[Federal Register Volume 81, Number 224 (Monday, November 21, 2016)]
[Rules and Regulations]
[Pages 83135-83137]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-27487]


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NATIONAL LABOR RELATIONS BOARD

29 CFR Part 102


Rule Exempting an Amended System of Records From Certain 
Provisions of the Privacy Act

AGENCY: National Labor Relations Board.

ACTION: Direct final rule.

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SUMMARY: The National Labor Relations Board (NLRB) exempts an amended 
system of records, NLRB-17, Personnel Security Records, from certain 
provisions of the Privacy Act of 1974, 5 U.S.C. 552a, pursuant to 
sections (k)(1), (2), (3), (5), (6), and (7) of that Act.

DATES: This rule is effective January 20, 2017 without further action, 
unless adverse comment is received by December 21, 2016. If adverse 
comment is received, the NLRB will publish a timely withdrawal of the 
rule in the Federal Register.

ADDRESSES: All persons who desire to submit written comments for 
consideration by the Agency regarding the rule shall mail them to the 
Agency's Senior Agency Official for Privacy, National Labor Relations 
Board, 1015 Half Street SE., Third Floor, Washington, DC 20570-0001, or 
submit them electronically to [email protected]. Comments may also be 
submitted electronically through http://www.regulations.gov, which 
contains a copy of this rule and any submitted comments.

FOR FURTHER INFORMATION CONTACT: Prem Aburvasamy, Senior Agency 
Official for Privacy, National Labor Relations Board, 1015 Half Street 
SE., Third Floor, Washington, DC 20570-0001, (855)-209-9394, 
[email protected].

SUPPLEMENTARY INFORMATION: Elsewhere in today's issue of the Federal 
Register, the Agency is amending one of its systems of records, NLRB-
17, Personnel Security Records, pursuant to the Privacy Act of 1974.
    Pursuant to subsections (k)(1), (2), (3), (5), (6), and (7) of the 
Privacy Act, and for the reasons set forth below, the Board includes 
within Section 102.119, additional paragraphs (o) and (p), exempting 
portions of the amended system of records (NLRB-17) from subsections 
(c)(3), (d), (e)(1), (e)(4)(G), (e)(4)(H), (e)(4)(I), and (f) of the 
Privacy Act.
    Subsection (k)(1) of the Privacy Act authorizes the head of an 
agency to exempt a system of records from subsections (c)(3), (d), 
(e)(1), (e)(4)(G), (e)(4)(H), (e)(4)(I), and (f) of the Privacy Act (5 
U.S.C. 552a(c)(3), (d), (e)(1), (e)(4)(G), (e)(4)(H), (e)(4)(I), (f)) 
(hereinafter, ``the applicable subsections'') if records are properly 
classified pursuant to an Executive Order, within the meaning of 
section 552(b)(1).
    Subsection (k)(3) of the Privacy Act authorizes the head of an 
agency to exempt a system of records from the applicable subsections 
where the information is maintained in connection with providing 
protective services to the President of the United States or other 
individuals pursuant to section 3056 of title 18 of the U.S. Code.
    Subsections (k)(2), (5), and (7) of the Privacy Act, in 
combination, authorize the head of an agency to exempt a system of 
records from the applicable subsections if records are created or 
maintained for the purpose of determining suitability, eligibility, 
qualifications, or potential for promotion for Federal civilian 
employment, military service, Federal contracts, or access to 
classified

[[Page 83136]]

information, but only to the extent that the disclosure of such 
material would reveal the identity of a source who furnished 
information to the Government under an express promise that the 
identity of the source would be held in confidence, or, prior to 
September 27, 1975, under an implied promise that the identity of the 
source would be held in confidence. As indicated in the Agency's 
accompanying Privacy Act system of records notice amending NLRB-17, 
this system contains information compiled by the Agency in the course 
of carrying out its personnel security responsibilities.
    Subsection (k)(6) of the Privacy Act authorizes the head of an 
agency to exempt a system of records from applicable subsections when 
they might compromise the objectivity of testing and examination 
materials used for a personnel investigation for employment or 
promotion in the Federal service.
    The requirements of the applicable subsections, if applied to the 
amended system of records, NLRB-17, would substantially compromise the 
ability of the Agency's Security Branch staff to effectively conduct 
background investigations concerning the suitability, eligibility, and 
fitness for service of applicants for Federal employment and contract 
positions at the Agency, in addition to determining the appropriate 
level of access to the Agency's facilities. For instance, the 
disclosure requirements as set forth in the provisions for notice, 
access, amendment, review, and accountings, could enable subject 
individuals to take action to jeopardize the physical safety or 
anonymity of confidential sources used during background proceedings. 
Additionally, the disclosure of information gathered during a 
background investigation may unreasonably weaken the interests of 
protecting properly classified information and the objectivity of 
certain examination materials.
    This rule relates to individuals rather than small business 
entities. Accordingly, pursuant to the requirements of the Regulatory 
Flexibility Act, 5 U.S.C. 601-612, this rule will not have a 
significant impact on a substantial number of small business entities.
    In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 
3501 et seq.), the Agency has determined that this rule would not 
impose new recordkeeping, application, reporting, or other types of 
information collection requirements on the public.
    The rule will not have a substantial direct effect on the States, 
on the relationship between the national Government and the States, or 
on the distribution of power and responsibilities among levels of 
government. Therefore, it is determined that this rule does not have 
federalism implications under Executive Order 13132.
    In accordance with Executive Order 12866, it has been determined 
that this rule is not a ``significant regulatory action,'' and 
therefore does not require a Regulatory Impact Analysis.

List of Subjects in 29 CFR Part 102

    Privacy, Reporting and recordkeeping requirements.

    For the reasons stated in the Supplementary Information section, 
Part 102 of title 29, chapter I of the Code of Federal Regulations, is 
amended as follows:

PART 102--RULES AND REGULATIONS, SERIES 8

0
1. The authority citation for Part 102 continues to read as follows:

    Authority:  Sections 1, 6, National Labor Relations Act (29 
U.S.C. 151, 156). Section 102.117 also issued under section 
552(a)(4)(A) of the Freedom of Information Act, as amended (5 U.S.C. 
552(a)(4)(A)), and Section 102.117a also issued under section 
552a(j) and (k) of the Privacy Act of 1974 (5 U.S.C. 552a(j) and 
(k)). Sections 102.143 through 102.155 also issued under section 
504(c)(1) of the Equal Access to Justice Act, as amended (5 U.S.C. 
504(c)(1)).
    Source: 24 FR 9102, Nov. 7, 1959, unless otherwise noted.

Subpart K--Records and Information

0
2. Section 102.119 is amended by adding paragraphs (o) and (p) to read 
as follows:


Sec.  102.119   Privacy Act Regulations: notification as to whether a 
system of records contains records pertaining to requesting 
individuals; requests for access to records, amendment of such records, 
or accounting of disclosures; time limits for response; appeal from 
denial of requests; fees for document duplication; files and records 
exempted from certain Privacy Act requirements.

* * * * *
    (o) Pursuant to 5 U.S.C. 552a(k)(1), (2), (3), (5), (6), and (7) of 
the Privacy Act, the system of records maintained by the NLRB 
containing Personnel Security Records shall be exempted from the 
provisions of 5 U.S.C. 552a(c)(3), (d), (e)(1), (e)(4)(G), (H), and 
(I), and (f) insofar as the system may contain:
    (1) Records properly classified pursuant to an Executive Order, 
within the meaning of section 552(b)(1);
    (2) Investigatory material compiled for law enforcement purposes 
other than material within the scope of 5 U.S.C. 552a(j)(2);
    (3) Information maintained in connection with providing protective 
services to the President of the United States or other individuals 
pursuant to section 3056 of title 18 of the U.S. Code;
    (4) Investigatory material compiled solely for the purpose of 
determining suitability, eligibility or qualifications for Federal 
civilian employment and Federal contact or access to classified 
information;
    (5) Testing and examination materials used for a personnel 
investigation for employment or promotion in the Federal service;
    (6) Evaluation materials, compiled during the course of a personnel 
investigation, that are used solely to determine potential for 
promotion in the armed services.
    (p) The Privacy Act exemptions contained in paragraph (o) of this 
section are justified for the following reasons:
    (1)(i) 5 U.S.C. 552a(c)(3) requires an agency to make the 
accounting of each disclosure of records available to the individual 
named in the record at his/her request. These accountings must state 
the date, nature, and purpose of each disclosure of a record and the 
name and address of the recipient. 5 U.S.C. 552a(d) requires an agency 
to permit an individual to gain access to records pertaining to him/
her, to request amendment to such records, to request a review of an 
agency decision not to amend such records, and to contest the 
information contained in such records.
    (ii) Personnel investigations may contain properly classified 
information which pertains to national defense and foreign policy 
obtained from another Federal agency. Application of exemption (k)(1) 
is necessary to preclude an individual's access to and amendment of 
such classified information under 5 U.S.C. 552a(d).
    (iii) Personnel investigations may contain investigatory material 
compiled for law enforcement purposes other than material within the 
scope of 5 U.S.C. 552a(j)(2). Application of exemption (k)(2) is 
necessary to preclude an individual's access to or amendment of such 
records under 5 U.S.C. 552a(c)(3) and (d).
    (iv) Personnel investigations may also contain information obtained 
from another Federal agency that relates to providing protective 
services to the President of the United States or other individuals 
pursuant to 18 U.S.C. 3056. Application of exemption (k)(3) is 
necessary to preclude an individual's access to and amendment of such 
records under 5 U.S.C. 552a(d).

[[Page 83137]]

    (v) Exemption (k)(5) is claimed with respect to the requirements of 
5 U.S.C. 552a(c)(3) and (d) because this system contains investigatory 
material compiled solely for determining suitability, eligibility, and 
qualifications for Federal employment. To the extent that the 
disclosure of material would reveal the identity of a source who 
furnished information to the Government under an express promise that 
the identity of the source would be held in confidence, or prior to 
September 27, 1975, under an implied promise that the identity of the 
source would be held in confidence, the applicability of exemption 
(k)(5) will be required to honor promises of confidentiality should an 
individual request access to or amendment of the record, or access to 
the accounting of disclosures of the record. Similarly, personnel 
investigations may contain evaluation material used to determine 
potential for promotion in the armed services. Application of exemption 
(k)(7) is necessary to the extent that the disclosure of data would 
compromise the anonymity of a source under an express promise that the 
identity of the source would be held in confidence, or, prior to 
September 27, 1975, under an implied promise that the identity of the 
source would be held in confidence. Both of these exemptions are 
necessary to safeguard the integrity of background investigations by 
minimizing the threat of harm to confidential sources, witnesses, and 
law enforcement personnel. Additionally, these exemptions reduce the 
risks of improper influencing of sources, the destruction of evidence, 
and the fabrication of testimony.
    (vi) All information in this system that meets the criteria 
articulated in exemption (k)(6) is exempt from the requirements of 5 
U.S.C. 552a(d), relating to access to and amendment of records by an 
individual. This exemption is claimed because portions of this system 
relate to testing or examining materials used solely to determine 
individual qualifications for appointment or promotion to the Federal 
service. Access to or amendment to this information by an individual 
would compromise the objectivity and fairness of the testing or 
examining process.
    (2) 5 U.S.C. 552a(e)(1) requires an agency to maintain in its 
records only such information about an individual as is relevant and 
necessary to accomplish a purpose of the agency required by statute or 
by executive order of the President. This requirement could foreclose 
investigators from acquiring or receiving information the relevance and 
necessity of which is not readily apparent and could only be 
ascertained after a complete review and evaluation of all the evidence. 
This system of records is exempt from this requirement because in the 
course of personnel background investigations, the accuracy of 
information obtained or introduced occasionally may be unclear, or the 
information may not be strictly relevant or necessary to favorably or 
unfavorably adjudicate a specific investigation at a specific point in 
time. However, in the interests of protecting the public trust and 
national security, it is appropriate to retain all information that may 
aid in establishing patterns in such areas as criminal conduct, alcohol 
and drug use, financial dishonesty, allegiance, foreign preference of 
influence, and psychological conditions, that are relevant to future 
personnel security or suitability determinations.
    (3) 5 U.S.C. 552a(e)(4)(G) and (H) require an agency to publish a 
Federal Register notice concerning its procedures for notifying an 
individual, at his/her request, if the system of records contains a 
record pertaining to him/her, how to gain access to such a record and 
how to contest its content. Since this system of records is being 
exempted from subsection (f) of the Act, concerning agency rules, and 
subsection (d) of the Act, concerning access to records, these 
requirements are inapplicable to the extent that this system of records 
will be exempt from subsections (f) and (d) of the Act. Although the 
system would be exempt from these requirements, the NLRB has published 
information concerning its notification, access, and contest procedures 
because, under certain circumstances, it may be appropriate for a 
subject to have access to a portion of that individual's records in 
this system of records.
    (4) 5 U.S.C. 552a(e)(4)(I) requires an agency to publish a Federal 
Register notice concerning the categories of sources of records in the 
system of records. Exemption from this provision is necessary to 
protect the confidentiality of the sources of information, to protect 
the privacy and physical safety of confidential sources and witnesses, 
and to avoid the disclosure of investigative techniques and procedures. 
Although the system will be exempt from this requirement, the agency 
has published source information in the accompanying notice in broad 
generic terms.
    (5) 5 U.S.C. 552a(f) requires an agency to promulgate rules which 
shall establish procedures whereby an individual can be notified in 
response to a request if any system of records named by the individual 
contains a record pertaining to that individual. The application of 
this provision could compromise the progress of an investigation 
concerning the suitability, eligibility, and fitness for service of 
applicants for Federal employment and impede a prompt assessment of the 
appropriate access to the Agency's facilities. Although this system 
would be exempt from the requirements of subsection (f) of the Act, the 
Agency has promulgated rules which establish agency procedures because, 
under certain circumstances, it could be appropriate for an individual 
to have access to all or a portion of that individual's records in this 
system of records.

    Dated: Washington, DC, November 9, 2016.

    By direction of the Board.

William B. Cowen,
Federal Register Liaison, National Labor Relations Board.
[FR Doc. 2016-27487 Filed 11-18-16; 8:45 am]
 BILLING CODE 7545-01-P