Final Rule: Allotments for Child and Spousal Support
July 15, 1986
TO:STATE AGENCIES ADMINISTERING CHILD SUPPORT ENFORCEMENT PLANS APPROVED UNDER TITLE IV-D OF THE SOCIAL SECURITY ACT AND OTHER INTERESTED INDIVIDUALS
SUBJECT:Allotments for Child and Spousal Support - Final Rule
REFERENCE: 32 CFR Part 54
ATTACHMENT:Attached are final regulations, issued by the Department of Defense (DOD), which implement section 172 of P. L. 97-248, the Tax Equity and Fiscal Responsibility Act of 1982. These final regulations provide guidance on processing allotments for child and spousal support from the pay of active duty military personnel, when direct payment is requested by an authorized person. These regulations, at 32 CFR 54.6(e)(5), require that DOD must be notified of any modifications in the court orders, or of any other event that will affect an individual's eligibility to receive the allotment.
DATE: June 3, 1986
MATERIAL: OCSE-AT-86-1, dated January 8, 1986
REFERENCE: OCSE-AT-82-15, dated November 1, 1982
INQUIRIES TO: OCSE Regional Representatives
Robert C. Harris
Deputy Director for
Policy, Program and Audit
DEPARTMENT OF DEFENSE
32 CFR Part 54
[DoD Directive 1340.17]
Allotments for Child and Spousal Support
AGENCY: Office of the Secretary of Defense, DoD.
ACTION: Final rule.
SUMMARY: This rule implements section 172 of Pub. L. 97-248, which is codified under title 42, United States Code, section 665 (42 U.S.C. 665). It provides guidance on processing allotments for child and spousal support from the pay of active duty military personnel, when direct payment is requested by an authorized person. The final rule is substantially the same as the interim rule published in the Federal Register December 6, 1985 (50 FR 49927]. Changes are primarily administrative.
EFFECTIVE DATE: June 3, 1986.
ADDRESS: Office of the Deputy Assistant Secretary of Defense (Management Systems), Washington, DC 20310.
FOR FURTHER INFORMATION: Mr. James T. Jasinski, telephone 202-
SUPPLEMENTARY INFORMATION: Written comments where requested by January 21, 1986. Seven comments were received. All comments were considered in the final rule. Significant comments and changes are highlighted in the discussion that follows:
General. Several comments noted the differences between 45 CFR 303 and this rule. This rule is consistent with the requirements of Pub. L. 97-248 codified under 42 U.S.C. 665, that are not amended, modified, nor superseded by Pub. L. 98-378, the statutory basis for 45 CFR 303. Since these rules do not have a common root, it is understandable that specific provisions of each differ.
Section 54.3(f). One comment recommended a statement be added that support orders can be administrative as well as court orders. This point is adequately covered under the definition for notice. Another comment suggested adding courts of Indian offenses after Indian tribal courts. It was not adopted.
Section 54.4 One comment suggested amending the policy statement to make the delinquency period consistent with Pub. L.98-378. The operative statute in our view is Pub.L.97-248 that specifies a 2-month delinquency for military members.
Section 54.6(a)(1)(i). A comment expressed concern that military personnel rights could be jeopardized without a statement on the Soldiers and Sailors Civil Relief Act. Adequatesafeguards are built into the processing system to protect the member from wrongful notice.
Section 54.6(a)(1)(ii). Two comments took exception to the variance between this subsection and procedures found in 45 CFR 303.100. Since the service member is most likely located outside the jurisdiction filing the support order and the service member will have limited capabilities for confirming the validity of the support order, such a requirement is reasonable.
Section 54.6(a)(1)(iii). There were two comments. One was directed at eliminating the requirement that the support order specify the payment of arrearages. And, the other requested that the allotment be paid at the maximum permitted within the legal limitations in the absence of a stated amount for the liquidation of arrearage in the support order. Both comments were unacceptable because they eliminate requirements necessary to administer the statute properly.
Section 54.6(a)(1)(vi). It was requested that DoD permit allotments to the authorized person's designee, for administrative reasons. We have adopted the request.
Section 54.6(a)(2). Several comments commended the elimination of the use registered mail when giving notice to the Military Services' designated officials.
Section 54.6(a)(5). One comment stated that it was difficult to collect arrearages based on court orders and suggested that affidavits be accepted. DoD's role is to make the allotment based on court direction. Therefore, it imperative that the courts define collection actions.
Section 54.6(b). A comment questioned the exclusion of basic allowance for quarters for members without dependents in the grade E-6 and below. Another comment asked for exclusion of entitlements attributed to risk of life from disposable earnings. DoD has applied the criteria for voluntary allotments in determining inclusion and exclusion of entitlements, since 42 U.S.C. 665 provides for payment by allotment.
Section 54.6(c)(1)(iii). One comment took exception to challenges from service members. The provision provides an important safeguard of the member's rights.
Section 54.6(c)(5). Several commenters objected to the denial of a request for an allotment based on the member's affidavit. The denial of payment gives both the child support agency and the member an opportunity to resolve any dispute. DoD agrees with one comment that the court that issued the order is the proper place to resolve issues.
Section 54.6(d)(1). A comment noted that payments would be more expeditiously processed if the payments were made not later than the first end-of-month payday after 30 days have elapsed from the date of the notice to the member. The revision is more equitable to the member given the limited time to respond.
Executive Order 12291
DoD has determined that this rule is not a major rule for the purpose of E.O. 12291, because it is not likely to have an annual effect on the economy of $100 million or more, andtherefore does not require a regulatory impact analysis.
Paperwork Reduction Act
The rule contains information collection requirements that have been approved by the Office of Management and Budget (OMB). The OMB control number is 0704-0180.
Regulatory Flexibility Act of 1980
I certify that this rule shall be exempt from the requirements under 5 U.S.C. 601-612. In addition, the rule does not have a significant economic effect on small entities as defined in the Regulatory Flexibility Act.
Patricia H. Means,
OSD Federal Register Liaison Officer,
Department of Defense.
June 26, 1986.
List of Subjects in 32 CFR Part 54
Child support and military personnel.
Accordingly, 32 CFR, Chapter 1, is amended by revising Part 54 to read as follows:
PART 54-ALLOTMENTS FOR CHILD AND SPOUSAL SUPPORT
54.2 Applicability and scope.
Authority: 15 U.S.C. 1673, 37 U.S.C. 101, 42 U.S.C. 665.,
Under section 65 of title 42, United States Code, this Part provides policy on statutorily required child or child and spousal support allotments, assigns responsibilities, and prescribes procedures.
Ãµ54.2 Applicability and scope.
(a) This part applies to the Office of the Secretary of Defense (OSD) and the Military Departments. The term "Military Services." as used herein, refers to the Army, Navy, Air Force, and Marine Corps.
(b) Its provisions cover members of the Military Services on extended active duty. This does not include a member under a call or order to active duty for a period of less than 30 days.
(a) Authorized person. Any agent or attorney of any state having in effect a plan approved under part D of title of the Social Security Act (42 U.S.C. 651-664), who has the duty or authority to seek recovery of any amounts owed as child or child and spousal support (including, when authorized under the state plan, any official of a political subdivision); and the court that has authority to issue an order against a member for the support and maintenance of a child or any agent of such court.
(b) Child support. Periodic payments for the support and maintenance of a child or children, subject to and in accordance with state or local law. This includes, but is not limited to, payments to provide for health care, education, recreation, and clothing or to meet other specific needs of such a child or children.
(c) Designated official. The representative of the Military Service concerned who is authorized to receive and to process notices under this part. See Ãµ 54.6(f) for a listing of designed officials.
(d) Notice. A court order, letter, or similar documentation issued by an authorized person providing notification that a member has failed to make periodic support payments under a support order.
(e) Spousal support. Periodic payments for the support and maintenance of a spouse or former spouse, in accordance with state and local law. It includes, but is not limited to, separate maintenance, alimony while litigation continues, and maintenance. Spousal support does not include any payment for transfer of property or its value by an individual to his or her spouse or former spouse in compliance with any community property settlement, equitable distribution of property, or other division of property between spouses or former spouses.
(f) Support order. Any order providing for child or child and spousal support issued by a Court of competent jurisdiction within any state, territory, or possession of the United States including Indian tribal courts, or in accordance with administrative procedures established under state law that affords substantial due process and is subject to judicial review.
The Department of Defense is obligated by 42 U.S.C. 665 to require child, or child and spousal, support allotments from the pay and allowances of a member who has failed to make periodic payments under a support order in a total amount equal to the support payable for 2 months or longer. The member's allotment shall be established by the Secretary of the Military Department concerned, or the Secretary's designee, provided all requirements of this Part have been met.
(a) The Assistant Secretary of Defense, (Comptroller) (ASD(C)) shall provide guidance, monitor compliance with this part, and have the authority to change or modify the procedures in 54.6.
(b) The Secretaries of the Military Departments shall comply with this part.
(a) Notice to designated official. (1) An authorized person shall send to the designated official of the member's Military Service a signed notice that includes:
(i) A statement that delinquent support payments equal or exceed the amount of support payable for 2 months under a support order, and a request that an allotment be initiated pursuant to 42 U.S.C. 665.
(ii) A certified copy of the support order.
(iii) The amount of the monthly support payment. Such amount may include arrearges, if a support order specifies the payment of such arrearages. The notice shall indicate how much of the amount payable shall be applied toward liquidation of the arrearages.
(iv) A statement that delinquent support payments are more than 12 weeks in arrears, if appropriate.
(v) Sufficient information identifying the member to enable processing by the designated official. The following information is requested:
(A) Full name;
(B) Social Security Number;
(C) Military Service (Army, Navy, Air Force, or Marine Corps.)
(vi) The full name and address of the allottee. The allottee shall be an authorized person, the authorized person's designee or the recipient named in the support order.
(vii) Any limitations on the duration of the support allotment.
(viii) A certificate that the official sending the notice is an authorized person.
(2) The notice shall be sent by mail or delivered in person to the appropriate designated official of the Military Service. The designated official shall note the date and time of receipt on the notice.
(3) The notice is effective when it is received in the office of the designated official.
(4) When the notice does not sufficiently identify the member, it shall be returned directly to the authorized person with an explanation of the deficiency. However, before the notice is returned, if there is sufficient time, an attempt shall be made to inform the authorized person who sent the notice that it will not be honored unless adequate information is supplied.
(5) Upon receipt of effective notice of delinquent support payments, together with all required supplementary documents andinformation, the designated official shall identify the member from whom moneys are due and payable. Under Ãµ 54.6(d), the allotment shall be established in the amount necessary to comply with the support order and to liquidated arrearages if provided by a support order when the maximum amount to be allotted under this provisions together with any other moneys withheld for support from the member, does not exceed:
(i) Fifty percent of the member's disposable earnings for any month in which the member asserts by affidavit or other acceptable evidence that he or she is supporting a spouse, dependent child, or both, other than a party in the support order. When the member submits evidence, copies shall be sent to the authorized person, together with notification that the member's support claim shall be honored. If the support claim is contested by the authorized person, that authorized person may refer this matter to the appropriate court or other authority for resolution.
(ii) Sixty percent of the member's disposable earnings for any month in which the member fails to assert by affidavit or other acceptable evidence that he or she is supporting a spouse, dependent child, or both.
(iii) Regardless of the limitations above, an additional 5 percent of the member's disposable earnings shall be withheld when the notice states that the total amount of the member's support payments is 12 or more weeks in arrears.
(b) Disposable Earnings. (1) In determining disposable earnings for a member assigned within the contiguous United States, include the following payments. For definitions of these items, see DoD 5000.12-M.
(i) Basic pay (including Military Service academy cadet and midshipman pay).
(ii) Basic allowance for quarters for members with dependents, and for members without dependents in grade E-7 or higher.
(iii) Basic allowance for subsistence for commissioned and warrant officers.
(iv) Special pay for physicians, dentists, optometrists, and veterinarians.
(v) Submarine pay.
(vi) Flying pay (all crew members).
(vii) Diving pay.
(viii) Proficiency pay or special duty assignment pay.
(ix) Career sea pay.
(2) To determine disposable earnings for a member assigned outside of the contiguous United States, the following shall supplement the payments listed in paragraph (b)(1) of this section:
(i) Foreign duty pay.
(ii) Special pay for duty subject to hostile fire (applies only to members permanently assigned in a designated area).
(iii) Family separation allowances (only under certain type-II conditions).
(iv) Special pay for overseas extensions.
(c) Calculations of disposable earnings shall exclude:
(1) Amounts owed by the member to the United States.
(2) Amounts mandatorily withheld for the U.S. Soldiers' and Airmen's Home.
(3) Fines and forfeitures ordered by a court-martial or by a commanding officer.
(4) Federal and state employment and income taxes withheld to the extent that the amount deducted is consistent with the member's tax liability.
(5) Deductions for the Servicemen's Group Life Insurance coverage.
(6) Advances of pay received by the member before receipt of notice (see paragraph (c)(1) of this section) that may be due and payable by the member at same future date. Requests for advances received after notice for a statutorily required support allotment shall be reduced by the amount of the statutorily required support allotment.
(7) Other amounts required by law to be deducted.
(d) Notice to member and member's Commanding Officer.
(1) As soon as possible, but not later than 15 calendar days after the date of receipt of notice, the designated official
shall send to the member, at his or her duty station, written notice:
(i) That notice has been received from an authorized person including a copy of the documents submitted.
(ii) Of the maximum limitations provided in 15 U.S.C. 1673, with a request that the member submit supporting affidavits or other documentation necessary for determining the applicable percentage limitation.
(iii) That the member may submit supporting affidavits or other documentation as evidence that the information contained in the notice is in error.
(iv) That by submitting supporting affidavits or other necessary documentation, the member consents to the disclosure of such information to the party requesting the support allotment.
(v) Of the amount or percentage that will be deducted if the member fails to submit the documentation necessary to enable the designated official to respond to the notice within the prescribed time limits.
(vi) That a consultation with a judge advocate or legal officer will be provided by the Military Service, if possible and that the member should immediately contact the nearest legal services office.
(vii) Of the date that the allotment is scheduled to begin.
(2) The designated official shall notify the member's commanding officer, or designee, of the need for consultation between the member and a judge advocate or legal officer. The designated official shall provide the member's commanding officer or designee with a copy of the notice and other legal documentation served on the designated official.
(3) The Military Services shall provide the member with the following:
(i) When possible, an in-person consultation with a judge advocate or legal officer of the Military Service concerned, to discuss the legal and other factors, involved in the member's support obligation and failure to make payment.
(ii) Copies any other documents submitted with the notice.
(4) The member's commanding officer, or designee, shall confirm in writing to the designated official within 30 days of notice that the member received a consultation concerning the member's support obligation and the consequences of failure to make payments, or when appropriate, of the inability to arrange such consultation and the status of continuing efforts to fulfill the consultation requirement.
(5) If, within 30 days of the date of the notice, the member has furnished the designated official affidavits or other documentation showing the information in the notice to be in error, the designated official shall consider the member's response. The designated official may return to the authorized person, without action, the notice for a statutorily required support allotment together with the member's affidavit and other documentation, if the member submits substantial proof of error, such as:
(i) The support payments are not delinquent.
(ii) The underlying support order in the notice has been amended, superseded, or set aside.
(e) Payments. (1) Except as provided paragraph (e)(3) the Secretary of the Military Department concerned, or designee, shall make the support allotment by the first end-of-month payday after the designated official is notified that the member has had a consultation with a judge advocate or legal officer, or that a consultation was not possible, but not later than the first end-of-month payday after 30 days have elapsed from the date of the notice to the member. The Military Services will not be required to vary their normal military allotment payment cycle to comply with the notice.
(2) If several notices-are sent with respect to the same member, payments shall be satisfied on a first-come, first-served basis within the amount limitations in paragraph (a)(5) of this section.
(3) When the member identified in the notice is found not to be entitled to money due from or payable by the Military Service, the designated official shall return the notice to the authorized person and shall advise him or her that no money is due from or payable by the Military Service to the named individual. When it appears that amounts are exhausted temporarily or otherwise unavailable, the authorized person shall be told why, and for how long, any money is unavailable, if known. If the member separates from active duty, the authorized person shall be informed that the allotment is discontinued.
(4) Payment of statutorily required allotments shall be enforced over other voluntary deductions and allotments when the gross amount of pay and allowances is not sufficient to permit all the authorized deductions and collections.
(5) The authorized person or allottee shall notify the designated official promptly if the operative court order upon which the allotment is based is vacated, modified, or set aside. The designated official shall also be notified of any events affecting the allottee's eligibility to receive the allotment, such as the former spouse's remarriage, if a part of the payment is for spousal support, and notice of a change in eligibility for child support payments under circumstances of death, emancipation, adoption, or attainment of majority of a child whose support is provided through the allotment.
(6) An allotment established under this Directive shall be adjusted or discontinued upon notice from the person.
(7) Neither the Department of Defense, nor any officer or employee thereof, shall be liable for any payment made from moneys due from, or payable by, the Department of Defense to any individual pursuant to notice regular on its face, if such payment is made in accordance with this Part. If a designated official receives notices based on a support order which, on its face, appears to conform to the laws of the jurisdiction from which it was issued; the designated official shall not be required to ascertain whether the authority that issued the order had obtained personal jurisdiction over the member.
(f) List of designated officials.
Army-Commander, U.S. Army Finance and Accounting Center, ATTN: FINCL-G, Indianapolis, IN 48249-0160, (317) 542-2155.
Navy-Director, Navy Family Allowance Activity, Anthony J. Celebrezze Federal Building, Cleveland, OH 44199, (216) 522-
Air Force-Commander, Air Force Accounting and Finance Center, ATTN: JA, Denver, CO 80279, (303) 370-7524.
Marine Corps--Commanding Officer, Marine Corps Finance Center (Code AA), Kansas City, MO 64197, (816) 926-7103.
[FR Doc. 86-14841 Filed 6-30-86; 8:45 am]
BILLING CODE 3810-01-M