Rule2023-15976
Privacy Act; Implementation
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
July 28, 2023
Effective
July 28, 2023
Issuing agencies
Health and Human Services DepartmentChildren and Families Administration
Abstract
HHS exempts 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) will be exempted, to align with a restriction in section 453(b)(2) of 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.
Full Text
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<title>Federal Register, Volume 88 Issue 144 (Friday, July 28, 2023)</title>
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[Federal Register Volume 88, Number 144 (Friday, July 28, 2023)]
[Rules and Regulations]
[Pages 48736-48738]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-15976]
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DEPARTMENT OF HEALTH AND HUMAN SERVICES
Administration for Children and Families
45 CFR Part 5b
RIN 0970-AC92
Privacy Act; Implementation
AGENCY: Office of Child Support Enforcement (OCSE), Administration for
Children and Families (ACF), U.S. Department of Health and Human
Services (HHS or the Department).
ACTION: Final rule.
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SUMMARY: HHS exempts 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) will be exempted, to align with a restriction
in section 453(b)(2) of 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.
DATES: This rule is effective on July 28, 2023.
FOR FURTHER INFORMATION CONTACT: Tricia John, Policy Specialist, OCSE
Division of Policy and Training, at <a href="/cdn-cgi/l/email-protection#442b2737216a203430042527226a2c2c376a232b32"><span class="__cf_email__" data-cfemail="88e7ebfbeda6ecf8fcc8e9ebeea6e0e0fba6efe7fe">[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. Statutory Authority
This rule is published under the authority granted to the Secretary
of Health and Human Services by the Privacy Act (5 U.S.C. 552a(k)(2)),
to allow the head of any agency to exempt a system of records from the
access, amendment, or accountings of disclosures provisions of the
Privacy Act (5 U.S.C. 552a(c)(3) and (d)(1) through (4)) ``if the
system of records is--investigatory material compiled for law
enforcement purposes.'' 5 U.S.C. 552a(k)(2)
II. 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 exempted system, 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 September 13, 2022 (see 87 FR 56055). 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
[[Page 48737]]
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 (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 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.
III. Summary Description of the Regulatory Provision
The notice of proposed rulemaking (NPRM) was published in the
Federal Register on September 13, 2022 (87 FR 55977 through 55979). The
comment period ended November 14, 2022.
OCSE received five sets of comments from interested individuals,
which were posted on <a href="http://www.regulations.gov">www.regulations.gov</a>.
Section 5b.11: Exempt Systems.
In the NPRM, we proposed to add a new paragraph to 45 CFR
5b.11(b)(3)(ii) to provide an exemption to the system of records, OCSE
Federal Case Registry of Child Support Orders (FCR), HHS/ACF/OCSE, 09-
80-0385. Specifically, we proposed exempting only FCR records marked
with the Family Violence Indicator, based on the requirements of 42
U.S.C. 653(b)(2).
The majority of commenters supported the proposed exemption. We
received one comment from an individual opposed to the regulation
altogether and a comment supporting the relief but expressing concern
about the possible unintended consequences of protecting abusive
parents. In drafting the final rule, the following are OCSE's Response
to Comments including the rationale for any changes made to the
proposed rule and a final summary of regulatory changes.
IV. Response to Comments
Comment 1: A majority of the individuals who submitted comments
were unequivocal in their support of the exemption and rationale
described in the NPRM.
One commenter agreed that promulgating this new regulation would
help courts and families reach a more expeditious resolution and reduce
stress on those families.
Two commenters agreed that the rule was necessary to comply with
the disclosure restrictions contained in section 453(b)(2) of the
Social Security Act, and that it was important to the protection of
domestic violence victims.
Response 1: Based on the overwhelming support for the proposed
Privacy Act exemption for FCR records marked FVI, and for the reasons
described in the NPRM and by the majority of commenters, OCSE agrees
that this regulation is needed and should be provided.
Comment 2: One individual opposed the proposed rule, stating that
the proposed rule is insufficient to prevent unintended prejudice in
setting the FVI in child support cases. The commenter stated that while
they agreed that ACF had the authority to promulgate the rule, that
``the rule grants [the] states an excessive amount of discretion in how
states choose to apply or remove the [FVI].'' Finally, the commenter
stated that the possible mistaken application of the FVI would not
allow individuals to obtain the contents of their file, making it
difficult to certify information about arrears owed, or to verify that
information in the file is correct. The commenter believes the agency
needs to establish a more detailed rule regarding the placement of the
FVI.
Another individual stated that while they appreciated regulations
that help protect the privacy of custodial parents and their children,
they were concerned about the unintended consequences of protecting
abusive parents.
Response 2: While we appreciate the commenters' concerns about
parents who may be impacted by the improper placement of the FVI, this
rule only sets out to meet the requirements of the Privacy Act to
ensure that the Department's Privacy Act regulations include the
disclosure exemption already existing in federal law. This rule does
not apply to any policies and procedures regarding the placement of the
FVI; it is necessary to bring the agency into compliance with the
Privacy Act, which requires an agency to promulgate a disclosure
exemption rule whenever an exemption is necessary and permissible under
the Act.
Summary of Regulatory Changes: For the reasons described above and
in careful consideration of the comments, we finalize 45 CFR
5b.11(b)(3)(ii) by exempting the disclosure of records marked with the
Family Violence Indicator maintained in the OCSE Federal Case Registry
of Child Support Orders, as required under 42 U.S.C. 653(b)(2).
V. Regulatory Review
Paperwork Reduction Act
No new information collection requirements are imposed by these
regulations.
Regulatory Flexibility Analysis
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.
Regulatory Impact Analysis
Executive Orders 12866 and 13563
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,
[[Page 48738]]
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 final
rule is significant and was accordingly reviewed by OMB.
ACF determined that the costs to title IV-D agencies as a result of
this rule will not be ``economically significant'' as defined in
Executive Order 12866 (have an annual effect on the economy of $100
million or more or adversely affect in a material way the economy, a
sector of the economy, productivity, competition, jobs, the
environment, public health or safety, or state, local, or tribal
governments or communities). Accordingly, OIRA has determined that this
rulemaking is ``not major'' under Subtitle E of the Small Business
Regulatory Enforcement Fairness Act of 1996 (also known as the
Congressional Review Act).
Unfunded Mandates Reform Act of 1995
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.
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.
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, 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.
January Contreras, Assistant Secretary of the Administration for
Children & Families, approved this document on February 15, 2023.
List of Subjects in 45 CFR Part 5b
Privacy.
Dated: July 24, 2023.
Xavier Becerra,
Secretary, Department of Health and Human Services.
For the reasons discussed in the preamble, the Department of Health
and Human Services amends 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. 2023-15976 Filed 7-27-23; 8:45 am]
BILLING CODE 4184-42-P
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</html>Indexed from Federal Register on July 28, 2023.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.