[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 [www.gpo.gov]
[FR Doc No: 2022-19854]



[[Page 55977]]

=======================================================================
-----------------------------------------------------------------------

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.

-----------------------------------------------------------------------

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:
     Federal e-Rulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
     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 https://www.regulations.gov, 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, 
[email protected]. 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:
     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.
     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.
     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