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Daily Rules, Proposed Rules, and Notices of the Federal Government

DEPARTMENT OF HEALTH AND HUMAN SERVICES

Administration for Children and Families

45 CFR Parts 301, 302, 303, 305, and 308

RIN 0970-AC-37

Child Support Enforcement Program; Intergovernmental Child Support

AGENCY: Administration for Children and Families, Office of Child Support Enforcement (OCSE).
ACTION: Notice of Proposed Rulemaking (NPRM).
SUMMARY: These proposed regulations would revise Federal requirements for establishing and enforcing intergovernmental support obligations in Child Support Enforcement (IV-D) program cases receiving services under title IV-D of the Social Security Act (the Act). The proposed changes would: Revise current interstate requirements to apply to case processing in all intergovernmental cases; require the responding State IV-D agency to pay the cost of genetic testing; clarify responsibility for determining in which State tribunal a controlling order determination is made where multiple support orders exist; recognize and incorporate electronic communication advancements; and make conforming changes to the Federal substantial-compliance audit and State self-assessment requirements.
DATES: Consideration will be given to written comments received by February 6, 2009.
ADDRESSES: Send comments to: Office of Child Support Enforcement, Administration for Children and Families, Department of Health and Human Services, 370 L'Enfant Promenade, SW., 4th Floor, Washington, DC 20447, Attention: Director, Division of Policy, Mail Stop: OCSE/DP. Comments will be available for public inspection Monday through Friday, 8:30 a.m. to 5 p.m. on the 4th floor of the Department's offices at the above address. You may also transmit written comments electronically via the Internet at:http://www.regulations.gov. To download an electronic version of the rule, you may accesshttp://www.regulations.gov.
FOR FURTHER INFORMATION CONTACT: Yvette Hilderson Riddick, OCSE Division of Policy, 202-401-4885, e-mail:Yvette.Riddick@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: I. Statutory Authority

Section 454(9) of the Act addresses interstate cooperation. This notice of proposed rulemaking is published under the authority granted to the Secretary of the U.S. Department of Health and Human Services (the Secretary) by section 1102 of the Act, 42 U.S.C. 1302. Section 1102 authorizes the Secretary to publish regulations, not inconsistent with the Act, which may be necessary for the efficient administration of the functions for which he is responsible under the Act. The Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA) of 1996 amended the Act by adding section 466(f), which mandated that all States have in effect by January 1, 1998, the Uniform Interstate Family Support Act (UIFSA) as approved by the American Bar Association on February 9, 1993, and as in effect on August 22, 1996, including any amendments officially adopted as of such date by the National Conference of Commissioners on Uniform State Laws (NCCUSL). PRWORA also added sections 454(32) and 459A of the Act, requiring State IV-D agencies to provide services in international cases and authorizing the Secretary of the Department of State (DOS) with the concurrence of the Secretary, to enter into bilateral arrangements with foreign countries for child support enforcement, respectively. Further, section 455(f) of the Act, which authorized direct funding of Tribal Child Support Enforcement (IV-D) programs, was added by PRWORA and amended by the Balanced Budget Act of 1997 (Pub. L. 105-33).

II. Background A. Nature of the Problem

The Child Support Enforcement program was created over 30 years ago in response to the rise in welfare costs resulting from increasing nonmarital birth rates and parental desertion of families, and to the growing demand to relieve taxpayers of the financial burden of supporting these families. Child support is no longer primarily a welfarereimbursement, revenue-producing device for the Federal and State governments; it is a family-first program, intended to ensure families' self-sufficiency by making child support a more reliable source of income. In addition to serving those parents and children with child support cases in which divorced or never married parents live in the same State, IV-D agencies are also responsible for cases where one of the parents resides outside its borders.

The problems of support enforcement are compounded when parents reside in different jurisdictions and the interjurisdictional caseload is substantial. In FY 2006, over a million cases were sent from one State to another.See, Child Support Enforcement FY 2006 Preliminary Report (March 2007), Figure 10 http://www.acf.hhs.gov/programs/cse/pubs/2007/preliminary_report/. This number does not include cases where a single State established or enforced a support obligation against a nonresident using long-arm jurisdiction or direct enforcement remedies without involving another IV-D agency. Additionally, interstate collections showed a 19 percent increase over those obtained in FY 2002.

The universal enactment by States of UIFSA and close to a decade of State experience under this uniform law has served to harmonize the interjurisdictional legal framework. Use of long-arm jurisdiction, administrative processes, and direct income withholding has gone a long way to break down barriers. Nevertheless, many still exist.

We believe that interstate case processing still can and must be improved. This has been and remains one of OCSE's top priorities. Current regulations governing interstate cases are outdated. While they broadly address UIFSA, they do not fully reflect the legal tools available under that Act, other Federal mandates and remedies, improved technology, or IV-D obligations in Tribal and international cases. Therefore, this regulation proposes changes and clarifies responsibilities for State IV-D agencies and emphasizes the need for States to be responsive to working intergovernmental IV-D cases to ensure that all children receive the support they deserve. We have received support from our State partners in focusing on this effort.

Although our regulatory authority extends only to States and to Tribes operating a Tribal IV-D program, the IV-D caseload includes IV-D cases received from or initiated by other States, Tribes, and countries. The creation of the Tribal IV-D program pursuant to section 455(f) of the Act and implementing regulations at 45 CFR Part 309, and the central role of OCSE and State IV-D agencies in international cases under section 459A of the Act, highlight the need to refocus interstate regulations to address requirements for State IV-D programs' processing of intergovernmental IV-D cases.

B. Current Law on Interstate Case Processing 1. Uniform Interstate Family Support Act (UIFSA)

UIFSA is a comprehensive model Act focusing on the interstate establishment, modification, and enforcement of child support obligations. It was first passed by the NCCUSL in 1992, amended in 1996 and again in 2001. Section 466(f) of the Act requires all States to enact UIFSA as approved by the American Bar Association on February 9, 1993, as in effect on August 22, 1996, including any amendments officially adopted as of such date by the NCCUSL. There is as yet no requirement that all States enact the 2001 version of UIFSA (UIFSA 2001), although States may request an exemption under section 466(d) of the Act should they choose to enact UIFSA 2001. (See OCSE-AT-02-02)http://www.acf.dhhs.gov/programs/cse/pol/AT/2002/at-02-02.htm).

Accordingly, unless otherwise specified, as used in this preamble, “UIFSA” means the 1996 version of UIFSA (UIFSA 1996). Section 101(19) of UIFSA defines “State” to include States, Indian Tribes, and “a foreign jurisdiction that has enacted a law or established procedures for issuance and enforcement of support orders which are substantially similar to the procedures under UIFSA, the Uniform Reciprocal Enforcement of Support Act (URESA) or the Revised Uniform Reciprocal Enforcement of Support Act (RURESA).”

Many of UIFSA's provisions represent solutions to the problems inherent with the interstate establishment and enforcement of child support obligations. For example, UIFSA covers all cases where the custodial and noncustodial parents reside in different States. In addition to traditional state-to-state legal actions, it provides for long-arm jurisdiction to establish paternity or child support, continuing exclusive jurisdiction by a State to modify an order where a support order already exists, and one-state enforcement remedies such as direct income withholding. UIFSA contains enhanced evidentiary provisions, including use of teleconferencing, electronic transmission, and use of federally-mandated forms. It precludes the entry of a new (de novo) support order where a valid order exists, ending the longstanding practice of multiple support orders, and strictly proscribes when a State has the authority to modify the child support order of another State, Tribe, or country.

UIFSA introduced the principle of continuing, exclusive jurisdiction (CEJ) to child support. Only one valid current support order may be in effect at any one time. This is UIFSA's keystone. As long as one of the individual parties or the child continues to reside in the issuing State, and as long as the parties do not agree to the contrary, the issuing tribunal's authority to modify its order is continuing and exclusive. UIFSA attempts to be even-handed—the identity of the party residing in the State (whether the obligor or obligee) does not matter. Jurisdiction to modify an order may be lost only if all the relevant persons have permanently left the issuing State. This is logical because the issuing State would no longer have an appropriate nexus with the parties or child to justify exercise of jurisdiction to modify the order. However, it is important to note that the original order of the issuing State remains in effect, until modified, not only in the issuing State and those States in which the order has been registered, but also in additional States following registration, even after the issuing State has lost its power to modify its order. By this means, UIFSA allows the one order to remain in effect as the family or its individual members move from one State to another.

UIFSA includes a transitional procedure for the eventual elimination of existing multiple support orders in an expeditious and efficient manner. To begin the process toward a one-order system, UIFSA provides a relatively straight-forward procedure designed to identify a single viable order that will be entitled to prospective enforcement in every State. This process is referred to as the determination of controlling order (DCO). UIFSA specifies in detail how the DCO should be made. If only one child support order exists, it is the controlling order irrespective of when and where it was issued and whether any of the individual parties or the child continues to reside in the issuing State.

UIFSA is currently State law in all 54 States and jurisdictions. Twenty States have adopted the 2001 amendments passed by the NCCUSL and received a State Plan exemption under section 466(d) of the Act from OCSE allowing use of the 2001 provisions.

2. One-State Interstate

Historically, IV-D agencies have sought to resolve cases involving nonresident noncustodial parents by using the State's statutory authority to obtain or retain personal jurisdiction over the out-of-state party. Current regulations explicitly encourage the assertion of long-arm jurisdiction to establish paternity [see, 45 CFR 303.7(b)(1)]. The authority of a State to subject a nonresident to its laws is set out in State statutes, subject to the due process provisions of the U.S. Constitution. As described earlier, UIFSA is a State statute, containing both an expansive long-arm provision (section 201), and continuing, exclusive jurisdiction to both enforce and modify an existing support order (see, e.g., sections 205 and 206). Since 1984, States have been required to adopt procedures for enforcing the income withholding orders of another States [section 466(b)(9) of the Act)]. Article 5 of UIFSA authorizes direct income withholding, allowing a State to serve directly the obligor's employer in the other State with the income withholding order/notice. The employer must honor the out-of-state withholding order/notice to the same extent it would an in-state order/notice. These provisions afford IV-D agencies a greater opportunity to use one-state interstate remedies in factually-appropriate cases, rather than involving a second State. As discussed later, cooperation among States in requesting and providing limited services, such as locate assistance, coordination of genetic testing, and facilitation of gathering and transmitting evidence, makes the use of one-state remedies more robust and equitable.

3. Tribal IV-D and International Child Support Enforcement

UIFSA recognizes the importance and sovereignty of the Tribal organization to provide for its children and provides specifically by definition that the term “State” includes an Indian tribe in section 101(19) [renumbered by the 2001 amendments as section 102(21)(A)]. As described earlier in this preamble, foreign countries may also be “States” for UIFSA purposes. While UIFSA directs State child support activities, it does not govern child support activities in other countries or Tribes.

States generally have referred to cross-border child support cases as interstate matters. However, the IV-D program is committed to establishing and enforcing child support for children in Tribal IV-D and international cases as well. Recognizing the broadened range of cases, and for reasons detailed in this preamble, we have changed the scope of these regulations from interstate to intergovernmental.

Essential to the Federal-State-Tribal effort to ensure that noncustodial parents support their children is coordination and partnership, especially in the processing of intergovernmental cases. For the first time in the history of the IV-D program, PRWORA authorized direct funding of Tribes and Tribal organizations for operating child support enforcement programs under section 455 of the Act. The Department recognizes the unique relationship between the Federal government and federally-recognized Indian Tribes and acknowledges this special government-to-government relationship in the implementation of the Tribal provisions of PRWORA. The direct Federal funding provisions provide Tribes with an opportunity to administer their own IV-D programs to meet the needs of children and their families. Also, as stated in 45 CFR 302.36(a)(2), the State will extend the full range of services available under its IV-D plan to all Tribal IV-D programs.

Likewise, a Tribal IV-D agency must specify in its Tribal IV-D plan that the Tribal IV-D agency will:

• Extend the full range of services available under its IV-D plan to respond to all requests from, and cooperate with, State and other Tribal IV-D agencies; and

• Recognize child support orders issued by other Tribes and Tribal organizations, and by States, in accordance with the requirements under the Full Faith and Credit for Child Support Orders Act, 28 U.S.C. 1738B. See 45 CFR 309.120.

As to international cases, section 459A of the Act authorizes the Department of State (DOS), with the concurrence of the Secretary, to enter into bilateral arrangements with foreign countries for child support enforcement. To date, the U.S. has federal-level arrangements with Australia, Czech Republic, El Salvador, Finland, Hungary, Ireland, Netherlands, Norway, Poland, Portugal, Slovak Republic, Switzerland, the United Kingdom and the Canadian provinces/territories of Alberta, British Columbia, Manitoba, New Brunswick, Newfoundland/Labrador, Northwest Territories, Nova Scotia, Nunavut, Ontario, Saskatchewan, and Yukon. On November 23, 2007 the United States signed a Hague Convention that addresses the International Recovery of Child Support and other Forms of Family Maintenance. For those States that sign the Hague Convention, ratification of the Convention is projected to take 2-3 years.

C. Need for and Purpose of This Regulation

In accordance with current title IV-D regulations at 45 CFR 303.7(c)(7), when a State receives a request to take action on an interstate case from another State, it must take all appropriate action, treating it just as if the case were an intrastate case. Because families may move and receive Temporary Assistance for Needy Families (TANF) or other public assistance benefits in multiple States, more than one State may have an interest in the child support arrearages because the custodial parent assigned support rights to more than one State as a condition of receiving public assistance.

The interstate regulations that currently appear in 45 CFR 303.7 were originally effective February 22, 1988. Many changes have taken place in child support since 1988 when these regulations were published, including the passage of UIFSA, PRWORA, and the Federal Full Faith and Credit for Child Support Orders Act of 1994 (FFCCSOA). FFCCSOA, as amended by PRWORA, requires each State to enforce, according to its terms, a child support order issued by a court or administrative authority of another State. See 28 U.S.C. 1738B. FFCSOA rules are consistent with UIFSA on which State has jurisdiction to prospectively modify a support order and which of multiple valid support orders controls current support.

State IV-D agencies have authority to take actions directly across State lines, bypassing IV-D agencies in other States. That ability, coupled with the powerful new tools at the disposal of IV-D agencies, such as the National Directory of New Hires and expanded Federal Parent Locator Service, could lead States to taking direct action to collect on arrearages owed under multiple orders in different States. This could lead, in turn, to confusion on the part of custodial and noncustodial parents, employers, and State IV-D workers about correct arrearage balances and how to account for collections. It is to address these issues and otherwise update the outdated interstate regulations that we are revising 45 CFR 303.7.

OCSE realized several years ago that it was necessary to revise the regulations to recognize UIFSA requirements to the extent possible within the constraints of title IV-D of the Act, to address Tribal and international cases, and to improvecustomer service and satisfaction. The current regulations were built on a two-state, one-by-one, paper-oriented interstate case processing model. State experience, however, has shown that taking actions to establish and secure support directly across State lines, using a State's long-arm jurisdiction, as well as electronic communication and mass case processing, often increase support collections for children. This has, in fact, been the case as States and the general public have seen collections increase when these powerful tools are put into action.

In writing this regulation, one of our primary goals is to ensure that States can take full advantage of all available automation and communication techniques, such as the Child Support Enforcement Network (CSENet), whenever possible. CSENet is both a state-of-the-art telecommunication network and a software application that plays a pivotal role in transmitting interstate case information between IV-D agencies. CSENet has been designed to receive, edit, store, and transmit the defined standardized batch transactions from one State child support enforcement automated system, through the CSENet server, to another State child support enforcement automated system. We are interested in hearing from States if there are other communication techniques that would work as well or better than CSENet to foster improved communication between States. Automated communication is essential to making interstate case processing work.

Additionally, there is an electronic communication called QUICK (Query Interstate Cases for Kids) that allows caseworkers to view interstate case information in real time. In States that use QUICK, workers can view financial and case status data in other participating QUICK States. With this capability, a caseworker can provide immediate response to a customer or quickly determine the next case action.

We propose to reorganize 45 CFR 303.7 extensively to clarify and streamline case processing responsibilities in intergovernmental cases, incorporating both optional and required procedures under PRWORA and enhanced technology. We have responded to specific changes requested by State IV-D agencies, for example, by revising responsibility for advancing the cost of genetic testing and addressing responsibility for credit bureau reporting. The proposed regulations address case processing ambiguities raised by practitioners around determination of controlling orders, interstate income withholding, and case closure. We have made corresponding changes to the case closure rules in 45 CFR 303.11. Finally, the proposed regulations make conforming changes to the Federal substantial-compliance audit (45 CFR 305.63) and State self-assessment requirements (45 CFR 308.2).

III. Provisions of the Regulations

The following is a discussion of all the regulatory provisions included in this NPRM. With a few exceptions explained in the applicable sections, we have substituted “intergovernmental” in lieu of “interstate” throughout these provisions. The term encompasses not only IV-D cases between States, but also all IV-D cases where the parents reside in different jurisdictions, including cases between a State and Tribal IV-D program, cases between a State and a foreign country under sections 454(32) and 459A of the Act, and cases where the State has asserted authority over a nonresident under long-arm jurisdiction.

Part 301—State Plan Approval and Grant Procedures Proposed Section 301.1—General Definitions

The proposed rules add definitions of terms used in program regulations. Some terms exist in current regulations but have not been defined; others represent new concepts. In drafting this section, we have defined those terms used in the proposed rule that must be understood consistently by all who use these regulations. The existing definitions remain unchanged. In this section of the preamble, we have grouped the proposed new definitions by topic for a more coherent discussion, rather than alphabetically, as they will appear in § 301.1.

Two definitions pertain particularly to international child support case processing as discussed earlier in this preamble. We defineCountryto include both a foreign reciprocating country (FRC) and any foreign country (or political subdivision thereof) with which the State has entered into a reciprocal arrangement pursuant to section 459A of the Act. We also propose definingCentral authorityas the agency designated by a government to facilitate support enforcement with an FRC. The Federal statute requires that the country with which a federal-level agreement is entered establish a Central authority to facilitate implementation of support establishment and enforcement in cases involving residents of the U.S.

OCSE is the Central authority for the United States under Federal reciprocal arrangements. If the State in which the obligor is living is unknown, pursuant to section 459A(c)(2) of the Act, an FRC may send a request to OCSE, which will use the Federal Parent Locator Service to try to locate the State in which the obligor resides. Otherwise, cases move directly between the Central Authority of the FRC and the State which has case processing authority.

As discussed earlier, current regulations envision state-to-state case processing. The proposed regulation reflects a IV-D agency's responsibilities whether the nonresident parent resides in another State, a federally-recognized Tribe with a IV-D program, or another country. Accordingly, we have added three definitions for terms used throughout the proposed regulations. “Intergovernmental IV-D case” means a case in which the dependent child(ren) and the noncustodial parent live in different jurisdictions that has been referred by an initiating agency to a responding agency for services. An intergovernmental IV-D case may include any combination of referrals between States, Tribes, and countries. Generally, throughout the proposed regulation, we substitute “intergovernmental” where “interstate” is used in the current regulation.

As discussed later, there are some provisions where we believe the IV-D agency's responsibility extends only to cases involving two or more States. To delineate such situations, we propose adding a definition for “Interstate IV-D case” meaning, a IV-D case in which the noncustodial parent lives and/or works in a different State than the custodial parent and child(ren). Unless otherwise specified, the term applies both to one-State and to two-State interstate cases. We believe the proposed definition provides clarity in the context of these regulations.

There are several circumstances in proposed 45 CFR 303.7, detailed later, that only pertain to cases and actions where a State asserts its authority over a person or entity outside its borders in another State. So we propose adding a definition of a “One-State interstate IV-D case” as an interstate case where a State exercises its jurisdiction over the nonresident parent or otherwise takes direct establishment, enforcement, or other action, in accordance with the long-arm provisions of the UIFSA or other State law. We welcome comments on whether this latter definition is helpful and, if so, appropriate and sufficient.

Five definitions in the proposed regulations relate to UIFSA. “UniformInterstate Family Support Act(UIFSA)” means the model act promulgated by the National Conference of Commissioners on Uniform State Laws (NCCUSL) and mandated by section 466(f) of the Act to be in effect in all States.

Although used in current interstate regulations, we propose adding definitions ofInitiating agencyandResponding agencyto establish a common understanding in the context of all intergovernmental IV-D cases. “Initiating agency” means the agency from which a referral for action is forwarded to a responding agency and could include a State IV-D agency, a Tribal IV-D agency, or a country as defined in these regulations. “Responding agency” means the agency that is providing services in response to a referral from an initiating agency in an intergovernmental IV-D case. Although the definitions are inclusive, these regulations only govern State IV-D programs, not Tribal IV-D programs or other countries.

The broadened scope covers State IV-D program responsibilities with respect to Tribal IV-D and international cases. However, while initiating and responding agency definitions reflect the involvement of two governmental entities, we use “referral for action” and “providing services” to reflect that a State IV-D agency may ask for assistance from another jurisdiction, without referring the case to another State for all necessary IV-D services. States have found that the provision of limited services, such as performing “quick locate” (of a person and/or assets), serving process, and identifying and seizing assets across State lines, holds much promise in terms of saving time and enhancing collections.

Two other terms flow principally from UIFSA: “Tribunal” and “controlling order state.” Encompassing the widest range of expedited and administrative procedures, we propose to define “Tribunal” in these regulations as a court, administrative agency, or quasi-judicial entity authorized under State law to establish, enforce, or modify support orders or to determine parentage.

A keystone of both UIFSA and FFCCSOA, 28 U.S.C. 1738B, was an end to multiple support orders existing simultaneously. Both laws prohibit entry of a new support order where a valid one exists. However, neither invalidates a support order created under earlier laws. Instead, both FFCCSOA and UIFSA contain rules for determining which of the several orders validly established by different States is controlling and governs prospective support. Because of the need to determine the controlling order in multiple order situations, we responded to requests from our partners to set out State IV-D responsibilities when multiple support orders exist in an interstate case. The proposed rules regarding Determination of Controlling Order (DCO) are contained in § 303.7, discussed later in this preamble. For clarity in the context of those regulations, we propose defining “Controlling order State” as the State in which the only order was issued or, where multiple orders existed, the State in which the order determined by a tribunal to control prospective current support pursuant to the UIFSA was issued.

As earlier noted, technology has been enhanced almost exponentially since the interstate regulations were revised 20 years ago. Today electronic transmission of information (and payments) is preferred and electronic filing of documents is rapidly becoming the norm. OCSE has committed considerable resources to enhancing electronic communication. A guiding principle in the National Child Support Enforcement Strategic Plan (FY2005-2009) is that: “Policy and technology decisions are interdependent and coordinated to achieve high performance.” The exchange of information is critical to successful intergovernmental child support litigation. Yet even with uniform mandated Federal interstate forms, it is often considered burdensome, particularly compared with the more automated, streamlined case processing that State and Federal systems permit in intrastate cases.

Forms are a necessary part of intergovernmental case processing and resolution. To foster uniformity, UIFSA section 316(b) affords enhanced evidentiary weight to pleadings and supporting documents submitted on or incorporated into “federally-mandated forms.” However, where available, the transmission of such information electronically clearly serves to expedite case processing. UIFSA 2001 amendments explicitly allow for electronic transmission as well as electronic record keeping by substituting “in a record” for “in writing” and defining record as “information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form [(UIFSA 2001 section 102(15)].” OCSE is working with States to expand and improve electronic transmissions. Standardization of data elements is an ongoing OCSE/State initiative and key to this effort. The Office of Management and Budget has reauthorized the use of the federally-mandated interstate forms until January 31, 2011 and they have been renamed Intergovernmental Child Support Enforcement Forms.

In furtherance of these goals, we propose adding a definition forformthat accommodates new storage and transmission technologies as they become available. “Form” means a federally-approved document used for the establishment and enforcement of support obligations whether compiled or transmitted in written or electronic format, including, but not limited to the Order/Notice to Withhold Income for Child Support, and the National Medical Support Notice. In interstate IV-D cases, such forms include those used for child support enforcement proceedings under UIFSA.Formalso includes any federally-mandated IV-D program reporting forms where appropriate. Current versions of these forms are located on the OCSE Web site athttp://www.acf.hhs.gov/programs/cse/forms/.

Part 302—State Plan Requirements Proposed Section 302.36—Provision of Services in Intergovernmental IV-D Cases

Current § 302.36 addresses State plan requirements in interstate and Tribal IV-D cases. We propose changes to both the heading and the body of the section to address international IV-D cases. The proposed changes clarify that a State must provide services in all intergovernmental IV-D cases as we have defined that term in proposed § 301.1.

First, the caption to this subsection currently references both “interstate and intergovernmental IV-D cases.” The use of interstate is now duplicative and we propose deleting “interstate” from the title. For clarity, we have revised current § 302.36(a)(1) and (2). Although the structure is amended slightly, the substance remains the same. Proposed paragraph (a)(1) requires the State plan to “provide that, in accordance with § 303.7 of this chapter, the State will extend the full range of services available under its IV-D plan” to any other State. Paragraph (a)(2) similarly restates the existing requirement to provide services to Tribal IV-D programs. We have added a reference to § 309.65(a) under which Tribal IV-D programs operate. We also propose minor language changes, solely for ease of reading.

As discussed earlier in this preamble, Congress specifically authorized Federal-level agreements regarding child support enforcement in 1996.Section 459A(a) of title IV-D of the Act provides the Secretary of DOS, with the concurrence of the Secretary, the authority to declare any foreign country to be a foreign reciprocating country under certain conditions. Section 459A(d) provides for State-level “reciprocal arrangements for the establishment and enforcement of support obligations with foreign countries that are not the subject of a declaration pursuant to subsection (a), to the extent consistent with Federal law.” We propose to add § 302.36(a)(3) requiring that the full range of services also be provided to: “Any country as defined in § 303.1 of this chapter.” As defined in § 301.1 and discussed previously, “country” encompasses both FRCs and countries with state-level arrangements.

We propose revising current § 302.36(b) by substituting “intergovernmental” for “interstate” and amending the reference to State Central Registry responsibilities to § 303.7(b), consistent with changes we propose for that section.

Part 303—Standards for Program Operations Proposed Section 303.7—Provision of Services in Intergovernmental IV-D Cases

We propose to reorganize current § 303.7 to more clearly lay out IV-D agency responsibilities and to expand the scope of the existing section from interstate to all intergovernmental IV-D cases, as defined by proposed § 301.1. Frequently, existing paragraphs have merely been moved in this proposed rule with minor language changes to improve readability. Other paragraphs of this section represent either a shift in responsibility between the initiating and responding agencies or address new case processing responsibilities.

State IV-D programs have identified barriers to effective interstate child support enforcement posed by regulations and by inconsistent practices among the States and requested changes to current interstate regulations on genetic testing costs, credit bureau reporting, and interstate income withholding. States also have requested that OCSE delineate responsibilities around determination of the controlling order (DCO) in multiple order cases. This Office considered all issues raised and, as revised, proposed § 303.7 would address them.

The proposed heading of § 303.7 substitutes “intergovernmental” for “interstate.”

(a) General Responsibilities

We believe many IV-D agency responsibilities apply generally in an intergovernmental IV-D case. To avoid unnecessary repetition, we propose that subsection (a) (currently setting out the responsibilities of the interstate central registry) will now contain all generally applicable mandates, irrespective of the IV-D agency role in the case as either an initiating or responding agency.

Current § 303.7(c)(1) requires a responding IV-D agency to “establish and use procedures for managing its interstate IV-D caseload which ensure provision of necessary services and include maintenance of case records in accordance with § 303.2 of this part.” We propose moving this paragraph to § 303.7(a)(1) as a general responsibility of all IV-D agencies to their “intergovernmental IV-D caseload.” This paragraph also applies to the IV-D agencies' one-state interstate cases.

Similarly, existing § 303.7(c)(2) and (3) have been moved from a responding agency responsibility to a universal IV-D agency responsibility in intergovernmental cases, now located in proposed paragraphs (a)(2) and (3). These paragraphs require the IV-D agency to periodically review program performance for effectiveness and to ensure adequate staffing to provide services in interstate cases. With the exception of substituting “intergovernmental” for “interstate” these sections are unchanged. Again, these revisions are proposed because we believe the requirements to review program performance and to ensure adequate staffing are not properly restricted to responding State IV-D agencies.

Existing § 303.7(b)(3) requires the initiating State IV-D agency to: “Provide the IV-D agency in the responding State sufficient, accurate information to act on the case by submitting with each case any necessary documentation and federally-approved interstate forms. The State may use computer-generated replicas in the same format and containing the same information in place of the Federal forms.” We have divided this provision into two parts, proposed paragraphs (a)(4) and (c)(5). The first part of the existing paragraph has been revised and moved under the general responsibilities of IV-D agencies in intergovernmental cases.

Proposed § 303.7(a)(4) requires all State IV-D agencies to: “Use federally-approved forms in intergovernmental IV-D cases. When using a paper version, providing one copy of each form and supporting documentation meets this requirement.” State agencies now use a package consisting of nine federally-mandated forms titled: Provision of Services in Intergovernmental Child Support Enforcement: Standard Forms in all interstate cases. Although not mandatory, Tribal IV-D programs sometimes use them. States also use these forms for international cases.

At or soon after the time a country becomes an FRC, OCSE works with the FRC to prepare the country's chapter for A Caseworker's Guide to Processing Cases with Foreign Reciprocating Countries, available athttp://www.acf.hhs.gov/programs/cse/international/policy.html. Because the proposed definition for “form” includes that it may be “compiled or transmitted in written or electronic format,” we have deleted the second sentence of current § 303.7(b)(3) concerning computer-generated replicas of forms as superfluous. We recognize that there will be cases in which use of an electronic form or transmission is not feasible. State IV-D agencies have requested that States be required to send only one paper version of the federally-mandated interstate forms and any order or supporting document that accompanies such a referral. Therefore, the second sentence of proposed § 303.7(a)(4) provides that one copy is sufficient to meet the requirements of this section.

We propose adding § 303.7(a)(5), requiring IV-D agencies to: “Transmit requests for information and provide requested information electronically to the greatest extent possible in accordance with instructions issued by the Office.” Given advances in technology and in the interest of reducing paper and paperwork, we explicitly favor electronic transmission. Electronic filing is increasingly recognized by courts and the amended language acknowledges new technologies and accommodates future changes in technologies and legally-acceptable methods of submitting documents.

A consistent request from our State partners has been to clarify the responsibilities of IV-D agencies to determine which of multiple current support orders is controlling prospectively. Several changes to § 303.7 address the determination of the controlling order. We start by proposing a new § 303.7(a)(6), adding a general responsibility on all IV-D agencies to: “Within 30 working days of receiving a request, provide any order and payment record information requested by a State IV-D agency for a controlling order determination and reconciliation of arrearages.”

The first step in a DCO is to locate all child support orders that may exist in a particular case. While searching the Federal Case Registry (FCR) is the obvious and critical first step, a State also needs to search its own records and other relevant information available. The FCR contains data identifying cases and orders transmitted electronically from the State Case Registries (SCR). The FCR does not provide a copy of the order. Non-IV-D orders issued or modified before October 1, 1998, and any closed IV-D cases are not required to be placed on the SCR, and, therefore, will not be reported to the FCR. The State responsible for providing information on existing orders for a DCO would need to contact the other State(s) listed in the FCR to determine if there is a support order in the State(s) and to request a copy of the order and related payment records.

We heard varying suggestions about how long a IV-D agency should have to obtain and forward such order and accounting information. We believe a search of court or agency records may be time consuming. We propose “30 working days” from receipt of request to parallel the current obligation on the initiating agency to provide additional information. Since 2002, OCSE's Interstate Case Reconciliation initiative, aimed at correcting and standardizing IV-D case identifiers, has proven tremendously successful in reconciling interstate caseloads across all of the States. We believe that case identifiers for interstate cases have, for the most part, been established so that both State automated systems and caseworkers recognize shared cases. We also are mindful that OCSE has participated in several Federal/State initiatives to improve interagency communication to expedite interstate case processing. For example, the Federal OCSE Query Interstate Cases for Kids (QUICK) project, currently implemented in nine States, allows IV-D workers real-time access to another participating State's payment records and case status information. We anticipate response times will be greatly reduced as a result. We invite comments on the timeframe proposed in this section.

Proposed § 303.7(a)(7) consolidates existing requirements on the initiating agency [current § 303.7(b)(5)] and the responding agency [current § 303.7(c)(9)] to provide new information to each other. This revision requires IV-D agencies to “[n]otify the other agency within 10 working days of receipt of new information on an intergovernmental case.” Existing language has been changed from “interstate” to “intergovernmental.” In light of proposed requirements in § 303.7(a)(4) and (5), governing use of forms and transmission of information, we also have deleted “by submitting an updated form and any necessary documentation” as superfluous.

The final provision under IV-D agencies' general responsibilities in intergovernmental cases is proposed new § 303.7(a)(8). As discussed earlier in this preamble, many cases where the parties reside in different jurisdictions may be handled by one State, especially if another State provides limited assistance. Section 303.7(a)(8) reinforces the longstanding policy that authorizes a State to request from and provide to other States limited services. For example, a “quick locate” may be requested to find or verify if a parent or alleged father is in another State. One may also search for sources of income, wages, and assets of the parent. (SeeOCSE AT-98-06 (http://www.acf.hhs.gov/programs/cse/pol/AT/1998/at-9806.htm) and OCSE AT-91-09 (http://www.acf.hhs.gov/programs/cse/pol/AT/1991/at-9109.htm). States also provide other limited services, e.g., service of process, high-volume automated administrative enforcement in interstate cases (AEI), and coordination of genetic testing. Section 303.7(a)(8) requires all IV-D agencies to “[c]ooperate with requests for limited services, including locate, service of process, assistance with discovery, teleconferenced hearings, administrative reviews, and high-volume automated administrative enforcement in interstate cases under section 466(a)(14) of the Act.”

(b) Central Registry

Existing responsibilities of the central registry now in § 303.7(a) have been renumbered as paragraph (b). To a significant extent current language remains unchanged. For reasons explained previously “interstate” has been replaced by “intergovernmental” where the former appears throughout this paragraph. The few additional changes from the existing regulation are described below.

Current § 303.7(a)(1) provides: “The State IV-D agency must establish an interstate central registry responsible for receiving, distributing and responding to inquiries on all incoming interstate IV-D cases.” To add clarity, we substitute “transmitting” for “distributing” and renumber this section as proposed § 303.7(b)(1). We make this change solely to avoid confusion, as “distribution” is used throughout Federal IV-D regulations to mean the financial distribution of child support collections. Also, as all functions assigned to the State Central Registry (SCR) must be integrated into the statewide automated system, nothing in this regulation requires physical mailing to an SCR. Initiating and responding IV-D agencies may electronically transmit cases directly to a responding agency's statewide automated system.

Proposed § 303.7(b)(2) is identical to existing paragraph (a)(2) except we have deleted “from an initiating State.” An intergovernmental case may come from another State, Tribal IV-D program, FRC or country with which the State has a reciprocal arrangement under section 459A(d) of the Act. Except for the move to paragraph (b), current § 303.7(a)(2)(i) and (ii) are unchanged.

The substance of current § 303.7(a)(2)(iii) addressing responsibilities of the central registry to acknowledge the case has been moved to paragraph (b). The language has been slightly revised, to remove reference to “the initiating State,” again recognizing that the central registry handles cases in addition to those forwarded from another State. Proposed § 303.7(b)(2)(iii) requires the central registry to “acknowledge receipt of the case and request any missing documentation.” We have similarly streamlined proposed § 303.7(b)(2)(iv) by requiring the central registry to inform the “initiating agency” where the case was sent for action, in lieu of the current requirement in paragraph (a)(2)(iv) to notify the “IV-D agency in the initiating State.” As defined in § 301.1, “initiating agency” means the agency from which a referral for action is forwarded to a responding agency and could include a State IV-D agency, a Tribal IV-D agency, or a country as defined in these regulations.

Aside from substituting “initiating agency” for the current “initiating State,” § 303.7(a)(3) has simply been renumbered as proposed paragraph (b)(3). Some States have expressed concerns that the existing requirement to “forward the case for any action which can be taken” pending receipt of additional information the initiating agency failed to provide is problematic and a central registry should be allowed to hold any intergovernmental case referred to it until all information is provided. The goal of the existing requirement is to ensure that complex intergovernmental cases are not held up unnecessarily over what may be a technicality, when some relief may be available to the petitioner. On the other hand, we have heard concerns that this provision allows initiating jurisdictions to be unresponsive and frequently engenders double work by theresponding State agency because the initiating State agency fails to provide information or documentation critical to resolving the matter. In this NPRM, we are leaving this provision unchanged but invite comments on the pros and cons of this case processing requirement.

The final central registry provision simply moves current § 303.7(a)(4) to paragraph (b)(4) but again proposes to substitute “initiating agencies” for “other States.” The substance of the requirement, to provide a case status within 5 working days of receipt of the request, remains unchanged.

(c) Initiating State IV-D Agency Responsibilities

Readers are again reminded that these proposed regulations apply only to State IV-D agencies. These requirements are not imposed on a foreign country or a Tribal IV-D program that has forwarded a case to a State.

Proposed § 303.7(c) contains necessary revisions to initiating State agency responsibilities currently in paragraph (b). As described earlier, we propose moving initiating State responsibilities now in paragraph (b)(4) (regarding providing necessary information) and (b)(5) (notice of receipt of new information on a case) and the second half of paragraph (b)(3) (permitting use of computer-generated replicas of Federal forms) to proposed paragraph (a) as general responsibilities of IV-D agencies in intergovernmental cases. These proposed paragraphs are described earlier in this preamble under § 303.7(a)General Responsibilities.

In making the significant changes to § 303.7, we consulted and considered the varied opinions among our partners. We have proposed only those changes we believe will improve intergovernmental child support enforcement without placing an undue burden on States. To streamline discussion of the proposed requirements for initiating State IV-D agencies, we discuss them as they now appear in paragraph (c).

Determination of Controlling Order (DCO)

We discussed earlier in this preamble concern for assuming responsibility to decide in which State tribunal a determination of controlling order (DCO) and reconciliation of arrearages should be made to improve interstate child support efforts. The first step in such a decision is to identify all support orders. Accordingly, proposed § 303.7(c)(1) adds the requirement that an initiating agency must first: “Determine whether or not there is a support order or orders in effect in a case using the Federal and State Case Registries, State records, information provided by the recipient of services, and other relevant information available to the State.” Determining whether or not a support order exists is required to understand whether a new support order may be sought or an existing order enforced or modified.

We next propose in paragraph (c)(2) that the initiating agency must: “Determine in which State a determination of controlling order and reconciliation of arrearages may be made where multiple orders exist.” Under UIFSA, a DCO identifies the one order to be prospectively enforced. The law of the State that issued it governs the nonmodifiable aspects of the support order. The issuing tribunal also is where a modification must be sought unless all individual parties and the child have left the issuing jurisdiction or the individual parties have properly consented to another State assuming jurisdiction. (See sections 205, 611, and 613 of UIFSA 1996.) However, for a controlling order determination to be binding, it must be made by the appropriate tribunal. The UIFSA 2001 amendments clarify in section 207(b) that personal jurisdiction over the individual parties is required for a DCO.

Having ascertained under proposed § 303.7(c)(1) that multiple valid support orders exist, the initiating State would then ascertain which of the several tribunals that issued a support order will be able to obtain personal jurisdiction over both the obligor and obligee. If more than one State tribunal has the jurisdiction to determine the controlling order, pursuant to paragraph (c)(4)(i), the initiating agency would be authorized to choose which State IV-D agency should file for such relief.

Use of Long-Arm Jurisdiction

Existing regulations require a State IV-D agency to “use its long-arm statute to establish paternity, when appropriate.” We believe that the existing regulation at § 303.7(b)(1) too narrowly focuses on long-arm paternity litigation. Accordingly, we propose in § 303.7(c)(3) that the initiating agency must “determine the appropriateness of using its one-state interstate remedies to establish paternity and establish, modify, and enforce a support order, including medical support and income withholding.” We incorporate and build on current paragraph (b)(1), expanding this section to potential one-state resolution of a full range of child support establishment and enforcement responsibilities.

We made clear in OCSE-AT-98-30, Question 1, (http://www.acf.hhs.gov/programs/cse/pol/AT/1998/at-9830.htm) that a responding jurisdiction may not “second guess” the decision of the initiating State with respect to use of long-arm jurisdiction. OCSE recognizes the benefits of obtaining or retaining control of a case where the responding party resides outside State borders. Indeed, we encourage one-state solutions. However, the initiating State agency is free to weigh the legal and factual circumstances of a case and select whether to exercise long-arm jurisdiction that is available, or not. Nothing in these proposed regulations modify a State's decision-making authority to select a one-state or two-state approach in interstate cases. The choice remains within the purview of the initiating State IV-D agency.

Referring Cases to Another State for Action

Our proposed language retains the requirement to act “within 20 calendar days of determining that the noncustodial parent is in another jurisdiction and, if appropriate, receipt of any necessary information needed to process the case.” Proposed § 303.7(c)(4) renumbers and revises current § 303.7(b)(2). However, the existing rule mandates a referral of “any interstate IV-D case” to the responding State's central registry “for action, including requests for location, document verification, administrative reviews in Federal tax refund offset cases, income withholding, and State tax refund offset in IV-D cases.”

In lieu of this requirement, we propose that within 20 calendar days of determining that the noncustodial parent is in another jurisdiction and, if appropriate, receipt of any necessary information needed to process the case; the initiating agency must either, if multiple orders are in existence and identified under paragraph (c)(1), ask an intrastate tribunal for a DCO and reconciliation of arrearages, or determine that a DCO and reconciliation will be requested in the appropriate responding tribunal. Under paragraph (c)(4)(ii), if a one-state interstate remedy will not be used and a DCO by an intrastate tribunal is not required under paragraph (c)(4)(i), the initiating agency must “refer any intergovernmental IV-D case to the appropriate State central registry, Tribal IV-D program, or central authority of a country for action.” We note that in international cases there may be a need to translate the forms and necessary supporting documentation. We invite comments regarding reasonable time requirements for suchtranslation, if necessary. In the proposed regulation, we have not built in time for translation within the specified 20 calendar days because we believe that, until the necessary translation is complete, the initiating agency will not have “any necessary information needed to process the case” under paragraph (4).

Necessary Information and Forms

Proposed § 303.7(c)(5) mirrors the first part of current § 303.7(b)(3), continuing the mandate on the initiating agency to “provide the responding agency sufficient, accurate information to act on the case by submitting with each case any necessary documentation and intergovernmental forms.” As discussed previously, the remaining part of current paragraph (b)(3), requiring the use of federally-approved forms in hard or electronic format, is now a general responsibility of all IV-D agencies in intergovernmental cases.

Similarly, proposed § 303.7(c)(6) contains the existing requirements of § 303.7(b)(4), again revised to streamline language. We substitute “responding agency” for “IV-D agency or central registry in the responding State” and delete the now extraneous language about the form of transmission. The latter deletion is appropriate given both the general requirements on use of federally-approved forms and preference for electronic transmission in proposed § 303.7(a)(4) and (5) as well as the proposed definition of “form.” The timeframe remains unchanged and the section would now read: “Within 30 calendar days of receipt of the request for information, provide the responding agency with an updated intergovernmental form and any necessary additional documentation, or notify the responding agency when the information will be provided.”

Interest

We add a new requirement in proposed § 303.7(c)(7). States often raise case processing difficulties caused by the wide range of State policies around charging interest on arrearages. Where a State A order is being enforced in State B, UIFSA section 604(a) provides that the law of the issuing State governs “the nature, extent, amount, and duration of current payments and other obligations of support and the payment of arrearages under the order.” Therefore, in calculating the sum due by the obligor, State B must apply the law of State A, including the payment of interest charged by State A, if any.

Historically, automated calculation of interest charged by another State is difficult for State automated CSE systems, especially for older statewide CSE systems. The transferred case is so integrated into the responding State's automated CSE system that if the responding State also charged interest, State systems may incorrectly charge interest at that rate, rather than following the law of the issuing jurisdiction.

States have asked us to require States that charge interest to periodically calculate the amount of interest owed and notify the enforcing State. Therefore, we have added a provision we believe will keep the arrearage balance in the responding State more accurate. Proposed § 303.7(c)(7) requires the initiating agency to “[n]otify the responding agency at least quarterly of interest charges, if any, owed on overdue support under an initiating State order being enforced in the responding jurisdiction.” We invite comments on proposed paragraph (c)(7), and on whether and how accounting records should be updated when the controlling order was not issued by the initiating State.

Initiating State Enforcement Activities

Federal enforcement techniques.Proposed § 303.7(c)(8) clarifies the responsibility of the initiating State IV-D agency when submitting past-due support for administrative offset and passport denial and addresses when a State may submit past-due support in intergovernmental cases for Federal tax refund offset.

In proposed § 303.7(c)(8), we expressly assign responsibility to submit the qualifying past-due support in an interstate case to the initiating agency, consistent with submittal rules for Federal tax refund offset under § 303.72(a)(1), i.e., a State with an assignment of support rights or an application for IV-D services under § 302.33. In addition, OCSE-AT-98-17 (http://www.acf.hhs.gov/programs/cse/pol/AT/1998/at-9817.htm) directs that in interstate cases, the State in which the IV-A, IV-E, or Medicaid assignment of support rights or nonassistance application for IV-D services has been filed (i.e., the initiating State) must submit the past-due support for Federal tax refund offset, administrative offset, or passport denial. It is necessary to specify which State must submit the past-due support debt for offset to avoid both States submitting the same arrearage in a single case. Therefore, we propose that, under paragraph (c)(8), the initiating State agency must: “Submit all past-due support owed in IV-D cases that meets the certification requirements under § 303.72 of this part for Federal tax refund offset, and such past-due support, as the State determines to be appropriate, for other Federal enforcement techniques such as administrative offset under 31 CFR Part 285.3 and passport denial under section 452(k) of the Act.”

Reporting Arrearages to Consumer Reporting Agencies.With respect to responsibility for submitting arrearages to credit bureaus under section 466(a)(7) of the Act, States have requested Federal regulations to specify that the initiating State, rather than the responding State, is responsible for credit bureau reporting. We concur that such a requirement is appropriate to avoid duplicate enforcement efforts and have added proposed § 303.7(c)(9) mandating the initiating agency to: “[r]eport overdue support to Consumer Reporting Agencies, in accordance with section 466(a)(7) of the Act and § 302.70(a)(7) of this chapter.”

Request for Review and Adjustment of a Support Order.Proposed § 303.7(c)(10) is simply a renumbering of existing § 303.7(b)(6) under which the initiating State must send a request for a review of a support order and supporting documentation within 20 calendar days of determining that such a request is required. This provision regarding federally-mandated review and adjustment of support orders remains applicable only in an interstate case.

Initiating State Responsibility for Distribution and Disbursement of Collections

Proposed § 303.7(c)(11) requires that the initiating State: Distribute and disburse any support collections received in accordance with distribution and disbursement requirements in this section and §§ 302.32, 302.51 and 302.52 of this chapter, sections 454(5), 454B, 457, and 1912 of the Act, and instructions issued by the Office. Current regulations at § 303.7(c)(7)(iv) and proposed § 303.7(d)(6)(iv) require the responding State to forward payments to the location specified by the initiating State. However, there is no stated responsibility in current § 303.7 for distribution and disbursement by the initiating agency. We believe it is appropriate to explicitly include initiating State responsibility for distribution and disbursement of collections in proposed § 303.7(c)(11).

Initiating State Notice of Case Closure

We have proposed two new provisions under initiating State responsibilities that are related to case closure. Proposed § 303.7(c)(12) requires an initiating State agency to “notify the responding agency within 10 workingdays of case closure that the initiating State IV-D agency has closed its case pursuant to § 303.11 of this part.” This provision is consistent with other requirements in proposed § 303.7(c) to keep the responding jurisdiction advised of the status of the intergovernmental case. It is added for clarity; we believe that States already are required to provide a change in case status as “new information” under existing regulations. This provision ensures the responding agency is notified of case closure in the initiating State.

The second case closure-related provision addresses direct income withholding. Section 303.100(f)(1) and (2) contain current Federal requirements for direct income withholding. In essence, State law must require all employers in the State to comply with a properly-completed withholding order/notice issued by another State. Article 5 of UIFSA, enacted in every State, mirrors the choice of law requirements in paragraph (f)(2) and provides procedures for direct income withholding.

While direct income withholding has proved to be effective, in paragraph (c)(13) we address the issue of duplicate withholding notices/orders for the same obligor being sent to the obligor's employer by both the initiating and responding States in the same interstate case. We propose requiring the initiating agency under paragraph (c)(13) to “instruct the responding State agency to close its interstate case and to stop any withholding order or notice the responding agency has sent to an employer before the initiating State transmits a withholding order or notice to the same or another employer unless the two States reach an alternative agreement on how to proceed.” The initiating State would be re