DEPARTMENT OF VETERANS AFFAIRS

8320-01

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.
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 [INSERT DATE 30 DAYS AFTER DATE OF
PUBLICATION IN THE FEDERAL REGISTER].

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 § 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 nonsupportive 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.

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
1. The authority citation continues to read as follows:
Authority: 38 U.S.C. 5101, and as noted in specific sections.
2. Amend § 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 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: 6/17/2024 8:45 am; Publication Date: 6/18/2024]