[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