[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

[[Page 51444]]

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]
BILLING CODE 8320-01-P