[Federal Register Volume 61, Number 101 (Thursday, May 23, 1996)]
[Notices]
[Pages 25924-25928]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-12952]
-----------------------------------------------------------------------
NUCLEAR REGULATORY COMMISSION
Protecting the Identity of Allegers and Confidential Sources;
Policy Statement
AGENCY: Nuclear Regulatory Commission.
ACTION: Final policy statement.
-----------------------------------------------------------------------
SUMMARY: This revision is an update of the Commission's policy for
protecting the identity of an individual who has been granted
confidentiality. This revision reflects the changes in the organization
of the NRC and the agency's practices concerning confidentiality,
including informing individuals of the availability of confidentiality,
circumstances under which confidentiality will be granted, and
circumstances under which the identity of confidential sources will be
revealed. The revision also describes the measures taken by the NRC to
protect the identity of all individuals who bring safety concerns to
the agency, regardless of whether the individual is granted
confidentiality. This statement of policy is not a major rule as
defined in Section 804 of the Small Business Regulatory Enforcement
Fairness Act of 1996.
EFFECTIVE DATE: May 23, 1996.
FOR FURTHER INFORMATION CONTACT: Edward T. Baker, Agency Allegation
Advisor, Office of Nuclear Reactor Regulation, U.S. Nuclear Regulatory
Commission, Washington, DC. 20555-0001; telephone: (301) 415-8529.
SUPPLEMENTARY INFORMATION:
Background
On November 25, 1985 (50 FR 48506), the Nuclear Regulatory
Commission (NRC or Commission) issued a Statement of Policy to provide
a clear, agency-wide policy on the granting of confidentiality to
persons who provide information to the NRC concerning licensee
activities. The Commission is revising the policy statement to reflect
changes in the NRC organization and criteria for disclosing the
identity of confidential sources. The policy statement also describes
the measures taken to protect the identity of any individual who brings
safety concerns to the NRC and the circumstances under which the
individual's identity may be disclosed. The Commission's inspection and
investigatory programs rely in part
[[Page 25925]]
on people voluntarily coming forward with information. Some individuals
will come forward only if they are confident that their identities will
be protected from public disclosure. Therefore, safeguarding the
identities of these individuals is a significant factor in ensuring the
future voluntary flow of this information. The Commission will make all
reasonable efforts to protect the identity of anyone who brings safety
concerns to the NRC. This policy statement applies to all NRC offices
except the Office of the Inspector General (OIG).
The Commission's policy statement on confidentiality has not been
revised since 1985. Since then, changes in the NRC's organizational
structure and agency practice concerning confidentiality and protecting
the identity of allegers and confidential sources have occurred that
are not reflected in the existing policy statement. Additionally, the
review team for reassessing the NRC program for protecting allegers
recommended in NUREG-1499, ``Reassessment of the NRC's Program for
Protecting Allegers Against Retaliation,'' that the policy statement be
revised.
The existing policy statement specifically discusses the role of
the Office of Inspector and Auditor, which was abolished following
creation of the OIG in 1989. The OIG has established its own procedures
on confidentiality in accordance with the Inspector General Act of
1978. The agency's practice concerning protecting the identity of
allegers, informing them of the availability of confidentiality, and
disclosing the identity of confidential sources has changed in the
intervening period. In order to reflect those changes and the NRC
staff's experience in dealing with confidentiality, the existing policy
statement is being revised in the following respects:
(1) On March 22, 1995, the Commission approved the disclosure of
the identity of a confidential source based on the existence of an
overriding safety concern. The existing policy statement does not speak
to disclosure in this circumstance.
(2) The existing policy statement restricts NRC employees from
initiating a discussion of confidentiality except in the following
circumstances:
(a) It is apparent that an individual is not providing information
because of fear that his/her identity may be disclosed; or
(b) It is apparent from the surrounding circumstances that the
individual wishes his/her identity to remain confidential.
On August 22, 1994, after notifying the Commission, the Office of
the Executive Director for Operations (EDO) issued guidance to the NRC
staff that an alleger who has not requested to be a confidential source
be clearly informed that he or she is not considered a confidential
source. If the allegation is received during a phone call, the NRC
staff is required to tell the alleger of this position during the
initial call. This position is also stated in the letter sent to an
alleger acknowledging receipt of the allegation and documenting the NRC
staff's understanding of the alleger's concerns. The NRC staff has
adopted this position to avoid misperceptions by allegers as to whether
they are considered confidential sources.
(3) The existing policy statement does not specifically address the
problem of investigating discrimination when confidentiality has been
granted to the individual who alleges that he or she was the victim of
discrimination.1 In practice, individuals who allege that they are
victims of discrimination and who request confidentiality are informed
of the difficulty of performing an investigation of this type of
concern without revealing the name of the subject of the
discrimination. These individuals are told the NRC will not normally
investigate the discrimination aspects of their allegation if
confidentiality is granted.
---------------------------------------------------------------------------
\1\ In this policy statement, the term ``discrimination''
includes allegations of harassment and intimidation.
---------------------------------------------------------------------------
(4) In addition, a change to the disclosure criteria allows the
Office of Investigations (OI) to disclose the identity of a
confidential source, on a need-to-know basis, to either the U.S.
Department of Justice (DOJ) or to another law enforcement agency. This
disclosure would occur without seeking prior Commission approval or
notifying the confidential source. Under the existing policy statement,
the NRC is required to contact the confidential source before releasing
his or her identity. If the confidential source agrees to the release,
the EDO or the Director, OI, is authorized to release the identity. If
the confidential source objects to the release or cannot be reached,
the agency may not release the identity without specific Commission
approval.
It is common practice in the law enforcement community for
investigative agencies and prosecutors' offices to share the identity
of confidential sources if there is a legitimate need-to-know.
Traditionally, in the interest of preserving the integrity of any
ongoing investigation or prosecution, the sources are not informed that
their identities have been shared. Additionally, DOJ and other law
enforcement agencies appreciate the sensitivity with which they need to
treat the identity of confidential sources. The ability to share the
identity of confidential sources in this manner will enhance the sense
of partnership in pursuing wrongdoing investigations.
(5) A provision has been added to allow the NRC official who
granted the confidentiality to withdraw it without further approval,
provided the confidential source has made such a request in writing and
the NRC official has confirmed that the requesting individual is the
same person that was granted confidentiality.
In addition to these changes to the Commission's policy on
confidentiality, this revision describes the basic protection afforded
individuals who bring safety concerns to the NRC but have not been
formally granted confidentiality, that is, allegers.
The primary differences between the protection afforded
confidential sources and allegers are:
An NRC office director or regional administrator may
approve the disclosure of the identity of an alleger, while the
approval of the Commission, the EDO, or the Director of the Office of
Investigations (OI) is necessary for disclosure of the identity of a
confidential source;
There is a formal, signed agreement between a confidential
source and the NRC that sets forth the protection afforded and the
circumstances in which a confidential source's identity may be
revealed; and
OI may disclose the identity of an alleger outside the
agency during the pursuit of a wrongdoing investigation at their
discretion without the knowledge or consent of the alleger. For
confidential sources, OI may only disclose the identity to DOJ or
another law enforcement agency without the confidential source's
knowledge or consent.
This revised final policy statement provides a comprehensive
statement of the Commission's position and reflects agency practice
concerning confidentiality and the addition of the protection afforded
all individuals who bring safety concerns to the NRC.
Small Business Regulatory Enforcement Fairness Act
The NRC has consulted with the Office of Management and Budget and
concluded that this policy statement is not a major rule as defined in
5 U.S.C. 804(2).
[[Page 25926]]
Statement of Policy
The Commission's investigative and inspection programs rely in part
on individuals coming forward with information about safety concerns or
perceived wrongdoing. All individuals should feel free to communicate
to the NRC any safety or wrongdoing concerns.2 It is NRC's
responsibility to communicate fully with individuals raising the
concerns, to provide the status and details of NRC review of the
concerns, to address the concerns and respond to the individual in a
timely manner, and to protect the identity of the individual to the
greatest degree possible. The NRC recognizes that routine public
release of the identities of those who come forward with this
information could lead to reprisals against those individuals.
Reprisals may involve not only physical harm to the individual, but may
take other forms such as employment-related discrimination, including
blacklisting, economic duress, or ostracism. Obviously, these actions
would deter others from coming forward with information and could
jeopardize the effectiveness of the NRC's oversight activities. Both
Congress and the Commission have recognized this concern. Section 211
of the Energy Reorganization Act of 1974, as amended (42 U.S.C. 5851)
and the Commission's related employee protection regulations are
designed to protect those who assist the NRC in carrying out its safety
responsibilities from discrimination by their employers. In addition,
the Commission has developed procedures for protecting the identity of
individuals who bring safety concerns to the NRC (allegers), and for
protecting the identity of individuals who have been granted
confidentiality (confidential sources).
---------------------------------------------------------------------------
\2\ The Commission expects licensees and contractors to create
and maintain an environment conducive to employees raising safety
concerns. See ``Statement of Policy on Freedom of Employees in the
Nuclear Industry to Raise Safety and Compliance Concerns Without
Fear of Retaliation.'' (61 FR 24366; May 14, 1996)
---------------------------------------------------------------------------
Identity Protection for Allegers
In resolving allegers' concerns, the NRC intends to make all
reasonable efforts not to disclose the identity of an alleger outside
the agency. NRC staff personnel who receive an allegation are required
to forward all information to an NRC allegation coordinator. The
allegation coordinator provides the identity of an alleger only to NRC
staff who have a need to know an alleger's identity, e.g., an inspector
or investigator assigned to interview an alleger. In addition,
documents containing the identity of allegers are stored in locked
cabinets with controlled access and are not placed in the NRC's public
document rooms.
However, the NRC may reveal the identity of an alleger outside the
agency under the following circumstances:
The alleger clearly states that he or she has no objection
to being identified;
The NRC determines that disclosure of the alleger's
identity is necessary to protect the public because of an overriding
safety issue identified based on the alleger's concerns;
Disclosure of the alleger's identity is necessary to
respond to a request from Congress or State or Federal agencies in the
furtherance of NRC responsibilities under law or public trust;
Disclosure is necessary pursuant to a court order or an
NRC adjudicatory board order;
The alleger takes an action that is inconsistent with and
overrides the purpose of protecting his or her identity;
Disclosure is necessary to pursue a wrongdoing
investigation; or
Disclosure is necessary to support a hearing on an
enforcement action.
In addition, if the NRC is investigating an allegation that the
alleger was a victim of discrimination because he or she raised a
safety concern, it would be extremely difficult to investigate such an
allegation without naming the individual who was the subject of
discrimination. NRC Management Directive 8.8, ``Management of
Allegations,'' contains additional information concerning protecting
the identity of allegers and the circumstances when the identity may be
disclosed.
Confidentiality
The protective measures and disclosure circumstances described
above apply to all allegers. If the individual is granted
confidentiality, as described below, the individual is considered a
confidential source. The Commission's regulations in 10 CFR 2.790(a)(7)
authorize withholding the identities of confidential sources from
public release. Further, 10 CFR 21.2(d) provides that, ``as authorized
by law'', the identity of individuals ``not subject to the regulations
in this part'' who report certain nuclear safety-related problems
``will be withheld from disclosure.'' Additionally, under 10 CFR
19.16(a) if a worker requesting an inspection requests that his or her
name not be included in the copy of the request given to the licensee,
the name of the worker and the name of individuals referred to in the
request must be withheld. The following discussion explains the
Commission's general policy regarding confidentiality.
1. Circumstances Under Which Confidentiality May Be Granted
Although the Commission recognizes the importance of
confidentiality, it does not believe that confidentiality should be
granted to all individuals who provide information to the NRC or that
confidentiality it should be granted routinely, particularly in light
of the protection afforded all allegers. The Commission believes that
confidentiality should be granted only when necessary to acquire
information related to the Commission's responsibilities or when
warranted by special circumstances. For instance, confidentiality
should ordinarily not be granted when the individual is willing to
provide the information without being given confidentiality.
If it becomes apparent that an individual is not providing
information because of a fear that his or her identity will be
disclosed, an authorized NRC employee may suggest a grant of
confidentiality. Similarly, an authorized NRC employee may suggest
confidentiality in the absence of a request when it is apparent from
the surrounding circumstances that the individual wishes his or her
identity to remain confidential. This could be the case if an
individual sets up an interview in a secretive manner.
The Commission recognizes that some individuals who desire
confidentiality may not request it because of an erroneous belief that
the identities of everyone providing information to the NRC are kept in
confidence. Some individuals may not provide information because they
do not know that confidentiality is available. Therefore, the
Commission has decided to adopt a policy that requires an individual to
explicitly request confidentiality. In the initial contact with the
NRC, the extent to which the NRC can protect an alleger's identity will
be explained. If the individual does not request confidentiality, the
individual will be informed that he or she is not considered a
confidential source. If the individual asks about confidentiality, the
differences between identity protection for allegers and confidential
sources will be explained. If the individual then requests
confidentiality, the NRC staff will evaluate the request and inform the
individual if confidentiality was granted.
2. The Manner and Form in Which Confidentiality Should Be Granted and
Disseminated Within the NRC
The Commission has delegated authority to the Executive Director
for
[[Page 25927]]
Operations (EDO) and the Director, Office of Investigations (OI), to
designate those persons within their organizations who will be
authorized to grant confidentiality. Confidentiality will be granted
only when an NRC employee authorized to grant confidentiality and the
individual requesting confidentiality sign a standard NRC
Confidentiality Agreement, unless it is impossible to sign the
agreement at the time the information is obtained. The agreement will
explain the conditions to which the NRC will adhere when it grants
confidentiality, as set forth in this policy statement. When it is
impossible to sign a Confidentiality Agreement at the time the
information is obtained, such as when the information is obtained over
the telephone, confidentiality may be given verbally pending the
signing of the Confidentiality Agreement, which must be done within a
reasonable time. If confidentiality is granted verbally, it must be
fully documented. If the Confidentiality Agreement is not signed within
a reasonable time, the EDO or Director, OI, as appropriate, will
determine if confidentiality should be continued.
After confidentiality is granted, the individual's name should be
divulged to NRC employees only on a need-to-know basis. Each NRC
employee with access to a confidential source's identity should take
all necessary steps to ensure that the identity remains confidential.
The EDO and the Director, OI, will ensure that consistent procedures
are developed throughout the agency for implementing this requirement
that should prevent inadvertent or unauthorized disclosures.
3. Circumstances Under Which Identity of a Confidential Source Will Be
Divulged
The Commission stresses the importance of protecting the identity
of a confidential source. However, there are six circumstances under
which the identity of a confidential source may be released outside the
NRC by the Commission or by certain NRC staff officials as described
below. The Commission emphasizes that in each of these cases it will
attempt to limit disclosure to the minimum necessary and that it
expects disclosure to occur only rarely.
(1) The first category involves disclosure to a licensee because of
an overriding safety issue. There are conceivable circumstances when
public health and safety require the NRC to divulge the identity of a
confidential source to allow a licensee to correct an immediate safety
concern. If this situation occurs, which we expect to be infrequent,
the NRC will try to limit the disclosure to the licensee's senior
management.
In most circumstances, the agency will be able to give a licensee
sufficient information to correct an immediate safety issue without
divulging the name of a confidential source. However, the Commission
believes individuals should be aware their identity could be divulged
if this situation occurs.
(2) The second category involves disclosure pursuant to a court
order. It is conceivable that a licensee or other entity could obtain a
court order requiring the NRC to divulge the identity of a confidential
source. If that happens, the NRC will seek to keep the disclosure
limited to the minimum necessary through protective orders or other
means.
(3) The third category of circumstances when a confidential
source's identity might be disclosed outside the NRC involves
disclosure during an NRC adjudicatory proceeding. The Commission, in a
separate Statement of Policy on Investigations, Inspections, and
Adjudicatory Proceedings published on September 13, 1984 (49 Fed. Reg.
36032), has provided that any licensing board decision to order
disclosure of the identity of a confidential source shall automatically
be certified to the Commission for review. Therefore, the only
adjudicatory board within the NRC with the actual authority to require
that the identity of a confidential source be revealed is the
Commission. The Commission will follow current judicial standards in
determining whether to disclose the identity of a confidential source.
(4) The fourth circumstance when the identity of a confidential
source might be released is in response to a request by Congress.
Section 303 of the Atomic Energy Act of 1954, as amended, requires the
NRC to keep congressional committees with jurisdiction over the NRC
``fully and currently informed with respect to the activities* * * of
the Commission.'' That section also requires ``[a]ny Government agency
[to] furnish any information requested by [congressional] committees
with appropriate jurisdiction.'' The Commission may have to release the
identity of a confidential source in response to a congressional
request. Although any such request will be handled on an individual
case-by-case basis, the Commission will disclose the identity of a
confidential source only if the request is in writing. The Commission
will make its best efforts to have any such disclosure limited to the
extent possible.
(5) The fifth circumstance when the identity of a confidential
source may be revealed is in response to a request from a Federal or
State agency. The Commission recognizes its responsibility to assist
other agencies in their functions. However, the Commission also
recognizes that providing the identities of confidential sources to
other agencies could adversely affect the flow of information to the
Commission. The Commission has decided to balance these two
considerations as follows. If the requesting agency demonstrates that
it requires the identity in furtherance of its statutory
responsibilities and agrees to provide the same protection to the
source's identity that the NRC promised when it granted
confidentiality, the NRC will make a reasonable effort to contact the
source to determine if he or she objects to the release. If the source
can be reached and does not object, the EDO or his designee, or the
Director, OI, are authorized to provide that identity to the requesting
agency.
If the source either objects to the release of his or her identity,
or cannot be reached, the EDO or his designee, or the Director, OI, may
not release the source's identity, except as noted in (6) below, but
shall advise the requesting agency of the situation. The requesting
agency may then ask the Commission to release the identity. Although
ordinarily the source's identity will not be provided to another agency
over the source's objection or without contacting the individual, in
extraordinary circumstances when furtherance of the public interest
requires release, the Commission may release the identity of a
confidential source to another agency despite the objections of that
source or without being able to contact the person. However, even in
those cases the requesting agency must agree to provide the same
protection to the source's identity that was promised by the NRC.
(6) As an exception to (5) above, when OI and the U.S. Department
of Justice (DOJ) are pursuing the same matter or when OI is working
with another law enforcement agency, the EDO or the Director, OI may
reveal the identity of a confidential source to DOJ or the other law
enforcement agency, as needed, without notifying the individual or
consulting with the Commission.
It is common practice in law enforcement and when conducting
criminal prosecutions for agencies to share the names of confidential
sources if there is a need to know. One of the primary reasons for
these exchanges of
[[Page 25928]]
sensitive information is the protection of the confidential source. It
is essential that the investigating and prosecuting parties know the
identity of a confidential source to physically protect the source
during the course of investigative activities and to prevent
compromising the source's identity through some inadvertent action by
one of the outside investigators or prosecutors. Because it is
inappropriate for a source to know the investigative or prosecutorial
activities, strategies, or tactics, it is also inappropriate to notify
the source that his or her identity is being shared.
4. Circumstances Under Which Confidentiality May Be Revoked
A decision to revoke a grant of confidentiality can only be made by
(1) the Commission, (2) the EDO, or (3) the Director, OI. However, the
Commission emphasizes that a grant of confidentiality will be revoked
only in the most extreme cases. Generally, confidentiality will be
revoked only when a confidential source personally takes some action so
inconsistent with the grant of confidentiality that the action
overrides the purpose behind the confidentiality. For instance, this
can happen when the source discloses information in a public forum that
reveals his or her status as a confidential source or when he or she
has intentionally provided false information to the NRC. Before
revoking confidentiality, the Commission will attempt to notify the
confidential source of its intent and provide the individual an
opportunity to explain why their identity should not be disclosed.
5. Withdrawal of Confidentiality
The NRC official granting confidentiality may withdraw
confidentiality without further approval if the confidential source has
made such a request in writing and the NRC official has confirmed that
the requesting individual is the same person who was granted
confidentiality.
6. Conclusion
The Commission views protecting the identity of allegers and
confidential sources as an important adjunct to investigative and
inspection programs. Therefore, the Commission places great emphasis on
protecting the identity of individuals who bring safety concerns to the
NRC. However, the Commission recognizes there are limited circumstances
when the identity of an alleger or confidential source will be divulged
outside the NRC. In those circumstances the Commission will attempt to
limit disclosure to the extent possible.
Dated at Rockville, MD, this 17th day of May, 1996.
For the Nuclear Regulatory Commission.
John C. Hoyle,
Secretary of the Commission.
[FR Doc. 96-12952 Filed 5-22-96; 8:45 am]
BILLING CODE 7590-01-P
