Federal Register / Vol. 69, No. 248 / Tuesday, December 28, 2004 / Rules and Regulations 77659

(Catalog of Federal Domestic Assistance No. 

83.100, ‘‘Flood Insurance.’’) 

David I. Maurstad, 

Acting Director, Mitigation Division, 

Emergency Preparedness and Response 

Directorate.

[FR Doc. 04–28321 Filed 12–27–04; 8:45 am] 

BILLING CODE 6718–05–P

DEPARTMENT OF HEALTH AND 

HUMAN SERVICES 

Administration for Children and 

Families 

45 CFR Part 303 

Child Support Enforcement Program; 

Reasonable Quantitative Standard for 

Review and Adjustment of Child 

Support Orders

AGENCY: Office of Child Support 

Enforcement (OCSE), Health and 

Human Services (HHS).

ACTION: Interim final rule with comment 

period. 

SUMMARY: This interim final rule revises 

existing regulations on review and 

adjustment of child support orders to 

reinstate a rule which was in place since 

1993. The change permits States to once 

again use reasonable quantitative 

standards in adjusting an existing child 

support award amount after conducting 

a review of the order, regardless of the 

method of review used.

DATES: These regulations are effective 

December 28, 2004. Consideration will 

be given to comments received February 

28, 2005.

ADDRESSES: Send comments to: Office of 

Child Support Enforcement, 

Administration for Children and 

Families, 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. To download an 

electronic version of the rule, you may 

access http://www.regulations.gov. You 

may also transmit written comments 

electronically via the Internet at http://

www.regulations.acf.hhs.gov.

FOR FURTHER INFORMATION CONTACT:

Elizabeth Matheson, Division of Policy, 

OCSE, 202–401–9386, e-mail: 

ematheson@acf.hhs.gov. Deaf and 

hearing-impaired individuals may call 

the Federal Dual Party Relay Service at 

1–800–877–8339 between 8 a.m. and 7 

p.m. eastern time.

SUPPLEMENTARY INFORMATION: 

Statutory Authority 

The provisions of this regulation 

pertaining to review and adjustment of 

child support orders are published 

under the authority granted to the 

Secretary by section 466(a) of the Social 

Security Act (the Act), 42 U.S.C. 666(a). 

Section 466(a) requires each State to 

have in effect laws requiring the use of 

specified procedures, consistent with 

this section of the Act and regulations 

of the Secretary, to increase the 

effectiveness of the Child Support 

Enforcement program. Review and 

adjustment of support orders at section 

466(a)(10) of the Act is one of the 

required procedures. 

Justification for Interim Final Rule 

The Administrative Procedure Act 

requirements for notice of proposed 

rulemaking do not apply to rules when 

the agency finds that notice is 

impracticable, unnecessary or contrary 

to the public interest. We find proposed 

rulemaking unnecessary and contrary to 

the public interest, because the rule is 

not imposing new requirements or 

burdens on States, but is removing an 

administrative requirement and burden 

on agencies and families that was added 

to the technical corrections final 

regulation published in the Federal 

Register on May 12, 2003 (68 FR 25293). 

Without opportunity for public 

comment, that regulation implemented 

a substantive change to prior policy that 

was not warranted under any 

intervening amendment to the relevant 

statute. The change required States to 

adjust an order for support after a 

guidelines review, regardless of the 

amount by which the existing order is 

found to deviate from the State’s 

support guidelines. The statute, as in 

effect before and after this change, 

provided that such adjustments were 

only required ‘‘if appropriate.’’ Prior to 

that regulation, since 1993, States could 

apply a reasonable quantitative standard 

for adjustment of an order regardless of 

the method of their review of the order. 

This regulation reinstates the prior rule 

with opportunity for public comment. 

Because the regulatory change 

published on May 12 did not allow for 

public comment, and this rule merely 

reinstates the prior regulation which 

was issued pursuant to notice and 

comment, advance notice is 

unnecessary.

Background 

1992 Regulations 

Under the authority of sections 

466(a)(10) and 1102 of the Act, OCSE 

published regulations on review and 

adjustment of child support orders in 

1992. They were effective in October, 

1993. In the preamble to that regulation, 

the basis for seeking an adjustment to an 

order was described as paraphrased 

below. 

In the 1992 regulation, 45 CFR 

303.8(d) specified the requirements 

States had to meet in seeking 

adjustments to child support orders in 

IV–D cases. Paragraph (d)(1) required 

that an inconsistency between the 

existent child support order amount and 

the amount of child support which 

resulted from application of the State 

guidelines must be an adequate basis, 

under State law, for petitioning for an 

adjustment of an order in a IV–D case, 

whether or not the order was 

established using guidelines. 

Paragraph (d)(2) of the 1992 

regulation provided for an exception 

that allowed States to establish a 

quantitative standard based upon either 

a fixed dollar amount or percentage, or 

both, as a basis for determining whether 

an inconsistency is adequate grounds 

for petitioning for adjustment of the 

order. That quantitative standard, or 

threshold, was to be used as a basis for 

determining whether the inconsistency 

was sufficient to justify proceeding with 

a petition or motion for adjustment of an 

award, not as a criterion for deciding 

whether to review. Threshold standards 

were not needed if States adjusted all 

orders regardless of the degree of 

inconsistency with the guidelines. 

However, thresholds could serve to 

prevent inundating the adjustment 

process with cases in which the 

variance was minimal between the 

current order amount and the amount 

that would result from an application of 

the guidelines. 

The quantitative standard permitted 

by the 1992 regulation was meant to be 

used as a post-review decision-making 

tool. It was not intended to restrict the 

use of guidelines in setting and 

modifying support nor to limit the 

authority of the court or other authority 

to find, in a particular case, that an 

award based on guidelines was unfair or 

inappropriate. In making any 

adjustment to the amount of support, 

the judicial or administrative process 

still had to apply the State guidelines. 

Under regulations at 45 CFR 302.56, 

Guidelines for setting child support 

awards, the child support award 

calculated to be due under the 

guidelines was rebuttably presumed to 

be the correct amount of support to be 

paid. 

1997 Action Transmittal 

OCSE issued policy on review and 

adjustment of orders in OCSE–AT–97–

10 on July 30, 1997, in response to 

77660 Federal Register / Vol. 69, No. 248 / Tuesday, December 28, 2004 / Rules and Regulations 

provisions of Pub. L. 104–193, the 

Personal Responsibility and Work 

Opportunity Reconciliation Act of 1996, 

relating to review and adjustment. In 

that action transmittal, OCSE continued 

to permit States to use a reasonable 

quantitative standard for determining 

whether or not to adjust an order. 

Pertinent questions and answers from 

the action transmittal are summarized 

below. 

Q. 4. Does the requirement to ‘‘adjust 

the order in accordance with the 

guidelines * * * if the amount * * * 

differs’’ preclude a State law providing 

a threshold deviation of, for example, 

15% before an adjustment is deemed 

appropriate? 

A. No. Section 466(a)(10)(A)(i)(I) of 

the Act, as amended by section 351 of 

Pub. L. 104–193, does not preclude a 

State law from providing a threshold 

deviation before an adjustment of an 

order is appropriate. First of all, 

according to section 466(a)(10)(A)(i) of 

the Act, the State must take ‘‘into 

account the best interests of the child 

involved.’’ A small reduction in 

support, or even an increase, because of 

a deviation in the guidelines’ amount 

might not be in the child’s best interests. 

Secondly, statute and regulations allow 

the State to adjust the order, or 

determine that there should be no 

adjustment, if appropriate, in 

accordance with the State’s guidelines 

for setting child support awards. Given 

the latitude States have to apply cost-ofliving adjustments, or to set thresholds 

if they use automated methods, it was 

stated that there was similar latitude for 

States to determine that small 

deviations are ‘‘inappropriate’’ for 

adjustment. 

Given the complexity of the most 

States’’ review and adjustment process, 

as well as State child support 

guidelines, it may not be in the child’s 

best interest for parents, child support 

agencies, and courts to wrangle over 

very small amounts of money. The 

application of child support guidelines 

often involves far more than a simple 

calculation of a portion of a parent’s 

income. Both the review process and the 

adjustment process are time-consuming 

and involve multiple parties in most 

States. Despite authority in the Federal 

statute, very few States have automated 

review processes in place and about half 

the States have court-based systems for 

adjusting orders. 

Q. 7. Under section 466(a)(10)(A)(i)(I) 

of the Act, does ‘‘if appropriate’’ mean 

that if a State reviews a case under the 

3-year cycle provision using State 

guidelines, it can determine not to 

adjust the order if the inconsistency 

between the current order and the 

guideline’s amount does not meet the 

‘‘reasonable quantitative standard 

established by the State’’? 

A. Yes. Under section 

466(a)(10)(A)(i)(I) of the Act, the 

language ‘‘if appropriate, adjust the 

order’’ is consistent with regulations 

which said that, if a State reviews a case 

under the 3-year cycle provision using 

State guidelines, it can determine not to 

adjust the order if the inconsistency 

between the current order and the 

guideline amount does not meet the 

‘‘reasonable quantitative standard 

established by the State’’. Under the 

regulations, the State could establish a 

reasonable quantitative standard based 

upon either a fixed dollar amount or 

percentage, or both, as a basis for 

determining whether an inconsistency 

between the existent child support 

award amount and the amount of 

support which resulted from application 

of the guidelines was adequate grounds 

for petitioning for adjustment of the 

order. Therefore, a reasonable 

quantitative standard could be used to 

determine not to adjust the order. 

Q. 8. Is it only under section 

466(a)(10)(A)(i)(III) that a State can 

establish a standard for determining 

when an adjustment is warranted?

A. No. Under both sections 

466(a)(10)(A)(i)(I) (guidelines review) 

and (III) (automated review), as 

amended by section 351 of Pub. L. 104–

193, it is appropriate for the State to use 

its threshold standard to determine if an 

adjustment is appropriate. 

Q. 10. Under section 466(a)(10)(A)(ii) 

of the Act does ‘‘if appropriate’’ mean 

that a State can determine not to 

(re)adjust the order if the inconsistency 

between current and guideline support 

does not merit an adjustment based on 

the ‘‘reasonable quantitative standard 

established by the State’’? 

A. Yes. Under section 466(a)(10)(A)(ii) 

of the Act (opportunity to contest an 

adjustment), a State can determine not 

to (re)adjust the order if the 

inconsistency between current and 

guideline support does not merit an 

adjustment based on the reasonable 

quantitative standard established by the 

State. 

Provisions of the Regulation 

In OCSE–AT–97–10, OCSE said it was 

working on a regulation to eliminate 

inconsistencies between title IV–D 

regulations and Pub. L. 104–193. That 

regulation was published in the Federal 

Register on May 12, 2003. (68 FR 

25293). That regulation did not retain 

the regulatory policy described above. 

Rather, it limited use of the reasonable 

quantitative standard to adjustments in 

cases that were reviewed by automated 

methods. In the preamble to the May 12 

rule, we said: ‘‘We are revising 

paragraph (c) to clarify that States may 

use a quantitative standard only in cases 

involving the use of automated methods 

in accordance with section 

466(a)(10)(A)(i)(III) of the Act. That 

section alone refers to orders being 

‘‘eligible for adjustment,’’ recognizing 

there might be some standard set to 

determine eligibility for adjustment. The 

other two methods of review (guidelines 

and cost-of-living) do not contain this 

language. Sections 303.8(a) and (d) 

through (f) remain as published in the 

interim final rule.’’

The change to paragraph (c) in the 

May 12 final rule was not required by 

any change in the underlying statute, 

and it clearly was not mandated by Pub. 

L. 104–193, as the statute was 

interpreted in OCSE–AT–97–10. Nor 

should the change have been issued in 

a final rule without opportunity for 

comment. The interim final regulation 

in today’s Federal Register reinstates 

the original rule with opportunity for 

public comment. 

Under this interim rule a State may 

establish a reasonable quantitative 

standard, based on either a fixed dollar 

amount or percentage, or both, as a basis 

for determining whether an 

inconsistency between the existent 

child support award amount and the 

amount of support determined as a 

result of a review is adequate grounds 

for petitioning for adjustment of the 

order, regardless of the method of 

review. This interim final rule allows 

States to manage their resources and 

refrain from unreasonably small order 

adjustments that may be costly and 

perhaps involve changes to States’

automated systems. Most States’ review 

and adjustment process, as well as State 

child support guidelines, are complex 

and lengthy. The application of child 

support guidelines often involves far 

more than a simple calculation of a 

portion of a parent’s income, including 

decisions with respect to child care, 

health insurance, and extraordinary 

medical expenses. Both the review 

process and the adjustment process are 

time-consuming and involve multiple 

parties in most states. Despite authority 

in the Federal statute for automated 

review and adjustment and cost-ofliving increases, very few States have 

these automated review processes in 

place and about half the States have 

court-based, rather than administrative, 

systems for adjusting orders. 

The rule minimizes the burden, stress 

and uncertainty families would face in 

opening up the orders to change despite 

little anticipated gain. In addition, the 

rule reduces complex agency and 

Federal Register / Vol. 69, No. 248 / Tuesday, December 28, 2004 / Rules and Regulations 77661

tribunal record-keeping that could lead 

to errors and lessens the burden on 

employers who would need to respond 

to constantly adjusting income 

withholding orders to address small 

differences in the amount withheld. 

It is important to note that § 303.8 

continues to require States to review 

child support orders at least every 3 

years, upon request of a parent in any 

case, and upon request of the State if 

there is an assignment of support rights 

under title IV–A of the Act, and make 

adjustments, if appropriate, if the 

reasonable quantitative standard for an 

adjustment is met. Further, under 

paragraph (b)(5) of this section, a State 

must have procedures under which a 

parent or other person who has standing 

may request a review and adjustment 

outside the regular 3-year (or shorter) 

cycle, and if the requesting party 

demonstrates a substantial change in 

circumstance, the State must adjust the 

order in accordance with its support 

guidelines.

Paperwork Reduction Act of 1995 

No new information collection 

requirements are imposed by these 

regulations, nor are any existing 

requirements changed as a result of their 

promulgation. Therefore, the 

requirements of the Paperwork 

Reduction Act of 1995 (44 U.S.C. 

3507(d)), regarding reporting and record 

keeping, do not apply. 

Regulatory Flexibility Analysis 

The Secretary certifies, under 5 U.S.C. 

605(b), as enacted by the Regulatory 

Flexibility Act (Pub. L. 96–354), that 

this rule will not result in a significant 

impact on a substantial number of small 

entities. The primary impact is on State 

governments. State governments are not 

considered small entities under the Act. 

Regulatory Impact Analysis 

Executive Order 12866 requires that 

regulations be reviewed to ensure that 

they are consistent with the priorities 

and principles set forth in the Executive 

Order. The Department has determined 

that this rule is consistent with these 

priorities and principles because there 

is broad agreement among state IV–D 

agencies that removal of the burden, and 

reinstatement of prior policy, is 

necessary. Individuals, either those 

owing or those entitled to receive child 

support, will not be harmed, as only 

small adjustments (either up or down) 

in the amount of the child support 

obligation will be avoided. This 

regulation is considered a ‘‘significant 

regulatory action’’ under 3f of the 

Executive Order, and therefore has been 

reviewed by the Office of Management 

and Budget. 

Unfunded Mandates Reform Act of 

1995 

Section 202 of the Unfunded 

Mandates Reform Act of 1995 requires 

that a covered agency prepare a 

budgetary impact statement before 

promulgating a rule that includes any 

Federal mandate that may result in the 

expenditure by State, local, and Tribal 

governments, in the aggregate, or by the 

private sector, of $100 million or more 

in any one year. 

If a covered agency must prepare a 

budgetary impact statement, section 205 

further requires that it select the most 

cost-effective and least burdensome 

alternative that achieves the objectives 

of the rule and is consistent with the 

statutory requirements. In addition, 

section 203 requires a plan for 

informing and advising any small 

governments that may be significantly 

or uniquely impacted by the rule. 

We have determined that the interim 

final rule will not result in the 

expenditure by State, local, and Tribal 

governments, in the aggregate, or by the 

private sector, of more than $100 

million in any one year. Accordingly, 

we have not prepared a budgetary 

impact statement, specifically addressed 

the regulatory alternatives considered, 

or prepared a plan for informing and 

advising any significantly or uniquely 

impacted small governments.

Congressional Review 

This regulation is not a major rule as 

defined in 5 U.S.C. chapter 8. 

Assessment of Federal Regulations and 

Policies on Families 

Section 654 of the Treasury and 

General Government Appropriations 

Act of 1999 requires Federal agencies to 

determine whether a proposed policy or 

regulations may affect family wellbeing. If the agency’s determination is 

affirmative, then the agency must 

prepare an impact assessment 

addressing seven criteria specified in 

the law. These regulations will not have 

an impact on family well-being as 

defined in the legislation. 

Executive Order 13132 

Executive Order 13132 on Federalism 

applies to policies that have Federalism 

implications, defined as ‘‘regulations, 

legislative comments or proposed 

legislation, and other policy statements 

or actions that have substantial direct 

effects on the States, or on the 

distributions of power and 

responsibilities among the various 

levels of government’’. This rule does 

not have Federalism implications for 

State or local governments as defined in 

the Executive Order.

List of Subjects in 45 CFR Part 303 

Child support, Grant programs—

social programs.

(Catalog of Federal Domestic Assistance 

Programs No. 93.563, Child Support 

Enforcement Program.)

Dated: May 25, 2004. 

Wade F. Horn, 

Assistant Secretary for Children and Families. 

Date Approved: September 29, 2004. 

Tommy G. Thompson, 

Secretary of Health and Human Services.

■ For the reasons discussed above, title 

45 CFR chapter III 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), 

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

§ 303.8 [Amended]

■ 2. In § 303.8, paragraph (c) is amended 

by removing ‘‘using automated methods 

under paragraph (b)(1)(iii) of this 

section’’.

[FR Doc. 04–28410 Filed 12–27–04; 8:45 am] 

BILLING CODE 4184–01–P

GENERAL SERVICES 

ADMINISTRATION

48 CFR Part 504

GSAR Amendment 2004–04; GSAR Case 

2004–G509 (Change 12)

RIN 3090–AI00

General Services Administration 

Acquisition Regulation; Access to the 

Federal Procurement Data System

AGENCY: Office of the Chief Acquisition 

Officer, General Services 

Administration (GSA).

ACTION: Interim rule with request for 

comments.

SUMMARY: The General Services 

Administration (GSA) is amending the 

General Services Administration 

Acquisition Regulation (GSAR) by 

adding coverage to specify the rate that 

will be charged to non-governmental 

entities in exchange for permitting them 

to establish a direct computer 

connection with the Federal 

Procurement Data System database.

DATES: Effective Date: December 28, 

2004.