[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 [www.gpo.gov]
[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 [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. 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 www.regulations.gov.
    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