Federal Register / Vol. 71, No. 239 / Wednesday, December 13, 2006 / Proposed Rules 74881 

NATIONAL LABOR RELATIONS 

BOARD 

29 CFR Part 102 

Privacy Act of 1974; Implementation 

AGENCY: National Labor Relations 

Board. 

ACTION: Proposed rule exempting three 

systems of records and portions of four 

other systems of records from certain 

provisions of the Privacy Act, and 

amending Agency’s existing Privacy Act 

regulations. 

SUMMARY: The National Labor Relations 

Board (NLRB) proposes to exempt three 

systems of records and portions of four 

other systems of records from certain 

provisions of the Privacy Act of 1974, 5 

U.S.C. 552a, pursuant to Section (k)(2) 

of that Act, 5 U.S.C. 552a(k)(2), and to 

amend existing Privacy Act regulations 

for clarity. 

DATES: Comments on the proposed rule 

must be received on or before January 

22, 2007. 

ADDRESSES: All persons who desire to 

submit written comments for 

consideration by the Agency regarding 

the proposed rule shall mail them to the 

Agency’s Privacy Officer, National 

Labor Relations Board, Room 7608, 1099 

14th Street, NW., Washington, DC 

20570–0001, or submit them 

electronically to 

PrivacyActComments@nlrb.gov. 

Comments may also be submitted 

electronically through http:// 

www.regulations.gov, which contains a 

copy of this proposed rule. 

Copies of all such communications 

will be available for examination during 

normal business hours (8:30 a.m. to 5 

p.m. Monday through Friday, excluding 

Federal holidays) in the Agency’s 

Reading Room, located in the Case 

Records Unit, National Labor Relations 

Board, Room 9201, 1099 14th Street, 

NW., Washington, DC 20570–0001. 

FOR FURTHER INFORMATION CONTACT: 

Tommie Gregg, Sr., Privacy Act Officer, 

National Labor Relations Board, Room 

7608, 1099 14th Street, NW., 

Washington, DC 20570–0001, (202) 273–

2833, Tommie.Gregg@nlrb.gov. 

SUPPLEMENTARY INFORMATION: Elsewhere 

in today’s issue of the Federal Register, 

the Agency is proposing twelve systems 

of records under the Privacy Act of 

1974, nine of which consist of an 

electronic case tracking system and 

associated paper or electronic files, and 

the remaining three systems consist of 

electronic case tracking systems only. 

The Agency intends to change the 

section number of its Privacy Act 

regulations, currently designated as 

Section 102.117(f)–(q) of Part 102, 29 

CFR Subpart K, immediately following 

the Agency’s Freedom of Information 

Act regulations, by creating a new 

section for the Privacy Act regulations, 

in order to more clearly separate them 

from the Freedom of Information Act 

regulations. Under this change, the 

Agency’s Privacy Act regulations will 

continue to immediately follow the 

Freedom of Information Act regulations 

at Section 102.117(a)–(e), but will be 

newly designated as Section 102.117a, 

paragraphs (a) through (n), of Part 102, 

29 CFR Subpart K. 

The Agency also intends to amend its 

Privacy Act regulations providing for 

notice, access, and amendment of 

Privacy Act records, Section 

102.117a(a), (b), and (d) (as newly 

designated), 29 CFR 102.117a(a), (b), 

and (d), in order to clarify that these 

provisions apply only to the extent that 

requested information from the Privacy 

Act system of records at issue has not 

been exempted from such Privacy Act 

provisions. 

Pursuant to subsection (k)(2) of the 

Privacy Act (5 U.S.C. 552a(k)(2)), and 

for the reasons set forth below, the 

Board proposes to include within the 

new Section 102.117a, two additional 

paragraphs (m) and (n) exempting three 

systems of records (the Case Activity 

Tracking System (CATS) and Associated 

Regional Office Files (NLRB–25), the 

Regional Advice and Injunction 

Litigation System (RAILS) and 

Associated Headquarters Files (NLRB–

28), and the Appeals Case Tracking 

System (ACTS) and Associated 

Headquarters Files (NLRB–30)), and 

portions of four other systems of records 

(the Judicial Case Management 

System—Pending Case List (JCMS–PCL) 

and Associated Headquarters Files 

(NLRB–21), the Solicitor’s System (SOL) 

and Associated Headquarters Files 

(NLRB–23), the Special Litigation 

Branch Case Tracking System (SPLIT) 

and Associated Headquarters Files 

(NLRB–27), and the Freedom of 

Information Act Tracking System (FTS) 

and Associated Agency Files (NLRB–

32)) from subsections (c)(3), (d), (e)(1), 

(e)(4)(G), (e)(4)(H), (e)(4)(I), and (f) of the 

Privacy Act. 

Subsection (k)(2) 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)) if the 

system of records is investigatory 

material compiled for law enforcement 

purposes other than material within the 

scope of subsection (j)(2) of the Privacy 

Act (5 U.S.C. 552a(j)(2)). As indicated in 

the Agency’s notice proposing the 

systems of records, all or portions of 

seven of the proposed systems contain 

information compiled by the Agency in 

the course of carrying out its law 

enforcement responsibilities in 

conducting unfair labor practice and 

representation investigations. (All 

references in this proposed rule to the 

Agency’s ‘‘unfair labor practice cases’’

include the portion of such cases known 

as ‘‘compliance,’’ which is the 

effectuation of remedial provisions of a 

settlement agreement, Board order, or 

court judgment enforcing a Board order 

(see NLRB Casehandling Manual, Part 

Three—Compliance Proceedings, 

§ 10500.1).) This information meets the 

criteria of subsection (k)(2). 

The requirements of subsections 

(c)(3), (d), (e)(1), (e)(4)(G), (e)(4)(H), 

(e)(4)(I), and (f) of the Privacy Act, if 

applied to the seven proposed systems 

of records, would seriously impair the 

ability of the Agency to conduct 

investigations of alleged unfair labor 

practice violations and representation 

issues. The disclosure requirements as 

set forth in the provisions for notice, 

access, amendment, review, and 

accountings, could enable subject 

individuals to take action to avoid 

detection of improper activities, 

including but not limited to concealing 

or destroying evidence, and 

intimidating sources and witnesses, or 

otherwise to interfere with the 

investigation. In addition, the 

requirement that information 

maintained in the system be limited to 

that which is relevant and necessary 

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. 

The requirements of these subsections 

are largely unnecessary given the notice 

and procedural protections afforded by 

the Agency’s administrative 

proceedings. These protections (i.e., 

notice and, in appropriate cases, 

opportunity for hearing), assure that 

subject individuals will have the 

opportunity to learn of the existence of, 

and to challenge, those records that the 

Agency uses in administrative 

proceedings, and in any subsequent 

judicial proceeding. 

This proposed 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. 


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74882 Federal Register / Vol. 71, No. 239 / Wednesday, December 13, 2006 / Proposed Rules 

In accordance with the Paperwork 

Reduction Act of 1995 (44 U.S.C. 3501 

et seq.), the Agency has determined that 

this proposed rule would not impose 

new recordkeeping, application, 

reporting, or other types of information 

collection requirements on the public. 

The proposed 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 proposed rule does not have 

federalism implications under Executive 

Order 13132. 

In accordance with Executive Order 

12866, it has been determined that this 

proposed 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, ch. I of the Code of 

Federal Regulations, is proposed to be 

amended as follows: 

PART 102—RULES AND 

REGULATIONS, SERIES 8 

Subpart K—Records and Information 

1. The authority citation for part 102 

is revised 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)). 

2. Section 102.117 of subpart K is 

amended by: 

a. Removing paragraphs (f) through 

(q); 

b. In part 102, revise all references to 

paragraphs 102.117(f) through (q) to 

read paragraphs 102.117a (a) through (l). 

c. The heading of § 102.117 is revised 

to read as follows: 

§ 102.117 Freedom of Information Act 

Regulations: Board materials and formal 

documents available for public inspection 

and copying; requests for described 

records; time limit for response; appeal 

from denial of request; fees for document 

search and duplication; files and records 

not subject to inspection. 

3. Section 102.117a is added to read 

as follows: 

§ 102.117a 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. 

(a) An individual will be informed 

whether a system of records maintained 

by this Agency contains a record 

pertaining to such individual. An 

inquiry should be made in writing or in 

person during normal business hours to 

the official of this Agency designated for 

that purpose and at the address set forth 

in a notice of a system of records 

published by this Agency, in a Notice of 

Systems of Governmentwide Personnel 

Records published by the Office of 

Personnel Management, or in a Notice of 

Governmentwide Systems of Records 

published by the Department of Labor. 

Copies of such notices, and assistance in 

preparing an inquiry, may be obtained 

from any Regional Office of the Board or 

at the Board offices at 1099 14th Street, 

NW., Washington, DC 20570. The 

inquiry should contain sufficient 

information, as defined in the notice, to 

identify the record. Reasonable 

verification of the identity of the 

inquirer, as described in paragraph (e) of 

this section, will be required to assure 

that information is disclosed to the 

proper person. The Agency shall 

acknowledge the inquiry in writing 

within 10 days (excluding Saturdays, 

Sundays, and legal public holidays) 

and, wherever practicable, the 

acknowledgment shall supply the 

information requested. If, for good cause 

shown, the Agency cannot supply the 

information within 10 days, the inquirer 

shall within that time period be notified 

in writing of the reasons therefor and 

when it is anticipated the information 

will be supplied. An acknowledgment 

will not be provided when the 

information is supplied within the 10- 

day period. If the Agency refuses to 

inform an individual whether a system 

of records contains a record pertaining 

to an individual, the inquirer shall be 

notified in writing of that determination 

and the reasons therefor, and of the right 

to obtain review of that determination 

under the provisions of paragraph (f) of 

this section. The provisions of this 

paragraph do not apply to the extent 

that requested information from the 

relevant system of records has been 

exempted from this Privacy Act 

requirement. 

(b) An individual will be permitted 

access to records pertaining to such 

individual contained in any system of 

records described in the notice of 

system of records published by this 

Agency, or access to the accounting of 

disclosures from such records. The 

request for access must be made in 

writing or in person during normal 

business hours to the person designated 

for that purpose and at the address set 

forth in the published notice of system 

of records. The request for access must 

be made in writing or in person during 

normal business hours to the person 

designated for that purpose and at the 

address set forth in the published notice 

of system of records. Copies of such 

notices, and assistance in preparing a 

request for access, may be obtained from 

any Regional Office of the Board or at 

the Board offices at 1099 14th Street, 

NW., Washington, DC 20570. 

Reasonable verification of the identity of 

the requester, as described in paragraph 

(e) of this section, shall be required to 

assure that records are disclosed to the 

proper person. A request for access to 

records or the accounting of disclosures 

from such records shall be 

acknowledged in writing by the Agency 

within 10 days of receipt (excluding 

Saturdays, Sundays, and legal public 

holidays) and, wherever practicable, the 

acknowledgment shall inform the 

requester whether access will be granted 

and, if so, the time and location at 

which the records or accounting will be 

made available. If access to the record 

or accounting is to be granted, the 

record or accounting will normally be 

provided within 30 days (excluding 

Saturdays, Sundays, and legal public 

holidays) of the request, unless for good 

cause shown the Agency is unable to do 

so, in which case the individual will be 

informed in writing within that 30-day 

period of the reasons therefor and when 

it is anticipated that access will be 

granted. An acknowledgment of a 

request will not be provided if the 

record is made available within the 10- 

day period. If an individual’s request for 

access to a record or an accounting of 

disclosure from such a record under the 

provisions of this paragraph is denied, 

the notice informing the individual of 

the denial shall set forth the reasons 

therefor and advise the individual of the 

right to obtain a review of that 

determination under the provisions of 

paragraph (f) of this section. The 

provisions of this paragraph do not 

apply to the extent that requested 

information from the relevant system of 

records has been exempted from this 

Privacy Act requirement. 

(c) An individual granted access to 

records pertaining to such individual 

contained in a system of records may 

review all such records. For that 


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Federal Register / Vol. 71, No. 239 / Wednesday, December 13, 2006 / Proposed Rules 74883 

purpose the individual may be 

accompanied by a person of the 

individual’s choosing, or the record may 

be released to the individual’s 

representative who has written consent 

of the individual, as described in 

paragraph (e) of this section. A first 

copy of any such record or information 

will ordinarily be provided without 

charge to the individual or 

representative in a form comprehensible 

to the individual. Fees for any other 

copies of requested records shall be 

assessed at the rate of 10 cents for each 

sheet of duplication. 

(d) An individual may request 

amendment of a record pertaining to 

such individual in a system of records 

maintained by this Agency. A request 

for amendment of a record must be in 

writing and submitted during normal 

business hours to the person designated 

for that purpose and at the address set 

forth in the published notice for the 

system of records containing the record 

of which amendment is sought. Copies 

of such notices, and assistance in 

preparing a request for amendment, may 

be obtained from any Regional Office of 

the Board or at the Board offices at 1099 

14th Street, NW., Washington, DC 

20570. The requester must provide 

verification of identity as described in 

paragraph (e) of this section, and the 

request should set forth the specific 

amendment requested and the reason 

for the requested amendment. The 

Agency shall acknowledge in writing 

receipt of the request within 10 days of 

receipt (excluding Saturdays, Sundays, 

and legal public holidays) and, 

wherever practicable, the 

acknowledgment shall advise the 

individual of the determination of the 

request. If the review of the request for 

amendment cannot be completed and a 

determination made within 10 days, the 

review shall be completed as soon as 

possible, normally within 30 days 

(Saturdays, Sundays, and legal public 

holidays excluded) of receipt of the 

request unless unusual circumstances 

preclude completing the review within 

that time, in which event the requester 

will be notified in writing within that 

30-day period of the reasons for the 

delay and when the determination of 

the request may be expected. If the 

determination is to amend the record, 

the requester shall be so notified in 

writing and the record shall be amended 

in accordance with that determination. 

If any disclosures accountable under the 

provisions of 5 U.S.C. 552a(c) have been 

made, all previous recipients of the 

record which was amended shall be 

advised of the amendment and its 

substance. If it is determined that the 

request should not be granted, the 

requester shall be notified in writing of 

that determination and of the reasons 

therefor, and advised of the right to 

obtain review of the adverse 

determination under the provisions of 

paragraph (f) of this section. The 

provisions of this paragraph do not 

apply to the extent that requested 

information from the relevant system of 

records has been exempted from this 

Privacy Act requirement. 

(e) Verification of the identification of 

individuals required under paragraphs 

(a), (b), (c), and (d) of this section to 

assure that records are disclosed to the 

proper person shall be required by the 

Agency to an extent consistent with the 

nature, location, and sensitivity of the 

records being disclosed. Disclosure of a 

record to an individual in person will 

normally be made upon the presentation 

of acceptable identification. Disclosure 

of records by mail may be made on the 

basis of the identifying information set 

forth in the request. Depending on the 

nature, location, and sensitivity of the 

requested record, a signed notarized 

statement verifying identity may be 

required by the Agency. Proof of 

authorization as representative to have 

access to a record of an individual shall 

be in writing, and a signed notarized 

statement of such authorization may be 

required by the Agency if the record 

requested is of a sensitive nature. 

(f)(1) Review may be obtained with 

respect to: 

(i) A refusal, under paragraph (a) or 

(g) of this section, to inform an 

individual if a system of records 

contains a record concerning that 

individual, 

(ii) A refusal, under paragraph (b) or 

(g) of this section, to grant access to a 

record or an accounting of disclosure 

from such a record, or 

(iii) A refusal, under paragraph (d) of 

this section, to amend a record. 

(iv) The request for review should be 

made to the Chairman of the Board if 

the system of records is maintained in 

the office of a Member of the Board, the 

office of the Executive Secretary, the 

office of the Solicitor, the Division of 

Information, or the Division of 

Administrative Law Judges. Consonant 

with the provisions of section 3(d) of the 

National Labor Relations Act, and the 

delegation of authority from the Board 

to the General Counsel, the request 

should be made to the General Counsel 

if the system of records is maintained by 

an office of the Agency other than those 

enumerated above. Either the Chairman 

of the Board or the General Counsel may 

designate in writing another officer of 

the Agency to review the refusal of the 

request. Such review shall be completed 

within 30 days (excluding Saturdays, 

Sundays, and legal public holidays) 

from the receipt of the request for 

review unless the Chairman of the 

Board or the General Counsel, as the 

case may be, for good cause shown, 

shall extend such 30-day period. 

(2) If, upon review of a refusal under 

paragraph (a) or (g) of this section, the 

reviewing officer determines that the 

individual should be informed of 

whether a system of records contains a 

record pertaining to that individual, 

such information shall be promptly 

provided. If the reviewing officer 

determines that the information was 

properly denied, the individual shall be 

so informed in writing with a brief 

statement of the reasons therefor. 

(3) If, upon review of a refusal under 

paragraph (b) or (g) of this section, the 

reviewing officer determines that access 

to a record or to an accounting of 

disclosures should be granted, the 

requester shall be so notified and the 

record or accounting shall be promptly 

made available to the requester. If the 

reviewing officer determines that the 

request for access was properly denied, 

the individual shall be so informed in 

writing with a brief statement of the 

reasons therefor, and of the right to 

judicial review of that determination 

under the provisions of 5 U.S.C. 

552a(g)(1)(B). 

(4) If, upon review of a refusal under 

paragraph (i) of this section, the 

reviewing official grants a request to 

amend, the requester shall be so 

notified, the record shall be amended in 

accordance with the determination, and, 

if any disclosures accountable under the 

provisions of 5 U.S.C. 552a(c) have been 

made, all previous recipients of the 

record which was amended shall be 

advised of the amendment and its 

substance. If the reviewing officer 

determines that the denial of a request 

for amendment should be sustained, the 

Agency shall advise the requester of the 

determination and the reasons therefor, 

and that the individual may file with 

the Agency a concise statement of the 

reason for disagreeing with the 

determination, and may seek judicial 

review of the Agency’s denial of the 

request to amend the record. In the 

event a statement of disagreement is 

filed, that statement—

(i) will be made available to anyone 

to whom the record is subsequently 

disclosed together with, at the 

discretion of the Agency, a brief 

statement summarizing the Agency’s 

reasons for declining to amend the 

record, and 

(ii) will be supplied, together with 

any Agency statements, to any prior 

recipients of the disputed record to the 


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74884 Federal Register / Vol. 71, No. 239 / Wednesday, December 13, 2006 / Proposed Rules 

extent that an accounting of disclosure 

was made. 

(g) To the extent that portions of 

system of records described in notices of 

Governmentwide systems of records 

published by the Office of Personnel 

Management are identified by those 

notices as being subject to the 

management of an officer of this 

Agency, or an officer of this Agency is 

designated as the official to contact for 

information, access, or contents of those 

records, individual requests for access 

to those records, requests for their 

amendment, and review of denials of 

requests for amendment shall be in 

accordance with the provisions of 5 CFR 

part 297, subpart A, § 297.101, et seq., 

as promulgated by the Office of 

Personnel Management. To the extent 

that portions of system of records 

described in notices of Governmentwide 

system of records published by the 

Department of Labor are identified by 

those notices as being subject to the 

management of an officer of this 

Agency, or an officer of this Agency is 

designated as the official to contact for 

information, access, or contents of those 

records, individual requests for access 

to those records, requests for their 

amendment, and review of denials of 

requests for amendment shall be in 

accordance with the provisions of this 

rule. Review of a refusal to inform an 

individual whether such a system of 

records contains a record pertaining to 

that individual and review of a refusal 

to grant an individual’s request for 

access to a record in such a system may 

be obtained in accordance with the 

provisions of paragraph (f) of this 

section. 

(h) Pursuant to 5 U.S.C. 552a(j)(2), the 

system of records maintained by the 

Office of the Inspector General of the 

National Labor Relations Board that 

contains Investigative Files shall be 

exempted from the provisions of 5 

U.S.C. 552a, except subsections (b), 

(c)(1) and (2), (e)(4)(A) through (F), 

(e)(6), (7), (9), (10), and (11), and (i), 

from 29 CFR 102.117(c) and (d), and 

from 29 CFR 102.117a(a), (b), (c), (d), (e), 

and (f), insofar as the system contains 

investigatory material compiled for 

criminal law enforcement purposes. 

(i) Pursuant to 5 U.S.C. 552a(k)(2), the 

system of records maintained by the 

Office of the Inspector General of the 

National Labor Relations Board that 

contains the Investigative Files shall be 

exempted from 5 U.S.C. 552a(c)(3), (d), 

(e)(1), (e)(4)(G), (H), and (I), and (f), from 

29 CFR 102.117 (c) and (d), and from 29 

CFR 102.117a(a), (b), (c), (d), (e), and (f), 

insofar as the system contains 

investigatory material compiled for law 

enforcement purposes not within the 

scope of the exemption at 29 CFR 

102.117a(h). 

(j) Privacy Act exemptions contained 

in paragraphs (h) and (i) of this section 

are justified for the following reasons: 

(1) 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. 

Accounting for each disclosure would 

alert the subjects of an investigation to 

the existence of the investigation and 

the fact that they are subjects of the 

investigation. The release of such 

information to the subjects of an 

investigation would provide them with 

significant information concerning the 

nature of the investigation and could 

seriously impede or compromise the 

investigation, endanger the physical 

safety of confidential sources, witnesses, 

law enforcement personnel, and their 

families and lead to the improper 

influencing of witnesses, the destruction 

of evidence, or the fabrication of 

testimony. 

(2) 5 U.S.C. 552a(c)(4) requires an 

agency to inform any person or other 

agency about any correction or notation 

of dispute made by the agency in 

accordance with subsection (d) of the 

Act. Since this system of records is 

being exempted from subsection (d) of 

the Act, concerning access to records, 

this section is inapplicable to the extent 

that this system of records will be 

exempted from subsection (d) of the 

Act. 

(3) 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. Granting access to records 

in this system of records could inform 

the subject of an investigation of an 

actual or potential criminal violation, of 

the existence of that investigation, of the 

nature and scope of the information and 

evidence obtained as to his/her 

activities, or of the identity of 

confidential sources, witnesses, and law 

enforcement personnel and could 

provide information to enable the 

subject to avoid detection or 

apprehension. Granting access to such 

information could seriously impede or 

compromise an investigation, endanger 

the physical safety of confidential 

sources, witnesses, law enforcement 

personnel, and their families, lead to the 

improper influencing of witnesses, the 

destruction of evidence, or the 

fabrication of testimony, and disclose 

investigative techniques and 

procedures. In addition, granting access 

to such information could disclose 

classified, security-sensitive, or 

confidential business information and 

could constitute an unwarranted 

invasion of the personal privacy of 

others. 

(4) 5 U.S.C. 552a(e)(1) requires each 

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. The application of this 

provision could impair investigations 

and law enforcement because it is not 

always possible to detect the relevance 

or necessity of specific information in 

the early stages of an investigation. 

Relevance and necessity are often 

questions of judgment and timing, and 

it is only after the information is 

evaluated that the relevance and 

necessity of such information can be 

established. In addition, during the 

course of the investigation, the 

investigator may obtain information 

which is incidental to the main purpose 

of the investigative jurisdiction of 

another agency. Such information 

cannot readily be segregated. 

Furthermore, during the course of the 

investigation, the investigator may 

obtain information concerning the 

violation of laws other than those which 

are within the scope of his/her 

jurisdiction. In the interest of effective 

law enforcement, OIG investigators 

should retain this information, since it 

can aid in establishing patterns of 

criminal activity and can provide 

valuable leads for other law 

enforcement agencies. 

(5) 5 U.S.C. 552a(e)(2) requires an 

agency to collect information to the 

greatest extent practicable directly from 

the subject individual when the 

information may result in adverse 

determinations about an individual’s 

rights, benefits, and privileges under 

Federal programs. The application of 

this provision could impair 

investigations and law enforcement by 

alerting the subject of an investigation, 

thereby enabling the subject to avoid 

detection or apprehension, to influence 

witnesses improperly, to destroy 

evidence, or to fabricate testimony. 

Moreover, in certain circumstances the 

subject of an investigation cannot be 

required to provide information to 

investigators and information must be 

collected from other sources. 

Furthermore, it is often necessary to 

collect information from sources other 

than the subject of the investigation to 


jlentini on PROD1PC65 with PROPOSAL
Federal Register / Vol. 71, No. 239 / Wednesday, December 13, 2006 / Proposed Rules 74885 

verify the accuracy of the evidence 

collected. 

(6) 5 U.S.C. 552a(e)(3) requires an 

agency to inform each person whom it 

asks to supply information, on a form 

that can be retained by the person, of 

the authority under which the 

information is sought and whether 

disclosure is mandatory or voluntary; of 

the principal purposes for which the 

information is intended to be used; of 

the routine uses which may be made of 

the information; and of the effects on 

the person, if any, of not providing all 

or any part of the requested information. 

The application of this provision could 

provide the subject of an investigation 

with substantial information about the 

nature of that investigation that could 

interfere with the investigation. 

Moreover, providing such a notice to the 

subject of an investigation could 

seriously impede or compromise an 

undercover investigation by revealing 

its existence and could endanger the 

physical safety of confidential sources, 

witnesses, and investigators by 

revealing their identities. 

(7) 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, OIG has 

published information concerning its 

notification, access, and contest 

procedures because, under certain 

circumstances, OIG could decide it is 

appropriate for an individual to have 

access to all or a portion of his/her 

records in this system of records. 

(8) 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, 

OIG has published such a notice in 

broad generic terms. 

(9) 5 U.S.C. 552a(e)(5) requires an 

agency to maintain its records with such 

accuracy, relevance, timeliness, and 

completeness as is reasonably necessary 

to assure fairness to the individual in 

making any determination about the 

individual. Since the Act defines 

‘‘maintain’’ to include the collection of 

information, complying with this 

provision could prevent the collection 

of any data not shown to be accurate, 

relevant, timely, and complete at the 

moment it is collected. In collecting 

information for criminal law 

enforcement purposes, it is not possible 

to determine in advance what 

information is accurate, relevant, timely, 

and complete. Facts are first gathered 

and then placed into a logical order to 

prove or disprove objectively the 

criminal behavior of an individual. 

Material which seems unrelated, 

irrelevant, or incomplete when collected 

can take on added meaning or 

significance as the investigation 

progresses. The restrictions of this 

provision could interfere with the 

preparation of a complete investigative 

report, thereby impeding effective law 

enforcement. 

(10) 5 U.S.C. 552a(e)(8) requires an 

agency to make reasonable efforts to 

serve notice on an individual when any 

record on such individual is made 

available to any person under 

compulsory legal process when such 

process becomes a matter of public 

record. Complying with this provision 

could prematurely reveal an ongoing 

criminal investigation to the subject of 

the investigation. 

(11) 5 U.S.C. 552a(f)(1) requires an 

agency to promulgate rules which shall 

establish procedures whereby an 

individual can be notified in response to 

his/her request if any system of records 

named by the individual contains a 

record pertaining to him/her. The 

application of this provision could 

impede or compromise an investigation 

or prosecution if the subject of an 

investigation were able to use such rules 

to learn of the existence of an 

investigation before it could be 

completed. In addition, mere notice of 

the fact of an investigation could inform 

the subject and others that their 

activities are under or may become the 

subject of an investigation and could 

enable the subjects to avoid detection or 

apprehension, to influence witnesses 

improperly, to destroy evidence, or to 

fabricate testimony. Since this system 

would be exempt from subsection (d) of 

the Act, concerning access to records, 

the requirements of subsection (f)(2) 

through (5) of the Act, concerning 

agency rules for obtaining access to such 

records, are inapplicable to the extent 

that this system of records will be 

exempted from subsection (d) of the 

Act. Although this system would be 

exempt from the requirements of 

subsection (f) of the Act, OIG 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 his/her 

records in this system of records. 

(12) 5 U.S.C. 552a(g) provides for civil 

remedies if an agency fails to comply 

with the requirements concerning 

access to records under subsections 

(d)(1) and (3) of the Act; maintenance of 

records under subsection (e)(5) of the 

Act; and any other provision of the Act, 

or any rule promulgated thereunder, in 

such a way as to have an adverse effect 

on an individual. Since this system of 

records would be exempt from 

subsections (c)(3) and (4), (d), (e)(1), (2), 

and (3) and (4)(G) through (I), (e)(5), and 

(8), and (f) of the Act, the provisions of 

subsection (g) of the Act would be 

inapplicable to the extent that this 

system of records will be exempted from 

those subsections of the Act. 

(k) Pursuant to 5 U.S.C. 552a(k)(2), the 

system of records maintained by the 

NLRB containing Agency Disciplinary 

Case Files (Nonemployees) 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 

contains investigatory material 

compiled for law enforcement purposes 

other than material within the scope of 

5 U.S.C. 552a(j)(2). 

(l) The Privacy Act exemption set 

forth in paragraph (k) of this section is 

claimed on the ground that the 

requirements of subsections (c)(3), (d), 

(e)(1), (e)(4)(G), (H), and (I), and (f) of 

the Privacy Act, if applied to Agency 

Disciplinary Case Files, would seriously 

impair the ability of the NLRB to 

conduct investigations of alleged or 

suspected violations of the NLRB’s 

misconduct rules, as set forth in 

paragraphs (j) (1), (3), (4), (7), (8), and 

(11) of this section. 

(m) Pursuant to 5 U.S.C. 552a(k)(2), 

the following three proposed systems of 

records shall be exempted in their 

entirety from the provisions of 5 U.S.C. 

552a(c)(3), (d), (e)(1), (e)(4)(G), (e)(4)(H), 

(e)(4)(I), and (f), because the systems 

contain investigatory material compiled 

for law enforcement purposes, other 

than material within the scope of nl;5 

U.S.C. 552a(j)(2): Case Activity Tracking 

System (CATS) and Associated Regional 

Office Files (NLRB–25), Regional 

Advice and Injunction Litigation System 

(RAILS) and Associated Headquarters 

Files (NLRB–28), and Appeals Case 

Tracking System (ACTS) and Associated 


jlentini on PROD1PC65 with PROPOSAL
74886 Federal Register / Vol. 71, No. 239 / Wednesday, December 13, 2006 / Proposed Rules 

Headquarters Files (NLRB–30). Pursuant 

to 5 U.S.C. 552a(k)(2), limited categories 

of information from the following four 

proposed systems of records shall be 

exempted from the provisions of nl;5 

U.S.C. 552a(c)(3), (d), (e)(1), (e)(4)(G), 

(e)(4)(H), (e)(4)(I), and (f), insofar as the 

systems contain investigatory material 

compiled for law enforcement purposes, 

other than material within the scope of 

5 U.S.C. 552a(j)(2): 

(1) the Judicial Case Management 

Systems—Pending Case List (JCMS–

PCL) and Associated Headquarters Files 

(NLRB–21)—information relating to 

requests to file injunctions under 29 

U.S.C. 160(j), requests to initiate federal 

court contempt proceedings, certain 

requests that the Board initiate litigation 

or intervene in non-Agency litigation, 

and any other investigatory material 

compiled for law enforcement purposes; 

(2) the Solicitor’s System (SOL) and 

Associated Headquarters Files (NLRB–

23)—information relating to requests to 

file injunctions under 29 U.S.C. 160(j), 

requests to initiate federal court 

contempt proceedings, certain requests 

that the Board initiate litigation or 

intervene in non-Agency litigation, and 

any other investigatory material 

compiled for law enforcement purposes; 

(3) The Special Litigation Case 

Tracking System (SPLIT) and 

Associated Headquarters Files (NLRB–

27)—information relating to 

investigative subpoena enforcement 

cases, injunction and mandamus actions 

regarding Agency cases under 

investigation, bankruptcy case 

information in matters under 

investigation, Freedom of Information 

Act cases involving investigatory 

records, certain requests that the Board 

initiate litigation or intervene in nonAgency litigation, and any other 

investigatory material compiled for law 

enforcement purposes; and 

(4) The Freedom of Information Act 

Tracking System (FTS) and Associated 

Agency Files (NLRB–32)—information 

requested under the Freedom of 

Information Act, 5 U.S.C. 552, that 

relates to the Agency’s investigation of 

unfair labor practice and representation 

cases or other proceedings described in 

paragraphs (m)(1) through (3) of this 

section. 

(n) The reasons for exemption under 

5 U.S.C. 552a(k)(2) are as follows: 

(1) 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 such 

individual’s request. These accountings 

must state the date, nature, and purpose 

of each disclosure of a record, and the 

name and address of the recipient. 

Providing such an accounting of 

investigatory information to a party in 

an unfair labor practice or 

representation matter under 

investigation could inform that 

individual of the precise scope of an 

Agency investigation, or the existence or 

scope of another law enforcement 

investigation. Accordingly, this Privacy 

Act requirement could seriously impede 

or compromise either the Agency’s 

investigation, or another law 

enforcement investigation, by causing 

the improper influencing of witnesses, 

retaliation against witnesses, 

destruction of evidence, or fabrication of 

testimony. 

(2) 5 U.S.C. 552a(d) requires an 

agency to permit an individual to gain 

access to records pertaining to such 

individual, to request amendment to 

such records, to request review of an 

agency decision not to amend such 

records, and, where the Agency refuses 

to amend records, to submit a statement 

of disagreement to be included with the 

records. Such disclosure of investigatory 

information could seriously impede or 

compromise the Agency’s investigation 

by revealing the identity of confidential 

sources or confidential business 

information, or causing the improper 

influencing of witnesses, retaliation 

against witnesses, destruction of 

evidence, fabrication of testimony, or 

unwarranted invasion of the privacy of 

others. Amendment of the records could 

interfere with ongoing law enforcement 

proceedings and impose an undue 

administrative burden by requiring 

investigations to be continuously 

reinvestigated. 

(3) 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. 

(4) 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 the individual’s request, if the system 

of records contains a record pertaining 

to the individual, for gaining access to 

such a record, and for contesting its 

content. Because certain information 

from these systems of records is exempt 

from subsection (d) of the Act 

concerning access to records, and 

consequently, from subsection (f) of the 

Act concerning Agency rules governing 

access, these requirements are 

inapplicable to that information. 

(5) 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 sources of 

information, to protect against the 

disclosure of investigative techniques 

and procedures, to avoid threats or 

reprisals against informers by subjects of 

investigations, and to protect against 

informers refusing to give full 

information to investigators for fear of 

having their identities as sources 

revealed. 

(6) 5 U.S.C. 552a(f) requires an agency 

to promulgate rules for notifying 

individuals of Privacy Act rights granted 

by subsection (d) of the Act concerning 

access and amendment of records. 

Because certain information from these 

systems is exempt from subsection (d) of 

the Act, the requirements of subsection 

(f) of the Act are inapplicable to that 

information. 

Dated: Washington, DC, November 15, 

2006. 

By direction of the Board. 

Lester A. Heltzer, 

Executive Secretary. 

[FR Doc. 06–9682 Filed 12–12–06; 8:45 am] 

BILLING CODE 7545–01–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 69 

[Docket No. EPA–R02–OAR–2005–VI–0001, 

FRL–8254–6] 

Clean Air Act Section 325 Exemption 

for Virgin Islands Water and Power 

Authority 

AGENCY: Environmental Protection 

Agency. 

ACTION: Proposed Grant of Petition 

under section 325 of the Clean Air Act. 

SUMMARY: The Environmental Protection 

Agency is proposing to grant, with 

conditions, a Petition, from the 

Governor of the Virgin Islands, 

submitted under section 325 of the 

Clean Air Act (CAA). The Petition 

requests that EPA exempt the Virgin 

Islands Water and Power Authority 

(VIWAPA) from its obligation to comply 

with the continuous emission 

monitoring system (CEMS) conditions 

contained in Prevention of Significant 

Deterioration (PSD) permits issued 

pursuant to section 165 of the CAA to 

VIWAPA for nine PSD permitted units 


jlentini on PROD1PC65 with PROPOSAL