2024-16275. Privacy Act of 1974; Implementation

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Department of Veterans Affairs

1. 38 CFR Part 1
2. RIN 2900-AS11

AGENCY:

Department of Veterans Affairs.

ACTION:

Proposed rule.

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, [e-mail], 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 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

1. The authority citation for part 1 continues to read as follows:

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

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

§ 1.582

Exemptions.

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(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.

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