[Federal Register Volume 88, Number 111 (Friday, June 9, 2023)]
[Proposed Rules]
[Pages 37839-37841]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-11606]


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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: Proposed rule.

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SUMMARY: On May 20, 2022, in the publication of the Federal Register, 
the Department of Veterans Affairs (VA) published a notice of a new 
system of records titled, ``Diversity and Equal Employment Opportunity 
(EEO) Program Records'' (203VA08). In this notice of proposed 
rulemaking, VA proposes to exempt this system of records from certain 
provisions of the Privacy Act in order to prevent interference with 
harassment and sexual harassment administrative investigations. For the 
reasons provided below, the Department proposes to amend its Privacy 
Act regulations by establishing an exemption for records in this system 
from the specified provisions of the Privacy Act.

DATES: Comments must be received on or before August 8, 2023.

ADDRESSES: Comments must be submitted through www.regulations.gov. 
Except as provided below, comments received before the close of the 
comment period will be available at www.regulations.gov for public 
viewing, inspection, or copying, including any personally identifiable 
or confidential business information that is included in a comment. We 
post the comments received before the close of the comment period on 
the following website as soon as possible after they have been 
received: https://www.regulations.gov. VA will not post on 
Regulations.gov public comments that make threats to individuals or 
institutions or suggest that the commenter will take actions to harm 
the individual. VA encourages individuals not to submit duplicative 
comments. We will post acceptable comments from multiple unique 
commenters even if the content is identical or nearly identical to 
other comments. Any public comment received after the comment period's 
closing date is considered late and will not be considered in the final 
rulemaking.

FOR FURTHER INFORMATION CONTACT: Vernet W. Fraser, Privacy Officer, 
Office of Resolution Management, Diversity and Inclusion (ORMDI), 
Department of Veterans Affairs, 810 Vermont Avenue NW, Washington, DC 
20420, (202) 461-0289 (this is not a toll-free number).

SUPPLEMENTARY INFORMATION: Records in this system associated with the 
Harassment Prevention Program (HPP) are maintained on paper and 
electronically at VA facilities by supervisors as well as submitted to 
ORMDI for compliance and oversight purposes. Supervisors are required 
to submit HPP records via the HPP Complaint Tracking System, Equal 
Employment Opportunity EcoSystem (EEOE), designated as E-Squared (E2), 
which is a comprehensive and secure repository for electronic records 
management to facilitate identification, retrieval, maintenance, 
routine destruction, report generation, policy compliance, and document 
routing to create a culture of transparency and accountability.

I. Proposed Exemptions and Affected Records

    The ``Diversity and Equal Employment Opportunity (EEO) Program 
Records'' (203VA08) system captures and houses information concerning 
any investigation, or response VA takes in response to allegations 
filed by VA employees and VA contractors of workplace harassment or 
sexual harassment by another VA employee, VA contractor, or non-
department individual such as a Veteran or Visitor to a VA facility. 
Due to the investigatory nature of information that will be maintained 
in this system of records, this proposed rule would exempt HPP records 
in this system of records from subsections (c)(3), (d), (e)(1), (e)(4), 
(G), (H), (I), and (f) of the Privacy Act pursuant to 5 U.S.C. 
552a(k)(2).

[[Page 37840]]

II. Exemption Rationales

    The proposed exemptions through 5 U.S.C. 552a(k)(2) are necessary 
to avoid interference with or adverse effect on the purpose of this 
system. In an investigation of alleged harassment, individuals may be 
contacted during the preliminary information-gathering stage before any 
individual is identified as the subject of an investigation. Informing 
the individual of the matters being investigated would hinder or 
adversely affect any present or subsequent investigations.
    The access, amendment, accounting, and notification provided under 
those subsections would reveal the identity of confidential sources and 
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 could compromise the ability to 
conduct impartial investigations into workplace and sexual harassment 
allegations. Therefore, individuals involved in harassment and sexual 
harassment allegations (e.g., alleger, alleged harasser, witnesses) 
shall not receive a copy of Harassment Prevention Program (HPP) 
records, such as management notifications; investigators and 
coordinators findings; analysis used to determine whether harassment 
occurred; preventive or corrective action taken; related 
correspondence; exhibits; and written follow up documents.

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 (Executive Order on 
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 
rule is not a significant regulatory action under Executive Order 
12866, as amended by Executive Order 14094. 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 proposed 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. 601-612). The operations and administrative processes associated 
with this proposed rule consists 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 proposed rule will not have no such 
effect on State, local, and tribal governments, or on the private 
sector.

Paperwork Reduction Act (PRA)

    This proposed rule contains no provisions constituting a collection 
of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 
3501-3521).

List of Subjects in 38 CFR Part 1

    Administrative practice and procedure, Archives and records, 
Cemeteries, Claims, Courts, Crime, Disability benefits, Flags, Freedom 
of information, Government contracts, Government employees, Government 
property, Infants and children, Inventions and patents, Parking, 
Penalties, Pensions, Postal Service, Privacy, Reporting and 
recordkeeping requirements, Seals and insignia, Security measures, 
Wages.

Signing Authority

    Denis McDonough, Secretary of Veterans Affairs, approved this 
document on May 25, 2023, 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.

Michael P. Shores,
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 proposes to amend 38 CFR part 1 as set forth below:

PART 1--GENERAL PROVISIONS

0
1. The authority citation for part 1 continues to read as: 38 U.S.C. 
5101, and as noted in specific sections. 38 U.S.C. 1751-1754 and 7331-
7334. Sections 1.500 to 1.527 issued under 72 Stat. 1114, 1236, as 
amended; 38 U.S.C. 501, 5701.
0
2. Revise Sec.  1.582(d) to read as follows:


Sec.  1.582  Exemptions.

* * * * *
    (d) 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 
pertaining to such individual; requirements for identifying an

[[Page 37841]]

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. 2023-11606 Filed 6-8-23; 8:45 am]
BILLING CODE 8320-01-P