[Federal Register Volume 60, Number 239 (Wednesday, December 13, 1995)]
[Rules and Regulations]
[Pages 63897-63901]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-30173]
========================================================================
Rules and Regulations
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains regulatory documents
having general applicability and legal effect, most of which are keyed
to and codified in the Code of Federal Regulations, which is published
under 50 titles pursuant to 44 U.S.C. 1510.
The Code of Federal Regulations is sold by the Superintendent of Documents.
Prices of new books are listed in the first FEDERAL REGISTER issue of each
week.
========================================================================
Federal Register / Vol. 60, No. 239 / Wednesday, December 13, 1995 /
Rules and Regulations
[[Page 63897]]
NUCLEAR REGULATORY COMMISSION
10 CFR Part 9
RIN 3150-AD83
Revision of Specific Exemptions Under the Privacy Act
AGENCY: Nuclear Regulatory Commission.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Nuclear Regulatory Commission (NRC) is amending its
regulations to add exemptions authorized by subsections (j)(2) and
(k)(5) of the Privacy Act of 1974, as amended (Privacy Act), to those
currently in place for System of Records NRC-18, ``Office of the
Inspector General (OIG) Investigative Records--NRC,'' under subsections
(k)(1), (k)(2), and (k)(6). The additional exemptions for NRC-18 are
necessary to maintain the integrity and confidentiality of these
records, to protect the privacy of third parties, and to avoid
interference with law enforcement activities. The final rule also
updates the list of exemptions that apply to specific NRC systems of
records and is necessary to eliminate any confusion regarding the
exemption(s) applicable to each system.
EFFECTIVE DATE: January 12, 1996.
FOR FURTHER INFORMATION CONTACT: Jona L. Souder, Privacy Act Program
Manager, Freedom of Information/Local Public Document Room Branch,
Division of Freedom of Information and Publications Services, Office of
Administration, U.S. Nuclear Regulatory Commission, Washington, DC
20555-0001, Telephone: 301-415-7170.
SUPPLEMENTARY INFORMATION:
Background
On July 26, 1995 (60 FR 38282), the NRC published a proposed rule
in the Federal Register that would amend NRC's Privacy Act regulations
contained in 10 CFR part 9, subpart B. The proposed amendments would
add subsections (j)(2) and (k)(5) exemptions to Privacy Act System of
Records NRC-18, ``Office of the Inspector General (OIG) Investigative
Records--NRC,'' and update the list of exemptions that apply to
specific NRC systems of records. On July 26, 1995 (60 FR 38379), the
NRC published revisions to NRC-18 that would, among other things, add
subsections (j)(2) and (k)(5) exemptions and two new routine uses,
revise existing routine uses, and permit disclosures to consumer
reporting agencies. The public was provided 40 days in which to comment
on the two notices. No comments have been received. In addition, as
required by 5 U.S.C. 552a(r) and Office of Management and Budget (OMB)
Circular No. A-130, a report on the proposed revisions to the system of
records and 10 CFR Part 9 was sent to the Committee on Government
Reform and Oversight, U.S. House of Representatives, the Committee on
Governmental Affairs, U.S. Senate, and OMB.
Under subsection (j)(2) of the Privacy Act, the head of an agency
may issue rules to exempt any system of records within that agency from
certain provisions of the Privacy Act if the system is maintained by an
agency component whose principal function pertains to the enforcement
of criminal laws and if the system of records consists of information
compiled for a criminal law enforcement purpose. NRC-18 is maintained
by the OIG, a component of NRC which performs, as one of its principal
functions, investigations into violations of criminal law in connection
with NRC's programs and operations in accordance with the Inspector
General Act of 1978, as amended, and contains criminal law enforcement
information. Therefore, pursuant to subsection (j)(2), NRC-18 is exempt
from all provisions of the Privacy Act except subsections (b), (c)(1)
and (2), (e)(4)(A) through (F), (e)(6), (e)(7), (e)(9), (e)(10),
(e)(11), and (i).
The disclosure of information contained in NRC-18, including the
names of persons or agencies to whom the information has been
transmitted, would substantially compromise the effectiveness of OIG
investigations. Knowledge of these investigations could enable suspects
to prevent detection of criminal activities, conceal or destroy
evidence, or escape prosecution. Disclosure of this information could
lead to the intimidation of, or harm to, informants and witnesses, and
their families, and could jeopardize the safety and well-being of
investigative and related personnel, and their families. The imposition
of certain restrictions on the way investigative information is
collected, verified, or retained would significantly impede the
effectiveness of OIG investigatory activities and could preclude the
apprehension and successful prosecution of persons engaged in fraud or
criminal activity. The exemption is needed to maintain the integrity
and confidentiality of criminal investigations, to protect individuals
from harm, and for the following specific 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 the 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. Accounting for each disclosure would
alert the subjects of an investigation to the existence of the
investigation and that they are subjects of the investigation. The
release of this 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 outside
parties of correction of and notation of disputes about information in
a system in accordance with subsection (d) of the Privacy Act. Because
this system of records is being exempted from subsection (d) concerning
access to records, this section is inapplicable to the extent that the
system of records will be exempted from subsection (d) of the Privacy
Act.
(3) 5 U.S.C. 552a(d) and (f) require an agency to provide access to
records, make corrections and amendments to
[[Page 63898]]
records, and notify individuals of the existence of records upon their
request. Providing individuals with access to records of an
investigation, the right to contest the contents of those records, and
the opportunity to force changes to be made to the information in those
records would seriously interfere with and thwart the orderly and
unbiased conduct of the investigation and impede case preparation.
Permitting the access normally afforded under the Privacy Act would
provide the subject with valuable information that would allow
interference with or compromise of witnesses or render witnesses
reluctant to cooperate with investigators; lead to suppression,
alteration, fabrication, or destruction of evidence; endanger the
physical safety of confidential sources, witnesses, law enforcement
personnel, and their families; and result in the secreting of or other
disposition of assets that would make them difficult or impossible to
reach to satisfy any Government claims growing out of the
investigation.
(4) 5 U.S.C. 552a(e)(1) requires an agency to maintain in agency
records only ``relevant and necessary'' information about an
individual. This provision is inappropriate for investigations because
it is not always possible to detect the relevance or necessity of each
piece of information in the early stages of an investigation. In some
cases, it is only after the information is evaluated in light of other
evidence that its relevance and necessity will be clear. In other
cases, what may appear to be a relevant and necessary piece of
information may become irrelevant in light of further investigation.
In addition, during the course of an investigation, the
investigator may obtain information that relates primarily to matters
under the investigative jurisdiction of another agency, and that
information may not be reasonably segregated. In the interest of
effective law enforcement, OIG investigators should retain this
information because it can aid in establishing patterns of criminal
activity and can provide valuable leads for Federal and 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 general rule that information be collected ``to the
greatest extent practicable'' from the target individual is not
appropriate in investigations. OIG investigators should be authorized
to use their professional judgment as to the appropriate sources and
timing of an investigation. It is often necessary to conduct an
investigation so the target does not suspect that he or she is being
investigated. The requirement to obtain the information from the
targeted individual may put the suspect on notice of the investigation
and thwart the investigation by enabling the suspect to destroy
evidence and take other action that would impede the investigation.
This requirement may also prevent an OIG investigator from gathering
information and evidence before interviewing an investigative target to
maximize the value of the interview by confronting the target with the
evidence or information. In certain circumstances, the subject of an
investigation cannot be required to provide information to
investigators and information must be collected from other sources. It
is often necessary to collect information from sources other than the
subject of the investigation to verify the accuracy of the evidence
collected.
In addition, the statutory term ``to the greatest extent
practicable'' is a subjective standard. It is impossible to define the
term adequately so that individual OIG investigators can consistently
apply it to the many fact patterns present in OIG investigations.
(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
that may be made of the information, and of the effects on the person,
if any, of not providing all or some 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, investigators, and their families, 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 or her request, if the system of records contains a
record pertaining to him or her, how to gain access to such a record,
and how to contest its content. Because this system of records is being
exempted from subsections (d) and (f) of the Privacy Act concerning
access to records and agency rules, respectively, these requirements
are inapplicable to the extent that the system of records will be
exempted from these requirements. However, OIG has published some
information concerning its notification, access, and contest
procedures. Under certain circumstances, OIG could decide it is
appropriate for an individual to have access to all or a portion of his
or her records in the system.
(8) 5 U.S.C. 552a(e)(4)(I) requires an agency to publish notice of
the categories of sources of records in the system of records. To the
extent that this provision is construed to require more detailed
disclosure than the broad, generic information currently published in
the system notice, an exemption from this provision is necessary to
protect the confidentiality of sources of information, to protect
privacy and physical safety of witnesses and informants, and to avoid
the disclosure of investigative techniques and procedures. OIG will
continue to publish such a notice in broad generic terms as is its
current practice.
(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 ensure fairness to the individual in making any
determination about the individual. Much the same rationale is
applicable to this exemption as that set out previously in item (4)
(duty to maintain in agency records only ``relevant and necessary''
information about an individual). Although the OIG makes every effort
to maintain records that are accurate, relevant, timely, and complete,
it is not always possible in an investigation to determine with
certainty that all of the information collected is accurate, relevant,
timely, and complete. During a thorough investigation, a trained
investigator would be expected to collect allegations, conflicting
information, and information that may not be based upon the personal
knowledge of the provider. When OIG decides to refer the matter to a
prosecutive agency, for example, that information would be in the
system of records and it may not be possible to determine the accuracy,
relevance, and completeness of some information until further
investigation is conducted, or indeed in many cases until after a trial
(if at all). This requirement would inhibit the ability of trained
investigators to exercise professional judgment in conducting a
thorough investigation. Moreover, fairness to
[[Page 63899]]
affected individuals is ensured by the due process they are accorded in
any trial or other proceeding resulting from the OIG investigations.
(10) 5 U.S.C. 552a(e)(8) requires that an agency make reasonable
efforts to serve notice on an individual when any record on the
individual is made available to any person under compulsory legal
process when such process becomes a matter of public record. Exemption
from this requirement is needed to avoid revealing investigative
techniques and procedures outlined in those records and to avoid
prematurely revealing an ongoing criminal investigation to the subject
of the investigation.
(11) 5 U.S.C. 552a(g) provides for civil remedies if any agency
fails to comply with the requirements concerning access to records
under subsections (d)(1) and (3) of the Privacy Act, maintenance of
records under subsection (e)(5) of the Privacy Act, and any other
provision of the Privacy Act, or any rule issued thereunder, in such a
way as to have an adverse effect on an individual. Allowing civil
lawsuits for alleged Privacy Act violations by OIG investigators would
compromise OIG investigations by subjecting the sensitive and
confidential information in the OIG system of records to the
possibility of inappropriate disclosure under the liberal civil
discovery rules. That discovery may reveal confidential sources, the
identity of informants, and investigative procedures and techniques, to
the detriment of the particular criminal investigation as well as other
investigations conducted by OIG.
The pendency of such a suit would have a chilling effect on
investigations, given the possibility of discovery of the contents of
the investigative case file. A Privacy Act lawsuit could become a
strategic weapon used to impede OIG investigations. Because the system
would be exempt from many of the Privacy Act's requirements, it is
unnecessary and contradictory to provide for civil remedies from
violations of those specific provisions.
Under subsection (k)(5) of the Privacy Act, the head of an agency
may, by rule, exempt any system of records within the agency from
certain provisions of the Privacy Act if the system of records contains
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. However, these records would be exempt only to
the extent that the disclosure of this 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 the effective date of this section, under an
implied promise that the identity of the source would be held in
confidence.
NRC-18 contains information of the type described above. Therefore,
in accordance with subsection (k)(5), NRC-18 is exempt from subsections
(c)(3), (d), (e)(1), (e)(4)(G), (H), and (I), and (f) of the Privacy
Act to honor promises of confidentiality should the data subject
request access to or amendment of the records, or access to the
accounting of disclosure of the records for the following reasons:
(1) 5 U.S.C. 552a(c)(3) requires an agency to grant access to the
accounting of disclosures including the date, nature, and purpose of
each disclosure, and the identity of the recipient. The release of this
information to the record subject could alert them to the existence of
the investigation or prosecutive interest by NRC or other agencies.
This could seriously compromise case preparation by prematurely
revealing the existence and nature of the investigation; compromise or
interfere with witnesses, or make witnesses reluctant to cooperate; and
could lead to suppression, alteration, or destruction of evidence.
(2) 5 U.S.C. 552a(d) and (f) require an agency to provide access to
records, make corrections and amendments to records, and notify
individuals of the existence of records upon their request. Providing
individuals with access to records of an investigation, the right to
contest the contents of those records, and the opportunity to force
changes to be made to the information in the records would seriously
interfere with and thwart the orderly and unbiased conduct of the
investigation and impede case preparation. Providing access rights
normally afforded under the Privacy Act would provide the subject with
valuable information that would allow interference with or compromise
of witnesses or render witnesses reluctant to cooperate; lead to
suppression, alteration, or destruction of evidence; and result in the
secreting of or other disposition of assets that would make them
difficult or impossible to reach to satisfy any Government claims
growing out of the investigation or proceeding.
(3) 5 U.S.C. 552a(e)(1) requires agencies to maintain only
``relevant and necessary'' information about an individual in agency
records. This provision is inappropriate for investigations because it
is not always possible to detect the relevance or necessity of each
piece of information in the early stages of an investigation. In some
cases, it is only after the information is evaluated in light of other
evidence that its relevance and necessity will be clear.
(4) Because NRC-18 is being exempted from the underlying duties to
provide notification about and access to information in the system and
to make amendments to and corrections of the information under
subsections (d) and (f) of the Privacy Act, the requirements of 5
U.S.C. 552a(e)(4) (G) and (H) are inapplicable.
(5) 5 U.S.C. 552a(e)(4)(I) requires an agency to publish notice of
the categories of sources of records in the system of records. To the
extent that this provision is construed to require more detailed
disclosure than the broad, generic information currently published in
the system notice, an exemption from this provision is necessary to
protect the confidentiality of sources of information and to protect
the privacy and physical safety of witnesses and informants. However,
the OIG will continue to publish such a notice in broad generic terms
as is its current practice.
In addition, 10 CFR 9.95 is being amended to update the list of
exemptions that apply to specific systems of records. The list includes
NRC-23, ``Office of Investigations Indices, Files, and Associated
Records--NRC,'' and NRC-35, ``Drug Testing Program Records--NRC,'' for
which corresponding Part 9 amendments were not previously prepared when
each new system was established. NRC-40 has been deleted from this list
because a review of the system revealed that the subsections (k)(5) and
(k)(6) exemptions of the Privacy Act were no longer needed. This
amendment will eliminate any confusion regarding the specific
exemption(s) applicable to each system of records.
Environmental Impact--Categorical Exclusion
The NRC has determined that this rule is the type of action
described in categorical exclusion 10 CFR 51.22(c)(1). Therefore,
neither an environmental impact statement nor an environmental
assessment has been prepared for this final rule.
Paperwork Reduction Act Statement
This final rule does not contain a new or amended information
collection requirement subject to the Paperwork Reduction Act of 1995
(44 U.S.C. 3501 et seq.). Existing requirements were approved by the
Office of Management and Budget, approval number 3150-0043.
[[Page 63900]]
Regulatory Analysis
This final rule adds exemption (j)(2) of the Privacy Act to the NRC
regulations that describe exempt systems of records. This is an
administrative regulatory action that would make NRC's regulations
consistent with the regulations applicable to the majority of
statutorily appointed Inspectors General. The rule also adds the (j)(2)
and (k)(5) exemptions to the system of records maintained by OIG and
clearly links each NRC system of records to the specific exemption(s)
of the Privacy Act under which the system is exempt. The rule does not
have an economic impact on any class of licensee or the NRC. By more
clearly indicating the exemptions under which a system is exempt and by
conforming NRC's regulations to those of the majority of statutorily
appointed Inspectors General, the rule may provide some benefit to
those who may be required to use these regulations.
The alternative to the rule would be to refrain from adopting the
identified exemptions. As discussed in this document, failure to adopt
the rule could have detrimental effects on the OIG's investigative
program and its ability to obtain and protect information.
This constitutes the regulatory analysis for this final rule.
Regulatory Flexibility Certification
As required by the Regulatory Flexibility Act (5 U.S.C. 605(b)),
the Commission certifies that this final rule does not have a
significant economic impact on a substantial number of small entities.
The amendments to 10 CFR part 9 are procedural in nature and will aid
an NRC office to perform its criminal law enforcement functions. In
addition, the amendments will eliminate any confusion regarding
specific exemptions available to each affected Privacy Act system of
records notice.
Backfit Analysis
The NRC has determined that the backfit rule 10 CFR 50.109 does not
apply to this final rule and, therefore, a backfit analysis is not
required because these amendments do not involve any provisions that
would impose backfits as defined in 10 CFR 50.109(a)(1).
List of Subjects in 10 CFR Part 9
Criminal penalties, Freedom of information, Privacy, Reporting and
recordkeeping requirements, Sunshine Act.
For the reasons set out in the preamble and under the authority of
the Atomic Energy Act of 1954, as amended; the Energy Reorganization
Act of 1974, as amended; and 5 U.S.C. 552 and 553, the NRC is adopting
the following amendments to 10 CFR part 9.
PART 9--PUBLIC RECORDS
1. The authority citation for part 9 continues to read as follows:
Authority: Sec. 161, 68 Stat. 948, as amended (42 U.S.C. 2201);
sec. 201, 88 Stat. 1242, as amended (42 U.S.C. 5841).
Subpart A also issued under 5 U.S.C. 552; 31 U.S.C. 9701; Pub.
L. 99-570. Subpart B also issued under 5 U.S.C. 552a. Subpart C also
issued under 5 U.S.C. 552b.
2. In Sec. 9.52, paragraph (b)(4) is revised to read as follows:
Sec. 9.52 Types of requests.
* * * * *
(b) Requests for accounting of disclosures. * * * (4) Disclosures
expressly exempted by NRC regulations from the requirements of 5 U.S.C.
552a(c)(3) pursuant to 5 U.S.C. 552a(j)(2) and (k).
3. In Sec. 9.61, current paragraph (b) is redesignated as paragraph
(c), and a new paragraph (b) is added to read as follows:
Sec. 9.61 Procedures for processing requests for records exempt in
whole or in part.
* * * * *
(b) General exemptions. Generally, 5 U.S.C. 552a(j)(2) allows the
exemption of any system of records within the NRC from any part of
section 552a except subsections (b), (c)(1) and (2), (e)(4)(A) through
(F), (e)(6), (7), (9), (10), and (11), and (i) of the act if the system
of records is maintained by an NRC component that performs as one of
its principal functions any activity pertaining to the enforcement of
criminal laws, including police efforts to prevent, control, or reduce
crimes, or to apprehend criminals, and consists of--
(1) Information compiled for the purpose of identifying individual
criminal offenders and alleged offenders and consisting only of
identifying data and notations of arrests, the nature and disposition
of criminal charges, sentencing, confinement, release and parole, and
probation status;
(2) Information compiled for the purpose of a criminal
investigation, including reports of informants and investigators, and
associated with an identifiable individual; or
(3) Reports identifiable to an individual compiled at any stage of
the process of enforcement of the criminal laws from arrest or
indictment through release from supervision.
* * * * *
4. In Sec. 9.80, paragraphs (a)(6), (10), and (11) are revised and
a new paragraph (a)(12) is added to read as follows:
Sec. 9.80 Disclosure of record to persons other than the individual to
whom it pertains.
(a) * * *
(6) To the National Archives and Records Administration as a record
that has sufficient historical or other value to warrant its continued
preservation by the United States Government, or to the Archivist of
the United States or designee for evaluation to determine whether the
record has such value;
* * * * *
(10) To the Comptroller General, or any authorized representatives,
in the course of the performance of the duties of the General
Accounting Office;
(11) Pursuant to the order of a court of competent jurisdiction; or
(12) To a consumer reporting agency in accordance with 31 U.S.C.
3711(f).
5. Section 9.95 is revised to read as follows:
Sec. 9.95 Specific exemptions.
The following records contained in the designated NRC Systems of
Records (NRC-5, NRC-9, NRC-11, NRC-18, NRC-22, NRC-23, NRC-28, NRC-29,
NRC-31, NRC-33, NRC-35, NRC-37, and NRC-39) are exempt from 5 U.S.C.
552a(c)(3), (d), (e)(1), (e)(4)(G), (H), and (I), and (f) in accordance
with 5 U.S.C. 552a(k). In addition, the records contained in NRC-18 are
exempt from the provisions of 5 U.S.C. 552a and the regulations in this
part, under 5 U.S.C. 552a(j)(2), except subsections (b), (c)(1) and
(2), (e)(4)(A) through (F), (e)(6), (7), (9), (10), and (11), and (i).
Each of these systems of records is subject to the provisions of
Sec. 9.61:
(a) Contracts Records Files, NRC-5 (Exemptions (k)(1) and (k)(5));
(b) Equal Employment Opportunity Discrimination Complaint Files,
NRC-9 (Exemption (k)(5));
(c) General Personnel Records (Official Personnel Folder and
Related Records), NRC-11 (Exemptions (k)(5) and (k)(6));
(d) Office of the Inspector General (OIG) Investigative Records,
NRC-18 (Exemptions (j)(2), (k)(1), (k)(2), (k)(5), and (k)(6));
(e) Personnel Performance Appraisals, NRC-22 (Exemptions (k)(1) and
(k)(5));
(f) Office of Investigations Indices, Files, and Associated
Records, NRC- 23 (Exemptions (k)(1), (k)(2), and (k)(6));
(g) Recruiting, Examining, and Placement Records, NRC-28 (Exemption
(k)(5));
(h) Nuclear Documents System (NUDOCS), NRC-29 (Exemption (k)(1));
[[Page 63901]]
(i) Correspondence and Records, Office of the Secretary, NRC-31
(Exemption (k)(1));
(j) Special Inquiry File, NRC-33 (Exemptions (k)(1), (k)(2), and
(k)(5));
(k) Drug Testing Program Records, NRC-35 (Exemption (k)(5));
(l) Information Security Files and Associated Records, NRC-37
(Exemptions (k)(1) and (k)(5)); and
(m) Personnel Security Files and Associated Records, NRC-39
(Exemptions (k)(1), (k)(2), and (k)(5)).
Dated at Rockville, MD., this 1st day of December, 1995.
For the Nuclear Regulatory Commission.
James M. Taylor,
Executive Director for Operations.
[FR Doc. 95-30173 Filed 12-12-95; 8:45 am]
BILLING CODE 7590-01-P
