81_FR_83359 81 FR 83135 - Rule Exempting an Amended System of Records From Certain Provisions of the Privacy Act

81 FR 83135 - Rule Exempting an Amended System of Records From Certain Provisions of the Privacy Act

NATIONAL LABOR RELATIONS BOARD

Federal Register Volume 81, Issue 224 (November 21, 2016)

Page Range83135-83137
FR Document2016-27487

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.

Federal Register, Volume 81 Issue 224 (Monday, November 21, 2016)
[Federal Register Volume 81, Number 224 (Monday, November 21, 2016)]
[Rules and Regulations]
[Pages 83135-83137]
From the Federal Register Online  [www.thefederalregister.org]
[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



                                                                   Federal Register / Vol. 81, No. 224 / Monday, November 21, 2016 / Rules and Regulations                                          83135

                                                  structures; cooled shaft-driving power                  than one, occurring across any section                ADDRESSES:    All persons who desire to
                                                  turbine blades, vanes, disks and related                of the bypass duct, and specially                     submit written comments for
                                                  cooled structures; cooled augmenters;                   designed parts, components,                           consideration by the Agency regarding
                                                  and cooled nozzles) specially designed                  accessories, and attachments therefor; or             the rule shall mail them to the Agency’s
                                                  for gas turbine engines controlled in this                 (12) Any of the following equipment                Senior Agency Official for Privacy,
                                                  category;                                               if specially designed for a defense                   National Labor Relations Board, 1015
                                                     (3) Uncooled turbine blades, vanes,                  article described in paragraph (f)(1): Jigs,          Half Street SE., Third Floor,
                                                  disks, and tip shrouds specially                        locating fixtures, templates, gauges,                 Washington, DC 20570–0001, or submit
                                                  designed for gas turbine engines                        molds, dies, caul plates, or bellmouths.              them electronically to pac@nlrb.gov.
                                                  controlled in this category;                               (g) Technical data (see § 120.10 of this           Comments may also be submitted
                                                     (4) Combustor cowls, diffusers,                      subchapter) and defense services (see                 electronically through http://
                                                  domes, and shells specially designed for                § 120.9 of this subchapter) directly                  www.regulations.gov, which contains a
                                                  gas turbine engines controlled in this                  related to the defense articles described             copy of this rule and any submitted
                                                  category;                                               in paragraphs (a) through (f) of this                 comments.
                                                     (5) Engine monitoring systems (i.e.,                 category and classified technical data
                                                                                                                                                                FOR FURTHER INFORMATION CONTACT:
                                                  prognostics, diagnostics, and health)                   directly related to items controlled in
                                                  specially designed for gas turbine                      ECCNs 9A619, 9B619, 9C619, and                        Prem Aburvasamy, Senior Agency
                                                  engines and components controlled in                    9D619 and defense services using the                  Official for Privacy, National Labor
                                                  this category;                                          classified technical data. (See § 125.4 of            Relations Board, 1015 Half Street SE.,
                                                     * (6) Any part, component, accessory,                this subchapter for exemptions.) (MT for              Third Floor, Washington, DC 20570–
                                                  attachment, equipment, or system that:                  technical data and defense services                   0001, (855)-209–9394, pac@nlrb.gov.
                                                     (i) Is classified;                                   related to articles designated as such.)              SUPPLEMENTARY INFORMATION: Elsewhere
                                                     (ii) Contains classified software                       (h)–(w) [Reserved]                                 in today’s issue of the Federal Register,
                                                  directly related to defense articles in                    (x) Commodities, software, and                     the Agency is amending one of its
                                                  this subchapter or 600 series items                     technology subject to the EAR (see                    systems of records, NLRB–17, Personnel
                                                  subject to the EAR; or                                  § 120.42 of this subchapter) used in or               Security Records, pursuant to the
                                                     (iii) Is being developed using                       with defense articles controlled in this              Privacy Act of 1974.
                                                  classified information.                                 category.                                                Pursuant to subsections (k)(1), (2), (3),
                                                    Note to paragraph (f)(6): ‘‘Classified’’                                                                    (5), (6), and (7) of the Privacy Act, and
                                                                                                            Note to paragraph (x): Use of this
                                                  means classified pursuant to Executive Order            paragraph is limited to license applications          for the reasons set forth below, the
                                                  13526, or predecessor order, and a security             for defense articles controlled in this category      Board includes within Section 102.119,
                                                  classification guide developed pursuant                 where the purchase documentation includes             additional paragraphs (o) and (p),
                                                  thereto or equivalent, or to the corresponding          commodities, software, or technology subject          exempting portions of the amended
                                                  classification rules of another government or           to the EAR (see § 123.1(b) of this subchapter).       system of records (NLRB–17) from
                                                  international organization;                                                                                   subsections (c)(3), (d), (e)(1), (e)(4)(G),
                                                                                                            Dated: November 14, 2016.
                                                     (7) Investment casting cores, core                                                                         (e)(4)(H), (e)(4)(I), and (f) of the Privacy
                                                                                                          Thomas M. Countryman,                                 Act.
                                                  dies, or wax pattern dies for parts or
                                                  components enumerated in paragraphs                     Acting Under Secretary, Arms Control and                 Subsection (k)(1) of the Privacy Act
                                                                                                          International Security, Department of State.          authorizes the head of an agency to
                                                  (f)(1), (f)(2), or (f)(3) of this category;
                                                     (8) Pressure gain combustors specially               [FR Doc. 2016–27775 Filed 11–18–16; 8:45 am]          exempt a system of records from
                                                  designed for engines controlled in this                 BILLING CODE 4710–25–P                                subsections (c)(3), (d), (e)(1), (e)(4)(G),
                                                  category, and specially designed parts                                                                        (e)(4)(H), (e)(4)(I), and (f) of the Privacy
                                                  and components therefor;                                                                                      Act (5 U.S.C. 552a(c)(3), (d), (e)(1),
                                                     (9) Three-stream fan systems,                        NATIONAL LABOR RELATIONS                              (e)(4)(G), (e)(4)(H), (e)(4)(I), (f))
                                                  specially designed for gas turbine                      BOARD                                                 (hereinafter, ‘‘the applicable
                                                  engines controlled in this Category, that                                                                     subsections’’) if records are properly
                                                  allow the movement of airflow between                   29 CFR Part 102                                       classified pursuant to an Executive
                                                  the streams to control fan pressure ratio                                                                     Order, within the meaning of section
                                                                                                          Rule Exempting an Amended System
                                                  or bypass ratio (by means other than use                                                                      552(b)(1).
                                                                                                          of Records From Certain Provisions of                    Subsection (k)(3) of the Privacy Act
                                                  of fan corrected speed or the primary
                                                                                                          the Privacy Act                                       authorizes the head of an agency to
                                                  nozzle area to change the fan pressure
                                                  ratio or bypass ratio), and specially                   AGENCY:    National Labor Relations                   exempt a system of records from the
                                                  designed parts, components,                             Board.                                                applicable subsections where the
                                                  accessories, and attachments therefor;                  ACTION:   Direct final rule.                          information is maintained in connection
                                                     (10) High pressure compressors,                                                                            with providing protective services to the
                                                  specially designed for gas turbine                      SUMMARY:     The National Labor Relations             President of the United States or other
                                                  engines controlled in this Category, with               Board (NLRB) exempts an amended                       individuals pursuant to section 3056 of
                                                  core-driven bypass streams that have a                  system of records, NLRB–17, Personnel                 title 18 of the U.S. Code.
                                                  pressure ratio greater than one,                        Security Records, from certain                           Subsections (k)(2), (5), and (7) of the
                                                  occurring across any section of the                     provisions of the Privacy Act of 1974, 5              Privacy Act, in combination, authorize
                                                  bypass duct, and specially designed                     U.S.C. 552a, pursuant to sections (k)(1),             the head of an agency to exempt a
asabaliauskas on DSK3SPTVN1PROD with RULES




                                                  parts, components, accessories, and                     (2), (3), (5), (6), and (7) of that Act.              system of records from the applicable
                                                  attachments therefor;                                   DATES: This rule is effective January 20,             subsections if records are created or
                                                     (11) Intermediate compressors of a                   2017 without further action, unless                   maintained for the purpose of
                                                  three-spool compression system,                         adverse comment is received by                        determining suitability, eligibility,
                                                  specially designed for gas turbine                      December 21, 2016. If adverse comment                 qualifications, or potential for
                                                  engines controlled in this Category, with               is received, the NLRB will publish a                  promotion for Federal civilian
                                                  an intermediate spool-driven bypass                     timely withdrawal of the rule in the                  employment, military service, Federal
                                                  stream that has a pressure ratio greater                Federal Register.                                     contracts, or access to classified


                                             VerDate Sep<11>2014   17:02 Nov 18, 2016   Jkt 241001   PO 00000   Frm 00029   Fmt 4700   Sfmt 4700   E:\FR\FM\21NOR1.SGM   21NOR1


                                                  83136            Federal Register / Vol. 81, No. 224 / Monday, November 21, 2016 / Rules and Regulations

                                                  information, but only to the extent that                Government and the States, or on the                  material within the scope of 5 U.S.C.
                                                  the disclosure of such material would                   distribution of power and                             552a(j)(2);
                                                  reveal the identity of a source who                     responsibilities among levels of                         (3) Information maintained in
                                                  furnished information to the                            government. Therefore, it is determined               connection with providing protective
                                                  Government under an express promise                     that this rule does not have federalism               services to the President of the United
                                                  that the identity of the source would be                implications under Executive Order                    States or other individuals pursuant to
                                                  held in confidence, or, prior to                        13132.                                                section 3056 of title 18 of the U.S. Code;
                                                  September 27, 1975, under an implied                      In accordance with Executive Order                     (4) Investigatory material compiled
                                                  promise that the identity of the source                 12866, it has been determined that this               solely for the purpose of determining
                                                  would be held in confidence. As                         rule is not a ‘‘significant regulatory                suitability, eligibility or qualifications
                                                  indicated in the Agency’s accompanying                  action,’’ and therefore does not require              for Federal civilian employment and
                                                  Privacy Act system of records notice                    a Regulatory Impact Analysis.                         Federal contact or access to classified
                                                  amending NLRB–17, this system                                                                                 information;
                                                                                                          List of Subjects in 29 CFR Part 102                      (5) Testing and examination materials
                                                  contains information compiled by the
                                                  Agency in the course of carrying out its                  Privacy, Reporting and recordkeeping                used for a personnel investigation for
                                                  personnel security responsibilities.                    requirements.                                         employment or promotion in the
                                                     Subsection (k)(6) of the Privacy Act                   For the reasons stated in the                       Federal service;
                                                  authorizes the head of an agency to                     Supplementary Information section,                       (6) Evaluation materials, compiled
                                                  exempt a system of records from                         Part 102 of title 29, chapter I of the Code           during the course of a personnel
                                                  applicable subsections when they might                  of Federal Regulations, is amended as                 investigation, that are used solely to
                                                  compromise the objectivity of testing                   follows:                                              determine potential for promotion in the
                                                  and examination materials used for a                                                                          armed services.
                                                  personnel investigation for employment                  PART 102—RULES AND                                       (p) The Privacy Act exemptions
                                                  or promotion in the Federal service.                    REGULATIONS, SERIES 8                                 contained in paragraph (o) of this
                                                     The requirements of the applicable                                                                         section are justified for the following
                                                  subsections, if applied to the amended                  ■ 1. The authority citation for Part 102              reasons:
                                                  system of records, NLRB–17, would                       continues to read as follows:                            (1)(i) 5 U.S.C. 552a(c)(3) requires an
                                                  substantially compromise the ability of                   Authority: Sections 1, 6, National Labor            agency to make the accounting of each
                                                  the Agency’s Security Branch staff to                   Relations Act (29 U.S.C. 151, 156). Section           disclosure of records available to the
                                                  effectively conduct background                          102.117 also issued under section                     individual named in the record at his/
                                                  investigations concerning the                           552(a)(4)(A) of the Freedom of Information            her request. These accountings must
                                                                                                          Act, as amended (5 U.S.C. 552(a)(4)(A)), and          state the date, nature, and purpose of
                                                  suitability, eligibility, and fitness for               Section 102.117a also issued under section
                                                  service of applicants for Federal                       552a(j) and (k) of the Privacy Act of 1974 (5         each disclosure of a record and the
                                                  employment and contract positions at                    U.S.C. 552a(j) and (k)). Sections 102.143             name and address of the recipient. 5
                                                  the Agency, in addition to determining                  through 102.155 also issued under section             U.S.C. 552a(d) requires an agency to
                                                  the appropriate level of access to the                  504(c)(1) of the Equal Access to Justice Act,         permit an individual to gain access to
                                                  Agency’s facilities. For instance, the                  as amended (5 U.S.C. 504(c)(1)).                      records pertaining to him/her, to request
                                                  disclosure requirements as set forth in                   Source: 24 FR 9102, Nov. 7, 1959, unless            amendment to such records, to request
                                                  the provisions for notice, access,                      otherwise noted.                                      a review of an agency decision not to
                                                  amendment, review, and accountings,                     Subpart K—Records and Information                     amend such records, and to contest the
                                                  could enable subject individuals to take                                                                      information contained in such records.
                                                  action to jeopardize the physical safety                ■ 2. Section 102.119 is amended by                       (ii) Personnel investigations may
                                                  or anonymity of confidential sources                    adding paragraphs (o) and (p) to read as              contain properly classified information
                                                  used during background proceedings.                     follows:                                              which pertains to national defense and
                                                  Additionally, the disclosure of                                                                               foreign policy obtained from another
                                                  information gathered during a                           § 102.119 Privacy Act Regulations:                    Federal agency. Application of
                                                  background investigation may                            notification as to whether a system of                exemption (k)(1) is necessary to
                                                                                                          records contains records pertaining to                preclude an individual’s access to and
                                                  unreasonably weaken the interests of                    requesting individuals; requests for access
                                                  protecting properly classified                          to records, amendment of such records, or
                                                                                                                                                                amendment of such classified
                                                  information and the objectivity of                      accounting of disclosures; time limits for            information under 5 U.S.C. 552a(d).
                                                  certain examination materials.                          response; appeal from denial of requests;                (iii) Personnel investigations may
                                                     This rule relates to individuals rather              fees for document duplication; files and              contain investigatory material compiled
                                                  than small business entities.                           records exempted from certain Privacy Act             for law enforcement purposes other than
                                                  Accordingly, pursuant to the                            requirements.                                         material within the scope of 5 U.S.C.
                                                  requirements of the Regulatory                          *      *      *      *    *                           552a(j)(2). Application of exemption
                                                  Flexibility Act, 5 U.S.C. 601–612, this                    (o) Pursuant to 5 U.S.C. 552a(k)(1),               (k)(2) is necessary to preclude an
                                                  rule will not have a significant impact                 (2), (3), (5), (6), and (7) of the Privacy            individual’s access to or amendment of
                                                  on a substantial number of small                        Act, the system of records maintained                 such records under 5 U.S.C. 552a(c)(3)
                                                  business entities.                                      by the NLRB containing Personnel                      and (d).
                                                     In accordance with the Paperwork                     Security Records shall be exempted                       (iv) Personnel investigations may also
                                                  Reduction Act of 1995 (44 U.S.C. 3501                   from the provisions of 5 U.S.C.                       contain information obtained from
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                                                  et seq.), the Agency has determined that                552a(c)(3), (d), (e)(1), (e)(4)(G), (H), and          another Federal agency that relates to
                                                  this rule would not impose new                          (I), and (f) insofar as the system may                providing protective services to the
                                                  recordkeeping, application, reporting, or               contain:                                              President of the United States or other
                                                  other types of information collection                      (1) Records properly classified                    individuals pursuant to 18 U.S.C. 3056.
                                                  requirements on the public.                             pursuant to an Executive Order, within                Application of exemption (k)(3) is
                                                     The rule will not have a substantial                 the meaning of section 552(b)(1);                     necessary to preclude an individual’s
                                                  direct effect on the States, on the                        (2) Investigatory material compiled for            access to and amendment of such
                                                  relationship between the national                       law enforcement purposes other than                   records under 5 U.S.C. 552a(d).


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                                                                   Federal Register / Vol. 81, No. 224 / Monday, November 21, 2016 / Rules and Regulations                                             83137

                                                     (v) Exemption (k)(5) is claimed with                 necessity of which is not readily                     by the individual contains a record
                                                  respect to the requirements of 5 U.S.C.                 apparent and could only be ascertained                pertaining to that individual. The
                                                  552a(c)(3) and (d) because this system                  after a complete review and evaluation                application of this provision could
                                                  contains investigatory material                         of all the evidence. This system of                   compromise the progress of an
                                                  compiled solely for determining                         records is exempt from this requirement               investigation concerning the suitability,
                                                  suitability, eligibility, and qualifications            because in the course of personnel                    eligibility, and fitness for service of
                                                  for Federal employment. To the extent                   background investigations, the accuracy               applicants for Federal employment and
                                                  that the disclosure of material would                   of information obtained or introduced                 impede a prompt assessment of the
                                                  reveal the identity of a source who                     occasionally may be unclear, or the                   appropriate access to the Agency’s
                                                  furnished information to the                            information may not be strictly relevant              facilities. Although this system would
                                                  Government under an express promise                     or necessary to favorably or unfavorably              be exempt from the requirements of
                                                  that the identity of the source would be                adjudicate a specific investigation at a              subsection (f) of the Act, the Agency has
                                                  held in confidence, or prior to                         specific point in time. However, in the               promulgated rules which establish
                                                  September 27, 1975, under an implied                    interests of protecting the public trust              agency procedures because, under
                                                  promise that the identity of the source                 and national security, it is appropriate              certain circumstances, it could be
                                                  would be held in confidence, the                        to retain all information that may aid in             appropriate for an individual to have
                                                  applicability of exemption (k)(5) will be               establishing patterns in such areas as                access to all or a portion of that
                                                  required to honor promises of                           criminal conduct, alcohol and drug use,               individual’s records in this system of
                                                  confidentiality should an individual                    financial dishonesty, allegiance, foreign             records.
                                                  request access to or amendment of the                   preference of influence, and
                                                                                                                                                                  Dated: Washington, DC, November 9, 2016.
                                                  record, or access to the accounting of                  psychological conditions, that are
                                                                                                                                                                  By direction of the Board.
                                                  disclosures of the record. Similarly,                   relevant to future personnel security or
                                                  personnel investigations may contain                    suitability determinations.                           William B. Cowen,
                                                  evaluation material used to determine                      (3) 5 U.S.C. 552a(e)(4)(G) and (H)                 Federal Register Liaison, National Labor
                                                  potential for promotion in the armed                    require an agency to publish a Federal                Relations Board.
                                                  services. Application of exemption                      Register notice concerning its                        [FR Doc. 2016–27487 Filed 11–18–16; 8:45 am]
                                                  (k)(7) is necessary to the extent that the              procedures for notifying an individual,               BILLING CODE 7545–01–P
                                                  disclosure of data would compromise                     at his/her request, if the system of
                                                  the anonymity of a source under an                      records contains a record pertaining to
                                                  express promise that the identity of the                him/her, how to gain access to such a                 PENSION BENEFIT GUARANTY
                                                  source would be held in confidence, or,                 record and how to contest its content.                CORPORATION
                                                  prior to September 27, 1975, under an                   Since this system of records is being
                                                  implied promise that the identity of the                exempted from subsection (f) of the Act,              29 CFR Part 4044
                                                  source would be held in confidence.                     concerning agency rules, and subsection
                                                  Both of these exemptions are necessary                  (d) of the Act, concerning access to                  Allocation of Assets in Single-
                                                  to safeguard the integrity of background                records, these requirements are                       Employer Plans; Valuation of Benefits
                                                  investigations by minimizing the threat                 inapplicable to the extent that this                  and Assets; Expected Retirement Age
                                                  of harm to confidential sources,                        system of records will be exempt from
                                                                                                                                                                AGENCY:  Pension Benefit Guaranty
                                                  witnesses, and law enforcement                          subsections (f) and (d) of the Act.
                                                                                                                                                                Corporation.
                                                  personnel. Additionally, these                          Although the system would be exempt
                                                                                                          from these requirements, the NLRB has                 ACTION: Final rule.
                                                  exemptions reduce the risks of improper
                                                  influencing of sources, the destruction                 published information concerning its                  SUMMARY:   This rule amends the Pension
                                                  of evidence, and the fabrication of                     notification, access, and contest                     Benefit Guaranty Corporation’s
                                                  testimony.                                              procedures because, under certain                     regulation on Allocation of Assets in
                                                     (vi) All information in this system                  circumstances, it may be appropriate for              Single-Employer Plans by substituting a
                                                  that meets the criteria articulated in                  a subject to have access to a portion of              new table for determining expected
                                                  exemption (k)(6) is exempt from the                     that individual’s records in this system              retirement ages for participants in
                                                  requirements of 5 U.S.C. 552a(d),                       of records.                                           pension plans undergoing distress or
                                                  relating to access to and amendment of                     (4) 5 U.S.C. 552a(e)(4)(I) requires an
                                                                                                                                                                involuntary termination with valuation
                                                  records by an individual. This                          agency to publish a Federal Register
                                                                                                                                                                dates falling in 2017. This table is
                                                  exemption is claimed because portions                   notice concerning the categories of
                                                                                                                                                                needed in order to compute the value of
                                                  of this system relate to testing or                     sources of records in the system of
                                                                                                                                                                early retirement benefits and, thus, the
                                                  examining materials used solely to                      records. Exemption from this provision
                                                                                                                                                                total value of benefits under a plan.
                                                  determine individual qualifications for                 is necessary to protect the
                                                                                                          confidentiality of the sources of                     DATES: Effective January 1, 2017.
                                                  appointment or promotion to the
                                                  Federal service. Access to or                           information, to protect the privacy and               FOR FURTHER INFORMATION CONTACT:
                                                  amendment to this information by an                     physical safety of confidential sources               Deborah C. Murphy (Murphy.Deborah@
                                                  individual would compromise the                         and witnesses, and to avoid the                       pbgc.gov), Assistant General Counsel for
                                                  objectivity and fairness of the testing or              disclosure of investigative techniques                Regulatory Affairs, Pension Benefit
                                                  examining process.                                      and procedures. Although the system                   Guaranty Corporation, 1200 K Street
                                                     (2) 5 U.S.C. 552a(e)(1) requires an                  will be exempt from this requirement,                 NW., Washington, DC 20005, 202–326–
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                                                  agency to maintain in its records only                  the agency has published source                       4400 ext. 3451. (TTY/TDD users may
                                                  such information about an individual as                 information in the accompanying notice                call the Federal relay service toll-free at
                                                  is relevant and necessary to accomplish                 in broad generic terms.                               1–800–877–8339 and ask to be
                                                  a purpose of the agency required by                        (5) 5 U.S.C. 552a(f) requires an agency            connected to 202–326–4400 ext. 3451.)
                                                  statute or by executive order of the                    to promulgate rules which shall                       SUPPLEMENTARY INFORMATION: The
                                                  President. This requirement could                       establish procedures whereby an                       Pension Benefit Guaranty Corporation
                                                  foreclose investigators from acquiring or               individual can be notified in response to             (PBGC) administers the pension plan
                                                  receiving information the relevance and                 a request if any system of records named              termination insurance program under


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Document Created: 2018-02-14 08:33:56
Document Modified: 2018-02-14 08:33:56
CategoryRegulatory Information
CollectionFederal Register
sudoc ClassAE 2.7:
GS 4.107:
AE 2.106:
PublisherOffice of the Federal Register, National Archives and Records Administration
SectionRules and Regulations
ActionDirect final rule.
DatesThis 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.
ContactPrem 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]
FR Citation81 FR 83135 
CFR AssociatedPrivacy and Reporting and Recordkeeping Requirements

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