Proposed Rule2022-19854
Privacy Act; Implementation
Primary source
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Published
September 13, 2022
Issuing agencies
Health and Human Services Department
Abstract
HHS proposes to exempt certain records in an existing system of records maintained by OCSE within ACF from the accounting, access, and amendment requirements of the Privacy Act. The affected system of records is OCSE Federal Case Registry of Child Support Orders, HHS/ACF/ OCSE, System No. 09-80-0385. Only case files marked with the Family Violence Indicator (FVI) are proposed to be exempted, to align with a restriction in the Social Security Act which prohibits disclosure of case files marked with the FVI to anyone other than a court or agent of a court, to avoid harm to the custodial parent or the child of such parent. Elsewhere in this issue of the Federal Register, HHS/ACF has published an updated system of records notice (SORN) for system 09-80- 0385 for public notice and comment.
Full Text
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<title>Federal Register, Volume 87 Issue 176 (Tuesday, September 13, 2022)</title>
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[Federal Register Volume 87, Number 176 (Tuesday, September 13, 2022)]
[Proposed Rules]
[Pages 55977-55979]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-19854]
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DEPARTMENT OF HEALTH AND HUMAN SERVICES
45 CFR Part 5b
RIN 0970-AC92
Privacy Act; Implementation
AGENCY: Office of Child Support Enforcement (OCSE), Administration for
Children and Families (ACF), Department of Health and Human Services
(HHS or the Department).
ACTION: Notice of proposed rulemaking.
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SUMMARY: HHS proposes to exempt certain records in an existing system
of records maintained by OCSE within ACF from the accounting, access,
and amendment requirements of the Privacy Act. The affected system of
records is OCSE Federal Case Registry of Child Support Orders, HHS/ACF/
OCSE, System No. 09-80-0385. Only case files marked with the Family
Violence Indicator (FVI) are proposed to be exempted, to align with a
restriction in the Social Security Act which prohibits disclosure of
case files marked with the FVI to anyone other than a court or agent of
a court, to avoid harm to the custodial parent or the child of such
parent. Elsewhere in this issue of the Federal Register, HHS/ACF has
published an updated system of records notice (SORN) for system 09-80-
0385 for public notice and comment.
DATES: Consideration will be given to written comments on this notice
of proposed rulemaking (NPRM) received on or before November 14, 2022.
ADDRESSES: You may submit comments, identified by [docket number ACF-
2022-0003 and/or Regulatory Information Number (RIN) number 0970-AC92],
by one of the following methods:
<bullet> Federal e-Rulemaking Portal: <a href="http://www.regulations.gov">http://www.regulations.gov</a>.
Follow the instructions for submitting comments.
<bullet> Mail: Written comments may be submitted to: Office of
Child Support Enforcement, Attention: Division of Policy and Training,
330 C Street SW, Washington, DC 2020, Attention: Tricia John.
Instructions: All submissions received must include the agency name
and docket number or RIN for this rulemaking. All comments received
will be posted without change to <a href="https://www.regulations.gov">https://www.regulations.gov</a>, including
any personal information provided.
FOR FURTHER INFORMATION CONTACT: General questions about the proposed
exemptions may be submitted to Yvette Riddick, Director, Division of
Policy and Training, Office of Child Support Enforcement,
<a href="/cdn-cgi/l/email-protection#cb92bdaebfbfaee599a2afafa2a8a08baaa8ade5a3a3b8e5aca4bd"><span class="__cf_email__" data-cfemail="7c250a19080819522e151818151f173c1d1f1a5214140f521b130a">[email protected]</span></a>. 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. Background
The Privacy Act of 1974, as amended, 5 U.S.C. 552a (hereafter
abbreviated ``Privacy Act'' or ``Act''), governs how the U.S.
Government collects, maintains, uses, and disseminates records about
individuals that are maintained in a ``system of records.'' A system of
records is a group of any records under the control of an agency from
which information about an individual is retrieved by the name of the
individual or by some identifying number, symbol, or other identifying
particular assigned to the individual. See 5 U.S.C. 552a(a)(4) and (5).
Under the Privacy Act, individuals have access and amendment rights
with respect to records about them in a federal agency system of
records, and the right to seek an accounting of certain disclosures
made of the records about them, but the Act permits certain types of
systems of records (identified in subsections (j) and (k) of the Act)
to be exempted from those, and other, requirements of the Act.
Subsection (k)(2) permits the head of an agency to promulgate rules to
exempt investigatory material compiled for law enforcement purposes
from requirements including those listed in 5 U.S.C. 552a(c)(3) and
(d)(1) through (4)--subject to a limitation stated in 5 U.S.C.
552a(k)(2). The limitation is that if, as a result of the agency's
maintenance of the material, the subject individual is denied any
right, privilege, or benefit that the individual would otherwise be
entitled by federal law or for which the individual would otherwise be
eligible, the exemptions will apply only to confidential source
identifying material (i.e., material that would reveal the identity of
a source who furnished information to the Government under an express
promise that the identity of the source would be held in confidence).
The system proposed for exemption, OCSE Federal Case Registry of
Child Support Orders, HHS/ACF/OCSE, System No. 09-80-0385 (hereafter
abbreviated ``FCR''), is a Privacy Act system containing investigatory
material compiled for law enforcement purposes. The system of records
was established August 24, 1998 (see 63 FR 45080) and was last modified
in full on April 2, 2015 (see 80 FR 17912) and partially updated on
February 14, 2018 (see 83 FR 6591). FCR records are compiled to assist
states in administering programs under 42 U.S.C. 651 to 669b (title IV-
D of the Social Security Act) to improve states' abilities to locate
parents and collect child support. OCSE is required to compare records
transmitted to or maintained within the FCR to records maintained
within HHS/ACF's National Directory of New Hires and other federal
agencies' databases and to disclose information about the individuals
within the records to state child support agencies or other authorized
persons. The information in the FCR assists state child support
agencies or other authorized persons to locate individuals who are
involved in child support cases and their employment and asset
information. The FCR also conducts FCR-to-FCR comparisons to locate
information about individuals who are involved in child support cases
in more than one state and provides the information to those states.
Additional purposes of the FCR are specified in sections 453 and 463 of
the Social Security Act (42 U.S.C. 653, 663) and include assisting
states in administering programs under 42 U.S.C. 601 to 619 (title IV-A
of the Social Security Act); assisting states in carrying out their
responsibilities under child and family services programs operated
under 42 U.S.C. 621 through 629m (title IV-B of the Social Security
Act); assisting Foster Care and Adoption Assistance programs operated
under 42 U.S.C. 670 through 679c (title IV-E of the Social Security
Act); providing individuals' states of residence sought pursuant to the
Convention on the Civil Aspects of International Child Abduction to
authorized persons in a Central Authority; assisting the Attorney
General of the United States in locating any parent or child for the
purpose of enforcing state or federal law with respect to the unlawful
taking or restraint of a child, or making or enforcing a child custody
or visitation determination; and assisting the Secretary of the
Treasury in administering the sections of the Internal Revenue Code
that grant tax benefits based on support or residence of children. FCR
records, without personal identifiers, are also available for research
purposes likely to contribute to achieving the purposes of the
Temporary Assistance for Needy Families (TANF) or the federal/state
child support program.
A disclosure prohibition in section 453(b)(2) of the Social
Security Act
[[Page 55978]]
(42 U.S.C. 653(b)(2)) applies to FCR case files marked with the FVI; it
prohibits the disclosure of information from the FCR if a state has
notified OCSE that the state has reasonable evidence of domestic
violence or child abuse and that disclosure of such information could
be harmful to the custodial parent or child. See also 45 CFR 303.21(e)
(describing safeguarding requirements for files marked with the FVI).
The proposed exemptions from the Privacy Act's accounting, access, and
amendment requirements will apply only to FCR case files marked with
the FVI. The exemptions will apply to the entire contents of such
files. The FVI indicates there is reasonable evidence of domestic
violence or child abuse.
II. Exemption Rationales
The proposed exemptions are necessary to align with the disclosure
restriction in section 453(b)(2) of the Social Security Act prohibiting
disclosure of case files marked with the FVI to anyone other than a
court or agent of a court, to avoid harm to custodial parents and
children of such parents. The specific rationales that support the
exemptions, as to each affected Privacy Act provision, are as follows:
<bullet> Subsection (c)(3). Exempting files marked FVI from the
requirement to provide an accounting of disclosures to record subjects
is necessary to avoid revealing to a subject individual the identity of
persons receiving disclosures from the file, to protect them from
unwanted contacts by subject individuals. A subject individual might
seek to contact and harass disclosure recipients identified in an
accounting in an attempt to get them to reveal protected information in
the file about the custodial parent and child of the custodial parent
(such as their address information) and about sources who provided
family violence-related information in the file and the nature of the
information they provided, which if revealed to the subject individual
would enable the subject individual or others acting in concert with
the subject individual to harm, threaten, harass, or retaliate against
the custodial parent, child, and sources; intimidate them from
testifying or from applying for child support enforcement services; or
improperly influence their testimony and interfere with court
proceedings. In instances in which sources were expressly promised
confidentiality by the Government in exchange for information they
provided, revealing their identities would also violate those express
promises of confidentiality.
<bullet> Subsection (d)(1). Exempting files marked FVI from access
by record subjects is necessary to prevent a subject individual from
learning, directly from the file, protected information in the file
about the custodial parent and child of the custodial parent (such as
their address information) and about sources who provided family
violence-related information in the file and the nature of the
information they provided, resulting in the same harms described above.
<bullet> Subsection (d)(2) through (4). Exempting files marked FVI
from the Privacy Act's amendment provisions is necessary because any
discussion of the contents of a record sought to be amended in such a
file, as required to process the amendment request, would reveal
protected information in the file in violation of 42 U.S.C. 653(b)(2).
Accordingly, pursuant to 5 U.S.C. 552a(k)(2), the Department
proposes to exempt files marked FVI in system of records 09-80-0385
OCSE Federal Case Registry of Child Support Orders, HHS/ACF/OCSE, from
the access, amendment, and accounting of disclosures provisions of the
Privacy Act (5 U.S.C. 552a(c)(3) and (d)(1) through (4)), to the extent
of, and based on, the specific rationales stated above. Notwithstanding
the exemptions, ACF/OCSE will consider any requests for access,
amendment, or accountings of disclosures that are addressed to the
System Manager as provided in the SORN for system of records 09-80-
0385.
This proposed rule would amend 45 CFR 5b.11(b)(3)(ii) of the
Department's Privacy Act regulations to read ``Pursuant to subsection
(k)(2) of the Privacy Act'' instead of ``[Reserved]'' and to list this
system of records at a newly added (b)(3)(ii)(A), followed by a newly
added (b)(3)(ii)(B) stating ``[Reserved].'' We request public comment
on these proposed exemptions.
III. Paperwork Reduction Act
No new information collection requirements are imposed by this
regulation.
IV. Analysis of Impacts
Executive Orders 12866 and 13563 direct agencies to assess all
costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health and safety effects, distributive impacts, and equity). Executive
Order 13563 emphasizes the importance of quantifying both costs and
benefits, of reducing costs, of harmonizing rules, and of promoting
flexibility. This rule meets the standards of Executive Order 13563
because it creates a short-term public benefit, at minimal cost to the
Federal Government, by not imposing penalties against a state's TANF
grant, during a time when public assistance funds are critically
needed.
Executive Order 12866 provides that the Office of Information and
Regulatory Affairs (OIRA) at the Office of Management and Budget (OMB)
will review all significant rules. OIRA has determined that this NPRM
is significant and was accordingly reviewed by OMB.
The Secretary certifies that, under 5 U.S.C. 605(b), as enacted by
the Regulatory Flexibility Act (Pub. L. 96-354), this rule will not
result in a significant impact on a substantial number of small
entities. The primary impact is on state governments. State governments
are not considered small entities under the Regulatory Flexibility Act.
The Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) requires
agencies to prepare an assessment of anticipated costs and benefits
before issuing any rule that may result in an annual expenditure by
state, local, and tribal governments, in the aggregate, or by the
private sector, of $100 million or more (adjusted annually for
inflation). That threshold level is currently approximately $164
million. This rule does not impose any mandates on state, local, or
tribal governments, or the private sector, that will result in an
annual expenditure of $164 million or more.
V. Assessment of Federal Regulations and Policies on Families
Section 654 of the Treasury and General Government Appropriations
Act of 1999 requires federal agencies to determine whether a proposed
policy or regulation may affect family well-being. If the agency's
determination is affirmative, then the agency must prepare an impact
assessment addressing seven criteria specified in the law. This
regulation does not impose requirements on states or families. This
regulation will not have an adverse impact on family well-being as
defined in the legislation.
VI. Executive Order 13132
Executive Order 13132 prohibits an agency from publishing any rule
that has federalism implications if the rule either imposes substantial
direct compliance costs on state and local governments and is not
required by statute, or the rule preempts state law,
[[Page 55979]]
unless the agency meets the consultation and funding requirements of
section 6 of the Executive Order. This rule does not have federalism
impact as defined in the Executive Order 13132.
January Contreras, Assistant Secretary of the Administration for
Children & Families, approved this document on June 6, 2022.
List of Subjects in 45 CFR Part 5b
Privacy.
Xavier Becerra,
Secretary, Department of Health and Human Services.
For the reasons stated in the preamble, the Department of Health
and Human Services proposes to amend 45 CFR part 5b as set forth below:
PART 5b--PRIVACY ACT REGULATIONS
0
1. The authority citation for part 5b continues to read as follows:
Authority: 5 U.S.C. 301, 5 U.S.C. 552a.
0
2. Amend Sec. 5b.11 by adding paragraph (b)(3)(ii) to read as follows:
Sec. 5b.11 Exempt systems.
* * * * *
(b) * * *
(3) * * *
(ii) Pursuant to subsection (k)(2) of the Privacy Act:
(A) OCSE Federal Case Registry of Child Support Orders (FCR), HHS/
ACF/OCSE, 09-80-0385; only records marked with the Family Violence
Indicator are exempt, based on the requirements of 42 U.S.C. 653(b)(2).
(B) [Reserved]
* * * * *
[FR Doc. 2022-19854 Filed 9-12-22; 8:45 am]
BILLING CODE 4184-42-P
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