. If non-IV-A recipients of services fail

to keep the IV-D agency apprised of their current addresses, they

effectively deny that agency the ability to provide child support

enforcement services to them.

7. Comment: One commenter objected to the minimum requirement of

``one'' attempt to contact the non-IV-A recipient of services by

regular mail on the basis of the commenter's belief that the Postal

Service provides poor mail service to low income communities.

Response: OCSE is not aware of any authority for the statement that

the Postal Service provides poor mail service to low income

communities. As previously stated in the preamble to the NPRM for this

rule, the trend is moving toward a reduction in the mailing standard.

Both PRWORA and the Uniform Interstate Family Support Act (UIFSA)

frequently allow notices to be sent by regular mail. For these reasons,

OCSE has determined that a regular first class mailing is appropriate

for the purposes of paragraph (b)(10).

Comments to Paragraph 303.11(b)(12)

1. Comment: Two commenters objected to what they perceived to be a

subjective standard in paragraph (b)(12) under which the responding

State is authorized to close an interstate case when it documents a

failure on the part of the initiating State to take an action which is

essential for the next step in providing services.

Response: This standard of review, as to when an action is

``essential'' for taking the next step in a IV-AD case, is not new. In

fact, this standard has been in existence since 1989, when the Federal

case closure regulation was originally promulgated and remains the

basis for case closure under former paragraph (b)(12)/new paragraph

(b)(11). The States have been successful in implementing this standard

of review and OCSE has no reason to believe that this standard, when

applied to an initiating State as opposed to a custodial parent, will

become problematic.

One example which would not meet the condition for case closure

under section 303.11(b)(12) involves direct withholding under the

Uniform Interstate Family Support Act. Under UIFSA, States may send a

withholding notice directly to an employer in another State.

Traditionally, interstate case processing goes from a IV-AD agency in

one State to a IV-AD agency in another State, which then forwards a

withholding order to an employer in its State. However, if a State,

using authority under its UIFSA statute, sends a withholding notice

directly to an employer in another State, it cannot be considered

noncooperation and a rationale for case closure under section

303.11(b)(12) by the employer's State which is otherwise processing an

interstate case for the State that sends the direct withholding.

2. Comment: Two commenters requested a revision to paragraph

(b)(12) to provide for specific criteria which would support the case

closure decision made by a responding State. Three other commenters

offered related recommendations that the final rule clarify that the

interstate program standards in 45 CFR 303.7 apply to the application

of paragraph (b)(12).

Response: Because this paragraph only applies to interstate cases,

the program standards appearing at Sec. 303.7 apply and will drive the

decision as to whether or not an initiating State has failed to take an

action that is essential to the next step in providing services. The

requirements and time frames of Sec. 303.7 are to be used by the

responding State in making this determination.

3. Comment: One commenter requested that the final rule require the

responding State, upon deciding to close a case pursuant to the

authority of paragraph (b)(12), to send a notice of case closure to the

initiating State.

Response: Yes, OCSE concurs with this recommendation and the final

rule revises paragraph (c) to require the responding State, upon

deciding to close a case pursuant to the authority of paragraph

(b)(12), to send a notice of case closure to the initiating State.

4. Comment: One commenter suggested that the final rule incorporate

a 60 calendar day time frame to the paragraph (b)(12) interstate case

closure criterion.

Response: Yes, this recommendation was adopted by including

paragraph (b)(12) closures in the sections referenced by paragraph (c),

which incorporates a 60 calendar day case closure time frame.

5. Comment: One commenter requested that the final rule clarify

that paragraph (b)(12) applied in both assistance and nonassistance

cases.

Response: Paragraph (b)(12) applies to all interstate IV-D cases,

assistance and nonassistance alike.

6. Comment: One commenter recommended that the final rule require

the responding State to send a notice of case closure directly to the

custodial parent in the initiating State.

Response: This suggestion is inconsistent with OCSE's long-standing

interstate policy that the responding State not have direct contact

with the custodial parent residing in, and receiving IV-D services

from, the initiating State. In OCSE-AT-88-02, in response to a similar

suggestion, OCSE announced that ``it is not the responding State's

responsibility to be in direct contact with the custodial parent and it

would be overly burdensome to require them to do so.'' Another reason

why it would be imprudent to adopt this recommendation is that the

interstate request for services may be based solely upon an arrearage

owed to the initiating State, and the whereabouts of the custodial

parent may be unknown to both States.

Comments to Paragraph 303.11(c)

1. Comment: One commenter requested that the 60 calendar day notice

of case closure time frame appearing in paragraph (c) be reduced to a

period of 30 calendar days.

Response: The 60 calendar day time frame the commenter is

addressing has been required under Federal case closure regulations

since the original final rule was promulgated on August 4, 1989. The 60

calendar day time frame has worked well for the past ten years and, at

this time, OCSE does not believe that it would be appropriate to reduce

it to 30 days.

2. Comment: One commenter requested that the final rule expressly

provide that the paragraph (c) notice of case closure may be sent by

first class mail.

Response: OCSE believes that, by remaining silent on the manner in

which the notice of case closure is to be sent, the States are provided

the maximum amount of flexibility. As noted above, one State responded

to the NPRM with the request that they be

[[Page 11817]]

allowed to continue to use certified mailings for their case closure

notices. As currently drafted, the paragraph (c) notice of case closure

may be sent by either first class or certified mail. For these reasons

OCSE decided not to adopt this recommendation.

3. Comment: Two commenters responded to the NPRM by asking that

paragraph (c) exempt a number of factual situations from the

requirement that a notice of case closure be sent. The following

examples of such fact patterns were received: when the obligor, obligee

or child has died; when the obligor's duty to support the child has

been terminated by a court; when the obligor and obligee reconcile; and

when the child leaves a IV-E funded foster care placement.

Response: OCSE has decided not to adopt this suggestion. In fact,

in some of these situations, it may not be appropriate to close the

case, let alone send the notice of case closure. For example, the

obligor's duty to provide child support survives the death of the

obligee. If arrears are owed in the case, the obligor's duty to repay

these arrears will survive the death of a child. The existing

regulations have included the requirement to send this notice in

situations where the case is closed under former paragraph (b)(3)/new

paragraph (b)(2) which is based upon the death of the obligor because

the recipient of services may have knowledge of available assets in the

decedent's estate. OCSE is addressing the continuation of services

issue in IV-E cases in another rulemaking activity. In addition to what

has already been stated in this response, OCSE believes that it is

important for the IV-D agency to notify the recipient of services of

its intention to close a case based upon the criteria identified in

paragraph (c).

4. Comment: One commenter recommended that paragraphs (b) (1), (2)

and (3) be removed from the requirement to send the notice of case

closure in paragraph (c) because those criteria did not pertain to the

recipient of services' cooperation.

Response: The reasoning behind the paragraph (c) requirement that

the recipient of services receive notice of the case closure is based

upon the duty of the IV-D agency to keep the recipient of services

informed of the actions undertaken on his/her child support case. The

notice of case closure is not to be limited solely to instances where

the case is being closed due to the noncooperation of the recipient of

services. For these reasons, OCSE has decided not to adopt this

recommendation.

5. Comment: Two commenters requested that the final rule clarify

that, should a former recipient of services contact the IV-D agency to

request child support enforcement services subsequent to the closure of

his/her case, then this former recipient of services would be required

to complete a new application and pay any applicable application fee.

Another commenter offered a related suggestion. This commenter

requested that paragraph (c) be revised to indicate that the

``recipient of services'' is, in fact, the ``former'' recipient of

services when this term is referencing an individual whose case has

been closed.

Response: OCSE concurs with both of these suggestions. After a IV-D

agency has closed a case pursuant to the procedures outlined in 45 CFR

303.11, the former recipient of services may reapply for services at

any time, provided this individual is otherwise eligible to receive IV-

D services. Should a former recipient of services request IV-D services

be resumed, this individual would be required to complete a new

application for IV-D services and pay any applicable application fee.

6. Comment: One commenter noted the change in terminology from

``custodial parent'' to ``recipient of services'' and asked if this

meant the States needed to change this term on all of their local

forms.

Response: It is not necessary for a State to change the terminology

within its local forms to comply with such changes OCSE is making in

this final rule. However, OCSE encourages the States to keep this issue

in mind when they are otherwise revising their local forms. If the term

``recipient of services'' more accurately reflects the individual at

issue, then the States should consider making a change in this

terminology at that time.

Regulatory Impact Analyses

Paperwork Reduction Act

This rule does not contain information collection provisions

subject to review by the Office of Management and Budget under the

Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)).

Regulatory Flexibility Analysis

The Secretary certifies, under 5 U.S.C. 605(b), as enacted by the

Regulatory Flexibility Act (Pub. L. 96-354), that this final rule will

not result in a significant impact on a substantial number of small

entities. The primary impact is on State governments. State governments

are not considered small entities under the Act.

Executive Order 12866

Executive Order 12866 requires that regulations be reviewed to

ensure that they are consistent with the priorities and principles set

forth in the Executive Order. The Department has determined that this

rule is consistent with these priorities and principles. No costs are

associated with this final rule.

Unfunded Mandates Act

The Department has determined that this final rule is not a

significant regulatory action within the meaning of the Unfunded

Mandates Reform Act of 1995.

Congressional Review of Rulemaking

This final rule is not a ``major'' rule as defined in Chapter 8 of

5 U.S.C.

List of Subjects in 45 CFR Part 303

Child support, Grant programs/social programs, Reporting and

recordkeeping requirements.

(Catalog of Federal Domestic Assistance Programs No. 93.563, Child

Support Enforcement Program)

Dated: October 21, 1998.

Olivia A. Golden,

Assistant Secretary for Children and Families.

Approved: November 30, 1998.

Donna E. Shalala,

Secretary, Department of Health and Human Services.

For the reasons set forth in the preamble, 45 CFR Part 303 is

amended as follows:

PART 303--STANDARDS FOR PROGRAM OPERATIONS

1. The authority citation for Part 303 continues to read as

follows:

Authority: 42 U.S.C. 651 through 658, 660, 663, 664, 666, 667,

1302, 1396a(a)(25), 1396(d)(2), 1396b(o), 1396b(p), and 1396(k).

Sec. 303.11 [Amended]

2. Section 303.11 is amended as follows:

a. Paragraph (b)(1) is revised and paragraph (b)(2) is removed to

read as follows:

* * * * *

(b) * * *

(1) There is no longer a current support order and arrearages are

under $500 or unenforceable under State law;

* * * * *

b. Paragraph (b)(3) is redesignated as paragraph (b)(2).

c. Paragraph (b)(4) is redesignated as paragraph (b)(3) and amended

by adding paragraph (b)(3)(iv) to read as follows:

* * * * *

(b) * * *

(3) * * *

[[Page 11818]]

(iv) The identity of the biological father is unknown and cannot be

identified after diligent efforts, including at least one interview by

the IV-D agency with the recipient of services;

* * * * *

d. Paragraph (b)(5) is redesignated as paragraph (b)(4) and revised

to read as follows:

* * * * *

(b) * * *

(4) The noncustodial parent's location is unknown, and the State

has made diligent efforts using multiple sources, in accordance with

Sec. 303.3, all of which have been unsuccessful, to locate the

noncustodial parent:

(i) Over a three-year period when there is sufficient information

to initiate an automated locate effort, or

(ii) Over a one-year period when there is not sufficient

information to initiate an automated locate effort;

* * * * *

e. Paragraphs (b)(6) through (b)(12) are redesignated as paragraphs

(b)(5) through (b)(11), respectively.

f. Newly redesignated paragraph (b)(9) is revised to read as

follows:

* * * * *

(b) * * *

(9) There has been a finding by the responsible State agency of

good cause or other exceptions to cooperation with the IV-D agency and

the State or local IV-A, IV-D, IV-E, Medicaid or food stamp agency has

determined that support enforcement may not proceed without risk of

harm to the child or caretaker relative;

* * * * *

g. Newly redesignated paragraph (b)(10) is revised to read as

follows:

* * * * *

(b) * * *

(10) In a non-IV-A case receiving services under Sec. 302.33(a)(1)

(i) or (iii), the IV-D agency is unable to contact the recipient of

services within a 60 calendar day period despite an attempt of at least

one letter sent by first class mail to the last known address;

* * * * *

h. Paragraph (b)(12) is added to read as follows:

* * * * *

(b) * * *

(12) The IV-D agency documents failure by the initiating State to

take an action which is essential for the next step in providing

services.

* * * * *

i. Paragraph (c) is revised to read as follows:

* * * * *

(c) In cases meeting the criteria in paragraphs (b) (1) through (6)

and (10) through (12) of this section, the State must notify the

recipient of services, or in an interstate case meeting the criteria

for closure under (b)(12), the initiating State, in writing 60 calendar

days prior to closure of the case of the State's intent to close the

case. The case must be kept open if the recipient of services or the

initiating State supplies information in response to the notice which

could lead to the establishment of paternity or a support order or

enforcement of an order, or, in the instance of paragraph (b)(10) of

this section, if contact is reestablished with the recipient of

services. If the case is closed, the former recipient of services may

request at a later date that the case be reopened if there is a change

in circumstances which could lead to the establishment of paternity or

a support order or enforcement of an order by completing a new

application for IV-D services and paying any applicable application

fee.

* * * * *

j. Paragraph (d) is revised to read as follows:

* * * * *

(d) The IV-D agency must retain all records for cases closed

pursuant to this section for a minimum of three years, in accordance

with 45 CFR part 74.

* * * * *

k. In addition to the amendments set forth above, remove the words

``absent parent('s)'', and add, in their place, the words

``noncustodial parent('s)'' in the following places:

(1) Newly redesignated paragraph (b)(2);

(2) Newly redesignated paragraph (b)(4);

(3) Newly redesignated paragraph (b)(5); and

(4) Newly redesignated paragraph (b)(6).

l. In addition to the amendments set forth above, remove the words

``custodial parent('s)'', and add, in their place, the words

``recipient('s) of services'' in the following places:

(1) Newly redesignated paragraph (b)(8);

(2) Newly redesignated paragraph (b)(10); and

(3) Newly redesignated paragraph (b)(11).

[FR Doc. 99-5831 Filed 3-9-99; 8:45 am]

BILLING CODE 4184-01-P