[Federal Register Volume 89, Number 143 (Thursday, July 25, 2024)]
[Proposed Rules]
[Pages 60337-60339]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-16275]


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DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 1

RIN 2900-AS11


Privacy Act of 1974; Implementation

AGENCY: Department of Veterans Affairs.

ACTION: Proposed rule.

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[[Page 60338]]

SUMMARY: The Department of Veterans Affairs (VA) proposes to amend its 
regulations governing the confidentiality and release of VA records 
subject to the Privacy Act of 1974. VA proposes to exempt portions of 
the new ``Law Enforcement Officer Evaluations (LEO Evals)--VA'' 
(216VA10) system of records from certain provisions of the Privacy Act 
of 1974 to prevent compromising the objectivity and fairness of the 
testing and evaluation process.

DATES: Comments must be received on or before September 23, 2024.

ADDRESSES: Comments may 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. 
Comments received before the close of the comment period on 
www.regulations.gov will be posted as soon as possible after they have 
been received. VA will not post Regulations.gov public comments that 
make threats to individuals or institutions or suggest that the 
individual will take actions to harm the individual. VA encourages 
individuals not to submit duplicative comments; however, we will post 
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. In accordance with the 
Providing Accountability Through Transparency Act of 2023, a 100 word 
Plain-Language Summary of this proposed rule is available at 
Regulations.gov, under RIN 2900-AS11.

FOR FURTHER INFORMATION CONTACT: Stephania Griffin, Chief Privacy 
Officer, Veterans Health Administration, Department of Veterans 
Affairs, 810 Vermont Avenue NW, Washington, DC 20420, 
[email protected], 704-245-2492 (this is not a toll-free 
number).

SUPPLEMENTARY INFORMATION: The Privacy Act of 1974, codified at section 
552a of title 5, United States Code (U.S.C.), governs the means by 
which the U.S. Government collects, maintains, uses, and disseminates 
personally identifiable information. The Privacy Act applies to such 
information that is maintained in a ``system of records.'' A system of 
records is a group of any records under the control of an agency from 
which information about an individual is retrieved by the name of the 
individual or by some identifying number, symbol, or other identifying 
particular assigned to the individual. See section 552a(a)(4) and (5).
    VA maintains numerous systems of records and, in accordance with 
section 552a(e)(4), provides notice in the Federal Register each time a 
system of records is established or revised. In order to safeguard 
personal information contained in VA's systems of records and carry out 
the requirements of the Privacy Act, VA has established regulations in 
38 Code of Federal Regulations (CFR) 1.575 through 1.582. These 
regulations govern VA's policy on maintenance, use, and disclosure of 
information contained in its systems of records, including the ability 
of individuals to access information about themselves under the Privacy 
Act.
    While individuals may request access to records containing 
information about themselves under the Privacy Act, sections 552a(j) 
and (k) allow the head of a Federal agency to promulgate rules to 
exempt a system of records from the general accounting, access, and 
administrative provisions of the Privacy Act contained in section 
552a(c)(3), (d), (e)(1), (e)(4)(G) through (I), and (f). In particular, 
section 552a(j) provides for general exemptions and section 552a(k) 
provides for specific exemptions.
    Concurrent with this proposed rulemaking, notice is being provided 
in the Federal Register that VA is establishing a new system of records 
entitled ``Law Enforcement Officer Evaluations (LEO Evals)--VA 
(216VA10).'' Information in this new system of records will be used to 
document the records of VA police officer candidates and VA police 
officers undergoing psychological evaluations for hire or annually 
after hire. The function of the VA Police Service is to provide for the 
maintenance of law and order and the protection of persons and property 
on Department property. Having qualified individuals is critical to 
this function. Psychological evaluations, testing, and notes will 
contain data to assess the applicant's or employee's psychological 
fitness to meet the functional requirements of a VA police officer 
position. Such information will be provided by VA Police Officers and 
VA Police Officer candidates; VA psychologists and psychiatrists 
conducting psychological evaluations; VA police chiefs and supervisors; 
and VA human resources and occupational health staff.
    Consistent with section 552a(k)(6), which allows an agency to 
exempt testing or examination materials used solely to determine 
individual qualifications for appointment or promotion in the Federal 
service the disclosure of which would compromise the objectivity or 
fairness of the testing or examination process, VA proposes to exempt 
portions of the ``LEO Evals'' system of records from the accounting, 
access, and administrative provisions of the Privacy Act established in 
section 552a(c)(3), (d)(1) through (4), (e)(1), (e)(4)(G) through (I), 
and (f).
    VA proposes this exemption because portions of a record may relate 
to testing and examination material used solely to determine individual 
qualifications for appointment or promotion in the Federal service. 
Access to or amendment of this information by VA police officers and VA 
police officer candidates would compromise the objectivity and fairness 
of the testing or examination process. Amendment of such records could 
also impose a highly impracticable administrative burden by requiring 
testing and examinations to be continuously re-administered.
    Without this proposed exemption, the accounting, access, and 
administrative provisions of the Privacy Act contained in 38 U.S.C. 
552a(c)(3), (d)(1) through (4), (e)(1), (e)(4)(G) through (I), and (f) 
would allow VA police officers and VA police officer candidates to 
obtain their personal information contained in the ``LEO Evals'' system 
of records, to obtain an accounting of certain disclosures of such 
personal information, and to amend certain personal information 
contained therein.
    Therefore, VA proposes to add this exemption to its current list of 
Privacy Act exemptions in new paragraph (f) of 38 CFR 1.582. This would 
ensure the integrity of the testing and examination process to certify 
only those VA police officers that possess the emotional and mental 
stability to serve in this critical role.
    As proposed, 38 CFR 1.582(f) would thus state that VA provides 
limited access to Law Enforcement Officer Evaluations (LEO Evals)--VA 
(216VA10). Subparagraph (1) would state that records contained in this 
system of records are exempted pursuant to the provisions of 5 U.S.C. 
552a(k)(6) from 5 U.S.C. 552a(c)(3), (d)(1) through (4), (e)(1), 
(e)(4)(G) through (I), and (f). Subparagraph (2) would further explain 
that these exemptions apply to the extent that information in this 
system of records is subject to exemption pursuant to 5 U.S.C. 
552a(k)(6) because they relate to testing or examination material used 
solely to determine individual qualifications for appointment or 
promotion in the Federal service, the

[[Page 60339]]

disclosure of which could compromise the objectivity or fairness of the 
testing or examination process.

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 
rulemaking 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 would 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). This proposed rule would exempt certain personnel 
evaluations from disclosure under certain provisions of the Privacy Act 
of 1974. The Privacy Act primarily affects individuals and not entities 
and the proposed rule would impose no duties or obligations on small 
entities. 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 would have no such 
effect on State, local, and Tribal governments, or on the private 
sector.

Paperwork Reduction Act

    This proposed rule contains no provisions constituting a collection 
of information under the provisions of 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, 
Government employees, Privacy, Reporting and recordkeeping 
requirements, Security measures.

Signing Authority

    Denis McDonough, Secretary of Veterans Affairs, approved and signed 
this document on July 18, 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 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 follows:

    Authority:  38 U.S.C. 5101, and as noted in specific sections.

0
2. Amend Sec.  1.582 by adding paragraph (f) to read as follows:


Sec.  1.582  Exemptions.

* * * * *
    (f) Exemption of Law Enforcement Officer Evaluation Records. VA 
provides limited access to Law Enforcement Officer Evaluations (LEO 
Evals)--VA (216VA10).
    (1) Records contained in this system of records are exempted 
pursuant to the provisions of 5 U.S.C. 552a(k)(6) from 5 U.S.C. 
552a(c)(3), (d)(1) through (4), (e)(1), (e)(4)(G) through (I), and (f).
    (2) These exemptions apply to the extent that information in this 
system of records is subject to exemption pursuant to 5 U.S.C. 
552a(k)(6) because they relate to testing or examination material used 
solely to determine individual qualifications for appointment or 
promotion in the Federal service, the disclosure of which could 
compromise the objectivity or fairness of the testing or examination 
process.
* * * * *
[FR Doc. 2024-16275 Filed 7-24-24; 8:45 am]
BILLING CODE 8320-01-P