Release of Information From Department of Veterans Affairs Records

DEPARTMENT OF VETERANS AFFAIRS

38 CFR Parts 1 and 2

RIN 2900-AH98

Release of Information From Department of Veterans Affairs

Records

AGENCY: Department of Veterans Affairs.

ACTION: Proposed rule.

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SUMMARY: This document proposes to amend Department of Veterans Affairs

(VA) regulations governing the confidentiality and release of VA

records subject to the Privacy Act, the Freedom of Information Act

(FOIA) (including the Electronic Freedom of Information Act Amendments

of 1996, and the veterans' records confidentiality statute. The

proposed rule sets forth a mechanism for the public to obtain

information from the VA. The proposed rule is intended to maximize

public availability of VA records to the extent permitted by law and

considerations such as personal privacy or law enforcement. Essentially

these provisions consist of restatements of statute, interpretations of

statute, interpretations of case law, interpretations of Executive

Orders, and clarification. The proposed amendments also would implement

the Electronic Freedom of Information Act Amendments of 1996, court

decisions and Executive Branch guidance issued since the regulations

were originally published.

Further, this document proposes to delegate authority to the

Assistant General Counsel for Professional Staff Group IV for making

final Departmental decisions on appeals under the Freedom of

Information Act, the Privacy Act, and 38 U.S.C. 5701 and 5705. This

would simplify decision making by allowing the highest level individual

with direct responsibility for decision making to issue decisions.

DATES: Comments must be received on or before November 9, 1998.

tant General Counsel for Professional Staff Group IV for making

final Departmental decisions on appeals under the Freedom of

Information Act, the Privacy Act, and 38 U.S.C. 5701 and 5705. This

would simplify decision making by allowing the highest level individual

with direct responsibility for decision making to issue decisions.

DATES: Comments must be received on or before November 9, 1998.

ADDRESSES: Mail or hand deliver written comments to: Director, Office

of Regulations Management (02D), Department of Veterans Affairs, 810

Vermont Avenue, NW, Room 1154, Washington, D.C. 20420. Comments should

indicate that they are submitted in response to ``RIN 2900-AH98.'' All

written comments received will be available for public inspection at

the above address in the Office of Regulations Management, Room 1158,

between the hours of 8:00 a.m. and 4:30 p.m., Monday through Friday

(except holidays).

FOR FURTHER INFORMATION CONTACT: Lorrie Johnson, Deputy Assistant

General Counsel (024A), Office of General Counsel, Department of

Veterans Affairs, 810 Vermont Avenue, NW, Washington, D.C. 20420,

telephone number (202) 273-6358, fax number (202) 273-6388.

SUPPLEMENTARY INFORMATION: Current regulations promulgated pursuant to

section 5701 appear in 38 CFR 1.500 through 1.527; current regulations

promulgated pursuant to FOIA appear in Secs. 1.550 through 1.558; and

current regulations promulgated pursuant to the Privacy Act appear in

Secs. 1.575 through 1.584. These amendments consolidate regulations

governing the release of information pursuant to all three statutes

(Sec. 5701, FOIA and the Privacy Act) into one set of regulations, new

Secs. 1.500 through 1.512. The following current sections have been

rewritten to simplify and clarify: Secs. 1.500(b)-(d); Sec. 1.502;

Sec. 1.507; Secs. 1.511(a)-(f); Sec. 1.512; Sec. 1.513(a) and (b)(3);

Sec. 1.514 (in part); Sec. 1.519; Sec. 1.522; Sec. 1.524; Sec. 1.525;

Sec. 1.526; Sec. 1.527; Sec. 1.550; Sec. 1.552(a); Sec. 1.553;

Sec

nd the Privacy Act) into one set of regulations, new

Secs. 1.500 through 1.512. The following current sections have been

rewritten to simplify and clarify: Secs. 1.500(b)-(d); Sec. 1.502;

Sec. 1.507; Secs. 1.511(a)-(f); Sec. 1.512; Sec. 1.513(a) and (b)(3);

Sec. 1.514 (in part); Sec. 1.519; Sec. 1.522; Sec. 1.524; Sec. 1.525;

Sec. 1.526; Sec. 1.527; Sec. 1.550; Sec. 1.552(a); Sec. 1.553;

Sec. 1.553a(a), (e) and (f); Sec. 1.554(b); Sec. 1.554a; Sec. 1.555;

Sec. 1.556 (in part); Sec. 1.557; Sec. 1.577(b)-(d), (f) and (g);

Sec. 1.579(a)-(c); and Sec. 1.580.

Provisions that essentially restate statutory language have been

deleted: Secs. 1.500(a); Sec. 1.501; Sec. 1.503; Sec. 1.506(a);

Sec. 1.509; Sec. 1.510; Sec. 1.512(c)(2) and (e); Sec. 1.513 (in part);

Sec. 1.551(b) and (c); Sec. 1.552(c) and (d); Sec. 1.553a(b) and (c);

Sec. 1.554(a) and (c); Sec. 1.575(a) and (b); Sec. 1.576(a)-(g);

Sec. 1.577(a) and (e); and Sec. 1.579(d).

These amendments implement new statutes (or amendments to

statutes), court decisions, and Executive Branch guidance, which have

been enacted or issued since the regulations were originally published.

The following were implicitly repealed or superseded: Sec. 1.504;

Sec. 1.505; Sec. 1.506(a) and (b) (in part); Sec. 1.508; Sec. 1.510 (in

part); Sec. 1.513(b)(1)(i)-(vii) and (ix),(x); Sec. 1.513(b)(2);

Sec. 1.514 (in part); Sec. 1.514a; Sec. 1.515; Sec. 1.516; Sec. 1.518;

Sec. 1.521; and Sec. 1.553a (in part).

Regulations governing internal policy matters have been deleted:

Sec. 1.513(b)(1)(viii); Sec. 1.517; Sec. 1.520; Sec. 1.551(a); and

Sec. 1.552(b).

The provisions of Sec. 1.511(g) and Sec. 1.513a have been repealed,

since they were superseded by 38 CFR 1.460 et seq.

The text of current Sec. 1.582 remains substantially the same, and

is redesignated as Sec. 1.512.

The provisions of Sec. 1.527, Sec. 1.557, Sec. 1.580, and

Sec

licy matters have been deleted:

Sec. 1.513(b)(1)(viii); Sec. 1.517; Sec. 1.520; Sec. 1.551(a); and

Sec. 1.552(b).

The provisions of Sec. 1.511(g) and Sec. 1.513a have been repealed,

since they were superseded by 38 CFR 1.460 et seq.

The text of current Sec. 1.582 remains substantially the same, and

is redesignated as Sec. 1.512.

The provisions of Sec. 1.527, Sec. 1.557, Sec. 1.580, and

Sec. 2.6(e)(11) have been amended to delegate to the Assistant General

Counsel for Professional Staff Group IV, the same authority and

responsibility to act for the Secretary as was previously granted to

the General Counsel and Deputy General Counsel to make final

Departmental decisions on appeals under FOIA, the Privacy Act, 38

U.S.C. 5701 and 5705.

The Regulatory Flexibility Act

The Secretary of Veterans Affairs hereby certifies that the

adoption of the 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. Almost all requests

for information are submitted by individuals. Further, it would be

extremely rare, if ever, that a request for information by a small

entity would have a significant impact on the business of the small

entity. Therefore, pursuant to 5 U.S.C. 605(b), this proposed rule is

exempt from the initial and final regulatory flexibility analyses

requirements of Secs. 603 and 604.

List of Subjects

38 CFR Part 1

Administrative procedures, Privacy Act, Freedom of Information,

Recordkeeping.

38 CFR Part 2

Authority delegations (Government agencies).

Approved: March 9, 1998.

Togo D. West, Jr.,

Acting Secretary.

For the reasons set out in the preamble, 38 CFR parts 1 and 2 are

proposed to be amended as follows:

PART 1--GENERAL

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

Authority: 38 U.S.C. 501(a), unless otherwise noted.

Information,

Recordkeeping.

38 CFR Part 2

Authority delegations (Government agencies).

Approved: March 9, 1998.

Togo D. West, Jr.,

Acting Secretary.

For the reasons set out in the preamble, 38 CFR parts 1 and 2 are

proposed to be amended as follows:

PART 1--GENERAL

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

Authority: 38 U.S.C. 501(a), unless otherwise noted.

2. The undesignated center heading preceding Sec. 1.500 and

Secs. 1.500 through 1.512 are revised to read as follows:

Requesting Records From the Department of Veterans Affairs

Sec. 1.500 General.

The Department of Veterans Affairs (VA) ordinarily will process a

request for records under these rules (Secs. 1.500 through 1.512),

which incorporate the requirements of FOIA (the Freedom of Information

Act), the Privacy Act, and section 5701 (the VA statute protecting the

confidentiality of claims records, 38 U.S.C. 5701). VA policy is to

maximize public availability of department records to the extent

permitted by law and considerations such as personal privacy or law

enforcement.

(Authority: 5 U.S.C. 552, 552a; 38 U.S.C. 501, 5701)

Sec. 1.501 Definitions.

(a) A beneficiary is a veteran or any other individual who has

received benefits (including medical benefits) or, for the purposes of

this series of rules (Secs. 1,500 through 1.512), has applied for

benefits, pursuant to title 38, United States Code.

(b) Benefits records are an individual's records--regardless of

whether the veteran or other individual is living or dead or is a U.S.

citizen--which pertain to programs under any of the benefits laws

administered by the VA Secretary, including medical care, compensation,

pension, education, loan guaranty, insurance, and cemetery records.

(c) Component means any VA entity, including Administrations and

staff offices in VA Central Office, and medical centers, satellite

clinics, Regional Offices, and National Cemetery Offices, and other

facilities in the field.

nder any of the benefits laws

administered by the VA Secretary, including medical care, compensation,

pension, education, loan guaranty, insurance, and cemetery records.

(c) Component means any VA entity, including Administrations and

staff offices in VA Central Office, and medical centers, satellite

clinics, Regional Offices, and National Cemetery Offices, and other

facilities in the field.

(d) Confidential commercial information means records containing

trade secrets or confidential business information, provided to the

government by a submitter, that are arguably exempt from release under

subsection (b)(4) of FOIA because disclosure could reasonably be

expected to cause substantial competitive harm.

(e) A consent is an authorization for VA to release an individual's

records to a third party.

(1) The consent must:

(i) Be an original writing by the individual,

(ii) Specify that VA is authorized to make the disclosure, and

(iii) Contain the signature of the individual, the date signed, a

reasonable description of the records to be released, and

identification of the third party, such as the party's name and

address.

(2) Revocation of a consent must be done by an original writing and

is effective when delivered to the FOIA/Privacy Act Officer of the

component which maintains the records.

(f) Court order is a document which has been signed or otherwise

specifically approved by a judge in the judicial (not executive or

legislative) branch of government. An order signed by an administrative

law judge or state board would not qualify as a court order.

an original writing and

is effective when delivered to the FOIA/Privacy Act Officer of the

component which maintains the records.

(f) Court order is a document which has been signed or otherwise

specifically approved by a judge in the judicial (not executive or

legislative) branch of government. An order signed by an administrative

law judge or state board would not qualify as a court order.

(g) Denial of a records request includes withholding a record in

whole or in part; determining that a record responsive to the request

does not exist or cannot be located after a reasonable search;

determining that a record is not subject to the Privacy Act, FOIA, or

section 5701; disputing a fee determination; refusing to amend records

under the Privacy Act; refusing to supply a list of names and

addresses; releasing confidential commercial information; refusing a

request for expedited treatment; and refusing a request for an

accounting under the Privacy Act.

(h) A dependent is an individual who is (or at the time the record

in question was created, was) a dependent of a beneficiary. A veteran's

spouse and children are presumed to be dependents for purposes of this

series of regulations (Secs. 1.500 through 1.512).

(i) FOIA is the abbreviation for the Freedom of Information Act, 5

U.S.C. 552.

(j) The FOIA Guide, required by subsection (g) of FOIA, explains

how to request records from the VA; it may be found in VA's public

reading rooms.

(k) The FOIA/Privacy Act Officer is the official at VA Central

Office or within a component holding that title, or other official

within a component generally responsible for processing a request for

records under these rules (Secs. 1.500 through 1.512).

FOIA Guide, required by subsection (g) of FOIA, explains

how to request records from the VA; it may be found in VA's public

reading rooms.

(k) The FOIA/Privacy Act Officer is the official at VA Central

Office or within a component holding that title, or other official

within a component generally responsible for processing a request for

records under these rules (Secs. 1.500 through 1.512).

(l) An individual's own records or an individual's records means

information about a living individual--veterans and other individuals--

which is retrieved from a system of records by the individual's name or

other personal identifier, such as social security number or claims

file number. The term does not include other VA records concerning

individuals which are not stored in a system of records.

(m) An original writing means the actual, signed written

communication, and does not include photocopies, e-mail, or

telefacsimiles (faxes).

(n) The Privacy Act refers to the Privacy Act of 1974, as amended,

5 U.S.C. 552a.

(o) Proof of identity is a credential, establishing the identity of

an individual, such as a driver's license containing a picture, name,

current address, date of birth, and signature.

(p) Public reading rooms are spaces made available (as needed) in

most VA components and VA computer telecommunications sites, which make

records available pursuant to FOIA. The VA component providing a public

reading room space will often (but not always) be the component which

maintains the record.

(q) The term record(s) includes portions of a record, and

information contained within a record, and can include information

derived from a record. Records may be maintained in paper, electronic,

and other forms, but records do not include objects, such as tissue

slides, blood samples, or computer hardware.

(r) Regular duty hours generally means 8 a.m. to 4:30 p.m., Monday

through Friday, except Federal holidays, in most VA components.

(s) The Secretary means the Secretary of Veterans Affairs.

include information

derived from a record. Records may be maintained in paper, electronic,

and other forms, but records do not include objects, such as tissue

slides, blood samples, or computer hardware.

(r) Regular duty hours generally means 8 a.m. to 4:30 p.m., Monday

through Friday, except Federal holidays, in most VA components.

(s) The Secretary means the Secretary of Veterans Affairs.

(t) Section 5701 refers to the veterans records confidentiality

statute, 38 U.S.C. 5701. Records covered by section 5701 include all

records of an identifiable individual, pertaining to VA benefits,

including medical care.

(u) Section 7332 records means records covered by 38 U.S.C. 7332,

as implemented in 38 CFR 1.460 through 1.499, which protects the

confidentiality of VA medical treatment records relating to drug and

alcohol abuse, infection with the human immunodeficiency virus (HIV),

or sickle cell anemia.

(v) Sensitive records refers to medical records containing

information that, with a reasonable degree of medical certainty, are

likely to have a serious adverse effect on an individual's mental or

physical health if revealed to him or her.

(w) Submitter means any person or entity (including corporations,

State and foreign governments) who provides confidential commercial

information to the government.

(x) VA means the federal Department of Veterans Affairs.

(y) VA Central Office refers to the headquarters of the Department

of Veterans Affairs. The mailing address is 810 Vermont Avenue NW.,

Washington, DC 20420.

(z) Written request or in writing means a written communication,

including letters, photocopies of letters, and telefacsimiles (faxes)

of letters. The term does not include electronic mail.

(Authority: 5 U.S.C. 552, 552a; 38 U.S.C. 501, 5701, 7332.)

Sec. 1.502 Public access to records.

f the Department

of Veterans Affairs. The mailing address is 810 Vermont Avenue NW.,

Washington, DC 20420.

(z) Written request or in writing means a written communication,

including letters, photocopies of letters, and telefacsimiles (faxes)

of letters. The term does not include electronic mail.

(Authority: 5 U.S.C. 552, 552a; 38 U.S.C. 501, 5701, 7332.)

Sec. 1.502 Public access to records.

(a) How to apply these rules (Secs. 1.500 through 1.512). Many VA

records are considered for disclosure under these rules. Some, however,

are processed under other rules; for example:

(1) Some records are made available by means of publication in the

Federal Register. These may be obtained in public libraries and other

sources outside VA.

(2) Some records are available by visiting a public reading room;

these include VA directives and handbooks.

(3) Some requests for certain types of records require application

of other rules as well as these rules in Secs. 1.500 through 1.512. For

example, medical treatment records involving drug/alcohol abuse, sickle

cell anemia or infection with HIV (section 7332 records), see 38 CFR

1.460 through 1.499; medical quality assurance records, see 38 CFR

17.500 through 17.511.

(4) Some records are made routinely available to the public without

further reference to these rules (Secs. 1.500 through 1.512).

(b) Making a request. Anyone may request that VA disclose any

record. (An individual who seeks his or her own records should first

follow the rules in paragraph (c) of this section.) Except as otherwise

provided, a requester:

(1) Must submit a signed, written request, describing the record so

it may be located with a reasonable amount of effort, and should

address it to the FOIA/Privacy Act Officer of the component which

maintains the record or, if not known, as follows:

ual who seeks his or her own records should first

follow the rules in paragraph (c) of this section.) Except as otherwise

provided, a requester:

(1) Must submit a signed, written request, describing the record so

it may be located with a reasonable amount of effort, and should

address it to the FOIA/Privacy Act Officer of the component which

maintains the record or, if not known, as follows:

(i) For medical records, to the Director of the VA medical facility

where the individual was last treated or to the FOIA/Privacy Act

Officer, Veterans Health Administration, VA Central Office.

(ii) For National Cemetery System records, to the Director,

National Cemetery Area Office, or to the FOIA/Privacy Act Officer,

National Cemetery System, VA Central Office.

(iii) For other benefits records (including compensation and

pension examination records), to the FOIA/Privacy Act Officer at the VA

Regional Office serving the individual's jurisdiction or to the FOIA/

Privacy Act Officer, Veterans Benefits Administration, VA Central

Office.

(iv) For all Inspector General records, to the FOIA/Privacy Act

Officer, Office of the Inspector General, VA Central Office.

(v) For all other records, to the FOIA/Privacy Act Officer of the

nearest field facility or VA Central Office.

(2) Should write ``Attention, FOIA/Privacy Act Officer'' on the

envelope and on the request.

(3) May provide (if a request involves records about another

individual) an original writing which authorizes disclosure of that

individual's records to the requester or proof that the individual is

deceased (for example, a copy of a death certificate or an obituary).

Providing such documentation may enable VA to disclose more records

than might otherwise be lawful.

(4) Make any personal contacts during the regular duty hours of the

component concerned.

(c) Access to an individual's own records. (1) Individuals may ask

for their own records orally, in writing, and by e-mail. The request

should:

(for example, a copy of a death certificate or an obituary).

Providing such documentation may enable VA to disclose more records

than might otherwise be lawful.

(4) Make any personal contacts during the regular duty hours of the

component concerned.

(c) Access to an individual's own records. (1) Individuals may ask

for their own records orally, in writing, and by e-mail. The request

should:

(i) Describe the record so it may be located with a reasonable

amount of effort, and

(ii) Be submitted to the FOIA/Privacy Act Officer of the component

which maintains the record or, if not known, as described in paragraph

(b)(1) (i) through (iv) of this section.

(2) VA will provide an individual access to an individual's own

records except for portions that:

(i) Have been exempted pursuant to Sec. 1.512,

(ii) Have been compiled in reasonable anticipation of a civil

action, or

(iii) Constitute sensitive records subject to the special

procedures contained in paragraph (e) of this section. When one of

these exceptions applies, VA will process the request under paragraph

(b) as well.

(3) When a veteran and a dependent of a veteran receive VA

benefits, VA may maintain records on both in a single benefits file,

retrieved by the veteran's personal identifier. Only the records that

pertain to the issuance of the veteran's benefits constitute that

individual's own records. The records that pertain to the issuance of

the dependent's benefits constitute that individual's own records.

(4) An individual may believe that VA maintains records that are

not the individual's own records, as defined, but involve the

individual nonetheless. If the individual wants these records, he or

she must clearly say so, describe the nature of the records, and follow

the procedures contained in paragraph (b).

the issuance of

the dependent's benefits constitute that individual's own records.

(4) An individual may believe that VA maintains records that are

not the individual's own records, as defined, but involve the

individual nonetheless. If the individual wants these records, he or

she must clearly say so, describe the nature of the records, and follow

the procedures contained in paragraph (b).

(d) Processing a request. A request (which otherwise complies with

these rules, Secs. 1.500 through 1.512) is effective when it is

received by the FOIA/Privacy Act Officer of the component which

maintains the record. In processing a request, the following may apply:

(1) Proof of identity. VA may require proof of identity in

processing a request, if a personal privacy concern is involved.

(2) Original writing. VA may require an original writing for any

records request.

(3) Discretionary release. If VA is authorized by FOIA to withhold

a record in order to protect a governmental interest, VA will release

it anyway on a discretionary basis to the extent law permits, unless VA

can foresee that significant harm would occur to that governmental

interest by releasing it.

(4) Order of receipt. VA will ordinarily process records requests

and appeals according to their order of receipt by the FOIA/Privacy Act

Officer of the component which maintains the record, or, for appeals,

by the Office of General Counsel.

(5) Expedited processing.

he extent law permits, unless VA

can foresee that significant harm would occur to that governmental

interest by releasing it.

(4) Order of receipt. VA will ordinarily process records requests

and appeals according to their order of receipt by the FOIA/Privacy Act

Officer of the component which maintains the record, or, for appeals,

by the Office of General Counsel.

(5) Expedited processing.

(i) Requests and appeals may be taken out of order and expedited

when the requester certifies to the best of the requester's knowledge

or belief that:

(A) Failure to release the records would pose an imminent threat to

an individual's life or safety, or

(B) With respect to a request made by a person primarily engaged in

disseminating information, there is a compelling need to inform the

public about urgent questions concerning VA's activities.

(ii) The FOIA/Privacy Act Officer will decide requests for

expedited processing within 10 days of receiving the request; the

Office of General Counsel will decide appeals within 10 days of

receiving a letter of appeal from an adverse determination for

expedited treatment.

(6) Referrals. A VA FOIA/Privacy Act Officer may determine that

another component or Federal agency would be better able to process a

request. Whenever all or part of a request is referred, the FOIA/

Privacy Act Officer will ordinarily notify the requester to whom the

request has been referred.

(7) Records responsive to a request. In determining whether certain

records are responsive to a request, VA will ordinarily include only

those records in its possession and control as of the date of the

receipt of the request by the FOIA/Privacy Act Officer of the component

which maintains the records.

(8) Electronic records. A request for records includes a request

for electronic records.

(7) Records responsive to a request. In determining whether certain

records are responsive to a request, VA will ordinarily include only

those records in its possession and control as of the date of the

receipt of the request by the FOIA/Privacy Act Officer of the component

which maintains the records.

(8) Electronic records. A request for records includes a request

for electronic records.

(9) Multitrack processing. If a component places a notice to the

public in the FOIA Guide, a FOIA/Privacy Act Officer may process

requests for records

in two or more tracks based upon the amount of work or time (or both)

involved in processing the requests. The notice shall inform requesters

of the limits of each track, and advise requesters how to qualify for a

faster track by limiting the scope of the request.

(e) Access to sensitive records. Access to sensitive records is

subject to the following special procedures:

(1) When an individual requests that individual's own records, the

FOIA/Privacy Act Officer of the component which maintains the records

will identify the presence of any potentially sensitive records.

(2) If sensitive records may be involved, the FOIA/Privacy Act

Officer will refer the records to a VA physician (other than a rating

board physician) for further review.

(3) The VA physician will advise the FOIA/Privacy Act Officer

whether all or part of the records in question are sensitive records.

which maintains the records

will identify the presence of any potentially sensitive records.

(2) If sensitive records may be involved, the FOIA/Privacy Act

Officer will refer the records to a VA physician (other than a rating

board physician) for further review.

(3) The VA physician will advise the FOIA/Privacy Act Officer

whether all or part of the records in question are sensitive records.

(4) The FOIA/Privacy Act Officer will notify the individual that VA

will disclose the sensitive records to a VA physician who will explain

the sensitive materials to the individual. Following such a discussion,

access to the sensitive records will be provided to the individual. The

only exception is when, notwithstanding the discussion, providing

access would create a medical emergency. In that exceptional event, VA

will provide access to the records once providing access would no

longer constitute a medical emergency.

(Authority: 5 U.S.C. 552, 552a; 38 U.S.C. 501, 5701)

Sec. 1.503 Amendment of an individual's own records.

(a) An individual may ask VA to amend that individual's own

records.

(b) If an individual knows where that individual's records are

located, the individual should submit an original writing requesting

amendment to the FOIA/Privacy Act Officer at the component which

maintains the records. If an individual does not know where VA

maintains the records, see Sec. 1.502(b)(1) for the FOIA/Privacy Act

Officer to contact.

k VA to amend that individual's own

records.

(b) If an individual knows where that individual's records are

located, the individual should submit an original writing requesting

amendment to the FOIA/Privacy Act Officer at the component which

maintains the records. If an individual does not know where VA

maintains the records, see Sec. 1.502(b)(1) for the FOIA/Privacy Act

Officer to contact.

(c) A request for VA to amend an individual's own record must:

(1) Identify each of the specific portions of the record which the

individual wishes VA to amend.

(2) Describe how the individual wishes VA to amend each portion of

the record, whether by deletion, substitution, or addition. The

individual should provide VA with language he or she wishes to

substitute or add to the record.

(3) State concisely the reasons why each amendment should be made,

and provide any supporting documentation.

(Authority: 5 U.S.C. 552a; 38 U.S.C. 501)

Sec. 1.504 Administrative review.

(a) The FOIA/Privacy Act Officer will make the initial decision

whether to grant a request for records under FOIA (including a request

for expedited treatment), whether to assess fees, and whether to grant

access to, or amendment of, an individual's own records.

(b) Upon denial of a records request, VA will: inform the requester

in writing, cite the specific reasons for the denial at the place where

the information has been redacted, indicate the number of pages

withheld in their entirety, set forth the name and title of the

responsible official, and advise that the denial may be appealed to the

General Counsel (024) at VA Central Office within the time prescribed

in paragraph (c) of this section.

form the requester

in writing, cite the specific reasons for the denial at the place where

the information has been redacted, indicate the number of pages

withheld in their entirety, set forth the name and title of the

responsible official, and advise that the denial may be appealed to the

General Counsel (024) at VA Central Office within the time prescribed

in paragraph (c) of this section.

(c) The General Counsel, the Deputy General Counsel, or the

Assistant General Counsel (024) will make the final VA decision on an

appeal from a denial of a records request. An appeal must be an

original writing, and it must be received by the Office of General

Counsel (024) within 60 work days from the date of the denial; however,

an appeal by a submitter of confidential commercial information must be

received by the Office of General Counsel within 10 work days of the

date of receipt of the initial Department decision to release the

records.

(d) The letter of appeal should identify the records at issue, the

component that denied the request, and the date of the denial. It is

helpful to include related information or materials, such as a copy of

the original request, the denial letter, and an explanation concerning

why the denial was erroneous.

(Authority: 5 U.S.C. 552, 552a; 38 U.S.C. 501, 5701.)

Sec. 1.505 Amount of monetary benefits.

VA shall release, to any person who requests such information, the

amount of the most recent recurring monthly VA benefit payment made to

a beneficiary (who has been identified by the requester) for pension,

compensation, dependency and indemnity compensation, retirement pay,

subsistence allowance, or educational assistance allowance. However, if

releasing the amount of such payment would in effect disclose other

information about the beneficiary, this section will not apply and the

request will be processed under Sec. 1.502.

(Authority: 38 U.S.C. 501, 5701(c)(1)

Sec. 1.506 Request for benefits records in judicial proceedings.

emnity compensation, retirement pay,

subsistence allowance, or educational assistance allowance. However, if

releasing the amount of such payment would in effect disclose other

information about the beneficiary, this section will not apply and the

request will be processed under Sec. 1.502.

(Authority: 38 U.S.C. 501, 5701(c)(1)

Sec. 1.506 Request for benefits records in judicial proceedings.

(a) General. For an individual's records that are not benefits

records, see Sec. 1.509(d).

(1) When VA is not a party to a judicial proceeding, release must

also be authorized pursuant to 38 CFR 14.800 through 14.801.

(2) Generally, the FOIA/Privacy Act Officer of the component which

maintains the records will decide whether to disclose records requested

for use in a judicial proceeding (except in cases before the Court of

Veterans Appeals). If the FOIA/Privacy Act Officer determines that the

records will be used against the beneficiary or dependent, the process

will be referred to the Regional Counsel for disposition.

(3) Federal Tort Claims Act cases. If a claim under the Federal

Tort Claims Act has been filed or is anticipated, the appropriate

Regional Counsel will determine whether records will be disclosed. The

Regional Counsel will limit disclosure of records to that which would

be available pursuant to discovery if the matter were in litigation.

The General Counsel must provide concurrence for disclosure of any

other records.

cases. If a claim under the Federal

Tort Claims Act has been filed or is anticipated, the appropriate

Regional Counsel will determine whether records will be disclosed. The

Regional Counsel will limit disclosure of records to that which would

be available pursuant to discovery if the matter were in litigation.

The General Counsel must provide concurrence for disclosure of any

other records.

(b) Federal court proceeding. (1) Court order. Upon receipt of a

Federal court order, VA will disclose benefits records, except for

section 7332 records, to whomever is designated in the court order or

to the court. Disclosure of section 7332 records will also be subject

to 38 CFR 1.490 through 1.499.

(2) Subpoena. VA will not disclose benefits records pursuant to a

Federal court or grand jury subpoena unless the beneficiary or

dependent is deceased, is not a citizen of the United States, is an

alien not lawfully admitted for permanent residence, or provides

consent. If one of these exceptions applies, VA may, after due

consideration, disclose such records (except for section 7332 records)

to whomever is designated in the subpoena or to the court. If a

subpoena is signed or is otherwise specifically approved by a judge, it

will qualify as a court order. Disclosure of section 7332 records will

also be subject to 38 CFR 1.490 through 1.499.

(3) Original records, fees. If original records are offered and

received into evidence, VA will seek permission to substitute copies.

Where a party other than the United States issues a Federal court

process, such party must prepay the appropriate fees.

pproved by a judge, it

will qualify as a court order. Disclosure of section 7332 records will

also be subject to 38 CFR 1.490 through 1.499.

(3) Original records, fees. If original records are offered and

received into evidence, VA will seek permission to substitute copies.

Where a party other than the United States issues a Federal court

process, such party must prepay the appropriate fees.

(c) State or local court proceeding. (1) Court order. Upon receipt

of a State or

local court order, VA will disclose benefits records (except for

section 7332 records) in accordance with paragraphs (c) (3) and (4) of

this section. Disclosure of section 7332 records will also be subject

to 38 CFR 1.490 through 1.499.

(2) Subpoena. VA will not disclose benefits records pursuant to a

State or local court or grand jury subpoena unless the beneficiary or

dependent is deceased, is not a citizen of the United States, is an

alien not lawfully admitted for permanent residence, or provides

consent. If one of these exceptions applies, VA may disclose such

records (except for section 7332 records) in accordance with paragraphs

(c) (3) and (4) of this section. If a subpoena is signed or is

otherwise specifically approved by a judge, it will qualify as a court

order. Disclosure of section 7332 records will also be subject to 38

CFR 1.490 through 1.499.

(3) Additional requirements. VA will disclose benefits records

pursuant to a State or local court process as follows:

tion 7332 records) in accordance with paragraphs

(c) (3) and (4) of this section. If a subpoena is signed or is

otherwise specifically approved by a judge, it will qualify as a court

order. Disclosure of section 7332 records will also be subject to 38

CFR 1.490 through 1.499.

(3) Additional requirements. VA will disclose benefits records

pursuant to a State or local court process as follows:

(i) When the requester provides the beneficiary's or dependent's

consent; or,

(ii) In the absence of consent, if the Regional Counsel determines

that disclosure is necessary to prevent the perpetration of fraud or

other injustice in the matter in question. The Regional Counsel may

require additional documentation detailing the need for such

disclosure, setting forth the character of the pending suit, and the

purpose for which the benefits records will be used. If the Regional

Counsel determines that disclosure is not warranted, the Regional

Counsel or designee will advise the court that benefits records are

confidential and privileged and may be disclosed only in accordance

with applicable Federal regulations, and explain why the records cannot

be disclosed. The Regional Counsel will take action to have the matter

removed to Federal court if appropriate.

(4) Disclosure to whom, original records, fees. VA will disclose

benefits records to whomever is designated in the State or local court

process or to the court. The requester must first pay the appropriate

fees to VA. If original records are offered and received into evidence,

VA will seek permission to substitute copies.

ake action to have the matter

removed to Federal court if appropriate.

(4) Disclosure to whom, original records, fees. VA will disclose

benefits records to whomever is designated in the State or local court

process or to the court. The requester must first pay the appropriate

fees to VA. If original records are offered and received into evidence,

VA will seek permission to substitute copies.

(d) Notice requirements. When a court order becomes a matter of

public record, the FOIA/Privacy Act Officer of the component which

maintains the records will make reasonable efforts to notify the

beneficiary or dependent that the benefits records were disclosed. A

notice sent to the beneficiary's or dependent's last known address

satisfies this requirement.

(Authority: 5 U.S.C. 552, 552a; 38 U.S.C. 501, 5701, 7332)

Sec. 1.507. Disclosure of loan guaranty information.

(a) Any person is entitled to obtain, from loan guaranty records,

copies of certificates of reasonable value, appraisal reports, property

inspection reports, or reports of inspection on individual water supply

and sewage disposal systems, if names and home addresses of

beneficiaries or dependents are deleted. VA will disclose names and

home addresses contained in loan guaranty records only in accordance

with paragraphs (c) and (d) of this section.

(b) The address of the property involved shall be disclosed

regardless of whether it also happens to be the home address of a

beneficiary or dependent.

(c) In order to assist any applicant for (or recipient of) loan

guaranty benefits, VA may disclose relevant information from loan

guaranty records, including names and home addresses of beneficiaries

or dependents to: the purchaser of a property; the current owner of a

property; an entity that is considering making a loan to an individual

with respect to a property; or an agent--such as an attorney or real

estate broker--representing any of the above. VA must document any such

disclosure in the loan guaranty record.

an

guaranty records, including names and home addresses of beneficiaries

or dependents to: the purchaser of a property; the current owner of a

property; an entity that is considering making a loan to an individual

with respect to a property; or an agent--such as an attorney or real

estate broker--representing any of the above. VA must document any such

disclosure in the loan guaranty record.

(d) In order to assess the credit capacity of an applicant for (or

recipient of) loan guaranty benefits or a proposed purchaser of VA

property, or in order to sell a loan or installment sale contract held

by the Secretary, VA may release relevant information, including names

and home addresses of beneficiaries or dependents, from loan guaranty

records to: credit-reporting agencies, companies or individuals

extending credit, depository institutions, insurance companies,

investors, lenders, employers, landlords, utility companies and

governmental agencies.

(Authority: 38 U.S.C. 501, 5701(h))

Sec. 1.508 Disclosure of lists of names and addresses.

(a) Any nonprofit organization wanting a list of names and

addresses of VA beneficiaries must write to the Office of Management,

Information Management Service (045A4), VA Central Office (except

requests for lists of educationally disadvantaged veterans must be sent

to the Director of the nearest VA Regional Office). The request must

contain all of the following:

(1) The category of names and addresses sought.

(2) Proof of nonprofit status. Satisfactory proof includes evidence

of tax-exempt status pursuant to 26 U.S.C. 501, or that the

organization is a governmental body.

(3) The purpose for which the list is sought, programs and

resources the organization proposes to devote to this purpose, and how

such purpose is directly connected with the conduct of programs and the

utilization of benefits under Title 38, United States Code.

atisfactory proof includes evidence

of tax-exempt status pursuant to 26 U.S.C. 501, or that the

organization is a governmental body.

(3) The purpose for which the list is sought, programs and

resources the organization proposes to devote to this purpose, and how

such purpose is directly connected with the conduct of programs and the

utilization of benefits under Title 38, United States Code.

(4) A certification that the organization, and all members having

access to the list, are aware of the penalty provisions of section

5701(f) and will not use the list for any purpose other than that

stated in the application.

(b) The Assistant Secretary for Management, with the concurrence of

the General Counsel, is authorized to release lists of names and

addresses to organizations that have complied with all of the

requirements in paragraph (a) of this section. Lists of names and

addresses shall not duplicate lists released to other components of the

same organization.

(c) For lists of educationally disadvantaged veterans, if the

Director of the VA Regional Office finds that the requester is a

nonprofit organization and operates an approved educational program as

provided under 38 U.S.C., chapter 34, subchapter V, then the Director

may release the list of names and addresses.

(d) If VA has previously compiled the requested list for its own

use, and VA determines that the list can be released, the list may be

furnished without charge for compilation. Otherwise, VA will charge a

fee as set out in Sec. 1.510.

operates an approved educational program as

provided under 38 U.S.C., chapter 34, subchapter V, then the Director

may release the list of names and addresses.

(d) If VA has previously compiled the requested list for its own

use, and VA determines that the list can be released, the list may be

furnished without charge for compilation. Otherwise, VA will charge a

fee as set out in Sec. 1.510.

(e) Forwarding mail. (1) Procedures. When VA does not furnish an

address, VA may agree to forward a letter or judicial process. The

sender must enclose the letter or process in an unsealed envelope

showing no return address, bearing the name of the beneficiary or

dependent and sufficient postage to cover full mailing costs, including

the cost of certified or registered mail where applicable. (In addition

to postage, VA may charge its costs in accordance with Sec. 1.510.) The

component will place its own return address on the envelope. When

receipts (for certified or registered mail) or undelivered envelopes

are returned to the component, VA will notify the original sender; VA

will retain the receipt or the envelope.

(2) Limitations. This provision applies only if it does not

interfere unduly with the functions of the component concerned. VA will

not forward letters or judicial processes if the contents could be

harmful to the physical or mental health of the recipient, or if they

are for the purposes of canvassing,

harassment, propaganda, or debt collection.

(Authority: 38 U.S.C. 501, 5701(f)(1))

Sec. 1.509 Miscellaneous special rules.

(a) Powers of attorney and legal guardians. Persons authorized to

exercise the rights of individuals requesting records, amending

records, or appealing denial of a records request include persons

holding a power of attorney meeting the requirements of 38 CFR 14.631

and legal guardians.

ganda, or debt collection.

(Authority: 38 U.S.C. 501, 5701(f)(1))

Sec. 1.509 Miscellaneous special rules.

(a) Powers of attorney and legal guardians. Persons authorized to

exercise the rights of individuals requesting records, amending

records, or appealing denial of a records request include persons

holding a power of attorney meeting the requirements of 38 CFR 14.631

and legal guardians.

(b) Genealogy. VA will release records of a genealogical nature

(except for names and addresses of VA beneficiaries and dependents)

when disclosure would not invade the privacy of any living person or is

not otherwise prohibited by law.

(c) Requests for non-benefits records in judicial proceedings. (1)

This paragraph applies to a request for an individual's records (which

are not benefits records) in judicial proceedings. For a request for

benefits records in judicial proceedings, see Sec. 1.506.

(2) When VA is not a party to a judicial proceeding, release must

also be authorized pursuant to 38 CFR 14.800 through 14.811.

(3) Upon receipt of a Federal or state court order for non-benefits

records, VA may, after due consideration, disclose an individual's

records (except for section 7332 records) to whomever is designated in

the court order or to the court. Disclosure of section 7332 records

will also be subject to 38 CFR 1.490 through 1.499.

(4) VA will not disclose an individual's records (which are not

benefits records) pursuant to a Federal or state court or grand jury

subpoena unless the individual is deceased, is not a citizen of the

United States, is an alien not lawfully admitted for permanent

residence, or provides consent. If one of these exceptions applies, VA

may, after due consideration, disclose such records (except for section

7332 records) to whomever is designated in the grand jury subpoena, or,

in the Federal or state court subpoena or to the court. If a subpoena

is signed or is otherwise specifically approved by a judge, it will

qualify as a court order.

d for permanent

residence, or provides consent. If one of these exceptions applies, VA

may, after due consideration, disclose such records (except for section

7332 records) to whomever is designated in the grand jury subpoena, or,

in the Federal or state court subpoena or to the court. If a subpoena

is signed or is otherwise specifically approved by a judge, it will

qualify as a court order.

(Authority: 5 U.S.C. 552, 552a; 38 U.S.C. 501, 5701, 7332)

Sec. 1.510 Fees.

(a) Definitions. For the purpose of this section, the following

definitions apply:

(1) Commercial use request means a request for a purpose that

furthers the requester's commercial, trade or profit interests. VA must

consider the use to which a requester will put the records, and where

the use is not clear, VA may seek additional information from the

requester.

(2) Direct costs means all of those expenditures which VA incurs to

search for and duplicate (and in the case of Commercial Use Requests,

review) records, or to provide other services not required by FOIA.

Direct costs include the salary of the employee performing work, i.e.,

the basic rate of pay, plus 16 percent to cover benefits, and the cost

of operating duplicating equipment. Overhead expenses (such as costs of

space, heat, or light) are not included in direct costs.

(3) Duplication means making a copy of a record; copies may take

the form of paper, microform, audiovisual materials or machine

readable-documentation (e.g., magnetic tape or disk), among others.

(4) Educational Institution means a preschool, a public or private

elementary or secondary school, an institution of undergraduate or

graduate higher education, an institution of professional education,

and an institution of vocational education, which operates a program or

programs of scholarly research. Requests qualify for this category when

they serve a scholarly research goal of the institution, rather than an

individual goal of the requester or a commercial goal of the

institution.

an institution of undergraduate or

graduate higher education, an institution of professional education,

and an institution of vocational education, which operates a program or

programs of scholarly research. Requests qualify for this category when

they serve a scholarly research goal of the institution, rather than an

individual goal of the requester or a commercial goal of the

institution.

(5) Non-commercial scientific institution means an institution that

is not operated on a ``commercial'' basis and which is operated solely

for the purpose of conducting scientific research, the results of which

are not intended to promote any particular product or industry.

(6) Representative of the news media means any person actively

gathering news for an entity that publishes or broadcasts news to the

public. The term ``news'' means information that is about current

events or that would be of current interest to the public. Examples of

news media entities include television or radio stations broadcasting

to the public at large, and periodicals when they disseminate ``news''

for the general public. As traditional methods of news delivery evolve

(e.g., dissemination of newspapers through the internet), such media

will be included in this category. ``Freelance'' journalists may be

regarded as working for a news organization if they can demonstrate a

solid basis for expecting publication; a publication contract would be

clear proof, but VA may also consider the requester's past publication

history. Freelancers who do not qualify under this category may seek a

reduction or waiver of fees under paragraph (f) of this section.

(7) Review means, in response to a Commercial Use Request,

examining records, determining that records may be withheld, and

processing records for disclosure by redacting them and otherwise

preparing them for release.

onsider the requester's past publication

history. Freelancers who do not qualify under this category may seek a

reduction or waiver of fees under paragraph (f) of this section.

(7) Review means, in response to a Commercial Use Request,

examining records, determining that records may be withheld, and

processing records for disclosure by redacting them and otherwise

preparing them for release.

(8) Search means all the time spent looking for records that are

responsive to a request, including line-by-line identification of

material within records. Searches may be done manually and by computer.

The most efficient and least expensive manner will be used to minimize

costs to VA and the requester. For example, line-by-line searches will

not be conducted when duplicating an entire document is less expensive

and quicker. The term search does not cover the time spent to review

records.

(b) Fees to be charged. (1) Except as otherwise provided in

paragraphs (c), (d), (f), (g), and (h) of this section, VA will charge

fees that recoup the direct costs for responding to each request, in

accordance with the schedule in Paragraph (e) and other requirements in

these rules (Secs. 1.500 through 1.512). VA will use the most efficient

and least costly method.

(2) If VA estimates that charges are likely to exceed $25, VA will

notify the requester of the estimate, unless the requester has

indicated in advance a willingness to pay fees as high as those

anticipated. Such notice will offer the requester the opportunity to

confer with VA personnel with the object of reformulating the request

to meet his or her needs at a lower cost.

east costly method.

(2) If VA estimates that charges are likely to exceed $25, VA will

notify the requester of the estimate, unless the requester has

indicated in advance a willingness to pay fees as high as those

anticipated. Such notice will offer the requester the opportunity to

confer with VA personnel with the object of reformulating the request

to meet his or her needs at a lower cost.

(3) Each component is authorized to contract with private-sector

services to locate, reproduce, and disseminate records in response to

FOIA requests only if it would be at least as efficient and no more

costly than for the component to perform these functions. A component

shall not contract out responsibilities which FOIA provides that it

alone may discharge, such as determining the applicability of an

exemption, or determining whether to waive or reduce fees.

(4) When VA records are maintained for distribution by agencies

operating statutory-based fee schedule programs, in which the agency is

required to set the level of fees for particular types of records, such

as the National Technical Information Service, VA will advise the

requester how to obtain records from those sources.

(c) Restrictions on assessing fees. With the exception of

Commercial Use Requests, VA will not assess charges for duplicating the

first 100 one-sided pages, or for the first two hours of

search time. Moreover, VA will not charge fees to any requester,

including Commercial Use Requesters, if the cost of collecting the fee

is equal to or greater than the fee itself. These provisions work

together so that VA will not assess fees until the free search and

duplication have been provided. For example, if a request takes two

hours and ten minutes of search time and requires duplication of 105

pages, VA is authorized to charge fees for 10 minutes of search time

and for duplicating five pages

st of collecting the fee

is equal to or greater than the fee itself. These provisions work

together so that VA will not assess fees until the free search and

duplication have been provided. For example, if a request takes two

hours and ten minutes of search time and requires duplication of 105

pages, VA is authorized to charge fees for 10 minutes of search time

and for duplicating five pages. If these costs are equal to or less

than VA's costs for billing the requester and processing the fee

collected, VA will not assess any charges.

(1) For purposes of the restriction on assessing fees, the word

``pages'' refers to one-sided paper copies of the standard sizes 8\1/

2\'' x 11'' or 8\1/2\'' x 14'' or 11'' x 14''. Requesters will

not be entitled to 100 free microfiche or 100 free computer disks. One

microfiche containing the equivalent of 100 pages ordinarily would meet

the terms of the restriction.

(2) The term search time is based on manual searches. To calculate

the computer search time for the purpose of applying the two-hour

search restriction, VA will combine the hourly cost of operating the

computer with the operator's hourly salary, plus 16 percent of the

salary. When the cost of the search (including the operator time and

the cost of the computer to process a request) equals the equivalent

dollar amount of two hours of the salary of the person performing the

search, VA will begin to assess charges for a computer search.

riction, VA will combine the hourly cost of operating the

computer with the operator's hourly salary, plus 16 percent of the

salary. When the cost of the search (including the operator time and

the cost of the computer to process a request) equals the equivalent

dollar amount of two hours of the salary of the person performing the

search, VA will begin to assess charges for a computer search.

(d) Categories of record requests and fees to be charged each

category. There are five categories of record requests from individuals

for the purpose of charging fees. The levels in paragraphs (d) (1)

through (5) are ranked from the lowest to the highest fee category. VA

will process a request in the lowest category possible and will charge

only those fees indicated for that category, subject to the

requirements of paragraphs (c), (f), (g), and (h) of this section.

(1) Requests by a VA beneficiary for his or her own records. A

beneficiary is entitled to receive one free copy of all pages of his or

her own benefits records. (The term ``pages'' means paper records of a

standard size, and does not include items such as x-rays, films, and

EKG tracings.) In addition, any VA beneficiary who has an action on

file with the Court of Veterans Appeals is entitled to another free set

of his or her benefits records.

(2) Other requests for an individual's own records. If an

individual seeks a copy of his or her own records, and the request does

not qualify under paragraph (d)(1), VA will charge a duplication fee

after providing the first 100 one-sided standard size pages free.

(3) Representative of the news media, non-commercial scientific

institution, or educational institution requests. VA will charge for

the cost of reproduction only, and will provide the first 100 one-sided

standard size pages free. Fee waiver or reduction will be considered in

accordance with paragraph (f) of this section.

fee

after providing the first 100 one-sided standard size pages free.

(3) Representative of the news media, non-commercial scientific

institution, or educational institution requests. VA will charge for

the cost of reproduction only, and will provide the first 100 one-sided

standard size pages free. Fee waiver or reduction will be considered in

accordance with paragraph (f) of this section.

(4) All other non-commercial use requests. If the record request is

not covered by any of the other categories in this paragraph (d), VA

will charge duplication and search fees, after providing for free the

first 100 one-sided standard size pages and the first two hours of

search.

(5) Commercial use requests. VA will charge duplication, search,

and review fees.

(e) Schedule of fees:

------------------------------------------------------------------------

Activity Fees

------------------------------------------------------------------------

(1) Duplication of standard size (8\1/2\'' x $0.15 per page.

11''; 8\1/2\'' x 14''; 11'' x 14'')

paper records to produce standard sized one-

sided paper copies.

(2) Duplication of non-paper items (e.g., x- Direct cost to VA.

rays), paper records which are not of a

standard size (e.g., EKG tracings), or other

items which do not fall under category (1),

in paragraph (d)(1) of this section.

(3) Record search by manual (non-automated) Basic hourly salary rate

methods. of the employee(s), plus

16 percent.

Note to paragraph (e)(3)--If a component uses a single class of

personnel for a search, e.g., all administrative/clerical or

professional/executive, an average rate for the grades of employees

involved in the search may be used.

(4) Record search using automated methods, Direct cost to perform

such as by computer. search.

(5) Record review (for Commercial Use Basic hourly rate of

Requesters only). employees performing

review to determine

whether to release

records and to prepare

them for release, plus

16 percent.

executive, an average rate for the grades of employees

involved in the search may be used.

(4) Record search using automated methods, Direct cost to perform

such as by computer. search.

(5) Record review (for Commercial Use Basic hourly rate of

Requesters only). employees performing

review to determine

whether to release

records and to prepare

them for release, plus

16 percent.

(6) Other activities, such as: Attesting Direct cost to VA.

under seal or certifying that records are

true copies; sending records by special

methods; forwarding mail; compiling and

providing special reports, drawings,

specifications, statistics, lists, abstracts

or other extracted information; generating

computer output; providing files under court

process where the federal government is not

a party to, and does not have an interest

in, the litigation.

------------------------------------------------------------------------

(f) Waiving or reducing fees. (1) VA will waive or reduce fees for

records provided in response to a FOIA request when VA determines that

furnishing the record is in the public interest and is not primarily in

the commercial interest of the requester.

(2) To determine public interest, VA will consider the following

factors in sequence:

(i) The contents of the records must concern identifiable

``operations of the government.''

(ii) The disclosable portions of the records must be ``likely to

contribute'' to an understanding of government operations. For example,

records containing information already in the public domain would not

satisfy this standard.

(iii) The records must contribute to the understanding of the

``public at large,'' i.e., a reasonably broad audience of persons

interested in the subject.

(iv) The records must contribute ``significantly'' to public

understanding of government operations.

(3) To determine commercial interest, VA will consider the

following factors in sequence:

public domain would not

satisfy this standard.

(iii) The records must contribute to the understanding of the

``public at large,'' i.e., a reasonably broad audience of persons

interested in the subject.

(iv) The records must contribute ``significantly'' to public

understanding of government operations.

(3) To determine commercial interest, VA will consider the

following factors in sequence:

(i) Whether the requester has a commercial interest that would be

furthered by the requested disclosure; and, if so

(ii) Whether the magnitude of the commercial interest is

sufficiently large, in comparison with the public interest, that

disclosure is primarily in the commercial interest of the requester.

(4) VA will process an appeal from an adverse fee determination

pursuant to Sec. 1.504.

(g) Other fee considerations. (1) Interest. The FOIA/Privacy Act

Officer may charge interest (at the rate prescribed in section 3717 of

Title 31 United States Code) to requesters who fail to pay fees in a

timely manner. Interest begins to accrue thirty-one days after the date

on the original bill, and ceases to accrue on the date the payment is

received by VA.

(2) Charges for unsuccessful search. When search charges are

applicable, VA will assess search charges even if records are not

located, or if pertinent records are exempt from disclosure.

(3) Aggregating requests. When the FOIA/Privacy Act Officer

reasonably believes that a requester, or a group of requesters acting

in concert, is breaking down a request into a series of requests in

order to evade fees, the FOIA/Privacy Act Officer may aggregate

(combine) any such requests and charge accordingly.

(4) Advance payments. VA may not generally require a requester to

make an advance payment, except under the following circumstances:

Officer

reasonably believes that a requester, or a group of requesters acting

in concert, is breaking down a request into a series of requests in

order to evade fees, the FOIA/Privacy Act Officer may aggregate

(combine) any such requests and charge accordingly.

(4) Advance payments. VA may not generally require a requester to

make an advance payment, except under the following circumstances:

(i) If fees are likely to exceed $250, VA will notify the requester

of the estimated cost, and either obtain satisfactory assurance of full

payment, or require an advance payment of up to the full estimated fee.

(ii) If a requester has previously failed to pay a fee charged

within 30 days, before processing the new request, VA may require

payment of the full amount owed on the previous request and an advance

payment on the new request.

(5) Debt collection. VA may use the procedures authorized by the

Debt Collection Act of 1982 (Pub. L. 97-365, as amended) to collect

unpaid fees. This may include disclosure to consumer reporting agencies

and use of collection agencies.

(h) VA may provide free copies of records or free services:

(1) In response to an official request from other government

agencies and Congressional offices; and

(2) When a component head or designee determines that doing so will

assist in providing medical care to a VA patient or will otherwise

further performance of the VA mission.

(Authority: 5 U.S.C. 552, 552a; 38 U.S.C. 501, 5701)

Sec. 1.511 Notification procedures prior to disclosing confidential

commercial information.

(a) General. During the conduct of its business, VA may acquire

records that contain confidential commercial information. FOIA requests

for such records will be handled under this section.

bly be expected to

cause substantial competitive harm.

(d) Designation by submitters. (1) A submitter may designate that

disclosure of certain records could reasonably be expected to cause

substantial competitive harm, by marking the records with the words

``confidential commercial information,'' or by describing the specific

kinds of records that contain confidential commercial information.

(2) A designation will remain in effect for a period of not more

than 10 years after receipt by VA, unless the submitter provides

acceptable justification for a longer specific period. The submitters

may designate a shorter period by including an expiration date.

(3) The submitter must certify that the records are in fact

confidential commercial information and have not been made available to

the public.

(4) The designation notifies VA that it should follow the

procedures set forth in this paragraph (d); however, VA makes the final

determination whether or not records contain confidential commercial

information.

(e) Opportunity to object. (1) The submitter may object to the

disclosure of the records in writing, addressed to the FOIA/Privacy Act

Officer who provided notice, specifying the records that should not be

disclosed and all grounds upon which disclosure is opposed, and

explaining why the information is considered a trade secret or

confidential commercial information.

(2) Submitters must present any objection to disclosure within 10

working days after receiving notice. If a submitter fails to respond

within that time, VA will deem that the submitter has no objection to

disclosing the records.

disclosed and all grounds upon which disclosure is opposed, and

explaining why the information is considered a trade secret or

confidential commercial information.

(2) Submitters must present any objection to disclosure within 10

working days after receiving notice. If a submitter fails to respond

within that time, VA will deem that the submitter has no objection to

disclosing the records.

(3) If VA receives a timely objection, VA will consider all

specified grounds for nondisclosure prior to making a decision. If VA

decides to disclose the requested records, the FOIA/Privacy Act Officer

will send the submitter a written decision containing: the reasons why

the objections were overruled, a description or copy of the records to

be disclosed, and a date the records will be disclosed of not less than

10 business days from the time mailed (to allow the submitter time to

take necessary legal action to prevent VA from disclosing the

information).

(f) Notices to requester. When VA receives a request for

confidential commercial information, the FOIA/Privacy Act Officer will

notify the requester that it will be processed under these rules

(Secs. 1.500 through 1.512), the submitter may comment upon the

request, and there may be a delay in receiving a response. The notice

to the requester should not include any specific information contained

in the records being requested. When VA notifies a submitter of a final

decision, the FOIA/Privacy Act Officer will notify the requester by

separate correspondence.

(g) Notices of lawsuit. If a FOIA requester brings suit seeking to

compel disclosure of confidential commercial information, VA will

promptly notify the submitter.

e requester should not include any specific information contained

in the records being requested. When VA notifies a submitter of a final

decision, the FOIA/Privacy Act Officer will notify the requester by

separate correspondence.

(g) Notices of lawsuit. If a FOIA requester brings suit seeking to

compel disclosure of confidential commercial information, VA will

promptly notify the submitter.

(h) Exceptions to the notice requirements. A notice to the

submitter, described in paragraph (b), is not required if the FOIA/

Privacy Act Officer determines that:

(1) The records should not be disclosed;

(2) The records have been published or have been officially made

available to the public;

(3) Disclosure of the records is required by law (other than FOIA);

(4) The records requested have not been designated by the submitter

as exempt, and the submitter had an opportunity to do so when the

records were submitted or a reasonable time thereafter, and VA does not

have substantial reason to believe that disclosure would result in

competitive harm; or

(5) The designation made by the submitter appears obviously

frivolous. VA must still provide the submitter with advance written

notice of the decision to disclose not less than 10

working days prior to the specified disclosure date.

(Authority: 5 U.S.C. 552(b)(4); 38 U.S.C. 501; E.O. 12600 (52 FR

23781)

Sec. 1.512 Exemptions.

(a) Certain systems of records maintained by VA are exempted from

provisions of the Privacy Act in accordance with exemptions (j) and

(k).

(b) Exemption of Inspector General Systems of Records. VA provides

limited access to two Inspector General Systems of Records:

Investigation Reports of Persons Allegedly Involved in Irregularities

Concerning VA and Federal Laws, Regulations, Programs, etc.--VA

(11VA51); and Inspector General Complaint Center Records--VA (66VA53).

(1) These systems of records are exempted [pursuant to subsection

(j)(2) of the Privacy Act] from Privacy Act subsections (c)(3) and (4),

access to two Inspector General Systems of Records:

Investigation Reports of Persons Allegedly Involved in Irregularities

Concerning VA and Federal Laws, Regulations, Programs, etc.--VA

(11VA51); and Inspector General Complaint Center Records--VA (66VA53).

(1) These systems of records are exempted [pursuant to subsection

(j)(2) of the Privacy Act] from Privacy Act subsections (c)(3) and (4),

(d), (e)(1), (2) and (3), (e)(4)(G), (H) and (I), (e)(5) and (8), (f)

and (g); in addition, they are exempted [pursuant to subsection (k)(2)

of the Privacy Act] from Privacy Act subsections (c)(3), (d), (e)(1),

(e)(4)(G), (H), and (I), and (f).

(2) These systems of records are exempted for the following

reasons:

(i) The application of Privacy Act subsection (c)(3) would alert

subjects to the existence of the investigation and reveal that they are

subjects of that investigation. Providing subjects with information

concerning the nature of the investigation could result in alteration

or destruction of evidence which is obtained from third parties,

improper influencing of witnesses, and other activities that could

impede or compromise the investigation.

(ii) The application of Privacy Act subsections (c)(4), (d),

(e)(4)(G) and (H), (f) and (g) could interfere with investigative and

enforcement proceedings, threaten the safety of individuals who have

cooperated with authorities, constitute an unwarranted invasion of

personal privacy of others, disclose the identity of confidential

sources, reveal confidential information supplied by these sources, and

disclose investigative techniques and procedures.

(e)(4)(G) and (H), (f) and (g) could interfere with investigative and

enforcement proceedings, threaten the safety of individuals who have

cooperated with authorities, constitute an unwarranted invasion of

personal privacy of others, disclose the identity of confidential

sources, reveal confidential information supplied by these sources, and

disclose investigative techniques and procedures.

(iii) The application of Privacy Act subsection (e)(4)(I) could

disclose investigative techniques and procedures and cause sources to

refrain from giving such information because of fear of reprisal, or

fear of breach of promises of anonymity and confidentiality. This could

compromise the ability to conduct investigations and to identify,

detect and apprehend violators. Even though the agency has claimed an

exemption from this particular requirement, it still plans to generally

identify the categories of records and the sources for these records in

this system. However, for the reasons stated in paragraph (b)(2)(ii) of

this section, this exemption is still being cited in the event an

individual wants to know a specific source of information.

(iv) These systems of records are exempt from Privacy Act

subsection (e)(1) because it is not possible to detect the relevance or

necessity of specific information in the early stages of a criminal or

other investigation. Relevance and necessity are questions of judgment

and timing. What appears relevant and necessary may ultimately be

determined to be unnecessary. It is only after the information is

evaluated that the relevance and necessity of such information can be

established. In any investigation, the Inspector General may obtain

information concerning violations of laws other than those within the

scope of his/her jurisdiction

re questions of judgment

and timing. What appears relevant and necessary may ultimately be

determined to be unnecessary. It is only after the information is

evaluated that the relevance and necessity of such information can be

established. In any investigation, the Inspector General may obtain

information concerning violations of laws other than those within the

scope of his/her jurisdiction. In the interest of effective law

enforcement, the Inspector General should retain this information as it

may aid in establishing patterns of criminal activity and provide leads

for those law enforcement agencies charged with enforcing other

segments of civil or criminal law.

(v) The application of Privacy Act subsection (e)(2) would impair

investigations of illegal acts, violations of the rules of conduct,

merit system and any other misconduct for the following reasons:

(A) In order to successfully verify a complaint, most information

about a complainant or an individual under investigation must be

obtained from third parties such as witnesses and informers. It is not

feasible to rely upon the subject of the investigation as a source for

information regarding his/her activities because of the subject's

rights against self-incrimination and because of the inherent

unreliability of the suspect's statements. Similarly, it is not always

feasible to rely upon the complainant as a source of information

regarding his/her involvement in an investigation.

(B) The subject of an investigation will be alerted to the

existence of an investigation if an attempt is made to obtain

information from the subject. This would afford the individual the

opportunity to conceal any criminal activities to avoid apprehension.

ly, it is not always

feasible to rely upon the complainant as a source of information

regarding his/her involvement in an investigation.

(B) The subject of an investigation will be alerted to the

existence of an investigation if an attempt is made to obtain

information from the subject. This would afford the individual the

opportunity to conceal any criminal activities to avoid apprehension.

(vi) The reasons for exempting these systems of records from

Privacy Act subsection (e)(3) are as follows:

(A) The disclosure to the subject of the purposes of the

investigation would provide the subject with substantial information

relating to the nature of the investigation and could impede or

compromise the investigation.

(B) Informing the complainant or the subject of the information

required by this provision could seriously interfere with undercover

activities, jeopardize the identities of undercover agents and impair

their safety, and impair the successful conclusion of the

investigation.

(C) Individuals may be contacted during preliminary information

gathering in investigations before any individual is identified as the

subject of an investigation. Informing the individual of the matters

required by this provision would hinder or adversely affect any present

or subsequent investigations.

(vii) Since the Privacy Act defines ``maintain'' to include the

collection of information, complying with subsection (e)(5) would

prevent the collection of any data not shown to be accurate, relevant,

timely, and complete at the moment of its collection. In gathering

information during the course of an investigation, it is not always

possible to make this determination prior to collecting the

information. Facts are first gathered and then placed into a logical

order which objectively proves or disproves criminal behavior on the

part of the suspect. Material that may seem unrelated, irrelevant,

incomplete, untimely, etc., may take on added meaning as an

investigation progresses

course of an investigation, it is not always

possible to make this determination prior to collecting the

information. Facts are first gathered and then placed into a logical

order which objectively proves or disproves criminal behavior on the

part of the suspect. Material that may seem unrelated, irrelevant,

incomplete, untimely, etc., may take on added meaning as an

investigation progresses. The restrictions in this provision could

interfere with the preparation of a complete investigative report.

(viii) The notice requirement of Privacy Act subsection (e)(8)

could prematurely reveal an ongoing criminal investigation to the

subject of the investigation.

(c) Exemption of Loan Guaranty Service. VA provides limited access

to two Loan Guaranty Service systems of records: Loan Guaranty Fee

Personnel and Program Participant Records--VA (17VA26); and Loan

Guaranty Home Condominium and Mobile Home Loan Applicant Records and

Paraplegic Grant Application Records--VA (55VA26).

(1) These systems of records are exempted [pursuant to Privacy Act

subsection (k)(2)] from Privacy Act subsections (c)(3), (d), (e)(1) and

(e)(4)(G), (H) and (I) and (f), for the following reasons:

(i) The application of Privacy Act subsection (c)(3) would alert

subjects of an investigation to the existence of the investigation and

that such persons are subjects of that investigation. Since release of

such information to subjects would provide them with significant

information concerning the nature of the investigation, it could result

in the

altering or destruction of documentary evidence, improper influencing

of witnesses and other activities that could impede or compromise the

investigation.

(ii) These systems are exempt from Privacy Act subsections (d),

vestigation. Since release of

such information to subjects would provide them with significant

information concerning the nature of the investigation, it could result

in the

altering or destruction of documentary evidence, improper influencing

of witnesses and other activities that could impede or compromise the

investigation.

(ii) These systems are exempt from Privacy Act subsections (d),

(e)(4)(G) and (H) and (f) for the following reasons: Notifying an

individual at the individual's request of the existence of records in

an investigative file pertaining to such individual or to grant access

to an investigative file could: interfere with investigative and

enforcement proceedings; constitute an unwarranted invasion of the

personal privacy of others; disclose the identity of confidential

sources and reveal confidential information supplied by these sources;

and disclose investigative techniques and procedures.

(iii) The application of Privacy Act subsection (e)(4)(I) could

disclose investigative techniques and procedures and cause sources to

refrain from giving such information because of fear of reprisal, or

fear of breach of promises of anonymity and confidentiality. This would

compromise the ability to conduct investigations. Even though the

agency has claimed an exemption from this particular requirement, it

still plans to generally identify the categories of records and the

sources for these records in this system. However, for the reasons

stated in this paragraph, this exemption is still being cited in the

event an individual wanted to know a specific source of information.

he ability to conduct investigations. Even though the

agency has claimed an exemption from this particular requirement, it

still plans to generally identify the categories of records and the

sources for these records in this system. However, for the reasons

stated in this paragraph, this exemption is still being cited in the

event an individual wanted to know a specific source of information.

(iv) These systems of records are exempt from Privacy Act

subsection (e)(1) because: It is not possible to detect relevance or

necessity of specific information in the early stages of an

investigation. Relevance and necessity are questions of judgment and

timing. What appears relevant and necessary when collected may

ultimately be determined to be unnecessary. It is only after the

information is evaluated that the relevance and necessity of such

information can be established. In interviewing persons or obtaining

other forms of evidence during an investigation, information may be

supplied to the investigator which relates to matters incidental to the

main purpose of the investigation but which is appropriate in a

thorough investigation. Oftentimes, such information cannot readily be

segregated.

(2) In addition, the system of records, Loan Guaranty Fee Personnel

and Program Participant Records--VA (71VA26), is exempt [pursuant to

Privacy Act subsection (k)(5)] from Privacy Act subsections (c)(3),

(d), (e)(1), (e)(4)(G), (H) and (I) and (f), for the following reasons:

(i) The application of Privacy Act subsection (c)(3) would alert

subjects of background suitability investigations to the existence of

the investigation and reveal that such persons are subjects of that

investigation. Since release of such information to subjects of an

investigation would provide the subjects with significant information

concerning the nature of the investigation, it could result in

revealing the identity of a confidential source.

(ii) This system is exempt from Privacy Act subsections (d),

he existence of

the investigation and reveal that such persons are subjects of that

investigation. Since release of such information to subjects of an

investigation would provide the subjects with significant information

concerning the nature of the investigation, it could result in

revealing the identity of a confidential source.

(ii) This system is exempt from Privacy Act subsections (d),

(e)(4)(G) and (H) and (f) for the following reasons: To notify an

individual at the individual's request of the existence of records in

an investigative file pertaining to such an individual or to grant

access to an investigative file would disclose the identity of

confidential sources and reveal confidential information supplied by

these sources.

(iii) The application of Privacy Act subsection (e)(4)(I) could

disclose sufficient information to disclose the identity of a

confidential source and cause sources to refrain from giving such

information because of fear of reprisal, or fear of breach of promises

of anonymity and confidentiality. This would compromise the ability to

conduct background suitability investigations.

(iv) This system of records is exempt from Privacy Act subsection

(e)(1) because: It is not possible to detect relevance and necessity of

specific information from a confidential source in the early stages of

an investigation. Relevance and necessity are questions of judgment and

timing. What appears relevant and necessary when collected may

ultimately be determined to be unnecessary. It is only after the

information is evaluated that the relevance and necessity of such

information can be established regarding suitability for VA approval as

a fee appraiser or compliance inspector. In interviewing persons or

obtaining other forms of evidence during an investigation for

suitability for VA approval, information may be supplied to the

investigator which relates to matters incidental to the main purpose of

the investigation but which is appropriate in a thorough investigation

an be established regarding suitability for VA approval as

a fee appraiser or compliance inspector. In interviewing persons or

obtaining other forms of evidence during an investigation for

suitability for VA approval, information may be supplied to the

investigator which relates to matters incidental to the main purpose of

the investigation but which is appropriate in a thorough investigation.

Oftentimes, such information cannot readily be segregated and

disclosure might jeopardize the identity of a confidential source.

(Authority: 5 U.S.C. 552a; 38 U.S.C. 501, 5701)

Secs. 1.513 through 1.584 [Removed]

3. Sections 1.513 through 1.584, the undesignated center heading

and the note immediately preceding Sec. 1.550, and the undesignated

center heading and note immediately preceding Sec. 1.575 are removed.

PART 2--DELEGATIONS OF AUTHORITY

4. The authority citation for part 2 continues to read as follows:

(Authority: 5 U.S.C. 302; 38 U.S.C. 501, 512; 44 U.S.C. 3702, unless

otherwise noted.)

5. In Sec. 2.6, paragraph (e)(11) is revised to read as follows:

Sec. 2.6 Secretary's delegations of authority to certain officials (38

U.S.C. 512).

* * * * *

(e) * * *

(11) The General Counsel, the Deputy General Counsel, and the

Assistant General Counsel for Professional Staff Group IV are

authorized to make final Departmental decisions on appeals under the

Freedom of Information Act, the Privacy Act, and 38 U.S.C. 5701 and

5705.

(Authority: 38 U.S.C. 512)

* * * * *

[FR Doc. 98-22858 Filed 9-9-98; 8:45 am]

BILLING CODE 8320-01-P