[Federal Register Volume 89, Number 118 (Tuesday, June 18, 2024)]
[Rules and Regulations]
[Pages 51442-51444]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-13384]
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DEPARTMENT OF VETERANS AFFAIRS
38 CFR Part 1
RIN 2900-AR95
Exemption of ``Diversity and Equal Employment Opportunity (EEO)
Program Records'' (203VA08)
AGENCY: Department of Veterans Affairs.
ACTION: Final rule.
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SUMMARY: The Department of Veterans Affairs (VA) adopts as final, with
one change, a proposed rule to exempt the system of records titled,
``Diversity and Equal Employment Opportunity (EEO) Program Records''
(203VA08) from certain provisions of the Privacy Act, in order to,
prevent interference with harassment and sexual harassment
administrative investigations.
DATES: This final rule is effective July 18, 2024.
FOR FURTHER INFORMATION CONTACT: Larry Holman, Program Analyst, Office
of Resolution Management, Diversity and Inclusion (ORMDI), Department
of Veterans, 810 Vermont Avenue NW, Washington, DC 20420, 901-456-8148
(this is not a toll-free number).
SUPPLEMENTARY INFORMATION: On June 9, 2023, VA published a proposed
rule in the Federal Register (88 FR 37839) to add a new exemption to
Sec. 1.582 of title 38 Code of Federal Regulations (CFR) exempting
certain Harassment Prevention Program (HPP) records from the Privacy
Act of 1974, as amended, 5 U.S.C. 552a. The exempted records include
management notifications; investigator and coordinator findings;
determinations as to whether harassment occurred; preventive or
corrective action taken; and related correspondence, exhibits, and
written follow-up documents. VA believes disclosure of these records
would cause sources to refrain from disclosing information due to fear
of reprisal and that disclosure would compromise guarantees of
anonymity and confidentiality, therefore compromising VA's ability to
conduct investigations and obtain information necessary to support an
effective HPP.
VA provided a 60-day comment period, which ended on August 8, 2023.
VA received seventy-one comments on the proposed rule. One comment was
supportive of the rule, and we thank the commenter for their support.
The remaining seventy comments opposed the proposed Privacy Act
exemptions. VA addresses the non-supportive comments below, which have
been grouped together by theme. VA adopts the proposed rule as final
with one minor technical change described below.
Fifteen commenters raised concerns with the proposed rulemaking,
stating that it will make it harder for employees to prevail in EEO
cases and will negatively affect the outcome of HPP investigations. VA
disagrees because EEO investigations are separate and independent
investigations from HPP. HPP does not require a basis and does not make
determinations of discrimination nor unlawful harassment, rather, HPP
is focused on ensuring that harassment is expediently addressed and
stopped. VA is committed to transparency in its investigative processes
and believes the Privacy Act exemptions are necessary to maintain the
confidentiality and integrity of the HPP. The Privacy Act exemptions
will protect the identities of sources wishing to remain anonymous for
fear of retaliation, harassment, intimidation, and other attempts to
improperly influence outcomes of investigations. Since some comments
appear to confuse the HPP and EEO processes, VA reiterates that the HPP
and EEO process are distinct, and individuals can file both EEO and HPP
complaints on the same underlying issue. Exempting HPP records will not
impact the release of EEO reports of investigation because they are
different processes. HPP investigations do not make legal
determinations of unlawful harassment or discrimination. These
investigations are designed to stop harassing behaviors before they
become unlawful. EEO investigations are conducted by independent third-
party investigators, while HPP complaints are investigated by
factfinders in the facility where the incident occurred. VA makes no
changes to the rule based on these comments.
Seventeen commenters expressed concerns that labor-management
relations will deteriorate if the proposed Privacy Act exemptions are
implemented. VA believes labor-management relations will not be
impacted because VA protects individuals who participate in harassment
investigations from retaliation, harassment, intimidation, and other
attempts to improperly influence outcomes of investigations.
Additionally, under current VA policy, there is an existing prohibition
regarding providing HPP records to individuals filing HPP complaints as
well as negotiated grievance procedures that only apply to the subject
of the investigation. The rule will allow Union representatives to
request HPP records using the VA Freedom of Information Act (FOIA)
procedures, contained in 38 CFR 1.550 through 1.562, where identities
of sources are redacted. VA makes no changes to the rule based on these
comments.
Thirty-four commenters expressed concerns that if these Privacy Act
exemptions are implemented, ORMDI and local EEO offices would be
flooded with complaints, which would result in complaints not being
resolved at the lowest level. VA shares the concern for resolving
complaints at the lowest level and is committed to holding those who
engage in harassment accountable. VA will continue to offer multiple
paths to report harassment, thereby allowing individuals to choose the
path with which they are most familiar and provide increased safeguards
to protect confidential sources from reprisal. VA believes revealing of
HPP records will infringe upon the confidentiality of the program and
threaten the privacy of the witnesses who are required to cooperate in
the process. Individuals wishing to review the report will continue to
be able to request the report through a FOIA request.
Nineteen commenters expressed concern that the proposed rule would
inhibit transparency. To reiterate, VA is committed to transparency in
its investigative processes, but believes these Privacy Act exemptions
are necessary to maintain the confidentiality and integrity of the HPP.
These Privacy Act exemptions will protect the identities of sources
wishing to remain anonymous from retaliation, harassment, intimidation,
and other attempts to improperly influence
[[Page 51443]]
outcomes of investigations. VA makes no changes to the rule based on
these comments.
Seven commenters were generally opposed to the rule and expressed
concerns that exempting HPP records from disclosure under the Privacy
Act would make it difficult to track repeat offenders, would show a
lack of concern for harassment prevention by VA, and would be harmful
to all. Implementing these Privacy Act exemptions will not conceal the
existence of HPP records but will categorize these records as
investigative documents necessary to carry out the HPP. As such, these
Privacy Act exemptions will minimize the potential of altering
investigative records, as well as safeguard the identity of witnesses,
individuals who report the allegations, and other sources necessary to
the investigative process. As mentioned previously, this rulemaking
will not hinder the ability to request copies of redacted HPP records
using VA's FOIA process. VA makes no changes to the rule based on these
comments.
Change Not Based on Comments
In the proposed rule, VA proposed adding the new Privacy Act
exemptions for HPP records in paragraph (d) of 38 CFR 1.582. This was a
technical error, as current paragraph (d) contains exemptions for
certain police and security records and there should be no change to
that paragraph. In this final rule, VA makes a minor technical change
to correct the paragraph for the HPP Privacy Act exemptions to
paragraph (e).
Executive Orders 12866, 13563 and 14094
Executive Order 12866 (Regulatory Planning and Review) directs
agencies to assess the costs and benefits of available regulatory
alternatives and, when regulation is necessary, to select regulatory
approaches that maximize net benefits (including potential economic,
environmental, public health and safety effects, and other advantages;
distributive impacts; and equity). Executive Order 13563 (Improving
Regulation and Regulatory Review) emphasizes the importance of
quantifying both costs and benefits, reducing costs, harmonizing rules,
and promoting flexibility. Executive Order 14094 (Modernizing
Regulatory Review) supplements and reaffirms the principles,
structures, and definitions governing contemporary regulatory review
established in Executive Order 12866 of September 30, 1993 (Regulatory
Planning and Review), and Executive Order 13563 of January 18, 2011
(Improving Regulation and Regulatory Review). The Office of Information
and Regulatory Affairs has determined that this rulemaking is not a
significant regulatory action under Executive Order 12866. The
Regulatory Impact Analysis associated with this rulemaking can be found
as a supporting document at www.regulations.gov.
Regulatory Flexibility Act
The Secretary hereby certifies that this final rule will not have a
significant economic impact on a substantial number of small entities
as they are defined in the Regulatory Flexibility Act (5 U.S.C. 601
through 612). The operations and administrative processes associated
with this final rule consist of internal VA management officials and
non-bargaining unit individuals (internal VA Human Resource or VA
Quality Assurance staff). Therefore, pursuant to 5 U.S.C. 605(b), the
initial and final regulatory flexibility analysis requirements of 5
U.S.C. 603 and 604 do not apply.
Unfunded Mandates
The Unfunded Mandates Reform Act of 1995 requires, at 2 U.S.C.
1532, that agencies prepare an assessment of anticipated costs and
benefits before issuing any rule 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 (adjusted annually for
inflation) in any one year. This final rule will not have no such
effect on State, local, and tribal governments, or on the private
sector.
Paperwork Reduction Act
This final rule contains no provisions constituting a collection of
information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
through 3521).
Congressional Review Act
Pursuant to Subtitle E of the Small Business Regulatory Enforcement
Fairness Act of 1996 (known as the Congressional Review Act) (5 U.S.C.
801 et seq.), the Office of Information and Regulatory Affairs
designated this rule as not satisfying the criteria under 5 U.S.C.
804(2).
List of Subjects in 38 CFR Part 1
Administrative practice and procedure, Archives and records,
Claims, Freedom of information, Government employees, Penalties,
Privacy, Reporting and recordkeeping requirements, Security measures.
Signing Authority
Denis McDonough, Secretary of Veterans Affairs, approved and signed
this document on June 12, 2024, and authorized the undersigned to sign
and submit the document to the Office of the Federal Register for
publication electronically as an official document of the Department of
Veterans Affairs.
Jeffrey M. Martin,
Assistant Director, Office of Regulation Policy & Management, Office of
General Counsel, Department of Veterans Affairs.
For the reasons stated in the preamble, the Department of Veterans
Affairs amends 38 CFR part 1 as follows:
PART 1--GENERAL PROVISIONS
0
1. The authority citation continues to read as follows:
Authority: 38 U.S.C. 5101, and as noted in specific sections.
0
2. Amend Sec. 1.582 by adding paragraph (e) to read as follows:
* * * * *
(e) Exemption of Harassment Prevention Program Records. The
Department of Veterans Affairs provides limited access to Harassment
Prevention Program (HPP) records as indicated.
(1) The system of records is exempted pursuant to the provisions of
5 U.S.C. 552a(k)(2) from subsections (c)(3), (d), (e)(1), (e)(4), (G),
(H), (I), and (f): Diversity and Equal Employment Opportunity (EEO)
Program Records (203VA08).
(2) This exemption applies to the extent that information in these
systems is subject to exemption pursuant to 5 U.S.C. 552a(k)(2).
(3) For the reasons set forth, the system of records listed above
is exempted under 5 U.S.C. 552a(k)(2) from the following provisions of
5 U.S.C. 552a:
(i) 5 U.S.C. 552a(c)(3) requires that an agency make available to
the individual to whom the records pertain upon request an accounting
of disclosures of records that includes the date, nature and purpose of
each disclosure of the record and the name and address of the
recipient. Providing an individual with an accounting of disclosures of
HPP records could reveal the existence of an investigation of alleged
harassment and the allegations being investigated and therefore result
in the alternation or destruction of evidence, improper influencing of
witnesses, and other activities that could impede or compromise the
investigation.
(ii) 5 U.S.C. 552a(d), (e)(4), (G), (H), and (f) relate to an
individual's right to be notified of the existence of records
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pertaining to such individual; requirements for identifying an
individual who requests access to records; and the agency procedures
relating to access to records and the contest of information contained
in such records. Providing an individual with notification of, access
to, or the right to seek amendment of HPP records could disclose the
identity of confidential sources, reveal investigative techniques, and
interfere with enforcement proceedings.
(iii) 5 U.S.C. 552a(e)(4)(I) requires the publication of the
categories of sources of records in each system of records. Revealing
the sources of information in HPP records could discourage such sources
from cooperating with investigations of alleged harassment for fear of
reprisal. In addition, the disclosure of VA's investigative techniques
and procedures and compromise the ability to conduct impartial
investigations into workplace and sexual harassment allegations.
(iv) 5 U.S.C. 552a(e)(1) requires each agency to maintain in its
records only such information about an individual that is relevant and
necessary to accomplish a purpose of the agency required by statute or
Executive Order. The relevance or necessity of specific information in
HPP records often cannot be detected in the early stages of an
investigation and can only be established after the information is
evaluated. Further, a thorough and complete investigation could involve
information that at first appears incidental but ultimately becomes
critical to the investigation.
(Authority: 5 U.S.C. 552a(j) and (k); 38 U.S.C. 501)
[FR Doc. 2024-13384 Filed 6-17-24; 8:45 am]
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