[Federal Register Volume 89, Number 246 (Monday, December 23, 2024)]
[Rules and Regulations]
[Pages 104450-104453]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-30311]
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DEPARTMENT OF HEALTH AND HUMAN SERVICES
45 CFR Part 5b
[Docket Number ACF-2024-0015]
RIN 0970-AD15
Privacy Act; Implementation
AGENCY: Administration for Children and Families (ACF), Department of
Health and Human Services (HHS).
ACTION: Direct final rule with request for comments.
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SUMMARY: In accordance with subsection (k)(2) of the Privacy Act of
1974, as amended (the Privacy Act or the Act), the Department of Health
and Human Services (HHS or Department) is exempting a new system of
records maintained by the Administration for Children and Families
(ACF), Office of Refugee Resettlement (ORR), Unaccompanied Children
Bureau (UCB), System No. 09-80-0323, ``ORR Unaccompanied Children
Bureau (UCB) Child Abuse or Neglect Investigation Records and Central
Registry,'' from certain requirements of the Privacy Act.
DATES: This rule is effective February 6, 2025, without further action,
unless adverse comments are received. If adverse comments are received,
a timely notification of withdrawal will be published in the Federal
Register. Submit either electronic or written comments regarding this
document no later than January 22, 2025.
ADDRESSES: Submit comments, identified by agency name and Docket No.
ACF-2024-0015, by any of the following methods:
[[Page 104451]]
Electronic Submissions
Submit electronic comments in the following way:
Federal eRulemaking Portal: https://www.regulations.gov.
Follow the instructions for submitting comments.
Written Submissions
Submit written submissions in the following ways:
Mail: Hanan Abu Lebdeh, Senior Agency Officer for Privacy,
by mail at Administration for Children and Families, Mary E. Switzer
Building, 330 C Street SW, Washington, DC 20201, or by email at
[email protected].
Instructions: All submissions received must include the agency name
and Docket No. for this rulemaking. All comments received may be posted
without change to https://www.regulations.gov, including any personal
information provided.
Docket: For access to the docket to read background documents or
comments received, go to https://www.regulations.gov and follow the
instructions provided for conducting a search, using the docket
number(s) found in brackets in the heading of this document.
FOR FURTHER INFORMATION CONTACT: General questions about the exemptions
may be submitted to Toby Biswas, Director, Division of Unaccompanied
Children Policy by mail at 330 C Street SW, Washington, DC 20201, email
at [email protected], or phone at 202-205-4440.
SUPPLEMENTARY INFORMATION:
I. Background on New System of Records 09-80-0323
HHS/ACF recently published notice of its establishment of a new
system of records 09-80-0323, ``ORR Unaccompanied Children Bureau (UCB)
Child Abuse or Neglect Investigation Records and Central Registry,'' in
the Federal Register; see 89 FR 96250 (Dec. 4, 2024). The purpose of
this rulemaking is to exempt that system of records from certain
requirements of the Privacy Act as permitted by 5 U.S.C. 552a(k)(2).
The new system of records will consist of investigatory material
compiled and maintained by the UCB about reports and investigations of
child abuse and neglect, allegations at ORR care provider facilities
located in States that will not investigate such reports, as well as at
ORR Emergency or Influx Facilities. It will include a Central Registry
of ORR care provider facility staff and volunteers determined by ORR,
pursuant to ORR regulations and policies, to have a sustained
allegation of child abuse or neglect of a child while the child was in
ORR custody. The Central Registry will be used to vet prospective
candidates to ensure that individuals on the registry are not permitted
to work on ORR grants or contracts or have access to unaccompanied
children at ORR care provider facilities.
II. Eligible Records and Exemptions
New system of records 09-80-0323 will include both criminal and
non-criminal (e.g., civil, administrative, regulatory) investigatory
records of reports of child abuse and neglect allegations at ORR care
provider facilities located in States that will not investigate such
reports, as well as at ORR Emergency or Influx Facilities, which will
be retrieved by subject individuals' personal identifiers. Such records
are eligible for exemptions based on 5 U.S.C. 552a(k)(2), permitting
investigatory material compiled for law enforcement purposes to be
exempted from sections (c)(3), (d)(1) through (4), (e)(1), (e)(4)(G)
through (I), and (f) of the Privacy Act, which require the agency to
provide an accounting of disclosures; provide notification, access, and
amendment rights to record subjects; maintain only relevant and
necessary information to accomplish a purpose of the agency; establish
and describe procedures whereby an individual can be notified if a
system of records contains information pertaining to that individual
and how to gain access to pertinent records; identify categories of
record sources; and promulgate rules regarding these procedures. This
exemption is available under the circumstances described here even
though ORR is not a law enforcement agency. The effect of the access
exemption on a subject individual's access rights will be limited as
required by subsection (k)(2): If, as a result of the maintenance of
the investigative records, an individual is denied any right, benefit,
or privilege to or for which the individual would otherwise be entitled
or eligible by Federal law, ACF will disclose the record to the
individual, except to the extent that the disclosure 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.
Notwithstanding the establishment of these exemptions, individual
record subjects may submit accounting, access, notification, and
correction requests, and HHS/ACF will consider such requests on a case-
by-case basis. Only information that is not factually accurate, or is
not relevant, timely, or complete may be contested.
In addition to the exemptions that HHS/ACF is establishing for
system of records 09-80-0323 in this direct final rule, if any
investigatory material compiled in that system of records is from
another system of records in which such material was exempted from the
Privacy Act based on 5 U.S.C. 552a(j)(2), HHS/ACF will claim the same
exemptions in system of records 09-80-0323 on the same basis (i.e., 5
U.S.C. 552a(j)(2)) and from the same requirements as in the source
system of records from which they originated.
III. Exemption Rationales
The exemptions are necessary and appropriate to prevent
interference with and ensure the integrity of pending, closed, future,
and related investigations of alleged child abuse and neglect, protect
the identity of children and confidential sources involved in the
investigations, and prevent disclosure of investigative techniques. The
following specific rationales explain why each exemption is necessary
and appropriate for the records in system of records 09-80-0323. All
subsections referenced are subsections of 5 U.S.C. 552a.
Subsection (c)(3) (Provide Accountings of Disclosures).
Providing an accounting of disclosures to an individual record subject
could reveal the existence of a pending or prior investigation or
present or past investigative interest on the part of the UCB or
another agency. This would pose a serious impediment to and undermine
the investigative process by enabling a subject individual or others in
concert with that individual to harass, intimidate, or collude with
witnesses, destroy, conceal, or tamper with evidence, threaten or
endanger investigative personnel, alter patterns of behavior, and avoid
detection or apprehension by investigative authorities, which would
undermine the investigative process.
Subsection (d)(1) through (4) (Notification, Access and
Amendment Rights). Providing subject individuals with notification,
access, and amendment rights to records in the system of records could
reveal the existence of a pending or prior investigation or present or
past investigative interest by the UCB or another agency and details
about the investigation, including identities and personal information
of children involved in the investigation, of sources of information,
personal information about third parties, and sensitive investigative
techniques, which could hinder or impede pending and future
[[Page 104452]]
investigations by chilling or deterring sources of information from
providing information to investigators (particularly if they are not
certain of its accuracy or if they fear retribution), by providing an
opportunity for subject individuals and others acting in concert with
subject individuals to tamper with witnesses or evidence, and by
allowing individuals to alter their behavior to defeat investigative
techniques and avoid detection or apprehension. Complying with
amendment requirements could significantly delay investigations while
attempts are made to resolve questions of accuracy, relevance,
timeliness, and completeness and would impose an unreasonable
administrative burden by requiring investigations to be continuously
reinvestigated.
Subsection (e)(1) (Maintain Only Relevant and Necessary
Information Authorized by Statute or Executive Order). In the course of
an investigation, and especially in the early stages of an
investigation, the relevance and necessity of information obtained or
introduced may be unclear or the information may not be strictly
relevant or necessary to a specific investigation but may lead to
discovery of relevant information. In the interests of effective
enforcement of ORR requirements, it is appropriate to retain all
information that may aid in establishing patterns of unlawful activity.
Subsections (e)(4)(G) and (H) and (f) (Describe Procedures
for Notification, Access, and Amendment). Because system of records 09-
80-0323 will be exempt from request requirements in subsection (d)(1)
through (4) (Provide Notification, Access, and Amendment Rights) and
HHS/ACF's compliance with those request requirements will therefore be
discretionary, it is appropriate that HHS/ACF's compliance with the
requirements in subsection (e)(4)(G) and (H) and (f) to provide request
procedures be discretionary also. Notwithstanding these exemptions,
HHS/ACF has included request procedures in the SORN for system of
records 09-80-0323 because, notwithstanding the exemptions, individual
record subjects may submit access and amendment requests, and HHS/ACF
will consider such requests on a case-by-case basis.
Subsection (e)(4)(I) (Identify Categories of Record
Sources in the SORN). Because the information in these records may come
from any source, it is not possible to know every category in advance
in order to include them all in the SORN. Further, some record source
categories would not be appropriate to publish in the SORN if, for
example, revealing them could thwart or impede pending and future
investigations by enabling record subjects or other individuals to
discover sensitive investigative techniques and devise ways to bypass
or defeat them to evade detection and apprehension.
Subsection (f) (Agency Rules). As noted above,
establishing procedures to notify record subject individuals, to review
requests from individuals, and to disclose records to subject
individuals could reveal the existence of an investigation or an
investigative interest by the UCB or another agency and details about
the investigation and sensitive investigative techniques, which could
hinder or impede pending and future investigations by chilling or
deterring sources of information from providing information to
investigators (particularly if they are not certain of its accuracy or
fear retribution), by providing an opportunity for subject individuals
and others acting in concert with subject individuals to tamper with
witnesses or evidence, and by allowing individuals to alter their
behavior to defeat investigative techniques and avoid detection or
apprehension. Notwithstanding the exemptions, individual record
subjects may submit access and amendment requests, and HHS/ACF will
consider such requests on a case-by-case basis.
For the foregoing reasons, HHS/ACF believes that the exemptions
authorized in 5 U.S.C. 552a(k)(2) are essential to system of records
09-80-0323.
Accordingly, HHS exempts both criminal and non-criminal
investigatory material in system of records 09-80-0323, ``ORR
Unaccompanied Children Bureau (UCB) Child Abuse or Neglect
Investigation Records and Central Registry,'' from the requirements in
subsections (c)(3), (d)(1) through (4), (e)(1), (e)(4)(G) through (I),
and (f) of the Privacy Act, as permitted by 5 U.S.C. 552a(k)(2).
Analysis of Impacts
I. Review Under Executive Orders 12866, 13563, and 14094
The agency believes that this direct final rule is not a
significant rule under Executive Order (E.O.) 12866, Regulatory
Planning and Review; E.O. 13563, Improving Regulation and Regulatory
Review; or E.O. 14094, Modernizing Regulatory Review, because it will
not (1) have an annual effect on the economy of $200 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; (2) create a serious inconsistency or otherwise interfere
with any action taken or planned by another agency; (3) materially
alter the budgetary impact of entitlements, grants, user fees or loan
programs, or the rights and obligations of recipients thereof; or (4)
raise legal or policy issues for which centralized review would
meaningfully further the President's priorities or the principles set
forth in these Executive orders. This direct final rule renders certain
Privacy Act requirements inapplicable to certain records (in this case,
investigatory records) in accordance with criteria established in the
Privacy Act based on a showing that agency compliance with those
requirements with respect to those records would harm the effectiveness
or integrity of the agency function or process for which the records
are maintained (in this case, investigations). However, the Office of
Management and Budget has reviewed this regulation under its Privacy
Act oversight authority.
II. Review Under the Regulatory Flexibility Act (5 U.S.C. 601-612)
The Regulatory Flexibility Act requires agencies to analyze
regulatory options that would minimize any significant impact of a rule
on small entities. Because the direct final rule concerns records about
individuals, it imposes no duties or obligations on small entities; the
agency therefore certifies that the direct final rule will not have a
significant economic impact on a substantial number of small entities.
III. Review Under the Unfunded Mandates Reform Act of 1995 (Section
202, Public Law 104-4)
Section 202(a) of the Unfunded Mandates Reform Act of 1995 requires
that agencies prepare a written statement, which includes an assessment
of anticipated costs and benefits, before proposing ``any rule that
includes any Federal mandate that may result in the expenditure by
State, local, and tribal governments, in the aggregate, or by the
private sector, of $100,000,000 or more (adjusted annually for
inflation) in any one year.'' The current inflation-adjusted statutory
threshold is approximately $183 million based on the Bureau of Labor
Statistics inflation calculator. The agency does not expect that this
direct final rule will result in any one-year expenditure that would
meet or exceed this amount.
[[Page 104453]]
IV. Review Under the Paperwork Reduction Act of 1995 (44 U.S.C. 35-1 et
seq.)
This direct final rule does not contain any information collection
requirements subject to the Paperwork Reduction Act.
V. Review Under Executive Order 13132, Federalism
This direct final rule will not have any direct effects on States,
on the relationship between the National Government and the States, or
on the distribution of power and responsibilities among the various
levels of government. Therefore, no federalism assessment is required.
List of Subjects in 45 CFR Part 5b
Privacy.
For the reasons set out in the preamble, the Department of Health
and Human Services amends its Privacy Act Regulations, 45 CFR part 5b,
as follows:
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. Section 5b.11 is amended by adding paragraph (b)(4) to read as
follows:
Sec. 5b.11 Exempt systems.
* * * * *
(b) * * *
(4) The following systems of records are exempt from the following
provisions of the Act and this part: 5 U.S.C. 552a(c)(3) and Sec.
5b.9(c)(3), which require a subject individual to be granted access to
an accounting of disclosures of a record; 5 U.S.C. 552a(d)(1) through
(4) and (f) and Sec. Sec. 5b.6, 5b.7, and 5b.8, relating to
notification of or access to records and correction or amendment of
records; and 5 U.S.C. 552a(e)(4)(G) through (I) which require inclusion
of information about Department procedures for notification, access,
and correction or amendment of records and categories of record sources
in the notice for the systems of records.
(i) Pursuant to subsection (k)(2) of the Privacy Act:
(A) ORR Unaccompanied Children Bureau (UCB) Child Abuse or Neglect
Investigation Records and Central Registry, 09-80-0323.
(B) [Reserved]
(ii) [Reserved]
* * * * *
Dated: December 16, 2024.
Xavier Becerra,
Secretary, Department of Health and Human Services.
[FR Doc. 2024-30311 Filed 12-20-24; 8:45 am]
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