[Federal Register Volume 65, Number 146 (Friday, July 28, 2000)]
[Notices]
[Pages 46551-46555]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-19169]


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DEPARTMENT OF VETERANS AFFAIRS


Privacy Act of 1974, New System of Records: Agency-Initiated 
Personnel Actions (Title 38)--VA (102VA05)

AGENCY: Department of Veterans Affairs.

ACTION: Notice.

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SUMMARY: Notice is hereby given that the Department of Veterans Affairs 
(VA) is proposing a new system of records entitled Agency-Initiated 
Personnel Actions (Title 38)--VA (102VA05). VA

[[Page 46552]]

is simultaneously altering and reissuing the system of records entitled 
General Personnel Records (Title 38)--VA (76VA05). The alteration 
removes from 76VA05 information associated with processing disciplinary 
and adverse actions, disqualification during probation, physical 
disqualification, agency-initiated disability retirements, and 
suitability determinations. A new system of records is proposed because 
the purposes of the records in this system differ from the records in 
76VA05. The employees covered, the types of records, purposes of the 
records systems, legal authority for maintenance of the systems, and 
routine uses associated with each of these record systems are 
different. The physical location of these records may also differ from 
the records covered by 76VA05.

DATES: Submit comments on or before August 28, 2000.

ADDRESSES: Interested persons are invited to submit written comments, 
suggestions, or objections regarding this system of records to the 
Director, Office of Regulations Management (02D), 810 Vermont Avenue, 
NW., Washington, DC 20420. All written comments received will be 
available for public inspection in the Office of Regulations 
Management, Room 1154, 810 Vermont Avenue, NW., Washington, DC 20420 
only between the hours of 8 a.m. and 4:30 p.m., Monday through Friday, 
except holidays. If no public comment is received during the 30-day 
review period allowed for public comment, or unless otherwise published 
in the Federal Register by VA, the reissued system of records is 
effective August 28, 2000.

FOR FURTHER INFORMATION CONTACT: Mr. Brian McVeigh, Department of 
Veterans Affairs (051A), 810 Vermont Avenue, NW., Washington, DC 20420, 
(202) 273-9821.

SUPPLEMENTARY INFORMATION: VA issued a system of records entitled 
General Personnel Records (Title 38)--VA (76VA05) in the Federal 
Register 53 FR 40852 (7/19/88) and amended that system in 55 FR 42534 
(10/19/90), 58 FR 40852 (7/30/93), and 61 FR 14853 (4/3/96). This 
system included all personnel records other than medical records for 
most Veterans Health Administration employees appointed under Title 38, 
United States Code.
    This system of records would include information removed from 
76VA05 concerning processing disciplinary and adverse actions, 
disqualification during probation, physical disqualification, agency-
initiated disability retirements, and suitability determinations. This 
includes copies of any notice of proposed action, materials relied on 
by VA to support the reason(s) for the action, replies by employees, 
statements of witnesses, hearing notices, as well as reports and other 
correspondence or documents related to these actions. A new system of 
records is proposed because the purposes of the records in this system 
differ from the records in 76VA05. The employees covered, the types of 
records, purposes of the systems, legal authority for maintenance of 
the systems, and routine uses associated with each of these systems of 
records are different. The physical location of these records may also 
differ from the records covered by 76VA05.
    Further, 76VA05 had 40 routine uses. Only 23 routine uses were 
determined to be appropriate for the records contained in this new 
records system. The changes to the routine uses formerly in 76VA05 are 
as follows:
    a. Routine use 1 relating to disclosures to the Office of Personnel 
Management has been deleted. Such disclosures are only made from the 
system of records entitled Personnel and Accounting Pay System-VA 
(27VA047).
    b. Routine uses 2 through 9 have been deleted. Disclosures of such 
information would come from other records systems (e.g., 76VA05).
    c. Routine use 10 (now 1) is being modified to clarify the 
conditions under which data is disclosed to officials of labor 
organizations recognized under 5 U.S.C., chapter 71. The clarification 
ties such disclosures to the law authorizing the disclosures, i.e., 5 
U.S.C. 7114(b)(4). The former version authorized disclosures to 
officials of labor organizations ``when relevant and necessary to their 
duties of exclusive representation concerning personnel policies, 
practices, and matters affecting working conditions.''
    d. Routine use 11 is modified. VA is prohibited from promulgating 
routine uses that would permit disclosures in response to request for 
information for civil or law enforcement purposes or in response to 
court orders. Such requests must be submitted under the provisions of 5 
U.S.C. 552a(b)(7) or (b)(11), as applicable. See Doe v. DiGenova, 779 
F. 2d 74 (D.C. Cir. 1985) and Doe v. Stephens, 851 F. 2d 1457 (D.C. 
Cir. 1988), and an August 28, 1989, opinion from the Office of Legal 
Counsel, Department of Justice. Routine use 11 (now 2) no longer 
includes such disclosures; however, it has been modified to permit VA 
to disclose, on its own initiative, relevant information if there is 
reason to believe that a violation of statute, rule or regulation has 
occurred.
    e. Routine use 14 (now 5) no longer permits disclosures at the 
request of agencies in the executive, legislative or judicial branch of 
the Federal government, or to the government of the District of 
Columbia for investigative purposes. Such requests must be submitted 
under the provisions of U.S.C. 552a(b)(7). That portion of the routine 
use has been deleted.
    f. Routine use 15 (now 6) has been modified to limit the reason for 
such disclosures to obtaining accreditation or other approval ratings. 
It also now permits disclosures to other Federal agencies for this 
purpose. The former version of this routine use was overly broad.
    g. Routine use 16 has been deleted. Disclosures of such information 
would come from other records systems (e.g., 76VA05).
    h. Routine use 18 (now 8) has been modified so that it no longer 
permits disclosures in response to subpoenas or court orders. 
Applicable case law (see paragraph d above) prohibits disclosures in 
response to subpoenas. Court orders directing the production of 
information must also meet the requirements of 5 U.S.C. 552a(b)(11). 
The revised routine use would permit VA to disclose relevant 
information on its own initiative in certain legal proceedings if VA is 
party to those proceedings and disclosure is necessary to protect its 
interests.
    i. Routine use 19, relating to requests for discovery or for the 
appearance of witnesses, has been deleted, since it is no longer 
consistent with applicable case law (see paragraph d above).
    j. Routine use 24 (now 13) related to disclosures to VA-appointed 
representatives concerning fitness for duty examinations and disability 
retirement procedures has been moved from 76VA05, as it applies to 
actions covered by this system of records.
    k. Routine use 25, concerning disclosures because an individual may 
have contracted an illness, been exposed to, or suffered from a health 
hazard while employed by the Federal government, is being deleted. This 
subject is addressed in 5 U.S.C. 552a(b)(8).
    l. Routine uses 26 and 27 have been deleted. This information is 
disclosed from another system of records (76VA05).
    m. Routine use 29 (now 15), is being changed to delete the language 
concerning disclosures to the Equal Employment Opportunity Commission 
to ensure compliance with the Uniform Guidelines on Employee Selection 
Procedures, since VA has not been chosen to adopt the Uniform 
Guidelines for use in its Title 38 employment procedures.

[[Page 46553]]

    n. Routine use 30 (now 16), is being clarified to indicate that 
disclosures to the Federal Labor Relations Authority and Federal 
Service Impasses Panel may only be made after appropriate jurisdiction 
has been established. Matters or questions concerning or arising out of 
(1) professional conduct or competence, (2) peer review, and (3) the 
establishment, determination or adjustment of compensation shall be 
decided by the Secretary of Veterans Affairs and is not itself subject 
to collective bargaining and may not be reviewed by another agency. See 
38 U.S.C. 7422.
    o. Routine use 31 has been deleted. This information is disclosed 
from another system of records (76VA05).
    p. Routine use 32 (now 17) is being modified to include Federal 
agencies. For example, disclosures will be made to the Department of 
Health and Human Services Exclusionary Database as required by Pub. L. 
105-53.
    q. Routine use 33 regarding disclosures of information in response 
to requests from agencies responsible for the issuance, retention or 
revocation of licenses, certification or registrations required to 
practice a health care profession has been deleted. Such requests must 
conform to the requirements of 5 U.S.C. 552a(b)(7).
    r. Routine uses 35 and 36, relating to disclosures of information 
through computer matching, have been deleted, as such disclosures are 
not made from this system of records.
    s. Routine use 39 (now 21) concerning disclosures to license 
monitoring agencies is being modified to exclude language concerning 
computer matching. Such disclosures are not made from this system of 
records.
    t. Routine use 40 concerning disclosures to a garnishing party were 
not included in this system of records. Such information would be 
disclosed from 76VA05.
    u. A new routine use (number 22) permits disclosures to 
contractors, subcontractors, grantees, or volunteers performing or 
working on a contract, service, grant, cooperative agreement, or job 
for the Federal government. However, such disclosures must be in the 
interest of VA and compatible with the intended purposes for which the 
record was created.
    v. A new routine use (number 23) permits disclosing information to 
the Department of Health and Human Services' Healthcare Integrity and 
Protection Data Base pursuant to Sec. 221(a), Pub. L. 104-191, and the 
associated Department of Health and Human Services regulations, 45 CFR 
part 61.

    Approved: July 12, 2000.
Togo D. West, Jr.,
Secretary of Veterans Affairs.
102VA05

SYSTEM NAME:
    Agency-Initiated Personnel Actions (Title 38)-VA.

SYSTEM LOCATION:
    All records related to Disciplinary Appeals Boards are maintained 
at VA Central Office, 810 Vermont Avenue, NW, Washington, DC 20420. All 
other records in this system are maintained at the Department of 
Veterans Affairs (VA) Central Office, 810 Vermont Avenue, NW, 
Washington, DC 20420 and/or VA field facilities.

CATEGORIES OF INDIVIDUALS COVERED BY THE SYSTEM:
    Current and former employees appointed under 38 U.S.C. 7306, 
7401(1), or 7405(a)(1)(A), except those appointed on a without 
compensation basis. This includes employees such as physicians, 
dentists, podiatrists, optometrists, nurses, nurse anesthetists, 
physician assistants and expanded-function dental auxiliaries.

CATEGORIES OF RECORDS IN THE SYSTEM:
    All categories of records may include identifying information, such 
as name, address, Social Security number, current position title, 
employing facility, and the employee's current grade, level, or step 
rate. This system contains supporting documentation related to 
processing actions covered by this system of records. This includes, as 
appropriate, designations of board members and employee representative, 
copies of the notice of proposed action, materials relied on by the 
Agency to support the reasons in the notice, replies by the employee, 
statements of witnesses, hearing notices, reports, related 
correspondence, and Agency decisions.

AUTHORITY FOR MAINTENACE OF THE SYSTEM:
    37 U.S.C. 501(a), 7304, and 7406(c)(1).

PURPOSE(S):
    These records document the processing of disciplinary and adverse 
actions, disqualification during probation, physical disqualification, 
agency-initiated disability retirements, and proposed separations based 
on pre-employment suitability.

ROUTINE USES OF RECORDS MAINTAINED IN THE SYSTEM, INCLUDING CATEGORIES 
OF USERS AND THE PURPOSES OF SUCH USES:
    1. To disclose the information listed in 5 U.S.C. 7114(b)(4) to 
officials of labor organizations recognized under 5 U.S.C. Chapter 71 
when relevant and necessary to their duties of exclusive representation 
concerning personnel policies, practices, and matters affecting working 
conditions.
    2. VA may, on its own initiative, disclose relevant information to 
a Federal agency (including Offices of the Inspector General), State, 
or local agency responsible for investigating, prosecuting, enforcing, 
or implementing a statute, rule, regulation if there is reason to 
believe that a violation may have occurred. This routine use does not 
authorize disclosures in response to requests for information for civil 
or criminal law enforcement activity purposes, nor does it authorize 
disclosure of information in response to court orders. Such requests 
must meet the requirements of 5 U.S.C. 552a(b)(7) or (b)(11), as 
applicable.
    3. To disclose pertinent information when necessary to obtain 
information relevant to a conflict-of-interest investigation or 
determination.
    4. To disclose information to any source from which additional 
information is requested (to the extent necessary to identify the 
individual, inform the source of the purposes(s) of the request, and to 
identify the type of information requested), when necessary to obtain 
information relevant to any agency decision concerning the hiring or 
retention of an employee, the issuance of security clearance, the 
conducting of a security or suitability investigation of an individual, 
the letting of a contract, or the issuance of a license, grant, or 
other benefit.
    5. To disclose to an agency in the executive, legislative, or 
judicial branch, or the District of Columbia's Government in response 
to its request, or at the initiation of VA, information in connection 
with the hiring of an employee, the issuance of a security clearance, 
the conducting of a security or suitability investigation of an 
individual, the letting of a contract, the issuance of license, grant 
or other benefit by the requesting agency, or the lawful statutory or 
administrative purpose of the agency to the extent that the information 
is relevant and necessary to the requesting agency's decision.
    6. To disclose relevant information to Federal and non-Federal 
agencies (i.e., State or local governments), and private sector 
organizations, boards, bureaus, or commissions (e.g., the Joint 
Commission on Accreditation of Healthcare Organizations) when such 
disclosures are required to obtain accreditation or other approval 
ratings.
    7. To provide information to a congressional office from the 
records of

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an individual in response to an inquiry from the congressional office 
made at the request of the individual.
    8. VA may, on its own initiative, disclose information to another 
Federal agency, court, or party in litigation before a court or other 
administrative proceeding conducted by a Federal agency, if VA is a 
party to the proceeding and VA needs to disclose such information to 
protect its interests.
    9. To disclose information to the National Archives and Records 
Administration (NARA) for records management inspections conducted 
under authority of 44 U.S.C. 2904 and 2906.
    10. To disclose to persons engaged in research and survey projects 
information necessary to locate individuals for personnel research or 
survey response, and to produces summary descriptive statistics and 
analytical studies in support to the function for which the records are 
collected and maintained, or for related workforce studies. While 
published statistics and studies do not contain individual identifiers, 
in some instances, the selection of elements of data included in the 
study may be structured in such a way as to make the date individually 
identifiable by inference.
    11. To provide an official of another Federal agency information 
needed in the performance of official duties related to reconciling or 
reconstructing data files in support of the functions for which the 
records were collected and maintained.
    12. When an individual to whom records pertain is mentally 
incompetent or under other legal disability, information in the 
individual's records may be disclosed to any person of entity 
responsible for managing the individual finances to the extent 
necessary to ensure payment of benefits to which the individual is 
entitled.
    13. To disclose to the VA-appointed representative of an employee 
all notices, determination, decisions, or other written communications 
issues to the employee in connection with an examination ordered by the 
VA under fitness-for-duty examination procedures or Agency-filed 
disability retirement procedures.
    14. To disclose information to officials of the Merit Systems 
Protection Board or the Office of the Special Counsel, when requested 
in connection with appeals, special studies of the civil service and 
other merit systems, review of rules and regulations, investigation of 
alleged or possible prohibited personnel practices, and such other 
functions, promulgated in 5 U.S.C. 1205 and 1206, or as may be 
authorized by law.
    15. To disclose information to the Equal Employment Opportunity 
Commission when requested in connection with investigations of alleged 
or possible discriminatory practices, examination of Federal 
affirmative employment programs, or for other functions of the 
Commission as authorized by law.
    16. To disclose information to the Federal Labor Relations 
Authority (including its General Counsel) when appropriate jurisdiction 
has been established and the information has been requested in 
connection with the investigation and resolution of allegations of 
unfair labor practices, in connection with the resolution of exceptions 
to arbitration awards when a question of material fact is raised; to 
disclose information in matters properly before the Federal Service 
Impasses Panel.
    17. Records from this system or records may be disclosed to a 
Federal, State, or local government agency or licensing board and/or to 
the Federation of State Medical Boards or a similar non-government 
entity which maintains records concerning individuals' employment or 
practice histories or concerning the issuance, retention, or revocation 
of licenses or registration necessary to practice and occupation, 
profession or specialty, in order for the Agency to obtain information 
determined relevant to an Agency decision concerning the hiring, 
retention or termination of an employee or to inform licensing boards 
or the appropriate non-governmental entities about the health care 
practices of a terminated, resigned, or retired health care employee 
whose professional health care activity so significantly failed to 
conform to generally accepted standards of professional practice as to 
raise reasonable concern for the health and safety of private section 
patients.
    18. To disclose relevant information to the Department of Justice 
and United States Attorneys in defense or prosecution of litigation 
involving the United States and to Federal agencies upon their request 
in connection with review of administrative tort claims filed under the 
Federal Tort Claims Act, 28 U.S.C. 2672.
    19. To disclose hiring, performance, or other personnel-related 
information to any facility with which there is, or there is proposed 
to be, and affiliation, sharing agreement, contract, or similar 
arrangement, for purposes of establishing maintaining, or expanding any 
such relationship.
    20. Identifying information in this system, including name, 
address, Social Security number, and other information as is reasonably 
necessary to identify such individual, may be disclosed to the 
Department of Health and Human Services or the National Practitioner 
Data Bank at the time of hiring and/or clinical privileging/
reprivileging of health care practitioners, and other times as deemed 
necessary by VA, in order the VA to obtain information relevant to a 
Department decision concerning the hiring, privileging/reprivileging, 
retention, or termination of the applicant or employee.
    21. Relevant information from this system of records may be 
disclosed to the National Practitioner Data Bank or to a State or local 
government licensing board which maintains records concerning the 
issuance, retention, or revocation of licenses, certifications, or 
registrations necessary to practice an occupation, profession, or 
specialty when under the following circumstances, through peer review 
process that is undertaken pursuant to VA policy, negligence, 
professional incompetence, responsibility for improper care, and/or 
professional misconduct has been assigned to a physician or licenses or 
certified health care practitioner: (1) On any payment in settlement 
(or partial settlement of, or in satisfaction of a judgement) in a 
medical malpractice action or claim; or, (2) on any final decision that 
adversely affects the clinical privileges of a physician or 
practitioner for a period or more than 30 days.
    22. To disclose information to contractors, subcontractors, 
grantees, or others performing or working on a contract, grant, or 
cooperative agreement for the Federal government, provided disclosure 
is in the interest of the Government and the information to be 
disclosed is relevant and necessary for accomplishing the intended uses 
of the information and necessary to perform services under the 
contract, grant or cooperative agreement.
    23. Information from this system of records will be disclosed to 
the Healthcare Integrity and Protection Data Base as required by 
section 1122E of the Social Security Act (as addeded by Sec. 221(a) of 
Pub. L. 104-191) and the associated implementing regulations issued by 
the Department of Health and Human Services, 45 CFR part 61. For 
example, VA is required to report adjudicated adverse personnel actiosn 
based on acts or omissions that either affected or could have affected 
the delivery of healthcare services.

[[Page 46555]]

POLICIES AND PRACTICES FOR STORING, RETRIEVING, ACCESSING, RETAINING 
AND DISPOSING OF RECORDS IN THE SYSTEM:
STORAGE:
    These records may be maintained in file folders and computer 
processable storage media. The records may also be maintained on lists, 
forms, microfilm, microfiche, or audio-tape.

RETRIEVABILITY:
    These records may be retrieved using various combinations of name, 
birth date, or identification number of the individual on whom they are 
maintained.

SAFEGUARDS:
    Access to areas where these records are maintained is restricted to 
VA employees, contractors, or subcontractors on a ``need to know'' 
basis; strict control measures are enforced to ensure that disclosure 
to these individuals is also based on the same principle. File areas 
are locked after normal duty hours and are protected from outside 
access by VA police officers or other types of alarm systems.

RETENTION AND DISPOSAL:
    Records in this system are disposed of no sooner than 6 years after 
the closing of the case. Disposal is by shredding and erasure of tapes 
or disks.

SYSTEM MANAGER(S) AND ADDRESS:
    Deputy Assistant Secretary for Human Resources Management (05), 
Department of Veterans Affairs, 810 Vermont Avenue, NW, Washington, DC 
20420.

NOTIFICATION PROCEDURE:
    Except as indicated below (see Record Access Procedures), 
individuals receiving notice of a proposed action must be provided 
access to all documents supporting the notice. At any time thereafter, 
individuals subject to the action will be provided access to the record 
(see Record Access Procedures). Individuals should contact the human 
resources manager for the location where the action was processed 
regarding the existence of such records on them. However, all inquiries 
related to Disciplinary Appeals Boards should be directed to the Deputy 
Assistant Secretary for Human Resources Management (see System 
Manager). Individuals must furnish the following information for their 
records to be located and identified:
    a. Name.
    b. Date of birth.
    c. Approximate date of closing of the case and kind of action 
taken.
    d. If not the employee's current organization, the organizational 
component involved.
    Requests for access must be consistent with the Privacy act and VA 
regulations concerning the release of information from Department of 
Veterans Affairs records other than claimant records. See 38 CFR 1.550, 
et seq.

RECORD ACCESS PROCEDURES:
    Individuals against whom such actions are taken must be provided 
access to the record. However, after the action has been closed, 
individuals may request access to the official file by contacting the 
human resources manager for the location where the action was 
processed. If the action relates to a Disciplinary Appeals Board, the 
individual must request access from the Deputy Assistant Secretary for 
Human Resources Management (see System Manager). Individuals must 
furnish the following information for their records to be located and 
identified:
    a. Name.
    b. Date of birth.
    c. Approximate date of closing of the case and kind of action 
taken.
    d. If not the employee's current organization, the organizational 
component involved.
    Requests for access must be consistent with the Privacy Act and VA 
regulations concerning the release of information from Department of 
Veterans Affairs records other than claimant records. See 38 CFR 1.550, 
et seq. Note 1: When a request for access involves medical or 
psychological records that the responsible individual believes require 
special handling, the requester should be advised that the material 
will be provided only to a physician designated by the data subject. 
Upon receipt of the designation and upon verification of the 
physician's identity, the records will be made available to the 
physician, who will have full authority to disclose those records to 
the data subject when appropriate.

CONTESTING RECORD PROCEDURES:
    Review of requests from individuals seeking amendment of their 
records that have or could have been the subject of a judicial, quasi-
judicial, or administrative action will be limited in scope. Review of 
amendment request of these records will be restricted to determining if 
the records accurately document the action on the case and will not 
include a review of the merits of the action, determination, or 
finding. Individuals wishing to request amendment of their records to 
correct factual errors should contact the human resources manager for 
the VA office where the action was processed. In cases concerning 
Disciplinary Appeals Boards, individuals should contact the Deputy 
Assistant Secretary for Human Resources Management (see System Manager) 
to request the amendment. Individuals must furnish the following 
information for their records to be located and identified:
    a. Name.
    b. Date of birth.
    c. Approximate date of closing of the case and kind of action 
taken.
    d. If not the individual's current organization, the organizational 
component involved.

RECORD SOURCE CATEGORIES:
    Information in this system of records is provided:
    a. By supervisors and managers.
    b. By individual on whom the record is maintained.
    c. By Professional Standards Boards and Disciplinary Appeals 
Boards.
    d. By testimony of witnesses.
    e. By other agency officials.
    f. By other agency records.
    g. From related correspondence or persons.

[FR Doc. 00-19169 Filed 7-27-00; 8:45 am]
BILLING CODE 8320-01-M