[Federal Register Volume 60, Number 143 (Wednesday, July 26, 1995)]
[Proposed Rules]
[Pages 38282-38286]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-18319]
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Proposed Rules
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
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Federal Register / Vol. 60, No. 143 / Wednesday, July 26, 1995 /
Proposed Rules
[[Page 38282]]
NUCLEAR REGULATORY COMMISSION
10 CFR Part 9
RIN 3150-AD83
Revision of Specific Exemptions Under the Privacy Act
AGENCY: Nuclear Regulatory Commission.
ACTION: Proposed rule.
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SUMMARY: The Nuclear Regulatory Commission (NRC) is proposing to amend
its regulations implementing the Privacy Act of 1974, as amended
(Privacy Act), to reflect the addition of exemptions in subsections
(j)(2) and (k)(5) to an existing system of records and to update the
list of exemptions that apply to specific NRC systems of records.
DATES: Submit comments by September 5, 1995. Comments received after
this date will be considered if it is practical to do so, but the NRC
is able to assure consideration only for comments received on or before
this date.
ADDRESSES: Send comments to: Secretary, U.S. Nuclear Regulatory
Commission, Washington, DC 20555-0001, Attention: Docketing and
Services Branch. Hand deliver comments to: 11555 Rockville Pike,
Rockville, Maryland, between 7:45 am and 4:15 pm Federal workdays.
Examine comments received at: The NRC Public Document Room, 2120 L
Street NW. (Lower Level), Washington, DC.
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: The proposed amendments to 10 CFR Part 9
would add exemptions authorized by subsections (j)(2) and (k)(5) of the
Privacy Act to those that are currently in place for NRC-18, Office of
the Inspector General (OIG) Investigative Records--NRC, under
subsections (k)(1), (k)(2), and (k)(6). Under subsection (j)(2), 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 is maintained by an agency or component thereof that performs
as one of its principal functions any activity pertaining to the
enforcement of criminal laws and that 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.
NRC-18 contains information of the type described above and is
maintained by the Office of the Inspector General (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. Therefore, pursuant to subsection (j)(2), NRC proposes to
exempt information maintained in this system of records 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 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 these
[[Page 38283]]
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 in
order 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 proposed 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 until
further investigation is conducted, or indeed in many cases until after
a trial (if at all), to determine the accuracy, relevance, and
completeness of some information. This requirement would inhibit the
ability of trained investigators to exercise professional judgment in
conducting a thorough investigation. Moreover, fairness to affected
individuals is ensured by the due process they are accorded in any
trial or other proceeding resulting from the OIG investigation.
(10) 5 U.S.C. 552a(g) provides for civil remedies if any agency
fails to comply with the requirements concerning
[[Page 38284]]
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 promulgated
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 proposes to exempt
information maintained in this system of records 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 in order 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 this system of records 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
Federal Register notice 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, as
amended, will include 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 proposed 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 proposed rule.
Paperwork Reduction Act Statement
This proposed rule does not contain a new or amended information
collection requirement subject to the Paperwork Reduction Act of 1980
(44 U.S.C. 3501 et seq.). Existing requirements were approved by the
Office of Management and Budget, approval number 3150-0043.
Regulatory Analysis
This proposed rule would add exemption (j)(2) of the Privacy Act to
the NRC regulations that describe the 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 the statutorily appointed Inspectors General. The proposed rule
would also clearly link each system of records to the specific
exemption(s) of the Privacy Act under which the system is exempt. As
such, the proposed rule would not have an economic impact on any class
[[Page 38285]]
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
proposed rule may provide some benefit to those who may be required to
use these regulations.
The alternative to the proposed rule would be to refrain from
adopting the identified exemptions. As discussed in this notice,
however, failure to adopt the proposed 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 proposed rule.
Regulatory Flexibility Certification
As required by the Regulatory Flexibility Act (5 U.S.C. 605(b)),
the Commission certifies that this 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 proposed rule and, therefore, a backfit analysis is not
required for this proposed rule 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, 552a, and 553; the NRC is
proposing to adopt 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));
(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)).
[[Page 38286]]
Dated at Rockville, Md., this 18th day of July, 1995.
For the Nuclear Regulatory Commission.
James M. Taylor,
Executive Director for Operations.
[FR Doc. 95-18319 Filed 7-25-95; 8:45 am]
BILLING CODE 7590-01-P
