SUPPLEMENTARY INFORMATION:

I. Background on New System of Records 09-80-0323

HHS/ACF recently published notice of its establishment of a new system of records 09-80-0323, “ORR Unaccompanied Children Bureau (UCB) Child Abuse or Neglect Investigation Records and Central Registry,” in the Federal Register ; see 89 FR 96250 (Dec. 4, 2024). The purpose of this rulemaking is to exempt that system of records from certain requirements of the Privacy Act as permitted by 5 U.S.C. 552a(k)(2). The new system of records will consist of investigatory material compiled and maintained by the UCB about reports and investigations of child abuse and neglect, allegations at ORR care provider facilities located in States that will not investigate such reports, as well as at ORR Emergency or Influx Facilities. It will include a Central Registry of ORR care provider facility staff and volunteers determined by ORR, pursuant to ORR regulations and policies, to have a sustained allegation of child abuse or neglect of a child while the child was in ORR custody. The Central Registry will be used to vet prospective candidates to ensure that individuals on the registry are not permitted to work on ORR grants or contracts or have access to unaccompanied children at ORR care provider facilities.

II. Eligible Records and Exemptions

New system of records 09-80-0323 will include both criminal and non-criminal ( e.g., civil, administrative, regulatory) investigatory records of reports of child abuse and neglect allegations at ORR care provider facilities located in States that will not investigate such reports, as well as at ORR Emergency or Influx Facilities, which will be retrieved by subject individuals' personal identifiers. Such records are eligible for exemptions based on 5 U.S.C. 552a(k)(2), permitting investigatory material compiled for law enforcement purposes to be exempted from sections (c)(3), (d)(1) through (4), (e)(1), (e)(4)(G) through (I), and (f) of the Privacy Act, which require the agency to provide an accounting of disclosures; provide notification, access, and amendment rights to record subjects; maintain only relevant and necessary information to accomplish a purpose of the agency; establish and describe procedures whereby an individual can be notified if a system of records contains information pertaining to that individual and how to gain access to pertinent records; identify categories of record sources; and promulgate rules regarding these procedures. This exemption is available under the circumstances described here even though ORR is not a law enforcement agency. The effect of the access exemption on a subject individual's access rights will be limited as required by subsection (k)(2): If, as a result of the maintenance of the investigative records, an individual is denied any right, benefit, or privilege to or for which the individual would otherwise be entitled or eligible by Federal law, ACF will disclose the record to the individual, except to the extent that the disclosure would reveal the identity of a source who furnished information to the government under an express promise that the identity of the source would be held in confidence.

Notwithstanding the establishment of these exemptions, individual record subjects may submit accounting, access, notification, and correction requests, and HHS/ACF will consider such requests on a case-by-case basis. Only information that is not factually accurate, or is not relevant, timely, or complete may be contested.

In addition to the exemptions that HHS/ACF is establishing for system of records 09-80-0323 in this direct final rule, if any investigatory material compiled in that system of records is from another system of records in which such material was exempted from the Privacy Act based on 5 U.S.C. 552a(j)(2), HHS/ACF will claim the same exemptions in system of records 09-80-0323 on the same basis ( i.e.,5 U.S.C. 552a(j)(2)) and from the same requirements as in the source system of records from which they originated.

III. Exemption Rationales

The exemptions are necessary and appropriate to prevent interference with and ensure the integrity of pending, closed, future, and related investigations of alleged child abuse and neglect, protect the identity of children and confidential sources involved in the investigations, and prevent disclosure of investigative techniques. The following specific rationales explain why each exemption is necessary and appropriate for the records in system of records 09-80-0323. All subsections referenced are subsections of 5 U.S.C. 552a.

• Subsection (c)(3) (Provide Accountings of Disclosures). Providing an accounting of disclosures to an individual record subject could reveal the existence of a pending or prior investigation or present or past investigative interest on the part of the UCB or another agency. This would pose a serious impediment to and undermine the investigative process by enabling a subject individual or others in concert with that individual to harass, intimidate, or collude with witnesses, destroy, conceal, or tamper with evidence, threaten or endanger investigative personnel, alter patterns of behavior, and avoid detection or apprehension by investigative authorities, which would undermine the investigative process.
• Subsection (d)(1) through (4) (Notification, Access and Amendment Rights). Providing subject individuals with notification, access, and amendment rights to records in the system of records could reveal the existence of a pending or prior investigation or present or past investigative interest by the UCB or another agency and details about the investigation, including identities and personal information of children involved in the investigation, of sources of information, personal information about third parties, and sensitive investigative techniques, which could hinder or impede pending and future ( printed page 104452) investigations by chilling or deterring sources of information from providing information to investigators (particularly if they are not certain of its accuracy or if they fear retribution), by providing an opportunity for subject individuals and others acting in concert with subject individuals to tamper with witnesses or evidence, and by allowing individuals to alter their behavior to defeat investigative techniques and avoid detection or apprehension. Complying with amendment requirements could significantly delay investigations while attempts are made to resolve questions of accuracy, relevance, timeliness, and completeness and would impose an unreasonable administrative burden by requiring investigations to be continuously reinvestigated.
• Subsection (e)(1) (Maintain Only Relevant and Necessary Information Authorized by Statute or Executive Order). In the course of an investigation, and especially in the early stages of an investigation, the relevance and necessity of information obtained or introduced may be unclear or the information may not be strictly relevant or necessary to a specific investigation but may lead to discovery of relevant information. In the interests of effective enforcement of ORR requirements, it is appropriate to retain all information that may aid in establishing patterns of unlawful activity.
• Subsections (e)(4)(G) and (H) and (f) (Describe Procedures for Notification, Access, and Amendment). Because system of records 09-80-0323 will be exempt from request requirements in subsection (d)(1) through (4) (Provide Notification, Access, and Amendment Rights) and HHS/ACF's compliance with those request requirements will therefore be discretionary, it is appropriate that HHS/ACF's compliance with the requirements in subsection (e)(4)(G) and (H) and (f) to provide request procedures be discretionary also. Notwithstanding these exemptions, HHS/ACF has included request procedures in the SORN for system of records 09-80-0323 because, notwithstanding the exemptions, individual record subjects may submit access and amendment requests, and HHS/ACF will consider such requests on a case-by-case basis.
• Subsection (e)(4)(I) (Identify Categories of Record Sources in the SORN). Because the information in these records may come from any source, it is not possible to know every category in advance in order to include them all in the SORN. Further, some record source categories would not be appropriate to publish in the SORN if, for example, revealing them could thwart or impede pending and future investigations by enabling record subjects or other individuals to discover sensitive investigative techniques and devise ways to bypass or defeat them to evade detection and apprehension.
• Subsection (f) (Agency Rules). As noted above, establishing procedures to notify record subject individuals, to review requests from individuals, and to disclose records to subject individuals could reveal the existence of an investigation or an investigative interest by the UCB or another agency and details about the investigation and sensitive investigative techniques, which could hinder or impede pending and future investigations by chilling or deterring sources of information from providing information to investigators (particularly if they are not certain of its accuracy or fear retribution), by providing an opportunity for subject individuals and others acting in concert with subject individuals to tamper with witnesses or evidence, and by allowing individuals to alter their behavior to defeat investigative techniques and avoid detection or apprehension. Notwithstanding the exemptions, individual record subjects may submit access and amendment requests, and HHS/ACF will consider such requests on a case-by-case basis.

For the foregoing reasons, HHS/ACF believes that the exemptions authorized in 5 U.S.C. 552a(k)(2) are essential to system of records 09-80-0323.

Accordingly, HHS exempts both criminal and non-criminal investigatory material in system of records 09-80-0323, “ORR Unaccompanied Children Bureau (UCB) Child Abuse or Neglect Investigation Records and Central Registry,” from the requirements in subsections (c)(3), (d)(1) through (4), (e)(1), (e)(4)(G) through (I), and (f) of the Privacy Act, as permitted by 5 U.S.C. 552a(k)(2).

Analysis of Impacts

I. Review Under Executive Orders 12866, 13563, and 14094

The agency believes that this direct final rule is not a significant rule under Executive Order (E.O.) 12866, Regulatory Planning and Review; E.O. 13563, Improving Regulation and Regulatory Review; or E.O. 14094, Modernizing Regulatory Review, because it will not (1) have an annual effect on the economy of $200 million or more; or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or Tribal governments or communities; (2) create a serious inconsistency or otherwise interfere with any action taken or planned by another agency; (3) materially alter the budgetary impact of entitlements, grants, user fees or loan programs, or the rights and obligations of recipients thereof; or (4) raise legal or policy issues for which centralized review would meaningfully further the President's priorities or the principles set forth in these Executive orders. This direct final rule renders certain Privacy Act requirements inapplicable to certain records (in this case, investigatory records) in accordance with criteria established in the Privacy Act based on a showing that agency compliance with those requirements with respect to those records would harm the effectiveness or integrity of the agency function or process for which the records are maintained (in this case, investigations). However, the Office of Management and Budget has reviewed this regulation under its Privacy Act oversight authority.

II. Review Under the Regulatory Flexibility Act (5 U.S.C. 601-612)

The Regulatory Flexibility Act requires agencies to analyze regulatory options that would minimize any significant impact of a rule on small entities. Because the direct final rule concerns records about individuals, it imposes no duties or obligations on small entities; the agency therefore certifies that the direct final rule will not have a significant economic impact on a substantial number of small entities.

III. Review Under the Unfunded Mandates Reform Act of 1995 (Section 202, Public Law 104-4)

Section 202(a) of the Unfunded Mandates Reform Act of 1995 requires that agencies prepare a written statement, which includes an assessment of anticipated costs and benefits, before proposing “any rule that includes any Federal mandate that may result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100,000,000 or more (adjusted annually for inflation) in any one year.” The current inflation-adjusted statutory threshold is approximately $183 million based on the Bureau of Labor Statistics inflation calculator. The agency does not expect that this direct final rule will result in any one-year expenditure that would meet or exceed this amount. ( printed page 104453)

IV. Review Under the Paperwork Reduction Act of 1995 (44 U.S.C. 35-1 et seq.)

This direct final rule does not contain any information collection requirements subject to the Paperwork Reduction Act.

V. Review Under Executive Order 13132, Federalism

This direct final rule will not have any direct effects on States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, no federalism assessment is required.

For the reasons set out in the preamble, the Department of Health and Human Services amends its Privacy Act Regulations, 45 CFR part 5b, as follows:

89 FR 104450