Proposed Rule2023-11606
Exemption of “Diversity and Equal Employment Opportunity (EEO) Program Records” (203VA08)
Primary source
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Published
June 9, 2023
Issuing agencies
Veterans Affairs Department
Abstract
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.
Full Text
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<title>Federal Register, Volume 88 Issue 111 (Friday, June 9, 2023)</title>
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[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 [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[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 <a href="http://www.regulations.gov">www.regulations.gov</a>.
Except as provided below, comments received before the close of the
comment period will be available at <a href="http://www.regulations.gov">www.regulations.gov</a> 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: <a href="https://www.regulations.gov">https://www.regulations.gov</a>. VA will not post on
<a href="http://Regulations.gov">Regulations.gov</a> 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 <a href="http://www.regulations.gov">www.regulations.gov</a>.
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
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</html>Indexed from Federal Register on June 9, 2023.
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