Rule Exempting an Amended System of Records From Certain Provisions of the Privacy Act, 75855-75857 [2020-25468]

Agencies

• National Labor Relations Board

[Federal Register Volume 85, Number 229 (Friday, November 27, 2020)]
[Rules and Regulations]
[Pages 75855-75857]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-25468]


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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 a new system 
of records, NLRB iTrak and Banned Entry List, from certain provisions 
of the Privacy Act of 1974, pursuant to sections (k)(1), (2), and (5) 
of that Act.

DATES: This rule is effective January 26, 2021 without further action, 
unless adverse comment is received by December 28, 2020. 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 https://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, (202) 273-3733, 
[email protected].

SUPPLEMENTARY INFORMATION: Elsewhere in this issue of the Federal 
Register, the Agency has announced a new system of records, NLRB-34, 
NLRB iTrak and Banned Entry List, pursuant to the Privacy Act of 1974, 
5 U.S.C. 552a.
    Pursuant to subsections (k)(1), (2), and (5) of the Privacy Act, 
and for the reasons set forth below, the Board includes within 29 CFR 
102.119 additional paragraphs (q) and (r), exempting portions of the 
amended system of records (NLRB-34) 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) of the Freedom of Information Act.
    Subsections (k)(2) and (5) 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 law enforcement (other than material within the scope of 
subsection (j)(2) of the Privacy Act), as well as determining 
suitability, eligibility, or qualifications for Federal civilian 
employment, military service, Federal contracts, or access to 
classified 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 issuing NLRB-34, this 
system contains information compiled by the Agency in the course of 
carrying out its security responsibilities.
    The requirements of the applicable subsections, if applied to the 
system of records NLRB-34, would substantially compromise the ability 
of the Agency's Security Branch staff to effectively conduct 
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 investigatory proceedings. Additionally, the disclosure of 
information gathered during a security 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 preamble, the NLRB amends 29 CFR part 
102 as follows:

PART 102--RULES AND REGULATIONS, SERIES 8

0
1. The authority citation for part 102 is revised to read as follows:

    Authority: 29 U.S.C. 151, 156. Section 102.117 also issued under 
5 U.S.C. 552(a)(4)(A), and Sec.  102.119 also issued under 5 U.S.C. 
552a(j) and (k). Sections 102.143 through 102.155 also issued under 
5 U.S.C. 504(c)(1).

Subpart K--Records and Information

0
2. Section 102.119 is amended by revising the section heading and 
adding paragraphs (q) and (r) to read as follows:

[[Page 75856]]

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.

* * * * *
    (q) Pursuant to 5 U.S.C. 552a(k)(1), (2), and (5), the system of 
records maintained by the NLRB containing NLRB iTrak and Banned Entry 
List 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 5 U.S.C. 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); and
    (3) Investigatory material compiled solely for the purpose of 
determining suitability, eligibility, or qualifications for Federal 
civilian employment, military service, Federal contracts or access to 
classified information.
    (r) The Privacy Act exemptions contained in paragraph (q) 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) iTrak and Banned Entry List records 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), which would pose 
a risk of harm to national defense and foreign policy interests.
    (iii) iTrak and Banned Entry List records 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), which would pose a 
risk of harm to law enforcement interests. Specifically, this exemption 
is necessary to safeguard the integrity of law enforcement 
investigations by minimizing the threat of harm to confidential 
sources, witnesses, and law enforcement personnel. Additionally, this 
exemption reduces the risks of improper influencing of sources, the 
destruction of evidence, and the fabrication of testimony.
    (iv) 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. This exemption is 
necessary to safeguard the integrity of security investigations by 
minimizing the threat of harm to confidential sources, witnesses, and 
law enforcement personnel. Additionally, this exemption reduces the 
risks of improper influencing of sources, the destruction of evidence, 
and the fabrication of testimony.
    (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 security 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 or 
influence, and psychological conditions, that are relevant to future 
security 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 Privacy Act concerning agency 
rules, and subsection (d) of the Privacy Act concerning access to 
records, these requirements are inapplicable to the extent that this 
system of records will be exempt from subsections (d) and (f) 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 a law enforcement 
investigation regarding security 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

[[Page 75857]]

individual's records in this system of records.

    Dated: November 13, 2020.

    Washington, DC.

    By direction of the Board.
Roxanne L. Rothschild,
Executive Secretary, National Labor Relations Board.
[FR Doc. 2020-25468 Filed 11-25-20; 8:45 am]
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