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Final Rule: Requests to Use the FPLS in Parental Kidnapping and Child Custody Cases

AT-83-17

Published: September 12, 1983
Information About:
State/Local Child Support Agencies
Topics:
Federal Systems, Federal Parent Locator Service (FPLS), Funding, Cost Recovery, Federal Financial Participation (FFP)
Types:
Policy, Action Transmittals (AT), Regulations
Tags:
User Fees

Request to Use the Federal Parent Locator Service in Parental Kidnapping and Child Custody Cases

REGULATION/PROGRAM INSTRUCTION

ACTION TRANSMITTAL

OCSE-AT-83-17

September 12, 1983

TO:STATE AGENCIES ADMINISTERING CHILD SUPPORT ENFORCEMENT PLANS UNDER TITLE IV-D OF THE SOCIAL SECURITY ACT AND OTHER INTERESTED INDIVIDUALS

SUBJECT: Requests to Use the Federal Parent Locator Service in Parental Kidnapping and Child Custody Cases

CONTENT: A final rule with comment period was published on November 3, 1981, to implement section 9 of P.L. 96-611, the Parental Kidnapping Prevention Act. That document included a copy of a model agreement to use for obtaining FPLS information.

The final regulations, published on August 25, 1983, respond to comments received on the November 3, 1981 final rule. Section 303.70(e)(3) of the regulations allows States the option of absorbing the user fees required under section 454(17) of the Act. As a result, if the State opts to absorb the Federal and/or State fees, a change could be made in the wording in Article III, paragraphs E and F of the model agreement. However, if a participating State which currently charges fees wishes to absorb the fees in the future, it need not alter its agreement with the Department.

OCSE is not mandating the amount of fees States should charge to cover their costs. However, § 303.70(e)(4) was added to the regulations to require that any fee charged be reasonable and as close to actual costs as possible so as not to discourage use of the FPLS.

The final rule at § 303.69(a) permits Federal agents or attorneys direct access to the FPLS rather than going through the State. Also, § 303.69(e) authorizes a waiver of the Federal fee for Federal agents or attorneys.

SUPERSEDED MATERIAL: This action transmittal and OCSE-AT-81-30 render obsolete the proposed model agreement contained in OCSE-AT-81-12, dated June 15, 1981. Other instructions contained in OCSE-AT-81-12 remain in effect.

REGULATION REFERENCE:45 CFR Part 303

RELATED REFERENCE: OCSE-AT-81-30, dated November 24, 1981, and OCSE-AT-81-12, dated June 15, 1981.

EFFECTIVE DATE: August 25, 1983

INQUIRIES TO: OCSE Regional Representatives.

Deputy Director

Office of Child Support

Enforcement

DEPARTMENT OF HEALTH AND HUMAN SERVICES

Office of Child Support Enforcement

45 CFR Part 303

Requests to Use the Federal Parent Locator Service in Parental Kidnapping and Child Custody Cases

Agency: Office of Child Support Enforcement (OCSE), HHS.

Action: Final rule.

Summary: Section 9 of Pub. L. 96-611, the Parental Kidnapping Prevention Act of 1980, provides that a State may enter into an agreement with the Office of Child Support Enforcement (OCSE) to obtain Federal Parent Locator Service (PLS) information for use in parental kidnapping and child custody cases. To implement section 9, we published a Final Rule with Comment Period on these provisions on November 3, 1981 (46 FR 54554). The comments received in response to that publication, our responses to them and changes made to the final rule are discussed below. The purpose of the regulations is to expand the use of the Federal Parent Locator Service to include request for information in parental kidnapping and child custody cases.

Effective Date: August 25, 1983.

For Further Information Contact: Judith Hagopian, (301) 443-5350, Office of Child Support Enforcement, Department of Health and Human Services, Room 1010, 6110 Executive Boulevard, Rockville, Maryland, 20852.

Supplementary Information: A notice informing the public of a new routine use of information was published in the Federal Register on September 4, 1981, as required by the Privacy Act.

Statutory Provisions

Before enactment of section 9 of Pub. L. 96-611, the Social Security Act (the Act) allowed States to obtain information from the Federal PLS to locate absent parents only for the purposes of establishing paternity or establishing and enforcing child support obligations. Various Federal statutes and OCSE regulations expressly prohibited States from acquiring the information for any other purpose. Section 9 of Pub. L. 96-611, effective July 1, 1981, amended the Act by amending sections 454 and 455 and adding a new section 463. The new section 463 provides that States may enter into an agreement with the Secretary of Health and Human Services to obtain information from the Federal PLS for use in locating a parent or child for the purposes of making or enforcing a child custody determination or in cases of parental kidnapping.

The new law amends section 454 of the Act by requiring that States amend their State IV-D plans to indicate whether or not they wish to perform this new function. Section 455 as amended precludes the payment of Federal matching funds for the costs of carrying out agreements under the new section 463.

Provisions of Final Regulations Published November 3, 1981

Because OCSE already has regulations that govern State IV-D agency use of the Federal PLS, we implemented many of the new statutory requirements simply by adding language to the following regulations to extend use of the Federal PLS to parental kidnapping and child custody cases. 45 CFR 302.35 now specifies those persons authorized to request Federal PLS information through the State PLS in connection with parental kidnapping and child custody cases. 45 CFR 303.70 (formerly § 302.70) now allows access to Federal PLS information in parental kidnapping and child custody cases. Section 303.70(e)(1) requires States to collect or pay fees to offset Federal costs of processing Federal PLS requests in connection with parental kidnapping and child custody cases. 45 CFR 304.20(b) and 304.23(h) prohibit Federal funding of any expenditures incurred in providing Federal PLS information in connection with parental kidnapping and child custody cases.

45 CFR 303.15 added to implement section 463 of the Act, sets forth the requirements for an agreement which the State must enter into with OCSE if it wishes to use the Federal PLS to obtain information for enforcing any State or Federal law with respect to the unlawful taking or restraint of a child, or making or enforcing a child custody determination. In addition, § 303.15(c)(1) specifies the type of information that OCSE will make available to the State under the agreement and sets forth the conditions that the State must meet in requesting data and ensuring that the data are safeguarded. To date, 18 States have entered into agreements to use the Federal PLS in parental kidnapping and child custody cases.

Section 303.15(c)(5) also requires that State agree to distinguish parental kidnapping and child custody requests from child support enforcement requests. Because no Federal financial participation (FFP) is available under the statute, § 303.15(c)(7) provides that the State must agree to impose, collect and account for fees to offset OCSE processing costs and must agree to transmit the Federal portion of the fees in the amount and in the manner prescribed by OCSE in instructions.

Finally, under § 303.15(c)(8), the State must agree to restrict access to the data, store it securely, and otherwise ensure its confidentiality. Under this requirement, the State must agree to send the information directly to the requestor, make no other use of the information, and destroy any records related to the request that are confidential in nature.

In order to assist States in deciding whether to enter into an agreement to use the Federal PLS to obtain information in parental kidnapping and child custody cases, we attached the necessary agreement as an appendix to § 303.15.

45 CFR 303.69, added to provide procedures for requests for Federal PLS information by agents or attorneys of the United States, specified that, if a case involves a State with an agreement in effect under the new § 303.15, the Federal agent or attorney must request information through the State parent locator service. Section 303.69 further specified that the Federal agent or attorney may request information directly from the Federal PLS only if no States involved in the case have agreements. We have provided instructions to the Federal Bureau of Investigation and to the Executive Office for United States Attorneys regarding procedures for U.S. attorneys and agents to follow when making such request.

Changes to Final Regulations

This document makes certain changes to the final regulations as a result of comments received in response to the regulations published in the Federal Register on November 3, 1981.

Section 303.70(e)(1) stated that the IV-D agency shall collect or pay the fees required under sections 453(e)(2) and 454(17) of the Act to be charged to individuals making requests to the Federal PLS. In response to a comment received, we revised § 303.70(e)(1) to require the IV-D agency to "pay the fees required under sections 453(e)(2) and 454(17) of the Act." In addition, we added a new § 303.70(e)(2) and redesignated the old paragraph (e)(2) as (e)(5). The new § 303.70(e)(2) clarifies that the fee required under section 453(e)(2) of the Act (related to requests made for child support purposes) must be charged to the resident parent, legal guardian, attorney or agent of a child who is not receiving aid under title IV-A of the Act.

While section 453(e)(2) of the Act specifies from whom a State must collect a fee for a Federal PLS request, section 454(17) (related to requests made in parental kidnapping and child custody cases) requires only that the State "impose and collect (in accordance with regulations of the Secretary) a fee," without specifying from whom it must be collected. We added a new § 303.70(e)(3) and redesignated the old paragraph (e)(3) as (e)(6) in order to permit States either to charge an individual requesting information or to absorb, without charging the individual requesting information, the fee required under section 454(17) of the Act. This will enable States which want to absorb the fees required under section 454(17) to do so. It does not relieve a State which absorbs the fees from paying the Federal government for its portion of the costs.

We added a new § 303.70(e)(4) which requires fees under sections 453(e)(2) and 454(17) to be reasonable so as not to discourage use of Federal PLS services by authorized persons. Paragraph (e)(4) was added in response to requests from States that we issue guidelines for States to follow in establishing their fees. Although we are not mandating what fees States should charge to cover State costs, States must establish fees which are reasonable and as close to actual costs as possible so as not to discourage use of Federal PLS services by authorized persons.

Section 303.69(a)(2) required the Federal agent or attorney to make the request through the State PLS if a case involved one or more States that had an agreement under § 303.15. Section 303.69(a)(3) permitted the agent or attorney to request the information directly from the Federal PLS only if the case involved States that did not have agreements. In response to a comment received, we revised § 303.69 by removing paragraphs (a)(2) and (3), redesignating paragraph (a)(1) as paragraph (a), and revising the test to allow Federal agents and attorneys to request information directly from the Federal PLS in all cases. Direct access by Federal agents and attorneys would ensure stringent security of confidential information and would eliminate the additional time and effort of submitting requests through the State. We also revised § 303.69(e) to provide that a fee may (as opposed to "will") be charged for requests made directly to the Federal PLS by Federal agents and attorneys in cases involving the unlawful taking or restraint of a child. We believe that waiving the Federal fee in processing requests from Federal agents and attorneys is both reasonable and cost-effective because of the likelihood that we will receive few requests of this type.

Response to Comments

We received comments on the final rule from five State agencies and one private organization. A summary of the substantive comments and our responses follows.

1. Comment: Three commenters stated that the definition of person authorized to request Federal PLS information in parental kidnapping and child custody cases at § 303.15 needed clarification. Section 303.15(a)(1) defines an authorized persons as any agent or attorney of any State having an agreement who has the duty or authority under State law to enforce a child custody determination, any court having jurisdiction to make or enforce a child custody determination, or any agent of the court, and any agent or attorney of the United States, or of a State having an agreement, who has the duty or authority to investigate, enforce, or bring a prosecution with respect to the unlawful taking or restraint of a child. One commenter asked if private attorneys were included as authorized persons in the definition. Another commenter asked if the definition included court requests for Federal PLS information in connection with child custody determinations in adoption and parental rights termination cases.

Response: We believe the definition, which is taken from the statute, is sufficient since it provides States some flexibility to establish who qualifies as an authorized person under State law. Because States are in the best position to determine who is qualified under State law, and because we believe it is important to continue to provide this flexibility, we have not changed the regulation.

However, in response to the question of whether private attorneys are considered authorized persons, we offer the following information. Section 463(d)(2)(A) of the Act applies to those agents and attorneys who are empowered to act on behalf of the State to enforce a child custody determination. Examples of such agents are officers employed by the State, such as social workers and law enforcement officials, including a State's attorney empowered to act on behalf of the State to prosecute a parental kidnapping or child custody case. It does not include a private attorney. In addition, we do not consider private attorneys to be agents of the court for purposes of section 463(d)(2)(B) since they do not have the authority to make or enforce a child custody determination. Consequently, neither parents nor their private legal representatives may apply directly to the State PLS for Federal PLS information in parental kidnapping and child custody cases. Parents or their legal representatives may, however, petition a court to request location information from the Federal PLS concerning the absconding parent and missing child. Similarly, a parent can request the appropriate State officials who are authorized persons to make a location request, provided that the State has a law covering the wrongful taking or restraint of a child.

In response to the comment regarding court requests for Federal PLS information in connection with child custody determinations in adoption and parental rights termination cases,

section 463 of the Act allows the release of Federal PLS information for enforcing any State or Federal law with respect to a child custody determination. Thus, it is reasonable and appropriate for a court to request Federal PLS information in a child custody case involving the above circumstances.

2. Comment: Three commenters stated that FFP should be made available to States which enter into agreements with OCSE to use the Federal PLS in parental kidnapping and child custody cases.

Response: Because section 9 of Pub. L. 96-611 prohibits FFP for any expenditures made to carry out an agreement under section 463 of the Act, OCSE has no discretion with respect to providing reimbursement for these expenditures.

3. Comment: Two commenters stated that, if broadly interpreted, 45 CFR 303.15(c)(8)(vi) could mean that in addition to destroying confidential records, even the requests for information must be destroyed. The commenters were concerned that such an interpretation would reduce a State's ability to keep track of requests for billing, accounting and audit purposes.

Response: 45 CFR 303.15(c)(8)(vi) provides that the State must agree to destroy any confidential records and information related to the requests after the information has been sent to the requestor. This means that confidential records and information in the form of data obtained from the Federal PLS must be destroyed, not the request itself or information obtained from the requestor. Therefore, States are not precluded from maintaining information such as names and addresses of the requestors and the names of persons being sought for billing, accounting and audit purposes. We believe the regulation is sufficiently clear on this point.

4. Comment: Two commenters requested that guidelines be issued to States for establishing State fees and billing procedures.

Response: Because we have no way of determining State costs, we have not mandated what fees States must charge to cover such costs. However, we agree that some guidelines should be provided. Therefore, we have added § 303.70(e)(4) to require that fees be reasonable and as close to actual costs as possible so as not to discourage the use of Federal PLS services by authorized persons. (See discussion under "Changes to Final Regulations.")

5. Comment: One commenter stated that § 303.70(e)(1) should say that "the IV-D agency shall collect and pay the fees required under section 453(e)(2) and 454(17) of the Act, "instead of "collect or pay the fees * * *" to be consistent with section 454(17) of the Act and § 303.15(c)(6).

Response: To clarify the requirements for paying fees under sections 453(e)(2) and 454(17) of the Act, we revised § 303.70(e)(1) to require the IV-D agency to "pay the fees" required under those two sections of the Act. In addition, we added a new § 303.70(e)(2) to clarify from whom the IV-D agency must collect a fee required under section 453(e)(2) of the Act for requests involving child support. We believe States have discretion to collect or absorb the fees required under section 454(17) of the Act and § 303.15(c)(6) for requests involving parental kidnapping and child custody. Therefore, we added a new § 303.70(e)(3) to allow States either to charge the authorized person requesting information, or to absorb the fee required under section 454(17). (See discussion under "Changes to Final Regulations.")

6. Comment: One State commented that it would like to absorb the fee required under section 454(17) of the Act and to reimburse the Federal government from State funds. Because the State receives so few requests for Federal PLS information in connection with parental kidnapping and child custody cases, setting up a billing and accounting system for the collection of fees would not be cost effective.

Response: We believe that the purpose of the fee provision is to ensure both that the Federal government is reimbursed for its costs and that no State costs are charged to the Federal government. Because section 454(17) of the Act does not specify from whom the fee must be collected, a State could absorb the costs if it believes that doing so would be more cost efficient. It is still necessary, however, for OCSE to be able to distinguish child support enforcement requests from parental kidnapping and child custody requests since the cost of the latter is not eligible for FFP. Therefore, a State must still maintain a system, containing nonconfidential information, which separates child support enforcement requests from parental kidnapping and child custody requests. (See discussion under "Changes to Final Regulations.")

7. Comment: We received three substantive comments on § 303.69, Requests by agents or attorneys of the United States for information from the Federal PLS. One commenter supported allowing direct access to the Federal PLS by Federal agents and attorneys in States without agreements. Another commenter stated it would be more efficacious if all Federal agents and attorneys had direct access to the Federal PLS and States were not required to honor requests from them. A third commenter requested that OCSE not charge fees for requests made to the Federal PLS Federal agents and attorneys who have the duty or authority to investigate, enforce or bring a prosecution with respect to the unlawful taking or restraint of a child.

Response. We agree that it would be simpler for Federal agents and attorneys to request information directly from the Federal PLS. This would eliminate the additional step of going through the State. We believe such a policy is feasible and would not place an undue burden on the Federal PLS staff since we anticipate the volume of requests from Federal agents and attorneys to be low. Therefore, we revised § 303.69 by removing paragraphs (a)(2) and (3), redesignating paragraph (a)(1) as paragraph (a), and revising the text to allow direct access to the Federal PLS by Federal agents and attorneys in all cases involving the unlawful taking or restraint of a child. (See discussion under "Changes to Final Regulations.") This does not preclude Federal agents and attorneys from going through the State PLS if they so choose, and the State PLS must process these requests. We have also amended § 303.69(e) to provide that a fee may (instead of "will") be charged for requests made directly to the Federal PLS by Federal agents and attorneys in such cases. As long as the volume of such requests remains low, setting up of a billing and accounting system for the collection of such fees would not be cost effective.

8. Comment: Two commenters requested changes be made to the signatory page of the agreement. One commenter stated that requesting the Governor to sign the agreement and the Attorney General to certify it was too time consuming. Another commenter requested that the agreement be revised to clarify that the Governor or the Governor's designee may sign the agreement.

Response: In response to both commenters we believe revision of the agreement is unnecessary. Section 303.15(d)(1) clearly states that an agreement must be signed either by the Governor of the State or by the Governor's designee. We also believe that the Attorney General's signature is necessary whenever the Federal government and the State enter into an agreement under section 463 of the Act to certify the authority of the signing State official to commit the State to the agreement and to ensure the legality of the agreement under State law, in addition, OCSE requires the consent of the Governor or his/her designee and the Attorney General to the execution of the agreement to ensure that the highest State authorities are aware of the consequences of any misuse of Federal PLS information.

9. Comment: One commenter referred to Article V of the agreement which states that the Director, OCSE, will not be liable for any financial loss incurred by the State through use of any data furnished pursuant to the agreement. The commenter questioned whether this Article is intended to place liability solely on the State, whether the State in turn can disclaim liability for any losses incurred through the use of data supplied, and whether this Article is negotiable and may be modified on a State by State basis.

Response: Article V limits the Director's liability only and may not be modified. OCSE is not in a position to determine if a State can, through means other than the agreement, disclaim its liability for any losses incurred through the use of data furnished pursuant to the agreement. That is a matter of State law. However, since the State acts as a conduit of information between the authorized person and the Federal PLS, the State is responsible for adopting policies and procedures for safeguarding and releasing such information according to Article IV of the agreement.

10. Comment: Several States were confused regarding the role of the State PLS in parental kidnapping and child custody cases.

Response: Pub. L. 96-611 authorizes the use of the Federal PLS in parental kidnapping and child custody cases contingent upon a signed agreement between the State and the Director of OCSE on behalf of the Secretary of HHS. The IV-D agency and its components (including the State PLS) are not authorized to perform activities in connection with parental kidnapping or child custody cases, as evidenced by the lack of Federal funding for such activities under the law. A State choosing to implement the service covered by these regulations acts only as a conduit of information between the authorized person making the request and the Federal information source, the Federal PLS.

States may wish to develop their own systems, outside the IV-D agency, for using public information to locate missing children and parents within the State. As long as Federal funds are not used for these purposes, there would be no violation of either IV-D regulations or Pub. L. 96-611.

Regulatory Impact Analysis

This rule makes minor revisions to an existing rule that allows States to request use of the Federal PLS in parental kidnapping and child custody cases. The major change in the rule is to allow Federal agents and attorneys to make direct requests from the PLS. While the Federal government will absorb the cost of this provision, the cost will be insignificant since there should be few direct requests.

Therefore, we have determined that the rule is not major under the criteria of Executive Order 12291 and a Regulatory Impact Analysis is not required. For the reason cited above, the Secretary certifies that this rule will not have a significant economic impact on a substantial number of small entities; a Regulatory Flexibility Analysis under the Regulatory Flexibility Act of 1980 (Pub. L. 96-354) is, therefore, not required.

OMB Clearance

The reporting requirements in these regulations have been cleared by the Office of Management and Budget under number 0960-0258.

List of Subjects in 45 CFR Part 303

Child welfare, Grant programs/social programs.

PART 303--[AMENDED]

The final rules with comment period published in the Federal Register on November 3, 1981 (46 FR 54554) are adopted as final rules with the following changes:

1. 45 CFR 303.70(e) is amended by revising paragraph (e)(1), redesignating paragraphs (e)(2) and (3) as paragraphs (e)(5) and (6) and adding new paragraphs (e)(2), (3) and (4) to read as follows:

§ 303.70 Requests by the State parent locator service for information from the Federal Parent Locator Service (PLS).

* * * * *

(e)(1)The IV-D agency shall pay the fees required under sections 453(e)(2) and 454(17) of the Act.

(2) The IV-D agency shall charge the resident parent, attorney or agent of a child who is not receiving aid under title IV-A of the Act the fee required under section 453(e)(2) of the Act.

(3) The IV-D agency may charge an individual requesting information or pay without charging the individual the fee required under section 454(17) of the Act.

(4) The fees required under sections 453(e)(2) and 454(17) of the Act shall be reasonable and as close to actual costs as possible so as not to discourage use of Federal PLS services by authorized individuals.

(5) For processing requests on behalf of the resident parent, legal guardian, attorney or agent of the child who has not receiving aid under title IV-A of the Act (see 45 CFR 302.35(c)(3)), the Office will collect the fees from the IV-D agency by an offset of the State's quarterly grant award.

(6)(i) For costs of processing requests on behalf of persons authorized to receive information in parental kidnapping and child custody cases, the Federal government will bill the IV-D agency periodically. A separate fee will be charged to cover costs of searching for a social security number before processing a request for location information.

(ii) The IV-D agency shall transmit payment to the Federal government upon receipt of a bill, if a State fails to pay the appropriate fees charged by the Office, this will result in termination of the services provided under section 463 of the Act.

(iii) Fees shall be transmitted in the amount and manner prescribed by the Office in instructions.

2> 45 CFR 303.69 is revised by removing paragraphs (a)(2) and (3), redesignating paragraph (a)(1) as paragraph (a), and changing the text to read as follows:

§ 303.69 Requests by agents or attorneys of the United States for information from the Federal Parent Locator Service (PLS).

(a) Agents or attorneys of the United States may request information directly from the Federal PLS in connection with a parental kidnapping or child custody case. (See § 303.15(a) of this part for a definition of persons authorized to request the information.)

(b) All requests under this section shall be made in the manner and form prescribed by the Office.

(c) All requests under this section shall contain the information specified in § 303.70(c) of this part.

(d) All requests under this section shall be accompanied by a statement, signed by the agent or attorney of the United States attesting to the following:

(1) The request is being made solely to locate an individual in connection with a parental kidnapping or child custody case.

(2) Any information obtained through the Federal PLS shall be treated as confidential, shall be used solely for the purpose for which it was obtained and shall be safeguarded.

(e) A fee may be charged to cover the costs of processing requests for information. A separate fee may be charged to cover costs of searching for a social security number before processing a request for location information.

(Section 1102 of the Social Security Act (42 U.S.C. 1302) and sections 454(17), 455(a), and 463 of the Social Security Act (42 U.S.C. 654(17), 655(a), and 663))

(Catalog of Federal Domestic Assistance Program No. 13.679, Child Support Enforcement Program)

Dated: May 9, 1983.

John A. Svahn,

Director, Office of Child Support Enforcement

Approved: July 29, 1983.

Margaret M. Heckler, Secretary

[FR Doc. 83-23292 Filed 8-24-83: 8:45am]

Billing code 4190-11-M