[Federal Register: September 26, 2008 (Volume 73, Number 188)]
[Rules and Regulations]
[Page 56421-56446]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr26se08-18]
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Part V
Department of Health and Human Services
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Administration for Children and Families
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Office of Child Support Enforcement
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45 CFR Parts 302, 303, and 307
State Parent Locator Service; Safeguarding Child Support Information;
Final Rule
[[Page 56422]]
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DEPARTMENT OF HEALTH AND HUMAN SERVICES
Administration for Children and Families
Office of Child Support Enforcement
45 CFR Parts 302, 303, and 307
RIN 0970-AC01
State Parent Locator Service; Safeguarding Child Support
Information
AGENCY: Office of Child Support Enforcement (OCSE), Administration for
Children and Families (ACF), Department of Health and Human Services
(HHS).
ACTION: Final rule.
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SUMMARY: The Personal Responsibility and Work Opportunity
Reconciliation Act of 1996 (PRWORA) created and expanded State and
Federal title IV-D child support enforcement databases and
significantly enhanced access to information for title IV-D child
support purposes. States are moving toward integrated service delivery
and developing enterprise architecture initiatives to link their
program databases. This final rule prescribes requirements for: State
Parent Locator Service responses to authorized location requests; and
State IV-D program safeguarding of confidential information and
authorized disclosures of this information. This rule restricts the use
of confidential data and information to child support purposes, with
exceptions for certain disclosures permitted by statute.
DATES: This rule is effective March 23, 2009.
FOR FURTHER INFORMATION CONTACT: Yvette Hilderson Riddick, Policy and
Automation Liaison, OCSE, 202-401-4885, e-mail:
yvetteriddick@acf.hhs.gov. 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
II. Summary Description of Regulatory Provisions
A. State Parent Locator Service
B. Safeguarding and Disclosure of Confidential Information
III. Section-by-Section Discussion of Comments
IV. Regulatory Review
A. Paperwork Reduction Act
B. Regulatory Flexibility Analysis
C. Regulatory Impact Analysis
D. Unfunded Mandates Reform Act of 1995
E. Congressional Review
F. Assessment of Federal Regulations and Policies on Families
G. Executive Order 13132
I. Statutory Authority
This final regulation is published under the authority granted to
the Secretary of HHS (Secretary) by section 1102 of the Social Security
Act (the Act), 42 U.S.C. 1302. Section 1102 authorizes the Secretary to
publish regulations that may be necessary for the efficient
administration of the functions for which he is responsible under the
Act.
The provisions of this final rule pertaining to the Federal Parent
Locator Service (PLS) implement section 453 of the Act, 42 U.S.C. 653.
Section 453 requires the Secretary to establish and conduct a Federal
PLS to obtain and transmit specified information to authorized persons
for purposes of establishing parentage; establishing, modifying, or
enforcing child support obligations; and enforcing any Federal or State
law with respect to a parental kidnapping; or making or enforcing a
child custody or visitation determination, as described in section 463
of the Act. It authorizes the Secretary to use the services of State
entities to carry out these functions.
The provisions relating to the State PLS implement section 454(8)
of the Act, 42 U.S.C. 654(8), which requires each State plan for child
support enforcement to provide that the State will: (1) Establish a
service to locate parents utilizing all sources of information and
available records; and the Federal PLS established under section 453;
and (2) shall subject to the privacy safeguards in section 454(26) of
the Act, 42 U.S.C. 654(26), disclose only the information described in
sections 453 and 463 of the Act to the authorized persons specified in
those sections.
The provisions relating to the States' computerized support
enforcement systems implement section 454A of the Act, 42 U.S.C. 654a,
which requires States' systems to perform such functions as the
Secretary may specify relating to management of the State title IV-D
program. Additionally, as stated in section 454A(f) of the Act, the
State shall use the statewide automated system to extract information
from, to share and compare information with, and to receive information
from, other data bases and information necessary to enable the State
agency (or the Secretary or other State or Federal agencies) to carry
out the Child Support Enforcement program under title IV-D of the Act,
and other programs designated by the Secretary.
In addition, the provisions pertaining to safeguarding of
information implement section 454(26) of the Act, which requires the
State IV-D program to have in effect safeguards, applicable to all
confidential information handled by the State agency, that are designed
to protect the privacy rights of the parties. Nothing in this rule is
meant to prevent the appropriate use of administrative data for program
oversight, management, and research.
II. Summary Description of Regulatory Provisions
The following is a summary of the regulatory provisions included in
this final rule. The Notice of Proposed Rulemaking (NPRM) was published
in the Federal Register on October 14, 2005 (70 FR 60038). The NPRM was
organized into two major sections. Section 1: State Parent Locator
Service discussed amendments to the proposed regulations on locating
individuals and their assets in response to authorized location
requests. Affected regulations include Sec. Sec. 302.35, 303.3,
303.20, and 303.70. Section 2: Safeguarding and Disclosure of
Confidential Information discussed new regulations on safeguarding and
disclosure of confidential information, Sec. 303.21 and amendments to
the regulation on security and confidentiality of information in
computerized support enforcement systems, Sec. 307.13.
The Section-by-Section Discussion of Comments (Section III)
provides a detailed listing of the comments and responses. Many
commenters asked for points of clarification rather than for change of
language in the regulation. There were some comments, however, that
brought about regulatory language changes in the final rule.
Specifically, major changes include:
In Sec. 303.21(a) we deleted the last sentence ``The amount of
support ordered and the amount of a support collection are not
considered confidential information for purposes of this section.''
Commenters were concerned that this language may be interpreted as IV-D
payment records could be made available to requestors not associated
with the case who may want the information for purposes not related to
child support.
In response to comments, we deleted paragraph (1) of Sec.
303.21(d), which in the NPRM authorized disclosure of confidential
information to the individual to whom the information pertains. To the
extent that an individual is requesting information about himself/
herself in the IV-D agency's files for a IV-D program purpose, the
information may be
[[Page 56423]]
disclosed under paragraph (c), General rule. We also deleted under
paragraph (e) Safeguards, that ``safeguards shall prohibit disclosure
to any committee or legislative body (Federal, State, or local) of any
confidential information, unless authorized by the individual as
specified in paragraph (d) of this section.'' To the extent that an
individual in a IV-D case submits a request to a legislator or
legislative body concerning his or her IV-D case, the IV-D agency may
disclose the information necessary for the response because the inquiry
relates to the administration of the IV-D program and is authorized
under paragraph (c).
We revised Sec. 303.21(d)(2)(ii) and (iii) and relocated it to
Sec. 303.21(d)(1). Section 454A of the Act only permits the disclosure
of information for non-IV-D purposes to State agencies of designated
programs where the information is necessary to carry out a State agency
function under that program. Therefore, we have relocated these
disclosures to clarify that they are encompassed within this authority
specified in Sec. 303.21(d)(1). In paragraph (2), we restricted
disclosure of information for income and eligibility verification
purposes under sections 453A and 1137 of the Act to SDNH information.
We added language to Sec. 303.21(e) that refers to family violence
indicator requirements under Sec. 307.11(f)(1)(x). Commenters thought
we should add language regarding the family violence indicator which is
an additional privacy safeguard for family violence victims.
We also changed Sec. 307.13(a) of the NPRM by deleting paragraph
(4). It referred to welfare-to-work, a grant program that no longer
exists. We redesignated paragraph (a)(5) as paragraph (a)(4) and
revised the language for clarity. As revised, it requires written
policies that limit disclosure outside the IV-D program of National
Directory of New Hire, Federal Case Registry and Internal Revenue
Service (IRS) information from the computerized support enforcement
system. The regulation sets forth the circumstances when information
may be disclosed to IV-A, IV-B, and IV-E agencies and when IRS
information may be disclosed. As revised, financial institution
information cannot be shared outside the IV-D program. We made this
change because of the language in section 469A(a) and (b) of the Act.
These sections provide for non-liability for financial institutions
when they disclose financial record information only for child support
related purposes. Throughout the preamble and regulation we use
``financial institution information'' to refer to information covered
by section 469A(a) and (b) of the Act. This information includes
Multistate Financial Data Matches (MSFIDM) and State Financial
Institute Data Matches (State FIDM).
Some commenters found the charts confusing, especially Appendix A
in Section I and Appendix A in Section 2. We reorganized the two
previous charts into three charts: Appendix A, B, and C. In Appendix A
we reordered the chart by displaying locate efforts first by person
rather than by purpose. Appendix A illustrates authority for locating
individuals through the State PLS. Appendix B illustrates authority for
locating an individual sought in a child custody/visitation or parental
kidnapping case. Appendix C illustrates authority for State IV-D
agencies to release information to non-IV-D Federal, State, and Tribal
Programs. These charts are included at the end of the preamble for
illustrative purposes only.
Section II. A. State Parent Locator Service (Sections 302.35, 303.3,
303.20, and 303.70)
Section 302.35, State Parent Locator Service
The previous regulation at Sec. 302.35(a) contained a State plan
requirement that the IV-D program shall establish a State Parent
Locator Service (PLS) using: (1) All relevant sources of information
and records available in the State, and in other States as appropriate;
and (2) the Federal PLS of the Department of Health and Human Services.
Paragraph (a) modifies the requirement for each State to
``establish'' a State PLS, and instead requires each State to
``maintain'' a State PLS ``to provide locate information to authorized
persons for authorized purposes.''
Section Sec. 302.35(a)(1), covering IV-D agencies, cases and
purposes, requires that the State PLS access ``the Federal PLS and all
relevant sources of information and records available in the State, and
in other States as appropriate, for locating custodial parents,
noncustodial parents, and children for IV-D purposes.'' Paragraph
(a)(2) addresses locate requests for authorized non-IV-D individuals
and purposes. For purposes of this regulation, all requests under
section 453(c)(3) of the Act are considered to be requests by non-IV-D
individuals and purposes. This provision requires a IV-D program to
access and release information authorized to be disclosed under section
453(a)(2) of the Act from ``the Federal PLS and, in accordance with
State law, information from relevant in-state sources of information
and records, as appropriate'' to respond to locate requests from a non-
IV-D entity or authorized individual specified in paragraph (c) and for
authorized purposes specified in paragraph (d).
For non-IV-D requests, under paragraph (a)(2), the State PLS will
not access IRS information or financial institution information, which
is available only to IV-D agencies and to a limited extent to their
agents, under Federal statute.
The previous regulation at paragraph (b) required that the IV-D
agency must ``establish a central State PLS office and also may
designate additional IV-D offices within the State to submit requests
to the Federal PLS.'' The amendment to Sec. 302.35(b) removes mention
of a State PLS ``office.'' It also requires the IV-D program to
``maintain'' rather than ``establish'' a central State PLS.
The previous Sec. 302.35(c)(1) through (5) language specified the
authorized persons and entities from whom the State PLS shall accept
requests for locate information. The amendments to paragraph (c)
strengthen the process by which authorized requestors obtain locate
information through the State PLS, specifically with respect to
requests from a resident parent, legal guardian, attorney, or agent of
a non-IV-A child.
Previously, Sec. 302.35(c)(3) simply referred to the ``resident
parent, legal guardian, attorney, or agent of a child'' in non-IV-A
cases as authorized persons. The revised Sec. 302.35(c)(3) makes it
clear that the State PLS will accept locate requests from the resident
parent, legal guardian, attorney or agent of a child who is not
receiving assistance under title IV-A of the Act only if key
requirements are met. The regulation requires the individual to: (i)
Attest that the request is being made to obtain information on, or to
facilitate the discovery of, any individual in accordance with section
453(a)(2) of the Act for the purpose of establishing parentage,
establishing, setting the amount of, modifying, or enforcing child
support obligations; (ii) attest that any information obtained through
the Federal or State PLS will be used solely for these purposes and
otherwise treated as confidential; (iii) provide evidence that the
requestor is the parent, legal guardian, attorney, or agent of a child
not receiving assistance under title IV-A of the Act, and if an agent
of such a child, evidence of a valid contract that meets any
requirements in State law or written policy for acting as an agent, and
if a parent, attestation that he or she
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is the resident parent; and (iv) pay the Federal PLS fee required under
section 453(e)(2) of the Act and Sec. 303.70(f)(2)(i), if the State
does not pay the fee itself. The regulation also specifies that the
State may charge a fee to cover its costs of processing these requests.
A State's fee must be as close to actual costs as possible, so as not
to discourage requests to use the Federal PLS. See Sec. Sec. 304.23(e)
and 304.50(a). Paragraph (c)(4) simplifies the language regarding the
use of the Federal PLS for parental kidnapping, child custody, or
visitation cases. Paragraph (c)(5) rewords the previous language
allowing locate requests from State title IV-B and title IV-E agencies.
Previous paragraph (d) is redesignated as paragraph (e), as
discussed below. A new paragraph (d) is added to specify the authorized
purposes for which the State PLS and the Federal PLS may be used and
the locate information that may be released for these purposes.
Paragraph (d)(1) covers the purposes of establishing parentage and
establishing, modifying, or enforcing child support. It also covers
related authorized releases of information to locate an individual who
has or may have parental rights with respect to the child. It pertains
to IV-D and non-IV-D authorized persons and programs, including title
IV-B and IV-E agencies. For IV-B/IV-E cases that are non-IV-D and other
cases under (d)(1), wage information is authorized and the State PLS
may provide asset and/or debt information from the Federal PLS.
Paragraph (d)(2) covers the purposes of enforcing a State law with
respect to the unlawful taking or restraint of a child or for making or
enforcing child custody or visitation determination and the related
authorized releases of information.
Paragraph (e), requires privacy safeguards for Federal PLS
information only. The amendment specifies at paragraphs (e)(1) and (2)
that, subject to the requirements of this section and the privacy
safeguards required under section 454(26) of the Act and the family
violence indicators under section 307.11(f)(1)(x), the State PLS shall
disclose ``Federal PLS information'' described in sections 453 and 463
of the Act and ``information from in-state locate.'' An Appendix A has
been added at the end of the preamble to show the linkages between
authorizing statute, authorized purpose, authorized person or program,
and authorized information.
Section 303.3, Location of Noncustodial Parents in IV-D Cases
Under the final rule, Sec. 303.3 is re-titled ``Location of
noncustodial parents in IV-D cases.'' Under paragraph (a), location is
defined to mean ``information concerning the physical whereabouts of
the noncustodial parent, or the noncustodial parent's employer(s),
other sources of income or assets, as appropriate, which is sufficient
and necessary to take the next appropriate action in a IV-D case.''
The amendments to paragraph (b) clarify which location requirements
apply to IV-D cases. Paragraph 303.3(b) requires the IV-D program to
attempt to locate a noncustodial parent in a IV-D case or his or her
sources of income and/or assets when location is needed to take
necessary action. Paragraphs (b)(1) through (5) provide an extensive
list of location sources that as discussed below are unchanged for the
most part from the previous regulation.
Paragraph (b)(3) no longer includes the words ``including
transmitting appropriate cases to the Federal PLS'' because States now
submit cases to the Federal Case Registry for automatic matching with
the National Directory of New Hires for locate purposes.
The previous regulation at paragraph (b)(4) required the IV-D
program to ``Refer appropriate cases to the IV-D program of any other
State, in accordance with the requirements of Sec. 303.7 of this
part.'' The amendment inserts the word ``IV-D'' before the word
``cases'' to clarify that the IV-D program of State 1 may refer only
IV-D cases to the IV-D program of State 2.
New paragraph (b)(6) draws a direct link between the IV-D program's
duty to locate noncustodial parents and the duty to safeguard
information. The language incorporates by reference both the existing
statutory requirement at sections 454(26) and 454A(d) and (f) of the
Act and the regulatory requirements at Sec. Sec. 303.21 and 307.13.
Current paragraph (c) regarding diligent efforts to serve process
is unchanged, but is republished to aid the reader in reviewing this
section.
Section 303.20, Minimum Organizational and Staffing Requirements
The regulation at Sec. 303.20 describes the minimum organizational
and staffing requirements for the IV-D program. Paragraph (b) of this
section requires an organizational structure and staff sufficient to
fulfill specified State level functions, including, in paragraph
(b)(7), ``operation of the State Parent Locator Service as required
under Sec. Sec. 302.35, 303.3, and 303.70 of this chapter.''
Section 303.21, Safeguarding and Disclosure of Confidential Information
This new regulation is discussed in Section II.B.
Section 303.70, Procedures for Submissions to the State Parent Locator
Service (State PLS) or the Federal Parent Locator Service (Federal PLS)
With passage of legislation that established the National Directory
of New Hires (NDNH) in 1996 and established the Federal Case Registry
(FCR) in 1998, the Federal PLS became highly automated. The language in
this section has been revised to indicate that the Federal PLS reflects
the automated matching and return of information to IV-D programs in
IV-D cases from the Federal PLS's Federal Case Registry and National
Directory of New Hires. For example, while requests for Federal PLS
information are accepted, State IV-D programs no longer ``request''
Federal PLS information and we replaced the word ``requests'' with
``submittals'' wherever it appears. We eliminated the word ``office''
as in State PLS ``office'' to demonstrate that this work is automated.
A new paragraph (a) has been inserted: The State agency will have
procedures for submitting to the State PLS or the Federal PLS for the
purpose of locating parents, putative fathers, or children for the
purpose of establishing parentage or establishing, setting the amount
of, modifying, or enforcing child support obligations; or for the
purpose of enforcing any Federal or State law with respect to the
unlawful taking or restraint of a child; or making or enforcing a child
custody or visitation determination as defined in section 463(d)(1) of
the Act. The previous paragraph (a) has been redesignated as paragraph
(b) and the previous paragraph (b) has been redesignated as paragraph
(c).
In addition, in newly designated paragraph (d) all submittals shall
contain the following information: (1) The parent's or putative
father's name; (2) the parent's or putative father's Social Security
Number (SSN). If the SSN is unknown the IV-D program must make
reasonable efforts to ascertain the individual's SSN before making a
submittal to the Federal PLS; and (3) any other information prescribed
by the Office.
The previous regulation at Sec. 303.70(d) has been redesignated as
paragraph (e). It requires that annually the IV-D director attest to
compliance with the listed requirements. Paragraph (e)(1)(i) specifies
that the IV-D program will ``obtain'' rather than ``request''
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information. A new paragraph (e)(1)(ii) clarifies that the IV-D program
will only provide information to authorized persons as specified in
sections 453(c) and 463(d) of the Act and Sec. 302.35.
Paragraph (e)(2) is new and requires that, in the case of a
submittal made on behalf of a resident parent, legal guardian, attorney
or agent of a child not receiving assistance under title IV-A, the IV-D
program must verify that the requestor has complied with the provisions
of Sec. 302.35.
Paragraph (e)(3), formerly paragraph (d)(2), has been changed to
specify that the IV-D program shall treat information obtained through
the Federal PLS as confidential and shall safeguard the information in
accordance with statutory requirements at Sec. 303.21.
Paragraph (f) has minor changes. In (f)(1) the statutory references
have been accompanied by explanatory phrases for better understanding
and in (f)(4)(ii) the word ``paid'' has been changed to ``transmitted''
to reflect the change in payment methodology due to technology
advances.
II.B. Safeguarding and Disclosure of Confidential Information (Sections
303.21 and 307.13)
Section 303.21, Safeguarding and Disclosure of Confidential Information
The regulation consists of six paragraphs: (a) Definitions; (b)
Scope; (c) General rule; (d) Authorized disclosures; (e) Safeguards;
and (f) Penalties for unauthorized disclosure.
Section 303.21(a) Definitions
The regulation begins with a definition of the term ``confidential
information.'' Paragraph (a)(1) provides that ``confidential
information'' means any information relating to a specified individual
or an individual who can be identified by reference to one or more
factors specific to him or her, including, but not limited, to the
individual's Social Security Number, residential and mailing addresses,
employment information, and financial information. Paragraph (a)(2)
defines independent verification to mean the process of acquiring and
confirming confidential information through the use of a second source.
The information from the second source, which verifies the information
about NDNH or FCR data, may be released to those authorized to inspect
and use the information as authorized under the regulations or the Act.
Section 303.21(b) Scope
Paragraph (b) reads: ``The requirements of this section apply to
the IV-D agency, any other State or local agency or official to whom
the IV-D agency delegates any of the functions of the IV-D program, any
official with whom a cooperative agreement as described in Sec. 302.34
has been entered into, and any person or private agency from whom the
IV-D agency has purchased services pursuant to Sec. 304.22.''
Section 303.21(c) General Rule
Paragraph (c) presents a general rule which states that ``[e]xcept
as authorized by the Act and implementing regulations, an entity
described in paragraph (b) of this section may not disclose any
confidential information, obtained in connection with the performance
of IV-D functions, outside of the administration of the IV-D program.''
Section 303.21(d) Authorized Disclosures
Paragraph (d) sets forth the authorized disclosures that are
exceptions to the general rule prohibiting disclosure of confidential
information. Under paragraph (d)(1), upon request, the IV-D agency may,
to the extent that it does not interfere with the IV-D agency meeting
its own obligations, disclose information for certain limited purposes.
Under paragraph (d)(1) information may be shared for administration of
programs under titles IV (TANF, child and family services, and foster
care and adoption programs), XIX (Medicaid program), and XXI (State
Children's Health Insurance [SCHIP] program) of the Act. The regulation
also includes disclosure to Tribal programs authorized under title IV-A
and IV-D of the Act.
Paragraph (d)(2) (previously paragraph (d)(2)(iv)) permits the
release of SDNH information to programs designated pursuant to sections
453A and 1137 of the Act for income and eligibility verification
purposes.
Paragraph (d)(3) requires that authorized disclosures under Sec.
303.21(d)(1) and (2) shall not include confidential information from
the National Directory of New Hires, the Federal Case Registry, or
Internal Revenue Service (IRS), unless authorized under Sec. 307.13 or
unless the information has been independently verified. A State may
independently verify the NDNH or the FCR information through another
source, in which case the information from the second source may be
used. Independent verification is the process of acquiring and
confirming confidential information through the use of a second source.
The information from the second source may be released to those
authorized to inspect and use the information. For example, if a State
determines that an address is correct through a postal verification the
State can share the information it acquired from the second source (the
Post Office). No IRS information can be disclosed outside of the
administration of the IV-D program, unless specifically authorized in
Federal statute or independently verified. IRS information is
restricted as specified in the Internal Revenue Code (IRC). No
financial institution information may be disclosed outside the IV-D
program. The restriction on release of financial institution
information outside the IV-D program is due to the liability protection
given to financial institutions for release of information to the
Federal PLS or to the State IV-D programs for child support purposes as
indicated in section 466(a)(17)(C) of the Act and limitations in
section 469A of the Act, regarding the use of such information.
Section 303.21(e) Safeguards
Paragraph (e) provides that ``In addition to, and not in lieu of,
the safeguards described in Sec. 307.13 of this chapter, which governs
computerized support enforcement systems, the IV-D agency shall
establish appropriate safeguards to comply with the provisions of this
section.'' These safeguards shall also include prohibitions against the
release of information when the State has reasonable evidence of
domestic violence or child abuse against a party or a child and that
the disclosure of such information could be harmful to the party or the
child, as required by Sec. 454(26) of the Act, and shall include use
of the family violence indicator required under Sec. 307.11(f)(1)(x)
of this chapter.
Section 303.21(f) Penalties for Unauthorized Disclosure
Paragraph (f) provides that ``[a]ny disclosure or use of
confidential information in violation of the Act and implementing
regulations remains subject to any State and Federal statutes that
impose legal sanctions for such disclosure.''
Section 307.13 Security and Confidentiality for Computerized Support
Enforcement Systems in Operation After October 1, 1997
Section 307.13 addresses security and confidentiality of
computerized systems. Paragraph (a), (a)(1), and (a)(2) are unchanged.
Paragraph (a) addresses information integrity and security. Automated
systems must have safeguards protecting the integrity,
[[Page 56426]]
accuracy, completeness of, access to, and use of data in the
computerized support enforcement system. These safeguards shall include
written policies concerning access to data by IV-D program personnel,
and the sharing of data with other persons to: (a)(1) Permit access to
and use of data to the extent necessary to carry out the State IV-D
program under this chapter and (a)(2) specify the data which may be
used for particular IV-D program purposes, and the personnel permitted
access to such data.
Paragraph (a)(3) permits the IV-D agency to exchange data from its
computerized support enforcement system with agencies administering
other programs under titles IV, XIX, and XXI of the Act to the extent
necessary to carry out State and Tribal agency responsibilities under
such programs in accordance with section 454A(f)(3) of the Act; and to
the extent that it does not interfere with the IV-D agency meeting its
own obligations.
Paragraph (a)(4) as written in the NPRM has been deleted. It
referred to welfare-to-work, a grant program that no longer exists. The
present paragraph (a)(4) which previously was paragraph (a)(5) has been
rewritten for clarity and requires written policies that generally
prohibit disclosure outside the IV-D program of National Directory of
New Hire or Federal Case Registry information, or IRS information from
the computerized support enforcement system, to information that has
been independently verified. IV-A, IV-B, and IV-E agencies are
authorized under various subsections of section 453 of the Act to
receive NDNH and FCR information from the Federal PLS for certain
specified purposes. Since these agencies are authorized to have this
information, we are permitting the IV-D agency to disclose the NDNH or
FCR information from the IV-D computerized support enforcement system
directly to the IV-A, IV-B, or IV-E agency if it is being requested for
the purpose authorized under section 453 of the Act. For IV-B and IV-E
programs this includes establishing paternity or parental rights with
respect to a child.
III. Section-by-Section Discussion of Comments
This section provides a detailed discussion of comments received on
the proposed rule, and describes changes made to the proposed rule. We
refer generally to actions of the ``Department'' pursuant to the rule.
The rule itself refers to actions of the ``Secretary'' but the day-to-
day activities of the Secretary's functions have been delegated and are
exercised by other Department officials, primarily in the
Administration for Children and Families. ``Office'' refers to the
Federal Office of Child Support Enforcement (OCSE). We received
approximately 200 comments from 20 IV-D programs (including 1 tribe), 3
organizations, and 1 private citizen. Many comments were for points of
clarification rather than stating support or opposition to the proposed
regulation. For example, many comments indicated a lack of awareness on
existing longtime requirements such as the statutory restrictions of
access to Federal PLS data on IV-D systems for certain unauthorized
persons and programs.
General Comments
There were various comments that are not attributable to specific
sections of the regulation and are discussed below.
1. Comment: Two commenters ask that once the final rule is imposed,
OCSE provide States with reasonable time to implement these
regulations, which may include changes to State legislation and
automated systems. Another commenter believes the Office should make
clear what the effective date is of this regulation as was done with
some regulations while implementing PRWORA.
Response: This rule is effective 6 months from the date of
publication.
2. Comment: One commenter requested that the Secretary insert
language from sections of the Social Security Act so the reader does
not have to look up sections of the Act.
Response: To do so would significantly increase the length of
regulatory language. We have attempted to ensure there are no cross-
references without a brief summary of the content of those statutory
sections.
3. Comment: This regulation possibly sets up competing public
interests. For example: Pitting the confidentiality regulation versus
the openness of the judicial system and court files; the regulation
versus the State's public policy of open government (Sunshine laws);
the regulation versus the State Constitution's provision for access to
public records and meetings.
Response: These regulations govern disclosure of IV-D data under
sections 454(26), 453, and 454A of the Act. A wide array of personal
information is available to IV-D agencies and it is imperative that the
Federal and State governments protect these data to the greatest extent
possible and use them only where necessary for authorized purposes.
Child support records, including Federal PLS information, contain
information that poses a high risk of identity theft, and thus should
be treated with special care.
4. Comment: One commenter asks why this rule includes proposed
additional restrictions on sharing certain Federal data with other
public agencies in one part of the rule while proposing granting broad
access to State data to private entities in another part. According to
the commenter, use of data disclosed to other State agencies can be
easily monitored while private entities are less accountable, harder to
monitor, and more likely to use data for unauthorized purposes.
Response: This regulation is determined in large part by explicit
Federal statute. Section 454(8) of the Act says that ``the agency
administering the (State) plan will establish a service to locate
parents * * * and shall, subject to the privacy safeguards required
under paragraph (26), disclose only the information described in
sections 453 (Federal PLS) and 463 (Use of the Federal PLS in
connection with enforcement of determination of child custody and in
cases of parental kidnapping) to the authorized persons specified in
such sections for the purposes specified in such sections.'' With
respect to private entities the regulation at Sec. 302.35(c)(3)
requires an attestation process that must be used by the resident
parent, legal guardian, attorney, or agent of a child who is not
receiving assistance under title IV-A of the Act when obtaining
information on or to facilitate the discovery of any individual in
accordance with section 453(a)(2) of the Act.
5. Comment: In 42 U.S.C. 654(26), Congress allowed States to have
flexibility in crafting confidentiality requirements. States may find
it difficult to follow a regulatory ``one size fits all'' approach and
make changes to the law in matters over which child support agencies
have no authority.
Response: The regulation reflects statutory requirements as stated
in section 454(26) of the Act that a child support State Plan must
provide that States have in effect safeguards, applicable to all
confidential information handled by the State agency, that are designed
to protect the privacy rights of the parties involved. It also reflects
other statutory restrictions on disclosure in sections 453 and 454A of
the Act.
6. Comment: If the Federal Bureau of Investigations (FBI) was
called to investigate possible sources of threats to a IV-D caseworker
and the FBI demanded the names and contact information for every person
on the IV-D employee's caseload, would the IV-D agency be justified in
sharing this
[[Page 56427]]
information with the FBI? Does protecting a IV-D worker from potential
harm fall under the provisions of a IV-D purpose?
Response: The IV-D agency could share the information because the
investigation relates to the administration of the IV-D program.
7. Comment: Two commenters say that OCSE should reaffirm its
commitment to additional privacy safeguards for family violence victims
by incorporating references to the family violence indicator in the
rule.
Response: We agree and have added language to Sec. 303.21(e) that
provides explicit reference to required family violence indicators for
potential domestic violence or child abuse.
8. Comment: Two commenters are concerned that when enforcing a
referral from a Tribal IV-D agency located in that State or in another
State, a State would be unable to provide information about whether a
Federal tax refund offset occurred and the amount collected. This would
make it impossible for the Tribal IV-D agency to correctly adjust the
arrearage to give the noncustodial parent credit for the tax refund
offset. Another commenter believes the Internal Revenue Services (IRS)
statute at 26 U.S.C. 6103 sufficiently provides for confidentiality
limitations for States to disclose information to Tribes and States.
Tribal IV-D agencies do not need another regulation to further burden
negotiations with State IV-D agencies.
Response: Policy Interpretation Question (PIQ) 07-02 addresses
this. See http://www.acf.dhhs.gov/programs/cse/pol/PIQ/2007/piq-07-
02.htm. A State may submit arrearages owed in Tribal IV-D cases for
Federal tax refund offset if the following conditions are met:
1. The approved Tribal IV-D plan or plan amendment indicates that
the Tribe has entered into a cooperative agreement with the State under
Sec. 309.60(b) and (c) for the State to submit arrearages owed in
Tribal IV-D cases for Federal tax refund offset. The Tribe must submit
as part of its Tribal IV-D plan or plan amendment copies of any such
agreement. The regulations governing Tribal IV-D programs at Sec.
309.35(d) require that after approval of the original Tribal IV-D
program application, all relevant changes required by new Federal
statutes, rules, regulations, and Department interpretations are
required to be submitted so that the Secretary may determine whether
the plan continues to meet Federal requirements and policies.
2. The cooperative agreement between the Tribe and State includes a
statement that the Tribal IV-D program will comply with all
safeguarding requirements with respect to Federal tax refund offset in
accordance with Sec. 309.80, section 454(26) of the Act and the
Internal Revenue Code 26 U.S.C. 6103, which prohibits the release of
IRS information outside of the IV-D program.
3. The Tribal IV-D plan provides evidence that the Tribe's
application for IV-D services under Sec. 309.65(a)(2) includes a
statement that the applicant is applying for State IV-D services for
purposes of submitting arrearages for Federal tax refund offset.
9. Comment: One commenter says there must be an easy-to-use
procedure for individuals misidentified by child support database
programs to correct agency records and also requests that this rule
provide for a system to flag errors where files are ``mixed.''
Response: If an individual believes he or she has been
misidentified by the IV-D system, he or she should contact the
appropriate IV-D office. The IV-D program should fix the error as soon
as possible. These regulations do not go into the details of step-by-
step State case processing that would make such a proposal appropriate.
10. Comment: One commenter requests that language in the preamble
to the proposed rule be incorporated into the actual regulation. Page
60044, column 3 says ``programs receiving confidential information may
use the information only for the purpose for which it was disclosed and
may not redisclose the information.'' However, this restriction on
redisclosure is not in the text of the proposed rule.
Response: This regulation is for title IV-D programs and we cannot
regulate other programs once information is disclosed. However, State
IV-D programs must make clear to those authorized to receive child
support data, the limited purpose for which information may be used.
Improper use or disclosure would be governed by State and Federal
statutes that impose penalties for such disclosure.
11. Comment: One commenter says there is no legislative history
that Congress contemplated expanding access to State databases and
records beyond the IV-D program or beyond what is otherwise permitted
by State law.
Response: The provisions relating to the State PLS implement
section 454(8) of the Act, 42 U.S.C. 654(8), which requires each State
plan for child support enforcement to provide that the State will: (1)
Establish a service to locate parents utilizing all sources of
information and available records including the Federal PLS; and (2) be
subject to the privacy safeguards in section 454(26) of the Act, 42
U.S.C. 654(26) and disclose only the information described in sections
453 and 463 of the Act to the authorized persons specified in those
sections. This language authorizes a system of disclosure of State data
based on the system in place for the Federal PLS. We have revised the
regulation to recognize the possibility of more restricted access to
State data by incorporating the language ``in accordance with State
law.''
12. Comment: One commenter is concerned that States are not
informing individuals when disclosure of their Social Security Number
(SSN) to another source will occur and by collecting noncustodial
parents' SSNs from a third party source.
Response: States are required to comply with section 7(b) of the
Privacy Act and its disclosure requirements (5 U.S.C. 552a). In all IV-
D cases, the Privacy Act requires a Federal, State, or local government
agency to provide certain information to the individual from whom a SSN
is requested by the agency.
13. Comment: One commenter says that notice and due process are
required when States use, release, or enter data into State PLS and
Federal PLS computer interface records on individuals who do not need
to be located for purposes of child support.
Response: Access to personal data covered by the regulation is
authorized as explicitly provided for in Federal title IV-D statute.
Section 302.35, State Parent Locator Service
1. Comment: Two commenters have major concerns with this section.
One would like to know the reason for these amendments, opposes the
requirement that the State PLS provide information to requestors with
regard to in-state sources, and strongly recommends that references to
access and release of in-state State PLS information be deleted from
the proposed regulation. The other commenter is concerned with this
section and believes the regulation erodes the capability of the child
support program to safeguard confidential information. The regulation
creates a presumption, not supported by law, that non-IV-D entities may
access in-state resources.
Response: A State/Federal workgroup, established after the passage
of the Personal Responsibility and Work Opportunity Reconciliation Act,
[[Page 56428]]
recommended that these regulations be promulgated in order to clarify
the statutory limitations of sharing data. In response to comments we
have revised the regulation to provide State searches only to the
extent authorized by State law. With regard to in-state sources,
section 454(8) of the Act says a State shall be subject to the privacy
safeguards in section 454(26) of the Act, 42 U.S.C. 654(26).
2. Comment: One commenter asks why the regulation does not clearly
tie authorized persons to the authorized purposes for which they may
receive locate information, addressing persons and in separate
subsections.
Response: We disagree. The authorized persons and purposes are
clearly stated in the regulation and are identical to those of the
Federal PLS. Appendix A displays this set of authorities.
3. Comment: One commenter would like to eliminate the reference in
Appendix A that says ``No automated system'' for Authorized Purpose B,
C, and D.
Response: This Appendix and others have been revised and/or added.
Any limitation of disclosure of automated systems data is required by
section 454A of the Act.
4. Comment: One commenter proposes adding a section to this
provision that requires maintenance of an audit log to deter employee
misuse of databases. Audit logs hold individuals responsible for their
use of personal information databases and would record who accesses
personal information, and the purpose for which it was accessed.
Response: Federal requirements do not prescribe this level of
mandate on State responsibilities. It is up to the State to implement
necessary and appropriate methods to ensure that access and disclosure
is for proper purposes and only to authorized persons. States have
discretion, however, to implement similar audit procedures.
5. Comment: One commenter recommends moving Sec. 302.35(b) closer
to Sec. 302.35(a) to clarify that the Federal PLS is considered part
of the State PLS for IV-D cases and for authorized non-IV-D purposes
under this section.
Response: The Federal PLS is not part of the State PLS.
Subparagraph (b) is based on the requirement that requests for Federal
PLS data must flow through the State PLS.
6. Comment: One commenter asks for confirmation that together
Sec. Sec. 302.35(a)(1) and (2) and 302.35(c) limit the use of the
State PLS for IV-D cases to only IV-D purposes but permits the use of
the State PLS for non-IV-D individuals or non-IV-D cases for the
authorized non-IV-D purposes.
Response: Section 302.35(a)(1) and (2) limit the use of the State
PLS for IV-D cases to only IV-D purposes but permits the use of SPLS
for non-IV-D individuals or non-IV-D cases for the authorized non-IV-D
purposes.
7. Comment: One commenter suggests that the title of paragraph (1)
be changed to ``For IV-D cases and IV-D purposes'' for clarity.
Response: For clarity, we have revised the title of paragraphs (1)
and (2) to distinguish between IV-D requests and non-IV-D requests.
8. Comment: One commenter asks that the Office clarify why locate
information, restricted for custody and visitation purposes to the most
recent address and place of employment, requires such strict
confidentiality where there is not a family violence indicator or other
information giving rise to safety concerns for the parties. The address
of a litigant to a court proceeding is considered public information
and necessary for the case to proceed.
Response: The restriction is statutory. Section 463(c) of the Act
[Use of Federal PLS in connection with the enforcement or determination
of child custody and in cases of parental kidnapping of a child]
contains the restriction ``Only information as to the most recent
address and place of employment of any parent or child shall be
provided under this section.''
9. Comment: In addition to using the State PLS for locating either
parent for IV-D purposes, one commenter asks that the agency also be
able to use the State PLS for locating the child for IV-D purposes.
Response: IV-D agencies already have that authority with the
Federal PLS. Section 453(a)(2)(iii), which states ``to whom such an
obligation is owed'' includes the child. However, in response to this
comment, we have added ``children'' to Sec. 302.35(a)(1).
10. Comment: One commenter points out what he or she believes to be
a mistake: ``Child'' is included in Appendix A to Sec. 302.35 under
``Authorized Purpose'' but is not included in the preamble or in the
regulation. Another commenter suggests that this section of the
regulation be revised by deleting the words ``noncustodial parents''
and inserting ``a parent or child.''
Response: We agree and have included reference to custodial
parents, noncustodial parents and children in both the preamble and the
regulation at Sec. 302.35.
11. Comment: One commenter suggests substituting the word
``parties'' for ``parents'' since the IV-D or a cooperating agency may
be enforcing a support order in a IV-D case for a custodial party other
than a parent.
Response: The statute uses the term parent, although we recognize
there may be instances where children are in the custodial care of
individuals other than their parents.
12. Comment: One commenter points out that the reference to Sec.
303.3 in the second sentence of Sec. 302.35(a)(1) creates confusion
because Sec. 303.3 only addresses locate requirements for noncustodial
parents in IV-D cases. The commenter assumes this is not the intent of
the proposed regulation and, to avoid confusion, recommends removing
the second sentence of Sec. 302.35(a)(1) because the first sentence
clearly conveys the intent of the subsection.
Response: We agree and have removed the reference to Sec. 303.3,
which only applies to location of noncustodial parents in IV-D cases.
13. Comment: Several commenters had comments relating to the use of
the State Disbursement Unit in non-IV-D case situations. Since it is a
IV-D function to disburse support to custodial parents in non-IV-D
cases subject to income withholding, can a IV-D program use the State
PLS or Federal PLS to locate a non-IV-D custodial parent for purposes
of disbursing child support?
Response: Yes, this would be a legitimate use of locate sources for
IV-D agencies seeking to locate such custodial parents in non-IV-D
cases subject to income withholding.
14. Comment: One commenter points out a contradiction in the
regulation regarding the use of in-state locate sources. On the one
hand, Sec. 302.35(a)(2) provides a mechanism for States to ``opt out''
of using in-state locate sources in response to a non-IV-D request if
such use is ``prohibited by State law or written policy.'' Yet Sec.
302.35(e) states ``the State PLS shall disclose * * * information from
in-state locate sources as required by this section and described in
Sec. 303.3(b)(1).'' This latter language suggests that expanded access
is required regardless of State law or written policy, which is
contrary to the intent expressed in the preamble to the proposed rule,
as well as the intent of the statute.
Response: We agree. We have revised the language to provide in-
state searches in accordance with State law.
15. Comment: One commenter requests that the following terms be
eliminated in the final rule: Non-IV-D individual(s); non-IV-D case(s);
non-IV-
[[Page 56429]]
D request(s) and be replaced with ``non-IV-D purpose'' and another
commenter asked that the Office provide a definition of non-IV-D
purpose.
Response: Reference to all four terms is appropriate each time a
specific term is used in the regulation. Non-IV-D purpose is addressed
in paragraph (d): the State PLS shall obtain location information under
this section only for the purposes specified in paragraphs (d)(1) and
(d)(2) of Sec. 302.35. Section 453 of the Act provides statutory
authority for using the Federal PLS for the purpose of locating any
individual who has or may have parental rights with respect to a child,
enforcing any 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.
16. Comment: One commenter seeks confirmation that taken together,
these sections mean that once a State establishes policy to define
State PLS sources of information, any other data contained in the
State's computerized support enforcement system may not be released
under this section, regardless of the source of that information.
Response: The State's computerized support enforcement system is
not a source of information for the State PLS. Access to any data on
the statewide automated system is limited in sections 454A(d) and (f)
of the Act and 45 CFR part 307. Independently verified information may
be released to those authorized to access and use the information. For
example, if a State determines that an address is correct through a
postal verification the State can share the information it acquired
from the second source (the Post Office).
17. Comment: One commenter strongly suggests that this proposed
regulation be modified to make it clear that it is the Federal OCSE's
responsibility to exclude IRS information, or MSFIDM information when
in receipt of a non-IV-D request for FPLS information.
Response: If the State codes its requests correctly, (e.g., pk, ad,
etc.), OCSE only returns appropriate information for that request.
Please see the FCR Interface Guidance Document (Chart 6-14) http://
www.acf.hhs.gov/programs/cse/newhire/library/fcr/fcr.htm. However, the
State may have such information in its files and the State bears the
responsibility to assure that only authorized information is released
in response to a request.
18. Comment: One commenter strongly suggests that there be a simple
system set up for OCSE to receive formal requests from States
(preferably online with a predefined outgoing and incoming data format)
that would ensure that all requests to the Federal PLS are properly
documented and the authorized information would be returned in a pre-
defined format suitable to direct redisclosure to authorized
requestors. The States' only duty would be to submit and return
requests for information on behalf of non-IV-D authorized requestors.
This would greatly enhance the security and confidentiality of this
Federal requirement.
Response: The FCR Interface Guidance Document, mentioned above,
provides this service. For example, a Foster Care case locate-only code
provides only authorized information but a request with a IV-D code
provides much more data because the request is on a IV-D case.
19. Comment: One commenter believes a better approach for this
section would be for those individuals who desire child support
services under the title IV-D program, including location services, to
apply for services.
Response: The Federal statute at sections 453 and 454(8) of the Act
require States to disclose certain information to authorized non-IV-D
persons for authorized purposes. Such purposes includes access for
locate purposes. There is no requirement that individuals apply for IV-
D services to receive requested information.
20. Comment: One State does not support requiring the State PLS to
release information gathered from in-state sources to non-IV-D
individuals unless there is a State law or policy prohibiting such a
release as provided in Sec. 302.35(a)(2)(i) and believes this
requirement exceeds the authority granted in 42 U.S.C. 653(a)(2) which
pertains only to Federal PLS information. Instead, the State favors a
provision that authorizes the State PLS to release in-state source
information only if permitted under State law or regulation.
Response: We accept the commenter's position and have revised the
regulation accordingly.
21. Comment: Two commenters would like recognized that the preamble
claims States have interpreted current law ``to permit use of State
resources for non-IV-D location purposes, including location for
custody and visitation purposes'' and notes that while a handful of
States may permit broad access to State databases by private entities,
these practices are not widespread and are not based on a common or
settled interpretation of Federal law. Because some States have chosen
to disclose State PLS and Federal PLS information to non-IV-D
requestors should not be the basis of requiring all States to do so.
Response: See response to comment 20.
22. Comment: A commenter says that if a State wishes to disclose
State PLS data, it should have to have a written law or policy
describing what it will disclose, to whom it will disclose it, and
under what circumstances. In the absence of such a policy, State PLS
data should not be disclosed to non-IV-D entities.
Response: It is up to the State to set standards for disclosure.
23. Comment: One commenter believes the final regulation should
acknowledge that there may be other State laws governing the disclosure
of personal data to nongovernmental entities if any mention of State
duty to provide State PLS data is retained.
Response: We believe the revised language ``in accordance with
State law'' takes this into account.
24. Comment: One commenter would like clarification on the reason
for the restriction that prevents the State PLS from searching the
statewide computer system or providing a non-IV-D requestor with any
information contained in the system. The commenter asks for the
rationale behind this restriction and an explanation on how OCSE
envisions compliance by States whose non-IV-D cases are part of their
statewide computer system.
Response: Access to information in the IV-D automated system is
strictly limited by Federal statute. Section 454A of the Act restricts
disclosure of information in a State IV-D automated system to purposes
related to the administration of the IV-D program so non-IV-D
requestors cannot get such information.
25. Comment: One commenter says that the language referring to the
support enforcement computer system (along with Appendix A) can be read
to prohibit the release of information contained in the system even
where that information was derived from non-IRS or non-MSFIDM sources
and asks whether this was the intent.
Response: Yes, this is the intent. The Federal statute at sections
454A(d) and (f) clearly restricts access to and disclosure of State
automated child support system data.
26. Comment: One commenter requests further explanation or
clarification regarding the prohibition against releasing information
from automated support enforcement systems to fulfill non-IV-D
requests. Clarification is needed because any information received in
the course of IV-D program business is typically
[[Page 56430]]
registered in such system; therefore, exactly what may be legally
disclosed under Sec. 302.35(a)(2)(ii) is unclear.
Response: Section 454A of the Act does not authorize access to
State systems for non-IV-D purposes. Therefore, a State may only seek
or locate information in a non-IV-D case directly from the State PLS or
from the Federal PLS and disclose that data to a non-IV-D requestor.
(Also see 27. below.)
27. Comment: One commenter seeks clarification that the idea of
Sec. 302.35(a)(2)(ii) is that if a State receives a non-IV-D request,
it may not look to any information ``existing'' on its system but
rather must conduct State PLS and Federal PLS searches for information
and only the information resulting from those searches could be
released, as authorized.
Response: Yes, if a State receives a non-IV-D request, it may not
look to any information ``existing'' in its system but rather must
conduct State PLS and Federal PLS searches for information and only the
information resulting from those searches can be released.
28. Comment: One commenter notes that Sec. 302.35(c)(3) indicates
that the State PLS may use some sources of data for non-IV-D location
requests. However, it is noted in other parts that the State PLS shall
not release information from the computerized support enforcement
system. Many of the location sources the State agency uses feed into,
and become part of, the computerized support enforcement system. Is the
regulation forbidding the use of the CSE system to access otherwise
permissible State sources of information?
Response: The regulation prohibits release of information residing
on the State's computerized support enforcement system, unless
explicitly authorized. States may only share information on their
automated system with authorized entities under 45 CFR Part 307. The
State PLS may use the automated system to seek information from other
sources as part of its location efforts in IV-D cases.
29. Comment: One commenter proposes new language for Sec.
302.35(a)(2)(ii) ``* * * IRS information or financial institution data
match information relating to a financial account * * *'' Incorporating
this language would allow other information (such as address
information) from MSFIDM to be released pursuant to a non-IV-D request.
Response: We are not incorporating the proposed change because of
the need to safeguard all data received from a financial institution
data match.
30. Comment: One commenter wants IV-B/IV-E agencies to be able to
view limited, address-related data from other States' IRS and financial
institutions if such information could assist in locating the parent or
person who could be a child's parent and is otherwise not available in
any other system.
Response: There is no authority under title IV-D of the Act or the
Internal Revenue Service Code to allow this.
31. Comment: One commenter disagrees with prohibiting the State PLS
in non-IV-D requests from disclosing information from the computerized
support system because 42 U.S.C. 654(8) mandates that States use ``all
sources of information and available records'' to locate parents
regardless of whether they are involved in a IV-D case. The State could
not defend such a policy to its judges and asks why such a prohibition
in this rule is necessary.
Response: A State's defense would be that Federal law prohibits
such disclosure. Section 454A(f) of the Act specially governs data in
IV-D automated systems and strictly limits disclosure.
32. Comment: One commenter asks what is the statutory basis for
prohibiting disclosure of MSFIDM information for all non-IV-D requests.
Because Federal statute limits use of financial record information from
a financial institution ``only for the purpose of * * * establishing,
modifying or enforcing a child support obligation'', it appears FIDM
information could be used for both IV-D and non-IV-D child support
purposes.
Response: IV-D programs have statutory responsibility to safeguard
confidential information not specifically authorized for release under
section 453 of the Act. The IV-D program has broad access to certain
data of all sorts from myriad sources. We believe it is essential to
strictly limit access to data. Section 469A of the Act only provides
for nonliability for financial institutions for disclosures to a State
Child Support Enforcement agency or to the Federal PLS for purposes of
section 466(a)(17) of the Act. The statute provides that the
information be used only for IV-D purposes.
33. Comment: One commenter supports while another seeks
clarification that Sec. 302.35(a)(2)(ii) prohibits release of
information from the State's computerized support enforcement system
even if that information is obtained from non-IRS or non-MSFIDM
sources.
Response: States may not release any information in a State's IV-D
automated system except to specifically authorized requestors and for
purposes related to the administration of the IV-D program. Non-IV-D
access is not authorized under section 454A of the Act. See Sec.
307.13.
34. Comment: One commenter says that because States can not
transmit non-IV-D requests to another State, an authorized requestor
would be required to make multiple requests.
Response: This is correct. However, an authorized requestor can
obtain certain information from the Federal PLS which may contain some
of the State data, namely the employment data.
35. Comment: One commenter notes that while Sec. 302.35(a)(2)(iii)
specifies that for non-IV-D location requests, the IV-D program need
not make subsequent location attempts if a location attempt fails, the
preamble discussion says that a relocation attempt would be required if
a requestor demonstrates that there is reason to believe new
information exists. The proposed rule should clearly state that a
relocation attempt is a requirement in this circumstance, if that is
the intent.
Response: We have changed the language to clarify that no
subsequent attempt to locate is necessary unless a new request is
submitted.
36. Comment: One commenter asks under what circumstance the State
PLS can provide Federal PLS with information.
Response: The State IV-D program is required to provide State
Directory of New Hires and Federal Case Registry information. In
addition, under section 453(e), the Federal PLS may seek information
from any of the ``departments, agencies, or instrumentalities of the
United States or of any State.''
37. Comment: Child welfare staff in one State request a broader
interpretation of Sec. 302.35(a)(2)(iii), whereas, in order to
facilitate the administration of programs under titles IV-B or IV-E,
State PLS and Federal PLS locate attempts should occur at the same
frequency as for IV-D programs (quarterly, at a minimum, or when new
information leads are received).
Response: State IV-D agencies are not required to repeat locate
results for non-IV-D entities unless a new request is submitted.
However, States are free to establish the extent and frequency of
authorized IV-B or IV-E locate requests.
38. Comment: One commenter believes that because Sec.
302.35(a)(2)(iv) prohibits making State PLS requests separate from
Federal PLS requests in non-IV-D cases, there is no need to develop a
separate standard for the State PLS. Another commenter requests
clarification that even if it can get the
[[Page 56431]]
requested information from State sources, the State must use the
Federal PLS. If so, why would that be necessary?
Response: Based on comments received and the desire to allow States
to retain the flexibility to conduct either State PLS or Federal PLS
searches (or both) we have removed Sec. 302.35(a)(2)(iv) in the final
rule. If a State successfully uses State PLS sources and locates the
individual sought, there may be no need to submit a request to the
Federal PLS. However, if the IV-B or IV-E agency wants a Federal PLS
request, the State must honor that request.
39. Comment: If a IV-D caseworker is aware of a new address for a
noncustodial parent when the IV-E agency requests the address for an
authorized purpose, can the IV-D program provide the address directly
or must the agency conduct an independent State PLS search?
Response: If the information is already known, the IV-D agency is
authorized to release the information under Sec. 307.13(a)(3) and
section 454A(f)(3) of the Act. This permits exchanging information with
State Medicaid agencies and other programs designated by the Secretary
or other State or Federal agencies to carry out this part, subject to
section 6103 of the Internal Revenue Code of 1986.
40. Comment: One State recommends that States retain the ability to
designate other IV-D offices within the State to submit requests to the
Federal PLS when location services are needed instead of requiring a
``central'' State PLS.
Response: We tried to accommodate multiple State PLS locate
interfaces in the past; however, from a cost-effectiveness and quality
control standpoint, States now are limited to a central State PLS
interface with Federal PLS.
41. Comment: One commenter wants acknowledgment that although on
the surface this seems to provide flexibility, Sec. 302.35(c) sets up
the strong possibility of inconsistency among States and will allow
forum shopping for the best deal by ``attorneys or agents of the
child.''
Response: Section 302.35(a)(2)(i) allows access to the State PLS in
accordance with State law. As such, State practices may vary. We
support State flexibility in this regard.
42. Comment: One commenter asks whether there is any authority that
supersedes Federal law on releasing information only to persons
authorized under sections 453 and 463 that would require IV-D agencies
to comply with a request from the Department of Homeland Security (DHS)
since DHS is not an ``authorized person'' under sections 453 or 463 of
the Act.
Response: There is no authority to override sections 453 and 463 of
the Act.
43. Comment: In the final regulations one commenter requests that
States have the ability to deny requests from non-IV-D entities which
have a track record of obtaining information for purposes beyond those
contemplated by the statute as well as those who have not properly
safeguarded the information they have obtained.
Response: A fine for misuse of the NDNH in section 453(l) of the
Act can be applied. Also, Sec. 303.21(f) gives ability for State to
impose fines or other criminal or civil sanctions. Finally, attestation
is designed to protect/alleviate this issue. A IV-D agency should
document instances of abuse and if a non-IV-D entity is known to abuse
access to data, access should be denied and the reason noted. States
should have written policy which may provide guidance in this area.
44. Comment: One commenter would like confirmation regarding the
extent to which staff determining food stamp eligibility have access to
confidential data or location data maintained or obtained by the IV-D
program.
Response: Food Stamp agencies have access to the State Directory
for New Hires for purposes of verifying eligibility for the program.
See 42 U.S.C. 653A(h)(2).
45. Comment: Two commenters suggest that Tribal IV-D agencies be
specifically included as an ``authorized person'' in Sec.
302.35(c)(1).
Response: Tribal IV-D agencies have access to the State PLS if they
request assistance from a State IV-D agency and submit a referral for
case information. The State agency will submit the case to the State
PLS as part of its responsibilities with respect to the case.
46. Comment: One commenter understands the proposed change to
permit a court to obtain location information for the purposes of
establishing a support order, even in a non-IV-D case. Yet, the court
need not attest to its intent; whereas an attestation is required from
a resident parent, legal guardian, attorney, or agent. Is this an
oversight or an intentional distinction?
Response: It is intentional because courts are governmental
entities. The attestation is required of private citizens or
nongovernmental entities.
47. Comment: One commenter recommends changing the term ``aid'' to
``assistance as defined at 45 CFR 260.31'' in Sec. 302.35(c)(3). This
way, there will be a clear national policy in this area.
Response: We have changed the term ``aid'' to ``assistance'' in
Sec. 302.35(c)(3) because that is the terminology used in the statute.
We have not cited IV-A regulation, however, since it could change in
the future.
48. Comment: One commenter asks how long must the locate
application, attestation, and evidence of authorization be maintained
by the State PLS? Does the standard three-year record retention policy
apply to these documents?
Response: The three-year record retention rule, as stated in 45 CFR
92.42(b), applies to these documents.
49. Comment: One commenter would like to eliminate the reference to
a child not receiving aid under title IV-A of the Act in Sec.
302.35(c)(3) and wants corresponding changes to be made to Appendix A
to Sec. 302.35(c)(3).
Response: Section 453 of the Act requires the inclusion of this
exception.
50. Comment: Three commenters ask if a requestor attests to the
purpose and use of information that is later discovered to be
fraudulent in nature; will the IV-D program be found liable by OCSE?
One commenter asks what the penalties are if a requestor violates the
attestation or submits a fake ``authorization''?
Response: The IV-D agency would not be responsible if it had the
attestation on file. Any requestor who violates requirements for
receiving Federal PLS information would be subject to any Federal or
State penalties.
51. Comment: One commenter asks whether a State is required to pass
special laws imposing penalties for failure to comply with the
provisions of the attestation.
Response: States have discretion to pass such laws.
52. Comment: One commenter agrees with the proposed rule requiring
the requestor to provide evidence of being the legal guardian, attorney
of the child or agent of the child. However, he or she suggests if the
requestor is a resident parent, the requestor only attest to being so
rather than providing evidence. It would be difficult for the State PLS
to identify proof of resident parent status otherwise.
Response: We agree with the commenter and have changed the language
in Sec. 302.35(c)(3)(iii) to require the resident parent to attest to
being the resident parent.
53. Comment: One commenter asks whether private child support
enforcement agencies have to provide ``evidence of a valid contract''
with each request for locate or may the IV-D
[[Page 56432]]
program permit a private child support enforcement agency to provide an
annual, blanket attestation that a valid contract exists for each
request made during the year?
Response: The private child support enforcement agency may not
provide an annual blanket attestation that a valid contract exists for
all requests made during that year.
54. Comment: One commenter recommends a change to Sec.
302.35(c)(3)(iii) so that both attorneys and agents who allege that
they are representing a child are required to provide a valid contract
that meets any requirements under State law or policy for acting as an
agent of the child. Otherwise, the regulation will violate the
statutory authority on which it is based.
Response: The statute does not specify any proof or evidence that
must be provided. Section 302.35(c)(3)(iii) indicates that an
authorized person provide evidence that the requestor is the legal
guardian, attorney, or agent of a child not receiving assistance under
title IV-A, and if an agent of such a child, evidence of a valid
contract that meets any requirements in State law or written policy for
acting as an agent.
55. Comment: One commenter believes that because of the potential
for disclosure to unauthorized entities, Sec. 302.35(c)(3)(iii) should
require the requestor to furnish a copy of the actual contract, not
just ``evidence of a valid contract.'' Another commenter wants
clarification on what evidence is other than a copy.
Response: Evidence of a valid contract may be defined by the State.
Therefore, a State may require the requestor to furnish a copy of the
actual contract.
56. One commenter suggests adding the words ``of the child'' after
the word ``agent'' in Sec. 302.35(c)(3)(iii) in order to track the
statute and make clear that the only agents who are authorized persons
are agents of the child, not of a parent.
Response: We agree with the commenter and have revised the
regulation to reflect the statutory language.
57. One commenter believes that Sec. 302.35(c)(3)(iii) will be
hard to meet for a requestor who claims to be ``an agent of such a
child.'' Existing State laws ``for acting as an agent'' may not be
clear or complete to support this process.
Response: This is an issue for a State to address.
58. Comment: Two commenters question whether private collection
agencies (PCAs) and attorneys meet the statutory definition of
``authorized persons'' and are concerned about giving private
collection agencies access to information. There is no clear definition
of ``attorney or agent of the child'' in the regulations or in statute
and in one State, PCAs do not fall within this definition. Most private
attorneys in child support matters represent a parent, not a child. PCA
contracts are entered into by a custodial parent in her (sic) own
right, not as the child's legal agent. An agency relationship is
created by expressed or implied contract or by operation of law, and
generally is governed by State law, not Federal law. In addition, it is
a settled matter of black letter law that a contract must be between
competent parties and that a minor is under the age of legal
competence. Therefore, a custodial parent's contract with a PCA does
not make the PCA an ``agent of the child'' for purposes of locate
request under section 453 of the Act.
Response: AT-02-04 clarifies policy and procedures for providing
Federal PLS locate services to persons who qualify as an ``an agent of
the child'' for child support purposes. The Action Transmittal lists
the definitions of ``authorized persons'' set forth in section
453(c)(1) through (3) of the Act, including the resident parent, legal
guardian, attorney, or agent of the child. We do not read section 453
of the Act to prohibit a State from sending appropriate Federal PLS
information to the resident parent in care of a PCA if, under State
law, the PCA ``stands in the shoes'' of the resident parent and the
State has evidence in the form of an attestation by the requestor,
under Sec. 302.35(c)(3)(iii) that the parent, in fact, has authorized
the PCA to act on his or her behalf.
59. Comment: One commenter wants changes made to reflect that
States should be required to develop standards and protocols for
refusing to provide information to non-IV-D entities when such entities
fail to safeguard the information they obtain. These standards should
include provisions for notifying such entities of what restrictions
apply, what protections they must have in place, and what the
consequences of failure to safeguard the information are.
Response: We agree that such standards are reasonable but leave
such action to State discretion.
60. Comment: One commenter believes that the administrative cost
associated with developing and implementing a fee for non-IV-D entities
would far outweigh any benefit.
Response: The fee for Federal PLS services is a statutory
requirement under section 453(e)(2) of the Act.
61. Comment: One commenter asks whether any fee collected for the
State's PLS services needs to be claimed as program income.
Response: Any fee collected for the State's State PLS services is
considered program income under 45 CFR 304.50 and must be reported.
62. Comment: One commenter seeks clarification that the title: ``To
locate an individual who may be the parent of a child in a IV-D or non-
IV-D case'' refers to locating the custodial as well as noncustodial
parent.
Response: The final rule changes the title of Sec. 302.35(d)(1)
to: ``To locate an individual with respect to a child in a IV-D, non-
IV-D, IV-B, or IV-E case'' in order to better reflect the statutory
language in section 453(a)(2)(A) of the Act. This section covers
locating both the custodial as well as the noncustodial parent.
63. Comment: One commenter asks that the following ``purpose'' be
added to Sec. 302.35(d)(1): The State PLS shall locate individuals for
the purpose of: facilitating informed and timely decisions about child
welfare and permanency. The rationale is that locating parents for IV-
B/IV-E purposes goes beyond just ``establishing parentage'' or
``determining who has or may have parental rights to a child'' as the
language in the proposed rule currently reads. Another commenter asks
if ``for determining who has or may have parental rights with respect
to a child'' allow child welfare staff in the IV-B/IV-E agencies to
request the IV-D program to locate and release address information for
the purpose of placement of a child?
Response: We have inserted reference to title IV-B and IV-E to
Sec. 302.35(d)(1) to make clear that those agencies have access to
State PLS locate functions for the purposes stated. The purpose of
``determining who has or may have parental rights to a child'' could be
related to permanency planning. The language used is that which is
stated in section 453 of the Act. To the second question, only persons
as authorized under section 453(a)(2)(A) of the Act may request the IV-
D program to locate and release address information for the purpose of
placement of a child.
64. Comment: Section 302.35(d)(1) states: the State PLS shall
locate individuals for the purpose of establishing parentage, or
establishing, setting the amount of, modifying, or enforcing child
support obligations or for determining who has or may have parental
rights with respect to a child. For these purposes, only information
available through the Federal PLS or the State PLS may be provided.
This
[[Page 56433]]
information is limited to Social Security Number(s), most recent
address, employer name and address, employer identification number,
wages or other income from, and benefits of, employment, including
rights to, or enrollment in, health care coverage, or asset and debt
information. One commenter questions why there is a restriction that
``for these purposes, only information available through the Federal
PLS or the State PLS may be provided* * *''?
Response: This restriction exists because Sec. 302.35(d)(1) does
not cover or authorize access to child support information on States'
automated systems (which is addressed in 45 CFR Part 307). This section
addresses Federal and State PLS use for IV-D and non-IV-D purposes.
65. Comment: Under Sec. 302.35(d)(1), Federal PLS or State PLS
information may be provided--but one commenter wants clarification as
to whom this information can be provided--his/her own program or
another State IV-D program?
Response: Authorized persons include any State or local agency
providing IV-D services as well as an authorized person identified in
Sec. 302.35(c).
66. Comment: One commenter asks: does the phrase ``for determining
who has or may have parental rights with respect to a child'' include
grandparents or other persons who may have ``parental rights''?
Response: No, section 453(c)(3) of the Act prevents this
interpretation and means the parent of a child who would have a legal
obligation to provide child support.
67. Comment: One commenter asks that the section regarding the
State Parent Locator Service be amended to incorporate a family
violence provision as follows ``Subject to the requirements of this
section, the privacy safeguards required under section 454(26) of the
Act, and the family violence indicator requirements under Sec.
307.11(f)(1)(x) of this chapter, the State PLS shall disclose the
following information to authorized persons for authorized purposes.''
Response: There is reference to section 454(26) of the Act in Sec.
302.35(e): Subject to the requirements of this section and the privacy
safeguards required under section 454(26) of the Act, the State PLS
shall disclose the following information to authorized persons for
authorized purposes. We have included reference to the domestic
violence indicator in Sec. Sec. 302.35(e) and 303.21.
Section 303.3, Location of Noncustodial Parents in IV-D cases
1. Comment: One commenter recommends changing the title of this
section to include custodial parents as well as noncustodial parents
(since the intent of Sec. Sec. 302.35(a)(1) and 303.3 is to include
custodial parents). Another commenter says that if the heading of this
section is intended to only apply to noncustodial parents, the
commenter has no concern with this as long as he or she can use the
State PLS and other locate sources to locate custodial parents and
children under Sec. 302.35. If custodial parents and children are
brought under Sec. 303.3, the commenter asks that the applicability of
the requirements, as they relate to custodial parents and children, be
at the State's discretion. Yet another commenter seeks confirmation of
whether there are specific location requirements for custodial parents.
The commenter believes that the specific location requirements of
proposed rule Sec. 303.3 are more appropriately limited to
noncustodial parents.
Response: Section 303.3 only applies to locating the noncustodial
parent. There are many instances in which States will have to locate
custodial parents and children, e.g., when requested and authorized, or
to enable disbursement of collections. A State may choose to use the
same approach as set in Sec. 303.3 to do so but it is not mandated.
2. Comment: One commenter seeks confirmation that Federal Financial
Participation (FFP) will be made available to modify computer system
functionality and provide on-going services to comply with the mandate
to provide locate services for non-IV-D cases and believes FFP is
appropriate and necessary.
Response: FFP is available to modify computer system functionality
and provide ongoing services to comply with the mandate to provide
locate services for non-IV-D cases.
3. Comment: One commenter notes that when the title was changed
from ``location of absent parents'' to ``location of noncustodial
parents'' the meaning of the section was changed and as a result, tens
of thousands of law-abiding parents' information is in State PLS,
Federal PLS and National Directory of Child Support Orders databases.
Response: The use of the term noncustodial parent in lieu of absent
parent was made via regulatory changes in 1999 to reflect the same
change made in the statute. The change was made to reflect that
noncustodial parents are not (or should not be) absent from their
children's lives.
4. Comment: One commenter asks for clarification regarding what the
differences are between searching State databases for information
(which is encouraged) and releasing information from the system (which
is prohibited). The commenter believes the sentence in Sec.
303.3(b)(1) ``Use appropriate location sources such as the Federal PLS;
interstate location networks; local officials and employees
administering public assistance * * *'' conflicts with proposed Sec.
302.35(a)(2)(ii) which states that the State PLS would not be able to,
in response to a non-IV-D request, release information from the
statewide system.
Response: There is no conflict because Sec. 303.3 applies only to
IV-D cases and to locate efforts by the State IV-D agency in those
cases. The restrictions on release of IV-D systems data does not apply
to the IV-D agency or its use of program data for IV-D program
purposes. The release of information in the statewide systems is
restricted by section 454A of the Act.
5. Comment: One commenter asks whether the Federal response changes
(see comment 4 above) based on a State's opinion that
recipients of food stamp benefits must cooperate with the IV-D program.
Response: If there is a IV-D case involving a food stamp recipient
who is required to cooperate with the IV-D agency, access to data on
the statewide automated system is authorized for authorized persons and
IV-D purposes.
6. Comment: One commenter urges the agency to disclose to the
public what tools and data sources are going to be employed to locate
individuals. It is suggested that these tools and data sources be
disclosed in the Federal Register, giving individuals time to comment
on the accuracy and reliability of the tools used.
Response: States may disclose information regarding State tools and
data sources. The Systems of Record used by the Federal PLS, the
National Directory of New Hires and the Federal Case Registry, are
published in the Federal Register and updated as necessary in
accordance with Federal law.
Section 303.20, Minimum Organizational and Staffing Requirements
1. Comment: One commenter is troubled about the lack of actual
standards regarding proper staffing of the State PLS. In particular,
the investigative process behind non-IV-D requests will not be
adequately staffed
[[Page 56434]]
without some guidance, especially considering budget cuts.
Response: The State determines how the State PLS is operated and
there are various degrees of automation for access of data. We do not
think it is appropriate to regulate this because of the different State
PLS operations that take place among the States.
Section 303.21, Safeguarding and Disclosure of Confidential Information
1. Comment: One commenter asks why the Office has chosen to issue
safeguarding rules for IV-D data now if it did not do so before. In
most States there is an established body of privacy law that governs
access to personal data maintained by State agencies and limits its use
and disclosure; and at the time PRWORA was enacted, there were no
discussions about preempting such bodies of State law by Federal
statute.
Response: States requested guidance regarding access to data
because of the myriad of access requirements and prohibitions enacted
as part of PRWORA. The requirements of section 454(8) of the Act state
that States ``shall * * * disclose only information described in
sections 453 and 463 to the authorized persons specified in such
sections for the purpose specified in such sections.''
2. Comment: One commenter raises concern regarding use of the word
``confidential'' and recommends that ``personal identifying''
information be substituted for ``confidential'' as it better captures
the meaning of the information discussed in these proposed regulations.
Response: We believe the term ``confidential'' which is used in the
statute is more consistent and appropriate for implementing the
regulation.
3. Comment: One commenter requests that, within the definition of
``confidential information'', ``employment information'' be changed to
``employer name and address'' in order to be less broad and more
consistent with Sec. 302.35.
Response: Access to data through the Federal PLS and the State PLS
in Sec. 302.35 is not restricted to employer name and address.
4. Comment: One commenter requests a specific list of factors by
which an individual can be identified because the phrase ``not limited
to'' in Sec. 303.21(a) is vague. As currently written, a State could
violate the regulation or get differing interpretations by different
workers. Suggested change: ``Confidential information means any
information relating to a specified individual or an individual who can
be identified by reference through any other nonconfidential source by
reference to one or more factors specific to him or her, including, but
not limited to, the individuals SSN, residential or mailing addresses,
employment information, and financial information. Excluded as factors
specific to him or her are numbers unique to the computerized child
support enforcement system for individuals, as such a number cannot be
used as an identifying factor outside of access to the confidential
computerized child support enforcement system.''
Response: We have not included this clarification in the
regulation. Since the State establishes the IV-D case numbers and
determines when and how they are used, we are unable to conclude that
such numbers could not be identifying information. We question why
there would be a need to release IV-D case numbers to an entity outside
the administration of the IV-D program.
5. Comment: One commenter questions the intent of Sec. 303.21(a)
and recommends allowing States to release payment-related information
in accordance with State law. The commenter believes the last sentence
``the amount of support ordered and the amount of support collection
are not considered confidential information for purposes of this
section'' opens up the IV-D agency to having to provide payment records
to anyone who makes a request whether or not the requestor is
associated with the case or intends to use the information for child
support related purposes. One commenter says the definition of
``confidential information'' does not include the support-ordered
amount or the amount of a support collection. Does this mean that if
the IV-D agency/SDU is approached by an outside entity or ``interested
third party'' who wants the names and collections of persons, that the
IV-D agency/SDU is not prohibited from providing such information?
(Assume the third party is not able to help IV-D program establish and
enforce.) What if the interested third party has a name and wants to
know the corresponding charges and payments against the obligation? One
commenter is concerned with the last sentence in Sec. 303.21(a) that
appears to make payment histories and arrearage records, which contain
amounts of support ordered and collection amounts, a part of the public
record, and would like clarification as to the difference between that
and ``financial information'' which is confidential. The commenter does
not understand the meaning of this apparent contradiction.
Response: We agree that the language in the proposed rule is
confusing. We deleted the language ``The amount of support ordered and
the amount of a support collection are not considered confidential
information for purposes of this section.'' Interested third party may
not receive payment histories and arrearage records.
6. Comment: One commenter asks: in order to balance the need for
accurate payment records and meet IV-D and IRS requirements, is it
acceptable to show an IRS payment amount in these payment records, but
not to identify the payment as an IRS receipt?
Response: We believe it is acceptable for child support purposes
but this is ultimately governed by Internal Revenue Service Code.
7. Comment: One commenter believes that if the source of the
information on the document to be released cannot, on the face of the
document, be linked to the Federal PLS, Internal Revenue Service (IRS),
the National Directory of New Hires (NDNH), or other protected source,
there is no need to restrict release of a copy of a document that is a
matter of public record.
Response: We disagree. The statutory provisions restrict disclosure
of specific information whether or not the source is identified.
8. Comment: One commenter asks that the following sentence be added
to the end of Sec. 303.21(a): ``Information required by state law to
be released to designated persons or entities is not considered
`confidential' if the information has been independently verified or
furnished from a source that is not protected by Title IV-D of the
Social Security Act.''
Response: The statement as proposed is too broad because it could
be interpreted to include personal identifying information on the
statewide automated system.
9. Comment: One commenter would like confirmation that an
individual's name would be considered ``confidential information'' as
it would be information relating to a specific individual who could be
identified. If the individual's name is confidential and the State is
not able to release the name, under what circumstances could we release
the amount of support ordered/collected without the name?
Response: Confidential information about individuals may not be
disclosed outside the administration of the IV-D program. The State
could release aggregate amounts of support collected in the State--
e.g., $X for FY 2006.
10. Comment: One commenter would like noted that if a IV-D program
remains unable, under IRS rules, to release the amount of the Federal
Tax Refund Offset payment to non-IV-D
[[Page 56435]]
entities, the program is severely hampered in our ability to report
collection obligation compliance information to courts, custodial
parties, etc.
Response: We continue to work with the Department of the Treasury
regarding the release of offset collection information. The Department
of Treasury has offered to the Congress suggested legislation that
would amend the Internal Revenue Code regarding this concern and the
Department of Health and Human Services supports the proposal.
11. Comment: One commenter is concerned that the requirement that
``any official with whom a cooperative agreement * * * has been entered
into * * *'' may not disclose confidential information received from
the IV-D agency applies to agreements with the Clerks of Courts.
Documents filed with the court, which have not been sealed, are open to
inspection by such parties as the parties' creditors, commercial
information brokers, and newspaper reporters. OCSE needs to recognize
that this ``open records'' type of disclosure is permissible for Clerks
of Courts despite this regulation.
Response: Section 454(26) of the Act requires IV-D agencies to have
in effect safeguards, applicable to all confidential information
relating to proceedings or actions to establish paternity or to
establish, modify or enforce support, that are designed to protect the
privacy rights of the parties; and 45 CFR 302.12(a)(3) requires that
those who receive information (such as through cooperative agreements)
shall abide by those safeguards, because they are carrying out
functions for the State IV-D agency. However, this regulation does not
prohibit the disclosure of documents filed with the court, which have
not been sealed and are open to inspection by such parties as the
parties' creditors, commercial information brokers, and newspaper
reporters.
12. Comment: One commenter notes the general rule prohibiting
disclosure of confidential information has an exception ``as authorized
by the Act and implementing regulations * * *.'' Which implementing
regulations does this refer to?
Response: Title IV-D regulations at 45 CFR Parts 301-309 are the
``implementing regulations'' referenced.
13. Comment: Several commenters would like clarification regarding
the provision to not disclose confidential information obtained ``in
connection with the performance of IV-D functions outside the
administration of the IV-D program.'' What do these ``IV-D functions
outside of the administration of the IV-D program'' refer to?
Clarification is needed in order to reflect reality that information
about the noncustodial parent may be used in any way necessary to
establish paternity or establish, modify or enforce a child support
order.
Response: We have clarified the intent of the language by restating
it to read ``may not disclose any confidential information, obtained in
connection with the performance of IV-D functions, outside the
administration of the IV-D program.''
14. Comment: One commenter is concerned that the Supplementary
Information section of this proposed rule adds a limitation not stated
in the actual rule by saying ``the IV-D program may only disclose the
minimum amount of confidential information needed for the purpose
provided.''
Response: We have deleted the sentence ``In making a disclosure
under this provision, the IV-D program only disclose the minimum amount
of confidential information needed for the purpose provided'' as stated
in the preamble describing Section 2: Safeguarding and Disclosure of
Confidential Information.
15. Comment: Two commenters believe Sec. 303.21(d) is very
restrictive, adds undue complexity to IV-D disclosure policies, and
places an undue burden on States. For example, unless released within
the purpose of the IV-D program, the State would need to figure out how
to withhold IV-D information from courts without compromising the
court's ability to administer the court case.
Response: Disclosure of necessary information to the courts needed
for purposes of the IV-D program is authorized except as limited by
Section 6103 of the Internal Revenue Code. (Also see Q and A
10).
16. Comment: One commenter asks that Sec. 303.21(d) focus on
specifying when disclosure of information to other government programs
is permitted and for what purposes.
Response: Section 303.21(d)(2) and (3) address circumstances under
which information may be disclosed and for what purposes.
17. Comment: One commenter is concerned that the section on
authorized disclosures is made in such a general manner that most
administrators responsible for safeguarding data privacy would have a
great deal of difficulty making all the inferences required to actually
share data.
Response: We have redesigned Appendix A for clarity. We reorganized
it so it is laid out by authorized person followed by authorized
purpose. We have developed a new Appendix B which addresses locate
services in connection with enforcement or determination of child
custody and in cases of parental kidnapping of a child.
18. Comment: One commenter asks about the process of releasing
confidential information in accordance with Sec. 303.21(d)(1) under
which information may be released ``to such person or persons
designated by the individual to whom the information relates or who is
the custodial parent or legal guardian of a child * * *.'' Should the
designation be written or verbal? Are there time restrictions to the
designation? Another commenter is concerned that Sec. 303.21(d)(1)
would require release of confidential information to anyone the
individual designates, even though State statute allows only for
minimal information to be released. The commenter recommends that the
proposed rule be changed to not require release of the information and
instead say ``information may be released unless prohibited under State
statute.''
Response: As indicated earlier in the preamble, this paragraph was
removed as a separate authorized disclosure because under paragraph
(c), disclosure to an individual would be allowed for IV-D purposes and
would be governed by any safeguarding provision in State law as well.
19. Comment: One commenter requests that the term ``shall'' be
replaced with ``may'' because it is appropriate for States to have the
flexibility to address, at the State level, how they respond to
requests from an individual to release confidential information. For
example, they would want to be able to determine, in certain
situations, that it would be appropriate for them to deal directly with
the customer, rather than a designee.
Response: See answer to 18.
20. Comment: One commenter thinks the rule should make clear that a
custodial parent or legal guardian may obtain information about the
child in a case and may authorize release of information about the
child.
Response: This language has been removed. See answer to
18.
21. Comment: One commenter would like to strike the prohibition
against providing confidential information about an individual to any
other individual involved in the case.
Response: The Federal and State IV-D programs are responsible for
protecting sensitive personal information and broad authority as
suggested by the commenter is inappropriate.
[[Page 56436]]
22. Comment: One commenter believes the ability to provide locate
information to a non-IV-D requestor conflicts with the broad
prohibition against disclosing ``confidential'' information about one
individual to another person involved in the case (as proposed in Sec.
303.21(d)(1)). Several commenters are concerned that Sec. 303.21(d)(2)
creates a potential danger for overuse of this broad discretion. The
proposed rule would essentially grant wide-open access to all the
records and databases available to State child support programs,
without any realistic ability for States to monitor use of this
confidential data.
Response: Proposed Sec. 303.21(d)(1) has been removed from the
final rule. Section 303.21(d)(2) (now Sec. 303.21(d)(1)) has been
limited to the specific programs which have been designated by the
Secretary. These programs also have safeguarding rules.
23. Comment: There were several commenters who questioned the
mandatory rather than permissive disclosures in Sec. 303.21(d)(2). One
commenter wants to know why it is written as a mandate for the State
IV-D program to disclose confidential information to all entities
listed and believes the ``permissive disclosure'' allowed prior to
February 1999 was more appropriate than a mandated disclosure. Another
commenter would like the phrase ``must'' changed to ``may'' in Sec.
303.21(d)(2) because the commenter believes a State should be
authorized to disclose information and that it should not be a
requirement to disclose the information. Such a change would also
eliminate the need for the ``to the extent that it does not interfere
with the IV-D program meeting its own obligation'' language in the same
sentence. Three commenters point out that Sec. 303.21(d)(2)(ii) would
require IV-D agencies to report child abuse (or at least give the
appearance of such), rather than making this reporting discretionary.
Response: Former Sec. 303.21 Safeguarding information, was removed
with passage of Public Law 104-93. PRWORA was more permissive.
Therefore, we have changed the language in Sec. 303.21(d) from
``must'' to ``may'' and have added ``upon request'' for clarity at the
beginning of paragraph (1).
24. Comment: One commenter appreciates the fact this regulation
does not mandate the manner or the timeframes by which the IV-D program
must respond to authorized requestors. States must have this
flexibility.
Response: We are committed to State flexibility to the extent
allowable and to our Federal/State/Tribal partnership.
25. Comment: Is it appropriate that Tribal agencies be authorized
to have access to data under Sec. 303.21 as discussed in the
applicable preamble part?
Response: Tribal IV-D agencies are included in Sec. 303.21(d)(1)
because they are agencies administering programs under title IV-A and
IV-D of the Act. However, for clarity we have included specific
reference to Tribal programs under title IV-A of the Act in Sec.
303.21(d)(1).
26. Comment: One commenter seeks confirmation that this section
permits Federal or State auditors, or other agencies with oversight
responsibilities, to access confidential information or IV-D case-
specific information.
Response: Authority for access to information for purposes of the
administration of the plan or program approved under title IV-D of the
Act includes audits conducted by Federal or State auditors, or other
agencies with oversight responsibility.
27. Comment: Do ``under circumstances which indicate that the
child's health or welfare is threatened'' include a release to law
enforcement agencies? Does the language of this proposed regulation
allow us to release information from our child support files in
response to an AMBER Alert?
Response: Based on received comments, we have deleted the language
in Sec. 303.21(d) as stated in the NPRM that would have allowed the
State IV-D program to release information to law enforcement agencies
upon request. However, the information can be released to the IV-B or
IV-E agency where it is necessary to carry out a State IV-B or IV-E
function.
28. Comment: One commenter requests that the phrase ``best interest
of the child'' be inserted because this language is more appropriate
than ``under circumstances which indicate that the child's health or
welfare is threatened.''
Response: See response to Question 28 immediately above.
29. Comment: One commenter seeks clarification as to whether the
proposed rule would limit the use of SDNH information outside of the
IV-D program, subject to the exceptions specified in Sec.
303.21(d)(2). The commenter does not want restrictions on the use of
SDNH data. This data is used to collect taxes and to detect and prevent
fraud in a wide range of programs. We are unaware of any Federal
authority for limiting use of this State data. In fact, section
453A(h)(3) of the Act explicitly requires States to share State new
hire data with ``State agencies operating employment security and
worker's compensation programs.'' If OCSE intends to impose these
strict limitations on the use of SDNH data, further discussion of this
proposal with States is warranted.
Response: Safeguarding of SDNH data is determined by whether or not
the database is part of the statewide child support enforcement
automated system. Any information in the statewide system is protected
and its access limited as set forth in Sec. 307.13. If the SDNH is
housed in a separate agency, these restrictions do not apply to non-IV-
D use.
30. Comment: One commenter believes the intent of this rule, as
expressed in the preamble, does not fit with requiring independent
verification of Federal Case Registry and National Directory of New
Hires information.
Response: Restricted access to Federal Case Registry (FCR) and
National Directory of New Hires (NDNH) information is statutory.
Independent verification is a means to enable a State to disclose this
information for non-IV-D purposes by changing the source of the data
through verification.
31. Comment: One commenter would like an exception made under Sec.
303.21(d)(3) for title XIX (Medicaid programs). The prohibition on
disclosing unverified FCR and NDNH information contradicts the mandate
in 42 U.S.C. 654A(f)(3) to share IV-D system information with Title XIX
programs.
Response: Section 454A(f)(3) authorized limited sharing of
information on the title IV-D automated system to title XIX agencies.
There is a separate statute at section 453(h) and (i) that explicitly
restricts access to NDNH and FCR data and does not authorize access to
such data by title XIX agencies. Section 303.21(d)(3) addresses
disclosure of information obtained from the IRS or Federal PLS and not
State systems data.
32. Comment: Two commenters are confused by the requirement to
independently verify information the IV-D program receives from NDNH or
FCR. How would such information be independently verified? Is this rule
proposing that the State IV-D agency would have to contact the other
State to verify the FCR information and NDNH information?
Response: This rule is not requiring or advocating the IV-D agency
to independently verify information received from the NDNH or the FCR.
It merely describes the circumstances
[[Page 56437]]
under which such data may be disclosed to persons not specified in
section 453 of the Act (non-IV-D purposes). For example, assume a State
IV-D agency submits an address received from the NDNH for postal
verification. Once the postal verification is complete, that
information has been independently verified and can be released. The
source of the address is the postal service, not the NDNH.
33. Comment: One commenter strongly recommends deleting the
provision in Sec. 303.21(d)(3) from the proposed regulation
restricting access to NDNH, FCR, and IRS data.
Response: Because these restrictions are statutory, they cannot be
deleted.
34. Comment: While one commenter recognizes that Federal law
requires restriction on redisclosure of IRS data and has no objection
to this aspect, the commenter is unaware of any basis in Federal
statute for requiring independent verification of information from
NDNH, FCR, or MSFIDM.
Response: Federal statute is explicit regarding authorized
disclosure of NDNH and FCR data. Section 453 of the Act specifies that
information from the Federal PLS (of which the NDNH and FCR are a part)
may only be released to authorized persons and for certain purposes.
This rule is not requiring the IV-D program to independently verify
information received from the NDNH or the FCR. It merely describes the
circumstances under which such data may be disclosed to persons not
specified in section 453 of the Act (non-IV-D purposes).
35. Comment: One commenter notes that a State currently accepts
information from the FCR and NDNH as ``independently verified'' and
takes action based upon that information. This provision (requiring
that the State in itself independently verify such data) will require
reprogramming systems and will cause operational burden on States.
Response: This rule is not requiring the IV-D agency to
independently verify information received from the NDNH or the FCR. It
merely describes the circumstances under which such data may be
disclosed to persons not specified in section 453 of the Act (non-IV-D
purposes). In fact, we encourage IV-D agencies to take automated action
based on the NDNH or the FCR.
36. Comment: One commenter asks for clarification on whether the
State would be able to share locate and paternity establishment
information on a State's IV-D system through an automated interface
with Child Welfare, Foster Care, and Medicaid agencies.
Response: Yes, under certain circumstances and with certain
limitations. See Sec. Sec. 303.21 and 307.13
37. Comment: Three commenters are concerned that the independent
verification requirement will impede a State's ability to share
information in a timely, efficient and automated manner. In particular,
the requirement will impede State's ability to assist State IV-E and
Medicaid agencies in recovering public health insurance costs and
locating parents. At a minimum, States will need to segregate NDNH,
FCR, and MSFIDM data so that they do not transmit this information to
State IV-E and Medicaid agencies pending independent verification. This
will require additional automated system development, at a cost to both
States and the Federal government, and will impede the functioning of
automated interfaces with other State agencies. Funds and resources
devoted to programming these requirements could better be used on
system development that supports the core mission of the child support
program.
Response: This rule is not requiring the IV-D agency to
independently verify information received from the NDNH or the FCR. It
merely describes the circumstances under which such data may be
disclosed to persons not specified in section 453 of the Act (for non-
IV-D purposes).
38. Comment: One commenter believes the regulation fails to provide
guidance to IV-D agencies regarding the use of Federal tax offset
amounts and asks: how can a IV-D agency ``independently verify'' the
amount of a Federal tax refund intercept?
Response: There is no way to independently verify Federal tax
refund offset information. We continue to work with the Department of
the Treasury and the Congress to resolve this issue.
39. Comment: One commenter notes the regulation requires that
authorized disclosures, except to IV-A agencies, cannot include
information obtained from the FCR, unless independently verified. Does
this mean that information about the noncustodial parent's access to
military medical benefits obtained from the Defense Data Management
Center (DMDC) and transmitted to the FCR is confidential?
Response: States acquire DMDC through a FCR transaction but the
data is not part of the FCR database. Information about the
noncustodial parent's access to military medical benefits is thus not
subject to the ``independent verification'' requirement.
40. Comment: One commenter would like confirmation that Sec.
303.21(d)(3) means that information may not be shared with a custodial
parent seeking information about medical support benefits available to
a child but that it may be released to the IV-A agency.
Response: There is no restriction on sharing information from the
Federal PLS about medical support benefits with custodial parents in
IV-D cases. Such information is not received from the NDNH or the FCR.
41. Comment: Four commenters note that the requirement for
independent verification of NDNH and FCR information prior to
disclosure could have the following consequences: delay in sending out
income withholding notices (will not meet 2-day Federal timeframe);
delay to families and children in getting payments; burden on employers
who may be required to furnish additional employment verification to
the SDNH; require automated system programming changes since the
proposed rule would require segregation of NDNH and FCR and change to
systems automatic processing of New Hire information; is an
unacceptable burden on IV-D agencies (unfunded mandate); will impair an
agency's ability to assist other State entities authorized to receive
such information; and will complicate the process because depending on
purposes for which information is to be used, sometimes it must be
verified and sometimes not.
Response: This rule is not requiring the IV-D agency to
independently verify information received from the NDNH or the FCR
before it is used in the administration of the IV-D program. It merely
describes the circumstances under which such data may be disclosed to
persons not specified in section 453 of the Act (for non-IV-D
purposes). We encourage IV-D agencies to take automated action based on
the NDNH or the FCR information.
42. Comment: One commenter believes that to now require independent
verification of this data seems to be contradictory to previously
stated policy by the Federal OCSE (i.e., DCL-02-22 that offers the use
of the NDNH, and MSFIDM as better sources than 1099 information).
Response: Independent verification is not being required. It is
merely a condition that must be met if the State wishes to use or
disclose information for non-IV-D purposes to nonauthorized persons.
This applies only to non-IV-D purposes. There is no such restriction in
IV-D cases.
43. Comment: One commenter said the State does not routinely track
the ``source'' of most information and thinks the administrative burden
involved with sharing information under the proposed
[[Page 56438]]
restrictions may be too great for the program to overcome. Another
commenter indicated that the State's IV-D automated system is required
to identify the source of address and employment information the IV-D
agency receives from automated sources. If IV-D staff independently
verified NDNH information, the staff would have to change the source of
confidential information and then neither State nor Federal Child
Support Enforcement agencies would be able to calculate how many
successful ``hits'' the State is receiving from NDNH or FCR.
Response: The source of information is a recommended but not
required data element in State child support systems. However, most
States do identify the source of information on their systems to meet
other tracking requirements such as tracking responses from each
automated location source.
44. Comment: One commenter requests that if the Office insists on
including the restriction that prohibits disclosure of NDNH and FCR
information to title IV, XIX and XXI agencies, the Office insert
language to clarify ``Except for SPLS disclosure authorized under Sec.
302.35(c)(5), the IV-D program may not disclose FCR and NDNH data to
IV-B and IV-E agencies.''
Response: Because of authority in section 453(c) of the Act, in
Sec. 307.13(a)(4)(iii) we have indicated that NDNH and FCR information
is available to IV-B and IV-E agencies for the purposes set forth in
section 453 of the Act.
45. Comment: One commenter would like the Office to recognize that
the mandate to disclose to Title IV-B and IV-E agencies under Sec.
303.21(d)(2) and the prohibition on that mandated disclosure of NDNH
and FCR information to IV-B and IV-E agencies without first
independently verifying under (d)(3) will create confusion because
under 42 U.S.C. 653(c)(4), IV-B, and IV-E agencies are authorized
persons for receiving NDNH and FCR information for authorized purposes
without independent verification for the limited purposes of
establishing parentage and support.
Response: Section 453(c) of the Act provides authority for IV-B and
IV-E agencies to receive NDNH and FCR information without independent
verification.
46. Comment: One commenter notes that Sec. 303.21(e) makes it
clear that a legislative body or governmental committee cannot obtain
the release of information pertaining to an individual without consent
of the individual. Please verify that it is up to the State to
determine the nature of the consent of the individual (e.g., written,
verbal, or notarized permission or a State could deny permission
entirely?).
Response: To the extent that an individual in a IV-D case submits a
request to a legislator or legislative body concerning his or her IV-D
case, the IV-D agency may disclose the information necessary for the
response because the inquiry relates to the administration of the IV-D
program and is authorized under paragraph (c). As mentioned earlier in
the preamble, we deleted the language under paragraph (e) Safeguards,
that ``safeguards shall also prohibit disclosure to any committee or
legislative body (Federal, State, or local) of any confidential
information, unless authorized by the individual as specified in
paragraph (d) of this section.''
47. Comment: One commenter, to emphasize the requirement that
States establish the safeguards for victims of family violence required
by the statute and by the automated system regulation, requested the
following sentence be added to the end of Sec. 303.21(e): ``These
safeguards shall also include prohibitions against the release of
information when the State has reasonable evidence of domestic violence
or child abuse against a party or a child and that the disclosure of
such information could be harmful to the party or the child, as
required by section 454(26) of the Act, and shall include use of the
family violence indicator required under Sec. 307.11(f)(1)(x) of this
chapter.''
Response: We agree with the commenter and have revised Sec.
303.21(e) accordingly.
48. Comment: One commenter recommends adding a qualification to
Sec. 303.21(e) that the information may be released where members of
the legislature want information with respect to a IV-D case because of
a constituent request on a particular case.
Response: Addition of a qualification is not necessary. Under Sec.
303.21(c) such disclosure is allowable because it is for IV-D purposes.
Appendix A to Sec. 303.21, Safeguarding Confidential Information
1. Comment: One commenter is concerned that Appendix A does not
recognize that among the duties of the IV-D program is the duty to
avoid fraud in publicly-funded programs.
Response: States are responsible for avoiding fraud in any
publicly-funded program. However we have no authority to allow access
to specific data when prohibited or limited by Federal statute.
2. Comment: One commenter notes that the preamble to the proposed
rule and the proposed language of Sec. 303.21 impose an independent
verification requirement for NDNH but not for SDNH data. Yet the chart
in Appendix A following proposed Sec. 303.21 applies this independent
verification requirement to disclosure of SDNH data. This appears to be
an error. If not, this requirement would be a major limitation on State
use of State new hire data that has no basis in Federal law.
Response: The chart indicates that independent verification is
needed if the source of information is NDNH, FCR, or IRS, except that
NDNH or FCR information may be shared with the IV-A, IV-B, and IV-E
programs without verification. As mentioned earlier, we have redesigned
Appendix A and added a new Appendix B and C. There is no requirement to
independently verify SDNH information.
Section 303.70, Procedures for Submissions to the State Parent Locator
Service (State PLS) or the Federal Parent Locator Service (FPLS)
1. Comment: One commenter recommends that the Office specify that
the word ``individuals'' as used in paragraph (a) includes parents,
putative fathers, children and caretaker relatives.
Response: Section 453 of the Act governs whom the Federal PLS may
attempt to locate and by cross-reference in section 454(8) of the Act,
whom the State PLS may attempt to locate. Section 453(a)(2)(A) refers
to attempting to locate any individual ``(i) who is under an obligation
to pay child support; (ii) against whom such an obligation is sought;
(iii) to whom such an obligation is owed, or (iv) who has or may have
parental rights with respect to a child.'' Caretaker relatives do not
fit any of those conditions. However, we have substituted ``parents,
putative fathers, and children'' for ``individuals'' in Sec.
303.20(a).
2. Comment: One commenter would like the following ``purpose'' to
be added: The State PLS shall locate individuals for the purpose of
facilitating informed and timely decisions about child welfare and
permanency, since locating parents for IV-B/IV-E purposes goes beyond
just ``establishing parentage'' or ``determining who has or may have
parental rights to a child'' as the language in the proposed rule
currently reads.
Response: The language in Sec. 303.70(e)(1)(i) is the authorized
purpose as stated in section 453(a)(2) of the Act for the release of
information to IV-B and IV-E State agencies and is
[[Page 56439]]
consistent with timely decisions regarding child welfare.
3. Comment: One commenter would like the word ``aid'' changed to
``assistance as defined at 45 CFR 260.31'' in the proposed rule. This
way, there will be a clear national policy in this area.
Response: We have changed the word ``aid'' to ``assistance'' as
suggested by the commenter but did not cite the regulation because it
may change.
Section 307.13, Security and Confidentiality for Computerized Support
Enforcement Systems in Operation After October 1, 1997
1. Comment: Will more guidance be given to IV-D agencies regarding
the type of information that will be needed by the State and Tribal
agencies administrating programs under titles IV, XIX, and XXI of the
Act?
Response: We encourage IV-D agencies to work with other agencies to
make such determinations.
2. Comment: Could IV-A, XIX, and XXI workers have login IDs and
passwords to the IV-D system if their access to the IV-D system were
sufficiently limited to view only the information that those workers
had the right to access?
Response: It is possible but would require additional programming
to ensure that the non-IV-D worker has access to only the authorized
data including, as applicable, independently-verified data. Non-IV-D
workers cannot have direct access to the IV-D screens, because usually
the data on a typical IV-D system screen may contain IRS and financial
institution information
3. Comment: One commenter asks for clarification of the phrase
``outside the IV-D program'' in Sec. 307.13(a)(5). Does this phrase
mean that the State IV-D agency may not disclose NDNH or FCR
information without independent verification even if it is a disclosure
that is necessary to establish, modify or enforce child support? Would
this phrase prohibit the IV-D agency from using MSFIDM information as
evidence in a contempt of court proceeding to show the delinquent
obligor had assets but still failed to pay child support as ordered
unless the IV-D agency first obtained independent verification?
Response: Establishing, modifying or enforcing a child support
order, or a court proceeding where proof is brought regarding the fact
that a delinquent obligor had assets but still failed to pay child
support, are all IV-D purposes for a IV-D case. Because they are IV-D
purposes, the IV-D agency may disclose NDNH or FCR information and
independent verification does not apply.
4. Comment: One commenter seeks clarification that Sec.
307.13(a)(5) [now Sec. 307.13(a)(4)] does not require independent
verification of FCR and NDNH information. If so, the commenter
recommends deleting this provision as it is administratively
burdensome. One commenter would like the Office to eliminate the
restriction that requires independent verification of NDNH and FCR
information to title IV, XIX and XXI agencies.
Response: Independent verification of NDNH and FCR information is
only necessary for disclosure for non-IV-D purposes. The regulation has
been rewritten for clarity and Sec. 307.13(a)(4) requires written
policies that limit disclosure outside the IV-D program, of National
Directory of New Hire information, Federal Case Registry information,
and IRS information that is restricted as specified in the Internal
Revenue Code. Financial institution information cannot be shared
outside the IV-D program. IV-A, IV-B, and IV-E agencies are authorized
under various subsections of section 453 of the Act to receive NDNH and
FCR information from the Federal PLS for certain specified purposes.
Since these agencies are authorized to have this information, we are
permitting the IV-D agency to disclose the NDNH or FCR information from
the IV-D computerized support enforcement system directly to the IV-A,
IV-B, or IV-E agency if it is being requested for the purpose
authorized under section 453 of the Act. For IV-B and IV-E programs
this includes establishing paternity or parental rights with respect to
a child.
5. Comment: One commenter seeks clarification as to who is
responsible to conduct any verification.
Response: The State IV-D agency must independently verify the data.
Appendix A: Locating Individuals Through the State PLSs Sec. 302.35
--------------------------------------------------------------------------------------------------------------------------------------------------------
Persons about whom
Authorized person/program Authorized purpose of information may be Sources searched Authorized Limitations \1\
the request asked information returned
--------------------------------------------------------------------------------------------------------------------------------------------------------
Agent/attorney of a State who has Establish paternity. Noncustodial Parent... Federal Parent Six Elements: See footnote.
the duty or authority to collect Establish, set the Putative Father....... Locator Service. Person's Name........
child and spousal support under amount, modify, or Custodial Parent...... In-state sources in Person's SSN.........
the IV-D plan. Section 453(c)(1). enforce child support Children. Section accordance with Person's address.....
obligations and or to 453(a)(2)(A). State law. Employer's name......
facilitate the Employer's address...
location of any Employer
individual who is Identification
under an obligation Number. Section
to pay child support, 453(a)(2)(A)(iii).
against whom such an Wages, income, and
obligation is sought, benefits of
or to whom such an employment,
obligation is owed. including health
care coverage.
Section 453(a)(2)(B).
Locate a parent or Type, status,
child involved in a location, and amount
non-IV-D child of assets or debts
support case to owed by or to the
disburse an income individual. Section
withholding 453(a)(2)(C).
collection. Section
453(a)(2).
[[Page 56440]]
Court that has the authority to To facilitate the Noncustodial Parent... Federal Parent Six Elements as above No Internal Revenue
issue an order against an NCP for location of any Custodial Parent...... Locator Service. Wages, income, and Service (IRS)
the support and maintenance of individual who is Putative Father....... In-state sources in benefits of information provided
child, or to serve as the under an obligation Child................. accordance with employment, for non-IV-D cases
initiating court in an action to to pay child support, State law. including health unless independently
seek a child support order. against whom such an care coverage. verified.
Section 453(c)(2). obligation is sought, Section 453(a)(2)(B). No Multistate
or to whom such an Type, status, Financial
obligation is owed. location, and amount Institution Data
of assets or debts Match (MSFIDM) and
owed by or to the no State Financial
individual. Section Institution Data
453(a)(2)(C). Match (FIDM)
information provided
for non-IV-D cases.
Locate a parent or No required
child involved in a subsequent attempts
non-IV-D child to locate unless
support case.. there is a new
request.
Resident parent, legal guardian, To facilitate the Noncustodial Parent... Federal Parent Six Elements as above Child not receiving
attorney, or agent of a child not location of any Putative Father....... Locator Service. Wages, income, and IV-A benefits.
receiving IV-A benefits (a non-IV- individual who is In-state sources in benefits of No IRS Information.
D request). Section 453(c)(3).\2\ under an obligation accordance with employment, No MSFIDM and no
to pay child support, State law. including health State FIDM
against whom such an care coverage. information provided
obligation is sought, Section 453(a)(2)(B). for non-IV-D cases.
or to whom such an Type, status, In a non-IV-D
obligation is owed. location, and amount request, attestation
of assets or debts is required as
owed by or to the specified in Sec.
individual. Section 302.35(c)(3)(i)-(iii
453(a)(2)(C). ).
Locate a parent or
child involved in a
non-IV-D child
support case.
No required
subsequent attempts
to locate unless
there is a new
request.
State agency that is administering To facilitate the Noncustodial Parent... Federal Parent Six Elements as above No IRS information
a Child and Family Services location of any Putative Father....... Locator Service. Wages, income, and unless independently
program (IV-B) or a Foster Care individual who has or Custodial Parent...... In-state sources in benefits of verified.
and Adoption IV-E program. Section may have parental Child. Section accordance with employment, No MSFIDM information
453(c)(4). rights with respect 453(a)(2)(A). State law. including health and no State FIDM
to the child. Section care coverage. information
453(a)(2)(iv). provided.
Type, status,
location, and amount
of assets or debts
owed by or to the
individual. Section
453(a)(2)(C) .
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ No information shall be disclosed if the disclosure of such information would contravene the national policy or security interests of the United
States or the confidentiality of census data. No information shall be disclosed if the State has reasonable evidence of domestic violence or child
abuse and the disclosure of such information could be harmful to the CP or child. See Section 453(b)(2) for release process to court or agent of the
court.
\2\ A Tribal IV-D program may request access to the Federal PLS under this authority. See PIQ-07-02/TPIQ-07-02, Q&R 7.
[[Page 56441]]
Appendix B: Locating an Individual Sought in a Child Custody/Visitation or Parental Kidnapping Case
--------------------------------------------------------------------------------------------------------------------------------------------------------
About whom Authorized
Type of request Authorized person/ Authorized purpose information may be Sources searched information Limitations \1\
program of the request requested returned
--------------------------------------------------------------------------------------------------------------------------------------------------------
LOCATING AN INDIVIDUAL SOUGHT IN Any agent or Determining the A parent or child. Federal Parent Only the three See footnote.
A CHILD CUSTODY OR VISITATION attorney of any whereabouts of a Sec. 463(a). Locator Service. following No IRS information
CASE. State who has the parent or child In-state sources elements: provided.
authority/duty to to make or in accordance Person's address No MSFIDM or State
enforce a child enforce a custody with State law. Employer's name FIDM information
custody or or visitation Employer's provided.
visitation determination. address Sec.
determination. Sec. 463(a)(2). 463(c).
Sec.
463(d(2)(A).
A court, or agent No subsequent
of the court, attempts to
having locate unless
jurisdiction to there is a new
make or enforce a request.
child custody or
visitation
determination.
Sec.
463(d)(2)(B).
LOCATING AN INDIVIDUAL SOUGHT IN Agent or attorney Determining the A parent or child. Federal Parent Only the three See footnote.
A PARENTAL KIDNAPPING CASE. of the U.S. or a whereabouts of a Sec. 463(a). Locator Service. following No IRS information
State who has parent or child In-state sources elements: provided
authority/duty to to enforce any in accordance Person's address No MSFIDM or State
investigate, State or Federal with State law. Employer's name FIDM information
enforce, or law with respect Employer's provided.
prosecute the to the unlawful address Sec. No subsequent
unlawful taking taking or 463(c). attempts to
or restraint of a restraint of a locate unless
child. Sec. child. Sec. there is a new
463(d)(2)(C). 463(a)(1). request.
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ No information shall be disclosed if the disclosure of such information would contravene the national policy or security interests of the United
States or the confidentiality of census data. No information shall be disclosed if the State has reasonable evidence of domestic violence or child
abuse and the disclosure of such information could be harmful to the CP or child. See Section 453(b)(2) for release process to court or agent of the
court.
Appendix C: Authority for State IV-D Agencies to Release Information to Non-IV-D Federal, State, and Tribal
Programs
----------------------------------------------------------------------------------------------------------------
Authorized
Authority Authorized purpose Authorized person/ information Limitations
of request program returned
----------------------------------------------------------------------------------------------------------------
Sections 453 and 454A(f)(3) of To perform State State or Tribal Confidential No Internal
the Act, Section 1102 of the or Tribal agency agencies information found Revenue Service
Act; and 45 CFR 307.13. responsibilities administering in automated information
of designated title IV, XIX, system. unless
programs. and XXI programs. independently
verified.
No MSFIDM or State
FIDM information
provided.
No NDNH and FCR
information for
title XIX and XXI
unless
independently
verified.
For IV-B/IV-E, for
purpose of
section 453(a)(2)
of the Act can
have NDNH and FCR
information
without
independent
verification.
--Any other
purpose requires
independent
verification.
For IV-A NDNH/FRC
information for
purposes of
section 453(j) of
the Act without
independent
verification.
--Need
verification for
other purposes.
[[Page 56442]]
Sections 453A(h)(2) and 1137 of Income and State agencies SDNH information:
the Act--State Directory of New eligibility administering Individual's
Hires. verification title IV-A, name, address and
purposes of Medicaid, SSN; employer's
designated unemployment name, address,
programs. compensation, and Federal
food stamps, or employer
other State identification
programs under a number.
plan approved
under title I, X,
XIV, or XVI of
the Act.
----------------------------------------------------------------------------------------------------------------
IV. Regulatory Review
A. Paperwork Reduction Act
Section 302.35(c) contains an information collection requirement.
As required by the Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)),
the Administration for Children and Families submitted a copy of this
section to the Office of Management and Budget (OMB) for its review. We
received only one comment regarding the attestation; therefore in the
final rule have not revised any language in Sec. 307.13 relating to
attestation.
1. Comment: One commenter noted that the Paper Reduction Act
estimate of 702 hours grossly underestimates the time needed to
complete the requirements of these proposed regulations. Requiring
State IV-D agencies to independently verify NDNH and FCR hits requires
a tremendous amount of paperwork, time, and effort.
Response: The regulation does not require independent verification.
It sets forth the conditions for the release of information that the
State would not be able to release for non-IV-D purposes otherwise. If
the information has not been independently verified, it may not be
released for non-IV-D purposes or to persons not specified in section
453 of the Act.
B. 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 Act.
C. Executive Order 12866
Executive Order 12866 requires that regulations be reviewed to
ensure that they are consistent with the priorities and principles set
forth in the Executive Order. The Department has determined that this
rule is consistent with these priorities and principles. This
regulation responds to State requests for guidance on data privacy
issues.
The primary purpose of this regulation is to clarify requirements
for safeguarding child support enforcement information by consolidating
various statutory requirements on disclosure and safeguarding of
information into a regulatory framework. There are no appreciable costs
related to this regulation as the relevant statutory requirements have
been in place for many years and the regulation substantially reflects
current operating practices.
D. Unfunded Mandates Reform Act of 1995
Section 202 of the Unfunded Mandates Reform Act of 1995 requires
that a covered agency prepare a budgetary impact statement before
promulgating a 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 million or more in any one
year.
If a covered agency must prepare a budgetary impact statement,
section 205 further requires that it select the most cost-effective and
least burdensome alternative that achieves the objectives of the rule
and is consistent with the statutory requirements. In addition, section
203 requires a plan for informing and advising any small governments
that may be significantly or uniquely impacted by the rule.
We have determined that this rule will not result in the
expenditure by State, local, and Tribal governments, in the aggregate,
or by the private sector, of more than $100 million in any one year.
Accordingly, we have not prepared a budgetary impact statement,
specifically addressed the regulatory alternatives considered, or
prepared a plan for informing and advising any significantly or
uniquely impacted small governments.
E. Congressional Review
This rule is not a major rule as defined in 5 U.S.C. chapter 8.
F. 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 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 Office has
reviewed and determined that these regulations protect the
confidentiality of information contained in the records of State child
support enforcement agencies and will not have an impact on family well
being as defined in the legislation.
G. 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 implication as
defined in the Executive order.
List of Subjects
45 CFR Part 302
Child support, Grants programs/social programs, Reporting and
recordkeeping requirements.
45 CFR part 303
Child support, Grant programs/social programs, Reporting and
recordkeeping requirements.
45 CFR Part 307
Child support, Grant programs/social programs, computer technology,
[[Page 56443]]
Reporting and recordkeeping requirements.
(Catalog of Federal Domestic Assistance Programs No. 93.563, Child
Support Enforcement Program.)
Dated: April 23, 2008.
Daniel C. Schneider,
Acting Assistant Secretary for Children and Families.
Approved: June 23, 2008.
Michael O. Leavitt,
Secretary of Health and Human Services.
0
Accordingly, the Department of Health and Human Services amends title
45 chapter III of the Code of Federal Regulations as follows:
PART 302--STATE PLAN REQUIREMENTS
0
1. The authority citation for part 302 is revised to read as follows:
Authority: 42 U.S.C. 651 through 658, 660, 663, 664, 666, 667,
1302, 1396a(a)(25), 1396b(d)(2), 1396b(o), 1396b(p), 1396(k).
0
2. Section 302.35 is revised to read as follows:
Sec. 302.35 State parent locator service.
The State plan shall provide as follows:
(a) State PLS. The IV-D agency shall maintain a State PLS to
provide locate information to authorized persons for authorized
purposes.
(1) For IV-D cases and IV-D purposes by the IV-D agency. The State
PLS shall access the Federal PLS and all relevant sources of
information and records available in the State, and in other States as
appropriate, for locating custodial parents, noncustodial parents, and
children for IV-D purposes.
(2) For authorized non-IV-D individuals and purposes--
(i) The State PLS shall access and release information authorized
to be disclosed under Section 453(a)(2) of the Act from the Federal PLS
and, in accordance with State law, information from relevant in-state
sources of information and records, as appropriate, for locating
custodial parents, noncustodial parents, and children upon request of
authorized individuals specified in paragraph (c) of this section, for
authorized purposes specified in paragraph (d) of this section.
(ii) The State PLS shall not release information from the
computerized support enforcement system required under part 307 of this
chapter, IRS information, or financial institution data match
information, nor shall the State PLS forward a non-IV-D request to
another State IV-D agency.
(iii) The State PLS need not make subsequent location attempts if
locate efforts fail to find the individual sought unless a new request
is submitted.
(b) Central State PLS requirement. The IV-D program shall maintain
a central State PLS to submit requests to the Federal PLS.
(c) Authorized persons. The State PLS shall accept requests for
locate information only from the following authorized persons:
(1) Any State or local agency or official providing child and
spousal support services under the State plan;
(2) A court that has authority to issue an order or to serve as the
initiating court in an action to seek an order against a noncustodial
parent for the support and maintenance of a child, or any agent of such
court;
(3) The resident parent, legal guardian, attorney, or agent of a
child who is not receiving assistance under title IV-A of the Act only
if the individual:
(i) Attests that the request is being made to obtain information
on, or to facilitate the discovery of, any individual in accordance
with section 453(a)(2) of the Act for the purpose of establishing
parentage, establishing, setting the amount of, modifying, or enforcing
child support obligations;
(ii) Attests that any information obtained through the Federal or
State PLS shall be used solely for these purposes and shall be
otherwise treated as confidential;
(iii) Provides evidence that the requestor is the parent, legal
guardian, attorney, or agent of a child not receiving assistance under
title IV-A, and if an agent of such a child, evidence of a valid
contract that meets any requirements in State law or written policy for
acting as an agent and, if a parent, attestation that he or she is the
resident parent.
(iv) Pays the fee required for Federal PLS services under section
453(e)(2) of the Act and Sec. 303.70(f)(2)(i) of this chapter, if the
State does not pay the fee itself. The State may also charge a fee to
cover its costs of processing the request, which must be as close to
actual costs as possible, so as not to discourage requests to use the
Federal PLS. If the State itself pays the fee for use of the Federal
PLS or the State PLS in a non-IV-D case, Federal financial
participation is not available in those expenditures.
(4) Authorized persons as defined in Sec. 303.15 of this chapter
in connection with parental kidnapping, child custody or visitation
cases; or
(5) A State agency that is administering a program operated under a
State plan under titles IV-B or IV-E of the Act.
(d) Authorized purposes for requests and scope of information
provided. The State PLS shall obtain location information under this
section only for the purposes specified in paragraphs (d)(1) and (d)(2)
of this section.
(1) To locate an individual with respect to a child in a IV-D, non-
IV-D, IV-B, or IV-E case. The State PLS shall locate individuals for
the purpose of establishing parentage, or establishing, setting the
amount of, modifying, or enforcing child support obligations or for
determining who has or may have parental rights with respect to a
child. For these purposes, only information available through the
Federal PLS or the State PLS may be provided. This information is
limited to Social Security Number(s), most recent address, employer
name and address, employer identification number, wages or other income
from, and benefits of, employment, including rights to, or enrollment
in, health care coverage, and asset or debt information.
(2) To locate an individual sought for the unlawful taking or
restraint of a child or for child custody or visitation purposes. The
State PLS shall locate individuals for the purpose of enforcing a State
law with respect to the unlawful taking or restraint of a child or for
making or enforcing a child custody or visitation determination as
defined in section 463(d)(1) of the Act. For this purpose, only the
information available through the Federal PLS or the State PLS may be
provided. This information is limited to most recent address and place
of employment of a parent or child.
(e) Locate information subject to disclosure. Subject to the
requirements of this section and the privacy safeguards required under
section 454(26) of the Act and the family violence indicators under
section 307.11(f)(1)(x) of this part, the State PLS shall disclose the
following information to authorized persons for authorized purposes,
(1) Federal PLS information described in sections 453 and 463 of
the Act; and
(2) Information from in-state locate sources.
PART 303--STANDARDS FOR PROGRAM OPERATIONS
0
1. The authority citation for part 303 is revised to read as follows:
Authority: 42 U.S.C. 651 through 658, 660, 663, 664, 666, 667,
1302, 1396a(a)(25), 1396b(d)(2), 1396b(o), 1396b(p) and 1396(k).
0
2. Revise Sec. 303.3 to read as follows:
[[Page 56444]]
Sec. 303.3 Location of noncustodial parents in IV-D cases.
(a) Definition. For purposes of this section, location means
obtaining information concerning the physical whereabouts of the
noncustodial parent, or the noncustodial parent's employer(s), other
sources of income or assets, as appropriate, which is sufficient and
necessary to take the next appropriate action in a IV-D case.
(b) For all cases referred to the IV-D program for IV-D services
because of an assignment of support rights or cases opened upon
application for IV-D services under Sec. 302.33 of this chapter, the
IV-D program must attempt to locate all noncustodial parents or their
sources of income and/or assets when location is needed to take a
necessary action. Under this standard, the IV-D program must:
(1) Use appropriate location sources such as the Federal PLS;
interstate location networks; local officials and employees
administering public assistance, general assistance, medical
assistance, food stamps, and social services (whether such individuals
are employed by the State or a political subdivision); relatives and
friends of the noncustodial parent, current or past employers; the
local telephone company; the U.S. Postal Service; financial references;
unions; fraternal organizations; and police, parole, and probation
records, if appropriate; and State agencies and departments, as
authorized by State law, including those departments which maintain
records of public assistance, wages and employment, unemployment
insurance, income taxation, driver's licenses, vehicle registration,
and criminal records and other sources;
(2) Establish working relationships with all appropriate agencies
in order to use locate resources effectively;
(3) Within no more than 75 calendar days of determining that
location is necessary, access all appropriate location sources and
ensure that location information is sufficient to take the next
appropriate action in a case;
(4) Refer appropriate IV-D cases to the IV-D program of any other
State, in accordance with the requirements of Sec. 303.7 of this part.
The IV-D program of such other State shall follow the procedures in
paragraphs (b)(1) through (b)(3) of this section for such cases, as
necessary, except that the responding State is not required to access
the Federal PLS;
(5) Repeat location attempts in cases in which previous attempts to
locate noncustodial parents or sources of income and/or assets have
failed, but adequate identifying and other information exists to meet
requirements for submittal for location, either quarterly or
immediately upon receipt of new information which may aid in location,
whichever occurs sooner. Quarterly attempts may be limited to automated
sources, but must include accessing State employment security files.
Repeated attempts because of new information which may aid in location
must meet the requirements of paragraph (b)(3) of this section; and
(6) Have in effect safeguards, applicable to all confidential
information handled by the IV-D program, that are designed to protect
the privacy rights of the parties and that comply with the requirements
of sections 454(26) and 454A(d) and (f) of the Act and Sec. Sec.
303.21 and 307.13.
(c) The State must establish guidelines defining diligent efforts
to serve process. These guidelines must include periodically repeating
service of process attempts in cases in which previous attempts to
serve process have failed, but adequate identifying and other
information exists to attempt service of process.
0
4. Section 303.20 is amended by revising paragraph (b)(7) as follows:
Sec. 303.20 Minimum organizational and staffing requirements.
(b) * * *
(7) Operation of the State PLS as required under Sec. Sec. 302.35,
303.3, and 303.70 of this chapter.
* * * * *
0
5. Section 303.21 is added to read as follows:
Sec. 303.21 Safeguarding and disclosure of confidential information.
(a) Definitions--(1) Confidential information means any information
relating to a specified individual or an individual who can be
identified by reference to one or more factors specific to him or her,
including but not limited to the individual's Social Security number,
residential and mailing addresses, employment information, and
financial information.
(2) Independent verification is the process of acquiring and
confirming confidential information through the use of a second source.
The information from the second source, which verifies the information
about NDNH or FCR data, may be released to those authorized to inspect
and use the information as authorized under the regulations or the Act.
(b) Scope. The requirements of this section apply to the IV-D
agency, any other State or local agency or official to whom the IV-D
agency delegates any of the functions of the IV-D program, any official
with whom a cooperative agreement as described in Sec. 302.34 of this
part has been entered into, and any person or private agency from whom
the IV-D agency has purchased services pursuant to Sec. 304.22 of this
chapter.
(c) General rule. Except as authorized by the Act and implementing
regulations, an entity described in paragraph (b) of this section may
not disclose any confidential information, obtained in connection with
the performance of IV-D functions, outside the administration of the
IV-D program.
(d) Authorized disclosures. (1) Upon request, the IV-D agency may,
to the extent that it does not interfere with the IV-D agency meeting
its own obligations and subject to such requirements as the Office may
prescribe, disclose confidential information to State agencies as
necessary to carry out State agency functions under plans or programs
under title IV (including tribal programs under title IV) and titles
XIX, or XXI of the Act, including:
(i) Any investigation, prosecution or criminal or civil proceeding
conducted in connection with the administration of any such plan or
program; and
(ii) Information on known or suspected instances of physical or
mental injury, sexual abuse or exploitation, or negligent treatment or
maltreatment of a child under circumstances which indicate that the
child's health or welfare is threatened.
(2) Upon request, the IV-D agency may disclose information in the
SDNH, pursuant to sections 453A and 1137 of the Act for purposes of
income and eligibility verification.
(3) Authorized disclosures under paragraph (d)(1) and (2) of this
section shall not include confidential information from the National
Directory of New Hires or the Federal Case Registry, unless authorized
under Sec. 307.13 of this Chapter or unless it is independently
verified information. No financial institution data match information
may be disclosed outside the administration of the IV-D program and no
IRS information may be disclosed, unless independently verified or
otherwise authorized in Federal statute. States must have safeguards in
place as specified in section 454A(d) and (f) of the Act.
(e) Safeguards. In addition to, and not in lieu of, the safeguards
described in Sec. 307.13 of this chapter, which governs computerized
support enforcement systems, the IV-D agency shall establish
appropriate safeguards to comply with the provisions of this section.
These safeguards shall also include prohibitions against the release of
[[Page 56445]]
information when the State has reasonable evidence of domestic violence
or child abuse against a party or a child and that the disclosure of
such information could be harmful to the party or the child, as
required by section 454(26) of the Act, and shall include use of the
family violence indicator required under Sec. 307.11(f)(1)(x) of this
chapter.
(f) Penalties for unauthorized disclosure. Any disclosure or use of
confidential information in violation of the Act and implementing
regulations shall be subject to any State and Federal statutes that
impose legal sanctions for such disclosure.
6. Revise Sec. 303.70 to read as follows:
Sec. 303.70 Procedures for submissions to the State Parent Locator
Service (State PLS) or the Federal Parent Locator Service (Federal
PLS).
(a) The State agency will have procedures for submissions to the
State PLS or the Federal PLS for the purpose of locating parents,
putative fathers, or children for the purpose of establishing parentage
or establishing, setting the amount of, modifying, or enforcing child
support obligations; or for the purpose of enforcing any Federal or
State law with respect to the unlawful taking or restraint of a child
or making or enforcing a child custody or visitation determination as
defined in section 463(d)(1) of the Act.
(b) Only the central State PLS may make submittals to the Federal
PLS for the purposes specified in paragraph (a) of this section.
(c) All submittals shall be made in the manner and form prescribed
by the Office.
(d) All submittals shall contain the following information:
(1) The parent's or putative father's name;
(2) The parent's or putative father's Social Security Number (SSN).
If the SSN is unknown, the IV-D program must make reasonable efforts to
ascertain the individual's SSN before making a submittal to the Federal
PLS; and
(3) Any other information prescribed by the Office.
(e) The director of the IV-D agency or his or her designee shall
attest annually to the following:
(1)(i) The IV-D agency will only obtain information to facilitate
the discovery of any individual in accordance with section 453(a)(2) of
the Act for the purpose of establishing parentage, establishing,
setting the amount of, modifying, or enforcing child support
obligations, or for determining who has or may have parental rights
with respect to a child, or in accordance with section 453(a)(3) of the
Act for enforcing a State law with respect to the unlawful taking or
restraint of a child, or for making or enforcing a child custody or
visitation determination as defined in section 463(d)(1) of the Act.
(ii) The IV-D agency will only provide information to the
authorized persons specified in sections 453(c) or 463(d) of the Act
and Sec. 302.35 of this chapter.
(2) In the case of a submittal made on behalf of a resident parent,
legal guardian, attorney or agent of a child not receiving assistance
under title IV-A, the IV-D agency must verify that the requesting
individual has complied with the provisions of Sec. 302.35 of this
chapter.
(3) The IV-D agency will treat any information obtained through the
Federal PLS and SPLS as confidential and shall safeguard the
information under the requirements of sections 453(b), 453(l), 454(8),
454(26), and 463(c) of the Act, Sec. 303.21 of this part and
instructions issued by the Office.
(f)(1) The IV-D agency shall reimburse the Secretary for the fees
required under:
(i) Section 453(e)(2) of the Act whenever Federal PLS services are
furnished to a resident parent, legal guardian, attorney or agent of a
child not receiving assistance under title IV-A of the Act;
(ii) Section 454(17) of the Act whenever Federal PLS services are
furnished in parental kidnapping and child custody or visitation
determination;
(iii) Section 453(k)(3) of the Act whenever a State agency receives
information from the Federal PLS pursuant to section 453 of the Act.
(2)(i) The IV-D agency may charge an individual requesting
information, or pay without charging the individual, the fees required
under sections 453(e)(2), 453(k)(3) or 454(17) of the Act except that
the IV-D agency shall charge an individual specified in section
453(c)(3) of the Act the fee required under section 453(e)(2) of the
Act
(ii) The IV-D agency may recover the fee required under section
453(e)(2) of the Act from the noncustodial parent who owes a support
obligation to a family on whose behalf the IV-D agency is providing
services and repay it to the individual requesting information or
itself.
(iii) State funds used to pay the fee under section 453(e)(2) of
the Act are not program expenditures under the State plan but are
program income under Sec. 304.50 of this chapter.
(3) The fees referenced in paragraph (f)(1) of this section shall
be in an amount determined to be reasonable payment for the information
exchange.
(4)(i) If a State fails to transmit the fees charged by the Office
under this section, the services provided by the Federal PLS in cases
subject to the fees may be suspended until payment is received.
(ii) Fees shall be transmitted in the amount and manner prescribed
by the Office in instructions.
PART 307--COMPUTERIZED SUPPORT ENFORCEMENT SYSTEMS IN OPERATION
AFTER OCTOBER 1, 1997
0
1. The authority citation for part 307 continues to read as follows:
Authority: 42 U.S.C. 652 through 658, 664, 666 through 669A, and
1302.
0
2. Amend Sec. 307.13 by revising paragraph (a) to read as follows:
Sec. 307.13 Security and confidentiality for computerized support
enforcement systems in operation after October 1, 1997.
* * * * *
(a) Information integrity and security. Have safeguards protecting
the integrity, accuracy, completeness of, access to, and use of data in
the computerized support enforcement system. These safeguards shall
include written policies concerning access to data by IV-D agency
personnel, and the sharing of data with other persons to:
(1) Permit access to and use of data to the extent necessary to
carry out the State IV-D program under this chapter;
(2) Specify the data which may be used for particular IV-D program
purposes, and the personnel permitted access to such data;
(3) Permit exchanging information with State and Tribal agencies
administering programs under titles IV, XIX, and XXI of the Act, to the
extent necessary to carry out those State and Tribal agency
responsibilities under such programs in accordance with section
454A(f)(3) of the Act, and to the extent that it does not interfere
with IV-D program meeting its own obligations.
(4) Prohibit the disclosure of NDNH, FCR, financial institution,
and IRS information outside the IV-D program except that:
(i) IRS information is restricted as specified in the Internal
Revenue Code;
(ii) Independently verified information other than financial
institution information may be released to authorized persons;
(iii) NDNH and FCR information may be disclosed without independent
verification to IV-B and IV-E agencies
[[Page 56446]]
for the purposes of establishing parentage or establishing parental
rights with respect to a child; and
(iv) NDNH and FCR information may be disclosed without independent
verification to IV-A agencies for the purpose of assisting States to
carry out their responsibilities of administering the Title IV-A
programs.
* * * * *
[FR Doc. E8-22054 Filed 9-25-08; 8:45 am]
BILLING CODE 4184-01-P