Exemption of “Diversity and Equal Employment Opportunity (EEO) Program Records” (203VA08)

<RULE> DEPARTMENT OF VETERANS AFFAIRS <CFR>38 CFR Part 1</CFR> <RIN>RIN 2900-AR95</RIN> <SUBJECT>Exemption of “Diversity and Equal Employment Opportunity (EEO) Program Records” (203VA08)</SUBJECT> <HD SOURCE="HED">AGENCY:</HD> Department of Veterans Affairs. <HD SOURCE="HED">ACTION:</HD> Final rule. <SUM> <HD SOURCE="HED">SUMMARY:</HD> 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. </SUM> <EFFDATE> <HD SOURCE="HED">DATES:</HD> This final rule is effective July 18, 2024. </EFFDATE> <FURINF> <HD SOURCE="HED">FOR FURTHER INFORMATION CONTACT:</HD> 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). </FURINF> <SUPLINF> <HD SOURCE="HED">SUPPLEMENTARY INFORMATION:</HD> On June 9, 2023, VA published a proposed rule in the <E T="04">Federal Register</E> (88 FR 37839) to add a new exemption to § 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 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. <HD SOURCE="HD1">Change Not Based on Comments</HD> 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). <HD SOURCE="HD1">Executive Orders 12866, 13563 and 14094</HD> 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 <E T="03">www.regulations.gov.</E> <HD SOURCE="HD1">Regulatory Flexibility Act</HD> 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. <HD SOURCE="HD1">Unfunded Mandates</HD> 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 m ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━ Preview showing 10k of 15k characters. Full document text is stored and available for version comparison. ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━