ML20247F497
| ML20247F497 | |
| Person / Time | |
|---|---|
| Issue date: | 01/31/1989 |
| From: | NRC OFFICE OF INVESTIGATIONS (OI) |
| To: | |
| References | |
| PROC-890131, NUDOCS 8904030453 | |
| Download: ML20247F497 (102) | |
Text
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U.S. I;UCLEAR REGULATORY COMMISSION OFFICE OF INVESTIGATIONS INVESTIGATIVE PROCEDURES MANUAL JANUARY 1989 The Office of Investigations' Investigative Procedures Manual, which was given interim approval by the Commission
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in a memorandum dated October 21, 1985, has been revised and approved with an effective date of January 15, 1989.
Please replace the interim manual with this revised version and destroy the interim manual.
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V TABLE OF CONTENTS I
Page 1.
GENERAL...............................................
1-1 1.1.
Purpose of the Manual.......................
1-1 1.2.
Applicability of the Manual.................
1-1 1.3.
Director's Guidance File....................
1-1 1.3.1.
Content and Format.....................
1-1 1.3.2.
Preparation of Director's Guidance Issuances............................
1-1 1.3.3.
Numberi ng of Issuances.................
1-1 1.3.4 Annual Review of Guidance Issuances....
1-1 1.3.5.
Additions to or Changes in Guidance Issuances............................
1-1 1.3.f.
Distribution...........................
1-2 1.3.7.
Filing and Maintenance.................
1-2 1.4 01 Manual Additions and Changes.............
1-2
/
1.4.1.
Types of Changes.......................
1-2
(
1.4.2.
Sources of Changes.....................
1-2 1.e.3.
Annual Review of Manual................
1-2 1.4.4 Preparation and Distribution cf Changes.
1-2 1.4.5.
Procedures for Maintaining the Manual..
1-2 1.4.6.
Transmittal Sheet for Manual Changes...
1-2 1.4.7.
Filing and Maintenance.................
1-3 1.5 Expl anati on of Te rms........................
1-3 2.
RESPONSIBILITIES OF THE OFFICE OF INVESTIGATIONS......
2-1 2.1.
Mission Statement...........................
2-1 2.2.
Authority...................................
2-1 2.3.
Ju ri s d i c t i on...............................
2-1 2.4.
Code of Conduct for 01 Personnel............
2-1 2.4.1.
Objectivity............................
2-2 2.4.2.
Professionalism........................
2-2 2.4.3.
Complaints of Possible Irregularities or Alleged Misconduct of 01 Employees...
2-3 3.
INVESTIGATIONS........................................
3-1 3.1.
Investigative Policies (1 through 27).......
3-1
'~'s 3.2.
Initiation of Investigations................
3-5 j
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l TABLE OF CONTENTS (continued)
Page
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3.2.1 Requests for Investigation............
3-5 3.2.1.1 Form and Content of Written Requests for Investigation.....
3-5 3.2.1.2 Investigative Thresholds.........
3-6 3.2.1.3 Notification of Requester........
3-6 3.2.2 Initiation of Investigations Without f
Requests............................
3-6 i
3.2.3 Reporting Requirements................
3-7 3.2.4 Board Notification of Allegations.....
3-7 3.2.5 Assistance in Technical Inspections...
3-7 3.3.
Development of Investigations...............
3-8 3.3.1.
Evaluation and Prioritization..........
3-8 3.3.2.
Identifying the Scope of the Investigation........................
3-8 3.3.3.
Identifying the NRC Requirements which may have been Violated...............
3-8 3.3.4.
Formulating an Investigative Plan of Action...............................
3-9 3.3.5.
Indications of Wi11 fulness in Connection with Violations of NRC Requirements...................... 3-10 3.3.6 Standards of Investigative Thoroughness. 3-10 3.3.7.
Case Management......................... 3-11 1
3.4 Termination of Investigations................ 3-11 1
3.5 Administrative Closure of Cases for Lack of Resources..................................
3-11 1
1 4.
Ih.ERVIEWS............................................
4-1 l
I 4.1.
General.....................................
4-1 4.2.
Miranda Warnings............................
4-2 4.3.
Administering Oaths or Obtaining Affirmations..............................
4-3 4.3.1.
When to Administer an Oath or Obtain an Affirmation.......................
4-3 4.3.2.
Procedures for Administering an Oath' '
or Obtaining an Affirmation..........
4-3 4.4.
Subpoenas...................................
4-3 4.4.1.
Authority..............................
4-3 4.4.2.
Format for 01 Subpoenas................
4-3 4.4.3.
Use of the Subpoena....................
4-3 l
4.4.4.
Subpoena Approvel Guidelines...........
4-4 1
4.4.5.
Service of Subpoenas...................
4-5 l
4.4.6.
Compliance with Subpoenas..............
4-5 l
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. [-s' TABLE OF CONTENTS (continued)
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Page 4.5.
Exclusion of Third Parties from Interviews..
4-6 4.6.
Tape Recording Investigative Interviews.....
4-7 5.
DOCUMENTING 01 INVESTIGATIONS.........................
5-1 5.1.
Documenting Formal Investigations...........
5-1 5.2.
Preparation of the Report of Investigation..
5-1 5.3.
Reports of Inquiry..........................
5-1 5.4 C a s e C h ro n ol o gy.............................
5-1 5.5.
Statements..................................
5-1 5.6.
Report of Interview.........................
5-2 E.7.
Transcribing Interviews.....................
5-3 5.8.
Investigative Notes.........................
5-4 5.6.1, Method and Amount of Note Taking.......
5-4 5.8.2.
Fetention of Notes.....................
5-4 5.t.
Retention of Draft Documents................
5-4 5.9.1.
Active F0IA and Privacy Act Requests...
5-5
/~'N 5.5.E.
" Personal" Copies of Drafts............
5-5 f
g 5.9.3.
Disagreements Regarding the Centent in Draft ocuments...................
5-5 5.10 Case File Management........................
5-5 5.10.1.
Investigator's Working File............
5-7 5.10.2.
Retention of File Material in Individual Offices...................
5-7 6.
COLLECTI0h, CUST0DY, AND PRESERVATION OF EVIDENCE.....
6-1 6.1.
General.....................................
6-1 6.2.
Appointment and Duties of Evidence Custodians................................
6-1 6.2.1.
Primary Evidence Custodian.............
6-1 6.2.2.
Alternate Evidence Custodian...........
6-1 6.2.3.
Changing Primary Evidence Custodian....
6-2 6.3.
Evidence and Property Processing............
6-2 6.4.
Handling of Fungible Evidence...............
6-3 6.5, Maintenance of Evidence.....................
6-4 6.6.
Evidence Depository.........................
6-4 7.
CONFIDENTIALITY.......................................
7-1 7
\\w 7.).
General.....................................
7-1 iii
i TABLE OF CONTENTS (continued)
Page 7.1.1.
Purpose................................
7-1 7.2.
Confidential Source of Information..........
7-1 7.2.1 Granting Confidentiality...............
7-1 7.2.2 Circumstances for Confidentiality......
7-2 7.2.2.1.
Restriction on Routine Grants.....
7-2 7.2.2.2.
Determination of Need.............
7-3 7.2.2.3.
Offers of Confidentiality.........
7-3 7.2.2.4.
Discussion with Source............
7-4 7.2.2.5.
Unwitting Sources.................
7-4
' 2.3.
Disclosing a Confidential Source's Identity.............................
7-4 7.2.3.1.
Within the NRC.....................
7-4 7.2.3.2.
Disclosure to the Licensee or Other Affected Organization.....
7-5 7.2.3.3.
Other Disclosures.................
7-5 7.2.4.
Revocation of Confidentiality.........
7-6 7.3.
Extent of Confidentiality Available.........
7-7 7.4 Employee Protection.........................
7-7 7.4.1.
01 Discrimination Investigation........
7-7 1
7.5.
Confidential Source Control Officer (CSCO)..
7-7 l
7.5.1.
Appointment of CSCO....................
7-7 7.5.2.
CSCO Responsibilities..................
7-8 7.5.3.
Field Office Source Records............
7-8 i
7.6.
Confidential Source Identifiers.............
7-8 j
7.6.1.
Assignment.............................
7-8 7.6.2.
Al p h a -Nume ri c..........................
7-8 1
7.6.3.
Reliance on Source Identifiers.........
7-9 7.7.
Records.....................................
7-9 7.7.1.
Original Records.......................
7-9 7.7.2.
Source Index...........................
7-9 i
7.8.
Confidential Source Contacts................
7-10 7.8.1.
Documentation Requirements.............
7-10 iv L____ _---- _ -_
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1 TABLE OF CONTENTS (continued)
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Page 1
8.
RELEASE OF INVESTIGATION INFORMATION..................
8-1
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8.1, Nuclear Safety and Security-Related Information Developed in an 01 Investigation.............................
8-1 8.1.1.
Noti fication Process...................
8-1 8.1.2.
Threshold for Notification of the 01 Field Office Director by an Investigator......................
8-1 8.2.
Release of Investigative Reports Outside NRC.......................................
6-2 8.2.1.
Final Reports of Investigation or Inquiry............................... 8-2 8.2.2.
Referrels to Department of Justice and Other Agencies.................... 8-2 8.2.2.1.
Method of Referral................. 8-2 8.2.2.2.
Post-referral Investigation.........
8-3 8.2.3.
Release of the ROI " Synopsis" to the Public Document Room.................. 8-3 y
8.3.
Forwarding Investigation Information to Other Law Enforcement Agencies............. 8-3 8.3.1.
Information Currently Under Investigation by 01................... 8-4 8.3.2.
Information Pertaining to Matters Not Under Investigation by 01.............
8-4 8.3.3.
Confidential Sources.................... 8-5 8.4.
Notifications to Licensees Applicants and Their Contractors and Vendors of Initiation and Termination of an Investigation or Inqui ry................... 8-5 8.5.
Contacts with the Media...................... 8-5 8.5.1.
Open Investigations..................... 8-5 8.5.2.
Other Matters...........................
8-6 8.5.3.
Obtaining Information from the Media.... 8-6 8.5.3.1.
Information Volunteered by Media Representatives.................. 8-6 8.5.3.2.
01-Initiated Contacts.............. 8-6 8.6.
Obtaining Information from the U.S. Postal Service.................................... 8-7 v
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-i TABLE OF CONTENTS (continued)
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Page APPENDIX A - SAMPLE FORMAT FOR DIRECTOR'S GUIDANCE......... A-1 APPENDIX C - TRANSMITTAL SHEET FOR ADDITIONS TO OR CHANGES Ih DIRECTOR'S GUIDANCE FILE................. B-1 APPENDIX C - TRANSMITTAL SHEET FOR ADDITIONS TO OR CHANGES IN THE 01 INVESTIGATIONS MANUAL..... C-1 APPENDIX D - RIGHTS WARNING FORM........................... D-1 APPENDIX E - GUIDELINES FOR ADMINISTERING AN 0ATH OR OPTAINING AN AFFIRMATION....................
E-1 APPENDIX F - SAMPLE SUBP0ENA...............................
F-1 APPENDIX G - GUIDELINES FOR PREPARATION OF INVESTIGATIVE REPORTS..................................... G-1 APPENDIX H - SAMPLE CASE CHRONOLOGY........................
H-1 APPENDIX I - GUIDELINES FOR RESPONDING TO F0IA REQUE*JTS....
1-1 h
APPENDIX J - EVIDENCE ACCOUNTABILITY.......................
J-1 APPENDIX K - CONFIDENTIALITY AGREEMENT.....................
K-1 l
APPENDIX L - DEPARTMENT OF JUSTICE MEMORANDUM 0F UNDERSTANDING............................... L-1 l
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CHAPTER 1 GENERAL 1.1.
Purpore of the Manual This manual prescribes policies, procedures, and guidelines for the conduct of investigative activities of the Nuclear Regulatory Commissior (NRC) Office of Investigations (01).
1.2.
Applicability of the Manual This mar.ual applies to 01 Headquarters, all subordinate offices, and all other 01 elements (special teams or task forces) when conducting inves-tigative activities within the responsibility of 01, 1.3.
Director's Guidance File l
1.3.1.
Content and Fonnat. This separate file provides an ordered j
means for issuing guidance to investigators on a current basis without the formalities attendant to the issuance of an 01 manual chapter, section, or paragraph. Such guidance may be only of interim importance.
However, the guidance may also be material that once proven by trial use be continued from year to will be added to the Manual.
The material may(This process is described year as guidance or discontinued altogether.
in paragraph 1.3.4 infra.) The format is illustrated in f.pnendix A.
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1.3.2.
Pre 3aration of Director's Guidance Issuances. Suggestions may be made to tie Director for material to be issued as guidance.
These suggestions may be in the form of problems that need authoritative resolution or drafts of material for consideration. The Office of the Director will prepare and, with the approval of the Director, promulgate all final guidance issuances.
1.3.3.
Numbering of Issuances. A series is initiated each calt:n-l der year for numbering guidance issuances. Those issued in 1986 would I
be numbered sequentially, starting with 88-001.
In 1989, they will start with 89-001. The Office of the Director wili assign numbers.
1.3.4.
Annual Review of Guidance Issuances.
In December of each year, the Director will appoint a three-person committee to review all guidance issuances of that year. The Committee will reconinend to the Director the disposition of each issuance. An issuance could be:
)
a.
modified as necessary to become a manual addition or change, b.
deleted because it is no longer needed, or c.
carried forward to the next year with a new number in the next series; for example,88-008 might become 89-001.
1.3.5.
Additions to or Changes in Guidance Issuances.
In the event it is necessary to change guidance material, the changed (or 1-1
corrected) page should be reissued with an appropriate indication. The indication of a change is an asterisk and a footnote that gives the change number (sequential by year) and date.
For a change of only or.e sentence, the asterisk follcws the sentence; for a paragraph (or para ~
graphs or pages), an asterisk is placed at the beginning of the change and at the end of the change, j
1.3.6.
Distribution. A changed page (or pages) and new material are transmitted to all manual holders with a transmittal sheet that is to be retained in the file. The transmittal sheet is illustrated in Appendix E.
1.3.7.
Filing ard Maintenance. The Director's Guidance File is to be kept with the manual and is tc be maintained up to date by all holders of the manual.
1.4.
01 Manual Additions and Changes 1.4.1.
Types of Changes. The manual can be changed by adding new material, revising old material, or making minor corrections to old material by " pen and ink" changes.
1.4.2.
Sources of Changes. The Director will appoint a committee to conduct an annual review and suggest revisions.
In addition, any manual user may sugcest r: visions to the Director.
1.4.3.
Annual Review of Manual.
In December of each year, tF.e Director will appoint a three-person committee to review the manual <com-pletely and to generate any identified additions and changes. This com-mittee is the same as that appointed to review the Director's Guidance File (see paragraph 1.L 4.).
1.4.4.
Preparation and Distribution of Changes. The annual review committee will pq. pare recommended changes and submit those recommenda-tions to the Director for approval. The Office of the Director will distribute approved changes to manuai holders. Changes suggested (for consideration) at times when the annual review committee is not in session will be considered by the Director and, if approved, distributed to Manual holders by the Office of the Director.
1.4.5.
procedures for Maintaining the Manual. A chan manual is accomplished by issuance of a new page (or pages)ge in the or instruc-tions for making a " pen and ink" change on an existing page. The indication of a change is an asterisk and a footnote that gives the change numbe,, which is sequential for any change or addition, and the date of the change.
For a change of only one sentence, the asterisk follows the sentence; for a paragraph (or paragraphs or pages), an asterisk is placed at the beginning and the end of the change. Each holder of the manual is responsible for assuring that the copy held by him or her is up to date and accurate.
1.4.6.
Transmittal Sheet for Manual Changes. A changed page (or pages) and added material are tran'smitted to all hanual holders with a 1-2
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transmitted sheet that is to be retained in a manual file. The trans-mittal sheet is illustrated in Appendix C.
1.4.7.
Filing and Maintenance. Manual changes specified in the transmittal slIeets are to be made immediately and the transmittal sheets kept for future reference in checking completeness of the manual.
Replaced manual pages are to be discarded.
1.5. Explanation of Terms a.
Policy--This term as used in the manual refers to the 27 basic investigative policies which have been approved by the Commis-sion (see paragraph 3.1.).
b.
Procedures--The guidelines and instructions for implementation of the basic 01 policies approved by the Commission.
c.
NRC Requirement--This term as used in this manual will refer to fiRC regulations, appropriate statutory provisions, license conditions, technical specifications, orders, or any other reculatory requirement the violation of which could lead to thc itpetition of enforcement sanctions.
d.
Inouiry--The inquiry is a preliminary investigation to evalu-ate an allegation of wrongdoing to determine if a full-scale investigation is warranted. An inquiry will be initiated when g
an allegation or other identified set of circumstances indicates wrongdoing or a credible potential for wrongdoing.
An inquiry should involve only a limited amount of field work and tinie (two or three interviews, one or two trips to a facility, a few telephone calls, limited records reviews, etc.).
Generally, activity in excess of these guidelines should be considered a full-scale investigation, and docu-mented in a Report of Investigation.
If 01 develops evidence during the inquiry phase indicating that the matter under investigation does involve wrongdoing, OI will expand the inquiry into a full-scale investigation.
Inquiries which fail to support the need for a full-scale investigation, or which determine that the allegation is unfounded, will be closed by e Report of Inquiry.
If an inquiry yields sufficient evidence to substantiate an allegation of wrongdoing, it will be considered a full-scale investigation and, as such, will be documented as a Report of Investigation regardless of the amour.t of field work accomplished or time expended.
e.
Full-Scale Investigation--A full-scale investigation will be initiated when there is credible information to suspect that an NRC requirement has been breached with some degree of intent or purpose.
If 01 receives an allegation of suspected wrongdoing which appears to be within 01 jurisdiction, or more typically, receives a written request for investigation concerning wrongdoing, a full-scale investigation should be initiated without a preliminary inquiry. Once a full-scale investigation has been initiated, the results will be docu-1-3
.o mented in a Report of Investigation, even if the allegation is unsubstantiated at the conclusion of the investigation. This does not preclude reverting a full-scale investigation back to an inquiry at the discretion of the Field Office Director if it is seen during the very early stages of the investigation that the allegation is unfounded.
f.
Wrongdoing--An act of wrongdoing is one in which an NRC requirement has been breached with some intent or purpose to commit the breach, rather than through mistake or error. As defined in NRC Manual Chapter 0517, wrongdoing consists of both intentional violations of NRC requirements and violations resulting from careless disregard of or reckless indifference to regulatory requirements amounting to intent. A reasonable basis for belief of wrongdoing exists when, from the circum-stances surrounding it, a viole+ ion of a regulatory require-ment appears more likely to have been intentional or to have resulted from careless disregard or c ckless indifference than from error or oversight.
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1-4
1 CHAPTER 2 RESPONSIBILITIES OF THE OFFICE OF INVESTIGATIONS 2.1.
Mission Statement The NRC Office of Investigations (01) develops policy, procedures, and quality control standards for the conduct of all NRC investigations of licensees, pennittees, or applicants; of contractors or vendors of such entities; or of employees of the foregoing entities. 01 conducts and supervises investigations within the scope of NRC authority except those of NRC employees and NRC contractors; assures the quality of investiga-tions; maintains current awareness of inquiries and inspections by NRC offices to identify the need for formal investigations; makes appropri-ote referrals to the Department of Justice; keeps the Commission and involved tiRC Offices currently apprised of matters under investigation as they affect public health and safety, the common defense and securi-ty, environmental quality, or the antitrust laws; and maintains liaison with other egencies crd organizations to ensure the timely er Nnge of information of mutual interest. 01 may commence appropriate ir msti-gative activity when a matter is brought to the attention of OI odicat-ing that wrcngdoing, es defined in NRC Manual Chapter 0517, has been committed by c person or entity within 01 jurisdiction.
Investigations may also be conducted of matters solely of character or integrity as set forth in 01 Policy 27, or on direction of the Commission, any matter within imC jurisdiction that the Corsnission desires to be investigated.
2.2.
Authority The Commission has delegated to the Director of 01 the authority to take the necessary steps to accomplish the 01 mission, as described in Title 10 of the Code of Federal Regulations, Part 1, Section 1.36(1985).
See Section 161(c) of the Atomic Energy Act of 1954, es amended (42 U.S.C. 2201(c)); and Sections 201(a)(2) and 206 of the Energy Reorganization Act of 1974 (42 U.S.C. 5841 and 5846).
2.3.
Jurisdiction 01 investigative jurisdiction extends to the investigation of wrongdoing such as careless disregard, deception, and other indications of willful violations by licensees, applicants, or permittees, by contractors, subcontractors, vendors of such entities, and/or by management, super-visory, and other employed personnel of such entities who may have committed violations of the Atomic Energy Act, the Energy Reorganization Act, and rules, orders, and license conditions issued by the Commission thereunder. Section 161(c) of the Atomic Energy Act also authorizes 01 to conduct such other investigations that the Commission may direct.
2.4.
Code sf Conduct for 01 Personnel Each 01 employee should understand and abide by NRC rules and regu-lations for the conduct of employees in accordance with 10 CFR Part 0 and NRC Manual Chapter 4124 and its Appendix.
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2-1
2.4.1.
Objectivity. OI investigators must be free from impair-ments to objectivity in all matters relating to investigative work.
Investigators have the responsibility for maintaining independence and objectivity so that judgments used in obtaining evidence and conducting interviews will be impartial. To preserve this independence, investi-gators shall not have nor give the appearance of having:
a.
preconceived ideas toward individuals, groups, organizations, or objectives of a particular program that could bias the investigation, b.
biases that result from membership in, employment by, or loyalty to a particular group or organization that is being investigated, c.
financial interest, direct or indirect, in the individual, entity, or program being investigated, or d.
cfficial, professional, personal, or financial relationships that might cause the investigator to limit the extent of the inquiry, to limit disclosure of infonnation, or to weaken the investigative report in any way, or conversely, to cause the investigator to extend the duration or scope of the investiga-tion beyond that warranted by the objective facts associated with that endeavor.
In other words, investigators must strive to ensure that their activities are motivated solely by the merits of any investigation that they undertake, i
2.4.2.
Professionalism. 01 investigators are expected to exercise professional care in conducting investigations and in preparing related reports. Therefore, a.
all investigations must be conducted in a thorough manner in accordance with applicable laws, rules, and regulations, and with due respect for the rights of those involved, b.
specific methods and techniques used in each investigation must be appropriate for the circumstances and objectives, c.
all investigations must be conducted in a fair and impartial
- manner, d.
evidence must be gathered and reported in an unbiased and objective manner, e.
all investigations must be conducted and reported in as timely a manner as possible, and v
f.
the investigator must be familiar with and proficient in the techniques and technology of the field of law enforcement and investigations, as well as the applicable laws, rules, and i
regulations.
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2.4.3.
Complaints of Possible Irregularities or Alleged Misconduct j
of 01 Employees. The investigation of complaints regarding misconduct j
(~j by hRC employees falls within the jurisdiction of the Office of Inspector and Auditor (01A) (10 CFR 1.30; NRC Manual Chapter 0113 and i
I its Appendix).
OI will refer complaints or allegations of violations of 10 CFR Part 0 to the Director, 01A, for appropriate action, through the Director. 01.
However, complaints or allegations regarding investigative technique or coverage, as opposed to allegations of misconduct, will normally be
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evaluated and handled by 01 management.
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2-3
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CHAPTER 3 INVESTIGATIONS 3.1.
Investigative Policies (Policies 1 through 27)
The following policies for the Office of Investigations (01) have been approved by the Commissicn as of the effective date of this Manual:
Policy 1 01 will perform thorough, timely and objective investigations. This will include investigations of allegations of wrongdoing by individuals or organizations, other than NRC employees or NRC contractors, which are within the scope of NRC authority.
Policy 2 01 investigaticrs will be conducted in accordance with general proce-dures and practices of other investigatory agencies.
Policy 3 01 investigators may be delegated authority to administer oaths or affirmations during the course of 01 investigative efforts.
Policy 4 01 investigations may be initiated at the request of the Commission, the EDO, a Regional Administrator, or on the initiative of the Director 01.
The Director. 01, will promptly inform the Chairman of all investi-gations commenced by 01.
Policy 5 The criteria established for initiating an inspection or an investi-gation do not preclude concurrent conduct of both types of activity.
Policy 6 a.
01 investigators will continue the practice of normally not advis-ing individuals in non-custodial interviews that they may be represented by counsel.
However, individuals being interviewed should not be told
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that they cannot employ private counsel for consultation and/or attendance at such interviews, b.
Individuals being interviewed will normally be permitted to have a personal attorney or other representative present during interviews.
However, if the personal attorney or other representative also repre-sents another potential interviewee or the company being investigated, I
p then the investigator will contact headquarters, and a case-by-case determination shall be made whether to exclude the personal attorney on conflict of interest grounds. Other third parties, such as licensee 3-1 l
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i management or union stewards, will normally not be permitted to be present during interviews.
Requests for other than personal counsel shall be handled on a case-by-case basis after consultation with OGC.
c.
The use of stenographic reporters or tape recorders will be at the discretien of the investigator, but will not normally be used due to 4
the impediment they may pose to the free flow of information.
Requests i
by an interviewee to have an interview recorded will be dealt with on a case-by-case basis. The investigator may either allow taping or term-inate the interview. The NRC normally will make the tape if an inter-view is recorded, and will not provide the interviewed a copy of the tape until the investigation has been completed.
Policy 7 01 investigators may grant requests for confidentiality in accordance with the procedures set forth in NRC Manual Chapter 0517.
Folicy 8 Investigators and others assigned to 01 investigations shall identify, collect, cod preservc evidence relevant to investigations which would have potential value in an enforcement or other proceeding. When necessary, 01 may request orders or issue subpoenas to preserve or obtain such evidence.
Policy 9 Investigators and others assigned to 01 investigations shall attempt, when warranted by the importance to the investig9 tion, to witness and/or photographically record the violation or condition that is the focus of the investigation.
Policy 10 Investigators and others assigned to 01 investigations will be alert for indications of deliberate violations of NRC regulations or Federal statutes and will pursue relevant leads. They will also make reasonable efforts to determine the extent of involvement or awareness by manage-ment of licensees, applicants, vendors or other entities in any in-stances of deliberate violation of NRC regulations or Federal statutes.
Policy 11 i
Under procedures to be described by the Executive Director for Operations or the Commission, other NRC components will provide 0! with timely legal and technical assistance consistent with its impact on the overall NRC mission.
1 Policy 12 01 may use the investigative support of Federal, State or local agencies or other organizations during the course of 01 investigations.
j i
1 3-2
j j
b Policy 13 e) 1 OI shall be the primary office responsible for referral, and related discussions of investigative matters within O! investigative i
jurisdiction with the Department of Justice (including the U.S.
1 Attorneys and the Federal Bureau of Investigation).
Emergency situations requiring prompt field referral to the D0J and/or FBI should
]
be made without delay or consultation with 01. Referrals for l
prosecution or investigation, inquiries or the transmittal of investiga-tive information to these agencies shall be promptly dccumented in writing with copies provided to offices concerned. This policy does not apply to matters within the jurisdiction of the Office of Inspector and
)
Auditor.
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Policy 14 Investigative activity of 01 may occasionally develop information within the jurisdictier of another agency. This infonnation will be routinely provided to that agency under appropriate controls.
Policy 15 01 shall keep Imc components which request CI investigations informed of significant developments in ongoing investigations.
1
/G Policy 16 ihe requester of an 01 investigation and any NRC component aware of such ongoing investigation shall advise 01 of any additional information it receives / develops during the pendency of the investigation.
Policy 17 01 shall advise cognizant NRC components of safety issues discovered as the result of an ongoing 01 investigation.
Policy 18 With the exception of significant safety issues, information regarding an ongoing 01 investigation will not be disclosed by any NRC employee outside NRC without the specific approval of the Director, 01, or his designee.
Policy 19 Investigators and others assigned to an 01 investigation or inquiry will normally not discuss the substance of ongoing 01 inquiries and investi-gations with licensees or other non-NRC personnel in entrance or exit interviews, except safety items requiring immediate corrective action.
Policy 20 Investigators will thoroughly and accurately document their investiga-tive efforts and substantive information developed during investigation.
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Policy 21 01 investigative reports shall be in sufficient detail to permit an informed maragerial. review of the issues under investigation, and to permit an hRC determination as to the need for enforcement or other corrective actions.
Policy ?2 Reports of Investigation (R01) prepared by 01 investigators should contain an objective recitation of all relevant facts developed in the course of the investigation. This factual recitation may also contain the conclusions of persons interviewed.
Conclusions of the investi-gators on issues of intent, wi11 fulness, or other matters of wrongdoing investigated will be included in investigation reports or other docu-ments and should be designated as such.
In a memorandum transmitting the ROI to the NRC action office. 01 management will normally include overall conclusions regarding what 01 believes occurred in the matter investigated or its opinion as to the weight of the evidence. 01 will not make a determination as to whether the occurrence constitutes a violation or furnish recommendations for enforcement / corrective action.
Policy 23 01 reports of investigation, while in preparation or review, will not be circulated outside NRC without specific approval of the Chairman.
Policy 24 OI reports of investigation, while in preparation or review, will nor-mally not be circulated to other NRC offices.
In those cases where 01 perceives the existence of safety questions requiring protapt attention or determines that it would be of substantial benefit to the accuracy of the final report, 01 must have other NRC officials review and comment cn pertinent portions of the report.
Final 01 investigative reports will be provided to the appropriate NRC officials.
Policy 25 As set forth in 10 CFR 1.30 and NRC Manual Chapter 0113, the Office of Inspector and Auditor retains responsibility for investigations regarding NRC employee and contractor misconduct and internal waste, fraud and abuse.
i Policy 26 l
l 01 shall be informed promptly by NRC employees of all allegations which involve wrongdoing, other than allegations of wrongdoing on the part of FRC employees or NRC contractors, which are the responsibility of OIA.
hiese notification requirements will be set forth in NRC Manual Chapter 0517. All NRC employees will be reminded of these reporting responsibilities periodically by means of NRC Announcements.
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Policy 2I 01 will' not proceed with any investigations of the character or suitability of licensees or other entities within the jurisdiction of the LPC, or the employees of such entities, without first bringing the -
natter to the Commission for guidance in those instances where the character or suitability aspects of the matter being considered for investigation are unrelated to a violation of NRC regulatory require-ments.
3.2.
Initiation of Investigations The Commission has delegated the Director. 01, the authority to initiate investigaticos at the request of the Commission, the EDO. a Regional Administrator, or on his own initiative. The Director, 01, has delegat-ed authority to the Deputy Director. 01, and the Directors of 01 Field Offices tc initiate 01 investigations within the procedural guidelines i
L set forth in this section. Fanual Chapter 0517 sets forth the Commis-sion's guidance regarding the initiation, establishment of priorities, and termination of investigations.
3.2.1.
F;equests for Investigation. All requests for investigation must be in writing. Such requests must be in accordance with the guid-ance set forth in Manual Chapter 0517.
Requests originating from an NRC Region should be addressed to the appropriate 01 Field Office Director and must be signed by the Regional Administrator. Requests from the NRC headquarters staff should be addressed to the Director. 01, and must be signed by the EDO.
Investigations may be initiated immediately on oral request of competent authority under exigent circumstances. Such oral requests must be subsequently documented as described below. 01 Field Office Directors are expected to decide the course of action on each investigative reouest on a case-by-case basis on its own merit, not on the avail-ebility of resources.
3.2.1.1.
Fom and Content of Written Requests for Investigation.
As noted in paragraph 3.2.1, the form and content of requests for investigation will be in accordance with the guidance set forth in-Manuel Chapter 0517. Such requests should contain the requestor's views regarding whether wrongdoing is reasonably believed to be involved, the significance of such wrongdoing, the regulatory requirements believed to have been violated, the priority of the investigation (high, normal, or low), and the impact of the failure by 01 to finish the investigation by the date that the requester indicates is necessary.
Field Office Directors and other 01 personnel involved in approval of the initiation of investigations are required to review written requests for investiga-tion carefully to ensure that the requestor has provided all the infor-nation needed to make an investigative determination. Requests that lack this information should be returned to the requester for additionel staffing.
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3.2.1.2.
InvestigativeThreshalds. Once a determination has been made that a written request for investigation meets NRC requirements, OI is responsible for an independent evaluation of whether the wrongdoing forming tht basis of the request meets the threshold for investigations set forth in MC 0517. 01 will normally initiate an investigation if:
a.
the staff has found that the alleged,trongdoing has had or could Iave an impact on the public health and safety, the common defense and security, protection of the environment, or antitrust laws provided that these matters are within NRC jurisdiction; end b.
the Director 01, detennines that there is a reasonable basis to believe that the matter involves wrongdoing; and c.
the Director, 01, determines that there is sufficient informa-tion aveilable to support the allegation to warrant initiation of an investigation.
In accordance with 01 policy 27, 01 is required to seek Comission guidance prior tc initiation of an investigation relating solely to the character or suitability of an individual within NRC's jurisdiction that does not involve a violation of NRC requirements.
3.F.I.3.
Notification of Reauester. 01 must notify the requester within 30 ays whether the matter has been accepted for investigation, ard, if so, the priority of the investigation and the estimated schedule. This notification must be in writing and normally will be done by the appropriate Field Office Director. Similarly 01 must advise the requester of any substantial change in the estimated date of completion for the investigation,. Note that Manuas Chapter 0517 pro-vides for a reclama process by the requester in the event there is disagreement with an 01 decision not to investigate, or the priority or schedule assigned to the matter by 01.
3.2.2.
Initiation of Investigations Without Reauests. Occasion-ally 0I will learn directly of allegations, events, or developed infor-mation that in its view warrant investigation. Nonnally, such matters will be brought to the attention of the appropriate Regional Adminis-trator or the EDC for a formal investigative request. However, there may be circumstances under which 01 may tiect to initiate en inves-tigation without waiting for a formal request. One such circumstance' could be where it is obvious that the matter is within 01 jurisdiction and there is the need for exigent action. Yet another would be where there is disagreement between the staff and 01 as to whether a particu-lar matter warrants investigation. Under these circumstances Field 1
Office Directors, in consultation with OI:HQ whenever practicable, may open an investigation without first seeking an investigative request.
The appropriate Regional Administrator or the EDO will be informed of such initiations.
Allegations forming the basis of such an investigation will be entered in the region Allegation Tracking System in order to maintain a central focal point withi,NRC for tracking all allegations.
In order to ensure that elements normally found in a written request emanating from outside 3-f,
i 01 are documented, self-initiated investigations will be documented on m,/
the sarc form currently used by the staff to request investigations, and promptly forwerded to the Director. 01. This documentation will be provided to the Commission by 01:HQ in the same fashion as staff-written requests are provided.
Similar guidance pertains to situations where 01 elects to upgrade an inquir) tc e full-scale investigation. 01 will assign a new control number e the case by the submission of an Investigation Status Record.
ihe case nubr will oe derived by deleting the "Q" prefix from the ircuiry number. As noted below, such changes will be reported to the Commissiun by CI:H0 in the same manner as the initiation of investigations.
A 2.3.
Reoorting Requirements.
Investigative Policy 4 requires that 01 inforr: the Chairman of the initiation of all OI investigations.
All investigations and inquiries must be documented, and normally trans-mitted to 01:H0 within one working day of case initiation.
Full-scale investigations are subsequently reported to the Commission by 01:HQ.
Inquiries are documen+ed, but are not normally reported to the Commis-sion unless they are upgraded to a full-scale investigation (see para-graphs 1.5. d and e, this manual). As indicated above. 01 will inform the Commission, the appropriate Regional Administrator, the EDO, and/or when warrented, appropriate staff offices when 01 initiates an investigatier en its own authority.
3.2.4 Board Notification of Allegations. Use of the Allegation Management System described in Manual '.5 apter 0517 will constitute sufficient action by 01 regarding Board Notification Requirements.
3.2.5.
Assistance in Technical Inspections.
In those instances where the NRC technical staff requests 01 assistance in the conduct of inspections, such requests shall be in writing and each request will be approved by either the Director or Deputy Director, JI. Requests of this nature should be predicated on the following criteria:
e.
where use of investigative skills such as " interview techniques" are crucial to the completion of an inspection having a high degree of potential impact on public health and safety, ar.d b.
where insufficient information is available at that time to warrant a referral of the matter to 01 for investigation of suspected wrongdoing, in accordance with the referral threshold set forth in '.JC Manual Chapter 0517.
If authorized by the Director or Deputy Director. 01, the priority of requests for assistance to inspections will be dictated by 01 resource availability and nationwide investigative priorities.
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i 3.3.
Developtrent of Investigations 3.3.1.
Evaluation and Prioritization. The initial phase of an 01 investigation requires steps to:
a.
evaluate the extent, scope, and nature of the allegations; b.
determine which specific NRC requirements have been potential-ly violated, and whether the wrongdoing falls within the in-vestigative jurisdiction of 01 (This is normally provided by the staff in the written request for investig)ation although some additional 01 research may be required. ;
c.
formulate an investigative plan of action based on the ele-ments which constitute the violation; and d.
assess the priority in terms of time and resource allocation.
3.3.2.
Identifying the Scope of the Inv'stigation. The first step in any OI investigation is to identify the scope, exact nature, and full extent of the allegations.
Normally, this will require an interview with the alleger or complainant. The alleger or complainant should be interviewed as soon as reasonably possible after an allegation has been identified by 01 or has been referred to 01 for investigation --
normally witHn 10 working days.
3.3.3.
Identifying the NRC Requirements which may have been Violated. The next step in an investigation is to determine which, if any, specific NRC requirements may have been violated. The requester is required to provide this information at the time of the initial request.
However, without an 01 or joint 01/ staff interview of the alleger / complainant, this initial assessment of the violation may not be sufficient. The 01 investigator must become directly involved in this process and not take for granted that staff assessments sufficiently address ali potential violations. The investigator should, when needed, consult with counsel or staff pcrsonnel whose professional knowledge and position in the organization can assist the investigator in identifying potential violations.
In order to ensure that a staff position provided during this process represents an organizational rather than a personal view, such positions should be obtained from or validated by a division director or above.
The investigator should strive to identify specific potential violation's~
and their safety significance. The elements of proof of the fully expanded, developed, and identified potential violations will then form the foundation of the investigative plan. This process will also assist 01 Field Office Directors in properly allocating time and resources to' the investigation or inquiry. Should this process produce no legitimate indication of violations of NRC requirements, the allegations may be insufficient to warrant further time or investigative effort. Such allegations should be closed without further action, or referred back to the NRC staff for appropriate followup.
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O 3.3.4 Formulating an Investigative plan of Action.
The investi-gator shoulc cetermine what specific elements constitute each possible violation. The objective is to separate the alleged violations into comper.ent parts so that the investigator can focus investigative efforts on any acts of comnission or omission which would constitute wrongdoing.
Furthermore, the investigator should explore those possible acts, documentation or circumstances which could either prove or disprove that such violation was comrnitted knowingly and deliberately.
An investigative plan should be constructed listing interviews to be conducted, documentation to be reviewed and/or collected, and any other logiul Dwestigative steps. This document is a flexible, informal case management plan. The plan provides the investigator with a disciplined approach for assembling material facts related to the allegations, and at the same tin:e provides 01 management a basis to evaluate and modify, when warrented, an investigative approach proposed by an investigator.
The investigator should use the same approach at any time during the investigation when investigative findings surface additional potential violations not contained in the original allegation (s).
3.3.5.
Indications of Willfulness in Connection with Violations of NRC Requirements.
The following list provides several factors to consider in attempting to identify whether an alleged or suspected violatior. was willful. This list is not meant to be all-inclusive due to the varying nature of the violations surfaced in 01 investigations.
y Among the possible indicia are:
a.
Prior knowledge of the requirements by responsible personnel; this may be established circumstantially by demonstrating an individual's expertise in the nuclear industry, their position, and level of responsibility within their organiza-tion; b.
Documentation showing prior knowledge of wrongdoing and failing to report; c.
Being placed on notice of noncompliance from some source and failing to take corrective action; d.
A record of some past similar experience indicating that the licensee, entity, or individual knew the act was wrongdoing, yet proceeded regardless; e.
Documentary or testimonial evidence mitigating the possibility that the violation resulted from accident, worker careless-ness, ignorance, or confusion; f.
Attempts at deception by a licensee or contractor, such as selective reporting of relevant information to the NRC, failure to record / document reports of noncompliance, 3-9
l efforts to contain, divert, or stop information from l
reaching NRC, efforts to segregate, isolate, transfer, fire, intimi-date, or otherwise retaliate or discriminate against allegers surfacing or attempting to surface information of interest to the NRC, or for providing safety-related information to employers, and manipulation of documentation to confuse or hinder investigation / inspection efforts by NRC; g.
Documentation or testimony directly demonstrating that licensee management knew an act was wrong and against NRC requirements, but proceeded regardless; h.
Evidence of acts committed in the name of " expediency,"
with later claims that the commission was a result of con-fusion on the part of the licensee; and i.
Falsification of documents.
As indicated above, the foregoing are intended to assist the investiga-tor in identifying or demonstrating willfulness. They are indicia, to be used by the investigator in determining whether a " reasonable basis" for wrongdoing exists as described in Manual Chapter 0517. They are in no way intended to replace the Manual Chapter 0517 standard. Moreover, the presence or absence of any one of the above factors is not in itself sufficient to arrive at a conclusion regarding willfulness.
3.3.6.
Standards of Investigative Thoroughness. 01 conducts investigations to detennine if there was a deliberate breach of an NRC regulatory requirement. The results of such investigations are normally used as the basis for NRC regulatory actions such as licensing decisions or enforcement actions. Consequently, the investigator must pursue and develop all relevant investigative leads in enough detail and depth to provide NRC decision-makers sufficient information to make an informed decision.
It is particularly important for investigators to gather as much information as possible regarding the willfulness of violat'ons uncovered during iny' estimations as this issue is of great importance to the regulatory process.
To the extent an investigation begins to demonstrate that wrongdoing was in fact committed, it also may concurrently demonstrate that a criminal statute has been violated as well. Notwithstanding this, investigators must complete the investigation in crder to satisfy the regulatory needs of the NRC. Thus, the investigation normally will continue until sufficient information has been gathered to prove or disprove the issue of wrongdoing.
It is useful to discuss briefly the standard of proof generally used by the NRC in its regulatory actions and its relationship to the inves-tigation. The normal level of proof is a " preponderance of evidence" as opposed to the criminal standard of proof "beyond a reasonable doubt."
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In lay terns, it requires more evidence to prosecute using the criminal
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standarc than it does to prosecute using the civil strndard of prepon-derance of evidence.
In practical terms, however, it has little bearing on a decision as to when to terminate an investigation.
In practice, it is difficult enough for the courts, let alone an inves-tightor to discern sharply between the quanta of evidence needed for either standard. Consequently, 01 investigators should not concern themselves during investigations with the distinctions between levels of proof.
Rather, investigations should be conducted in accordance with existing standards of thoroughness and objectivity with a view to collecting all evidence readily susceptible to the investigative process that tends to prove or disprove the wrongdoing that is being investigated.
When an investigator is confident he or she has gathered all the evidence that is attainable and necessary for the objective adjudication of the matter, the investigation should be terminated.
Investigators will not continue an investigation solely for the purposes of further perfecting a criminal violation. 01 managers will be responsible for monitoring this process to ensure that 01 investigations continue to provide sufficient information to support NRC's regulatory needs.
3.3.7.
Case Management. The above described investigative plan should be under continual change, revision, or modification during the entire course of an investigation, either as a result of additional case review and analysis by the investigator or supervisor, or as a result of O
new information. The investigator has the responsibility to keep the ij plan current and follow through with the development of identified leads. The Field Office Director has the responsibility to conduct a review of tne progress of ongoing cases and discuss the direction of investigative efforts with the investigator at least monthly. This review will be documented in the case file.
3.4.
Termination of Investigations. Manual Chapter 0517 contains guidance regarding the criteria f or termination of investigations. All 01 personnel are to comply fully with this guidance.
It is again empha-sized that investigations will not be continued solely for the purpose of further perfecting a criminal violation. This directive does not preclude appropriate assistance by 01 or technical staff to the Depart-ment of Justice in furtherance of a criminal investigation under D0J auspices.
3.5.
Administrative Closure of Cases for Lack of Resources.
In accordance with SECY-85-369, cases referred to or self-initiated by 01 may be administratively closed for lack of resources in compliance with the following gu'delines:
a.
Approximately every 30 days each Field Office Director (F0D) with his staff will review all cases designated as LOW priority, concentrating on, but not limited to, the inventory within this category which has been open for six months or A
longer as prime candidates for administrative closure.
Since i
prior coordination with the Regional Administrator was conducted to establish the case priority listing initially, the F0D will make selections for administrative closure independently within 01 channels.
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b.
The F0D will prioritize these cases within the LOW category and select any which warrant closure due to lack of resources.
These are cases which OI would expend resources on, if such resources were available.
In selecting these cases the F0D will consider, but is not limited to, the following factors:
)
(1) current NRC regulatory impact 1
(2) any HT0L impact l
I l
(3) agent availability within the next six months to one year (4) the potential deyee of wrongdoing c.
Once chosen as a candidate for administrative closure., the F0D will coordinate with the respective Operations Officer at 01 Headquarters, who will be monitoring the overall importance and impe,t of cases within the entire investigative inventory of the NRC.
d.
Selections for administrative closure for lack of resources should be made with a clear view toward the office caseload in a 6-12 month projection. There should never come a time when an office caseload is sufficiently low to prevent the agents from being fully occupied investigating significant matters, e.
Administrative closures will be accomplished on a Report of Inquiry, with the last paragraph stating the reason for cloeure as " lack of resources," in accordance with procedures described in the Administrative Supplement to this manual.
Any case which was initially opened as a full scale investigation or has since been upgraded to a full scale inves'igation and is now being closed administratively, will be do.1 graded to an inquiry and closed as indicated above.
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CHAPTER 4 V
INTERVIEWS 4.1.
General Interviewing is the primary method of obtaining evidence and inve tiga-tive leads.
In conducting interviews the following guidelines apply:
a.
All interviews will be conducted in a fair and impartial manner with the objective of obtaining the most accurate, relevant, timely, and complete information from the source.
b.
The investigator shall fully identify himself/herself at the start of the interview.
c.
The investigator will obtain pertinent identifying data from the interviewee including, but not limited to full name, personal / business addresses, and occupation.
c'.
When concucting an interview, the investigator should give particular attention to obtaining the interviewee's observa-tion of incidents, in addition to the interviewee's knowledge cf the actions or statements of other persons connected with the event.
e.
Tne investigator will document all interviews in the appropri-av.e OI reports, and no investigator will intimate or state otherwise to the interviewee.
f.
Telephohic interviews should be held to a minimum. However, where personnel, financial, time, and/or geographic considera-tiens preclude personal interviews, telephonic interviews may be conducted provided that all necessary information can be obtained through this method.
Telephonic interviews must be cleerly identified as such in the ensuing report of investiga-tion or inquiry.
g.
Ideally, interviews should be conducted by two investigators; however, the realities of 01 resource constraints will generally result in interviews being conducted by one investi-gator.
Notwithstanding resource constraints, two investiga-tors should conduct the interview when there is a reason to believe that the interviewee is:
(1) hostile; (2) believed likely to provide false or perjured information; (3) the target of an investigation; (4) in a location or under condi-tions where the investigator could be in danger; or (5) con-sidered dangerous. When specific technical expertise is required for the interview, or when deemed appropriate due to other unusual circumstances, an investigator may be cccom-panied by another NRC employee whether or not that persen is an 01 investigator.
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1 h.
Interviews of female witnesses by one male investigator, or the reverse situation in the case of a female investigator interviewing a male, presents special considerations.
In either instance, the investigator could be subjected to charges of sexual harassment that are difficult to refute in the absence of witnesses unless he or she takes certain precautions. The most obvious precaution is to conduct interviews using two investigators.
If a second investigator is not available, and the interview cannot be delayed until one is, then the investigator should select another person of known reliability to sit in on the interview as a witness. Typically this would be another NRC employee, usually an inspector.
In the case of a male inter-viewing a female, a female secretary employed by the NRC or another Government agency could be an appropriate alternative witness. Such interviews, to the extent practicable, should be conducted in locations that are appropriate for the conduct of business.
Thus, it is better, if possible, not to interview a person of the opposite sex alone in their residence or in a motel room if a more neutral location is available.
If conditions dictate the use of the residence or motel room, investigators are urged to arrange for a court reporter to transcribe the interview or, as a minimum, to tape record it.
In sum, as experienced professionals, 01 investigators are assumed to be aware of the special problems attendant to such interview situations and to take reasonable steps (the above are illustrative) to reduce their vul-nerability as a result of such interviews.
i.
The investigator should plan carefully all interviews to minimize the need for additional interviews.
4.2.
Miranda Warnings Miranda warnings are the warnings required to be furnished to criminal suspects by arresting police officers under the Supreme Court decision of Miranda v. Arizona, 384 U.S. 436 (1966) and related rulings. The question arises whether an investigator should give these warnings to persons whom they interview because those persons may have violated criminal statutes as well as NRC regulations.
Miranda warnings will not be furnished by 01 investigators to persons interviewed during the course of 01 investigations unless (1) the interviewee is in custody or (2) the Director / Deputy Director 01 directs that such warnings be given because of some special circum-stance. A person is in custody if incarcerated, under arrest, or otherwise significantly deprived of freedom for any reason, even if it is not related to the matter being investigated. As 01 investigators under normal conditions do not interview persons who are in custody, Miranda warnings are rarely required.
Any questions regarding the issue of Miranda warnings that arise daring an investigation should be directed to 01 Headquarters for resolution.
In those instances where 01 investigators furnish Miranda warnings, the format at Appendix D is used. Completion of this form is self-explanatory.
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In additinr to the limitations on providing the full Miranda warnings,
(
01 investigators will normally not advise persons in noncustodial interviews that they may be represented by counsel. However, inter-viewees dc have the right to have counsel if they wish. 01 investi-pators will not tell individuals being interviewed that they cannot employ private coursel for consultation and/or attendance at such interviews.
4.3.
Administering Oaths or Obtaining Affirmations The Connission has the authority to administer oaths and obtain affir-mations in connection with its investigations. That authority has been delegated to the Director 01, and redelegated to all 01 investigators.
See Secticn 161(c) of the Atomic Energy Act of 1954, as amended, 42 U.S.C. 2201(c).
4.3.1, When to Administer an Oath or Obtain an Affirmation. The point at which an oath is administered depends upon the circumstances surrounding the intcrview. As a general rule, it is more advantageous to complete the interview and obtain as much information as possible before administering the oath or obtaining affirmation. However, there may be instances in which it would be beneficial to place the individual under oath before the interview. The investigator must judge each situation accordingly.
Q 4.3.2.
Procedures for Administering an Oath or Obtaining an Q
Affirmation. The guidelines for administering oaths and obtaining affirmations are located at Appendix c.
4.4 Subpoenas Most investigations are accomplished without the need for compulsory process, because most interviews and evidence are given voluntarily.
When individuals or entities fail to cooperate, 01 may compel the attendance and testimony of witnesses and/or the production of evidence by subpcena.
4.4.1.
Authority. NRC is authorized to issue subpoenas in support of investigations.
That authority has been delegated to the Director,
- 01. See Section 161(c) of the Atomic Energy Act of 1954, as amended, 42 U.S.C. 2201(c).
4.4.2.
Format of 01 Subpoenas. A sample subpoena has been provided at Appendix F as guioance in completing subpoenas. OI elements will use this format.
4.4.3.
Use of the Subpoena. 01 can issue subpoenas to compel the attendance and testimony of witnesses or the production of physical and/or documentary evidence or both. OI will not use subpoenas in situations where voluntary cooperation is readily obtainable through reasonable accommodations such as scheduling interviews at mutually convenient times and places.
Investigators must not accommodate persons or entities to the point of compromising investigations. Normally 01 investigators will not request a subpoena until cooperation has been j
4-3 iL
refused. However, in exceptional cases (e.g., where evidence may be tampered with or where a high probability exists that the investigator's request will be refused) 01 may issue subpoenas before cooperation has been refused.
There are several general limitations on the use of subpoenas.
Subpoe-nas must be issued in good faith, and the information sought by the subpoena must be relevant to the 01 investigation. Moreover, the subpoena must be reasonable. This means that the time and place of interview must be reasonable, any demand for documents or other tangible evidence must be reasonable, and the subpoena must describe the informa-tion sought with reasonable particularity.
4.4.4.
Subpoena Approval Guidelines. The Director. 01 (or Acting Director), shall issue all OI s e oenas. Whenever practicable, the rield Office Director shall request the subpoena by memorandum to the Director, 01, and attach a draf t subpoena to the memorandum. The memo-randum requesting the subpoena should address:
a.
details of the situation and need for the subpoena; i.e., the refusal of the person or party to cooperate, b.
the information or documentation desired, c.
a coordination with the NRC staff to determine that the desired information/ documentation is not already available within NRC,
{
d.
what other means are available to obtain this information, t
e.
the need for oersonal service if service by mail is not I
- desired, j
f.
the address of the individuc1 or entity to be served with the subpoena, and g.
a return date with sufficient and reasonable lead time (at l
least 2 weeks from the anticipated date of issue of the subpoena).
Upon receipt of a request for a wbpoena, 01 Headquarters will obtain review by the Office of General Counsel of the request and will provide suitable notice to the Commission in advance of issuing the subpoena.
j 01 Headquarters will prepare the approved subpoena for the signature of i
the Director or Acting Director, 01. The requesting Field Office j
Director should allow sufficient time for the approval process.
]
When a written request is not practical because of time constraints or other case-unique problems, the investigator may request a subpoena by telephone from 01 Headquarters. This will shorten the approval time considerably. The investigator must then provide 01 Headquarters with the same information as required in written subpoena requests. The originating 01 of' ice will follow-up its oral request in writing, citing
)
the telephonic contact and notifying 01 Headquarters of results achieved I
from the subpoena.
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4.4.5.
Service of Subpoenas. After subpoenas are authorized, they must t1 celiverec to (" served upon") the person or legal entity named in the subpcene.
Subpoenas must be served in a particular manner to ensure enforceability in court. 01 subpoenas may be served either by mail (certified or registered with " restricted delivery" and " return receipt requested") or by personal delivery.
01 will routinely use mail'to serve subpoenas unless there are reasons for preferring personal service, such as insufficient lead time or evasion of mail service. Subpoenas to be served by mail will normally be dispatched by 01 Headquarters via certified mail. Delivery will be restricted to the person named on the subpoena. An additional copy of the subpoena will also be sent to the named person or entity by regular mail channels.
If 01 Headquarters determines that personal service is warranted, the subpoena must be served in the following manner:
a.
Service upon an individual must be made by personally deliver-ing the subpoena to that person.
b.
Service upon a domestic or foreign corporation or upon a partnership or other unincorporated association which is
-subject to suit under a common name, must be made by persorelly delivering the subpoena to an officer, to a O
nanaging or general agent, or to any other agent authorized by appointment or by law to receive service of process, c.
Personal service (delivery) may be made by any person not less than 18 years of age, d.
Normally, such service will be made by an NRC employee. 01 Headquarters must approve the use of a non-Federal en.ployee.
e.
Care must be taken to ensure that anyone serving a subpoena is aware of the procedures recessary to effect proper service.
In order to complete the procedure for service of a subpoena, proof of the service must be provided to the Director 01.
Service may be documented in two ways:
by the acknowledgement of the person served or by the certification of the person making personal service. Whenever practical an acknowledgement should be obtained. The U.S. Postal Service receipt will serve as the acknowledgement for a subpoena sent by certified or registered nail with restricted delivery, because cnly the addressee is permitted to sign for such mail.
Receipt of subpoenas that l
are personally served nay be acknowledged on the back of the subpcena.
Whenever en acknowledgement cannot be obtained, the person serving the subpoena shall establish proof of service by executing an affidavit on the back of the subpoena. The affidavit will identify the person served and the date and place where served.
4.4.6.
Compliance with Subpoenas. The investigator must meet the person naned in the subpoena at the designated time and place.
If the subpoena requires the production of either physical or documentary l
4-5 l
evidence, the original of the evidence iust be produced, unless the subpoena specified that a copy (as in the case of documents) would be acceptable. A person compelled to submit documentary evidence is entitled by law (5 U.S.C. 555(c)) to retain a copy of such evidence.
If the subpoena requires the named person to appear and testify, the interview will be conducted in the normal manner; however, the interview should be transcribed by use of a court reporter, or be tape reccrded unless there are circumstances mitigating against this recordation (such as a so-called " friendly subpcena").
In such instances, approvpl not to reco-d the interview nust be obtained from 01:HQ.
It is not necessary to have an NRC attorney attend these interviews, although such assis-tance may be appropriate under some circumstances.
Investigators should normally be accompanied at such interviews by at least one other Govern-ment employee.
A person compelled to provide testimony is entitled by law (5 U.S.C.
555(c)) to obtein a copy of the results of such testimony. However, for good cause, the person may be limited to inspection of the testimony durinc the pendency of the investigation.
A persor, compellec' by subpoena to testify to 01 is entitled by law (5 USC 555(L-)) to be accompanied, represented, and advised by counsel or other personal representative (see paragraph 4.5, this manual). This right is subject to the limitation that under certain circumstances it may be possible that counsel representing another party at interest could be excluded (see paragraph 4.5., this manual).
In that event, the interviewee is entitled to secure other counsel.
As in non-compelled interviews, the interview is conducted by the investigator, not the interviewee's counsel.
Interviewees must answer the investigator's questions directly -not through counsel. The inter-viewee's counsel may clarify procedural matters, or explain the basis for any refusal to answer specific questions. Counsel, however, may not examine the interviewee.
j An interviewee may not refuse to answer a question because the answer would be personally embarrassing, adversely affect a friend, cause him/her to lose a job or license, or reveal trade secrets or confi-dential information. Only an interviewee may invoke any of the testimo-l nial privileges recognized by Federal law; e.g., self-incrimination.
When the privilege asserted is the privilege egainst self-incrimination, a special procedure is available to compel the otherwise privileged testimony upon the grant of "use immunity."
The investigator must report to 01 Headquarters any refusal to produce evidence or answer questions in compelled interviews. The investigator may at his/her discretion, either suspend the interview upon encounter-i ing such a refusal or continue with other areas of questioning and contact 01 Headquarters thereafter.
4.5. Exclusion of Third Parties from Interviews Investigative intervi a s should be conducted under conditiont that enhance the investigator's ability to ensure that NRC obtains full, complete, and accurate information.
Individuals being interviewed will 4-6
[
normally be permitted to have a personal attorney or other personal
\\
representatiu present during interviews.
However, if the personal ntorney or representative also represents another potential interviewee l
or the corpery being investigated, the investigator will contact 01 Feadouarters and a case-by-case determination shall be made whether to e>.clude the personal attorney or representative on conflict of interest grounds. Once a decision has been reached to exclude the attorney or personal representative, he or she should be asked to leave the place where the interview is being conducted.
If he or she refuses to leave, then the interview should be discontinued unless the investigator believes that the reed to conduct the interview outweighs the disadvan-tages cf allowing the attorney / personal representative to remain. As should be obvicus, investigators will not resort to physical force or threats to remove such unwanted third parties.
Normally, CI will not permit other third parties, such as licensee management or union stewards, to be present during interviews. OI Headquartus Mll resolve requests for the presence of persons other than perscncl coursel cn a case-by-case basis after consultation with OGC.
4.6. Tape Recordina Investigative Interviews The use of stenographic reporters or tape recorders during non-compelled irterviews is left to the discretion of the investigator (see O.
paragraph 4.a.5. for recordation of compelled testimony). Absent a particular reason for this recordation, the preferred practice is not to record investigative interviews.
An interviewee normally will not be allowed to tape record an interview.
If, however, in the judgment of the investigator allowing such taping may facilitate the interview, it i
may be recorded provided that the taping is done by the NRC.
l Although the interviewee ultimately has the right to a copy of the tape in the same mant.er as he or she would in the case of a transcript or j
written statement provided by then, the timing of the release of it to I
the intervi wee is at the discretion of 01 (see paragraph 5.5. of this manual regarding release of statements). The normal practice should be to withhold the tape to the end of the investigation to avoid any i
possible interferer.ce with the course of the investigation. As the l
purpose of the withholding is to protect the investigative process, this l
release cc41d be made at the completion of the field investigation but prior to the issuance of the report of investigation.
Occasionally, an interviewee may insist on either taping the interview or receiving a copy of the NRC-produced tape immediately as a condition for permitting the interview.
Such demands will be dealt with on a case-by-case basis. The investigator normally should tenninate the interview, but may proceed under such conditions if he or she is rea-sonably confident that any potential damage to the investigation is outweighrd by the benefits of conducting the interview under such circumstances.
l 4-7 L.____-__-____-_--_----_----_--_--_.
CHAPTER 5 DOCUMENTING 01 INVESTIGATIONS 5.1.
Documenting Formal Investigations The results of all 01 investigations are documented in a Report of Investigation (ROI). The ROI is the principal 01 product which is furnished to other NRC components. When appropriate, 0I will make the ROI available for release to licensees and to the public after deletion of exempt material. The ROI must be written in sufficient detail to assist NRC officials having cognizance over the matter investigated to arrive at an informed conclusion regarding the matter.
5.2.
Preparation of the Report of Investigation Guidelines for the preparation of Reports of Investigation are contained in Appendix G.
To further assist in the writing of such reports, a sample ROI is conteired in the Administrative Supplement to this manual.
5.3.
Reports of Inquiry Not all information or allegations brought to the attention of 01 result in a formal investigation, and thus documented in an ROI. Some alle-gations may be properly addressed by routine or special inspections (3
withir, NRC staff channels; others may be resolved by an OI inquiry.
Q Guidelines on the preparation of Reports of Inquiry are contained in Appendix G and the Administrative Supplement to this manual.
5.4.
Case Chronology A chronological record of investigative and supervisory activity for each 01 investigation / inquiry will be maintained in the case file. The record will ti started upon initiation of an investigation / inquiry and continue Urtil the case is closed. The record's purpose is to document all case-related activities, some of which may not be included in the final report, and to allow reconstruction of the manner in which an investigation or inquiry was being conducted in the event responsibility is transferred to another investigator. To avoid duplication, entries should, when possible, refer to other documents (statements, reports of interview, memorandums, etc.) in the case folder. Otherwise, entries must be in sufficient detail to provide a complete understanding of the action. The case chronology should be used to record investigator or l
supervisory reviews, instructions given by supervisors, administrative processing data, contacts, coordination with NRC staff and other agencies, the fact that interviews or records reviews were conducted, etc. A sample of the format and content of the case chronology is at Appendix H.
5.5.
Statements Whenever an interviewee provides relevant information, such as the
- k admission of wrongdoing or the firsthand account of seeing another person engage in wrongdoing, an attempt should be made to have the 5-1 L___---______
interviewee document his or her testimony in a signed, sworn statement.
The first paragraph should, as a minimum, include the name and identify-ing deta concern'ing the investigator and the individual (address and telephone number), the date and place of the statement, and acknowledg-ment that the statement is voluntary. The second paragraph should be a brief biographical statement which contains the experience, education, ar.d trainine cf the individual and any other information bearing on his/her qualifications in relation to the testimony he or she is pro-viding. The format for statements is found in Appendix E to this manual.
A discussion of the jurat at the end of a statement is contained in Appendix E of this marual, which addresses the administering of oaths and obtaining of affirmations.
Although the interviewee ultimetely has the right to a copy of the statement in the same manner as he or she would in the case of a tran-script or tape recording, the timing its release to the interviewee is at the discretion of 01 (see paragraph 4.4. of this manual regarding release of statements).
The normal practice shculd bt to withhold the staterent until the end of the investigation to avoid bny possible interference with the course of the investigation. As the purpose of the withholding is to protect the investigative process, this release could be made at the completion of the field investigation, but prior to the issuance of the report of investigation.
Occasionally, an interviewee may insist on immediately receiving a ccpy of the statement as a condition for permitting the interview.
Such demands will be dealt with on a case-by-case basis. The investigator normally should terminate the interview, but may proceed under such conditions if he or she is reasonably confident that any potential damage to the investigation is outweighed by the benefits of conducting the interview at that time.
5.6.
Report of Interview If an interviewee declines to render a written statement, but is willing to answer questions, or if the case investigator considers that an interviewee's testimony does not warrant a written statement, the investigator will document significant and relevant information devel-oped during the interview in a Report of Interview. Reports of Inter-view should normally be dictated or written as soon as practicable after the interview.
Such Reports of Interview should be written no later than 10 cays after completion of the interview.
As a minimum, the Report of Interview must indicate the date and place of the interview; the identity of the investigator (s) sho conducted the interview; file numbers; the date dictated, prepared,4and/or tran-scribed; the identity, address and phone number of the individual interviewed; the subject matter leading to the interview. A complete summary of the interview will follow.
Completed Reports of Interview will be placed in the case file.
5-2
Reports of Interview must be written with considerable care to ensure
)
they recurately depict what was stated by the interviewee. The use of attributive verbs such as stated, said, recounted, or the phrase, "According te
" help the reader differentiate between what the interviewee stated as opposed to the investigator's opinion as to what was said. The use of direct quotes further adds to the value of the report. At the same time, it is neither practical nor useful to attempt to docuaent everything that was discussed during the interview.
It is sufficient to include.only testimony that is relevant to the matter under investigation. This would include any information that would assist the reader in assessing the attitude of the interviewee or his or her apparent truthfulness.
l For instance, contradictions to known facts would normally be dealt with during the interview.
This should also be made clear in the Report of Interview.
If they were not brought to the attention of the interviewee for some reasco, then an " Investigator.'s Note" pointing out the apparent contradiction would be useful to the reader. Similarly, an Investiga-tor's Note shculd be used to highlight any apparent hostility or lack of cooperation, apparer.t attempts at deception, or apparent nervousness or agitation.
Separate reports normally will be prepared for each productive inter-view. Mcwever, a series of interviews where each interviewee provides essentially the same information, or a series of interviews where each person is unable tc provide any pertinent information may be documented collectively cn a single Report of Interview.
5.7.
Transcribing Interviews In some instances, the use of a court reporter to record and transcribe an interview might be more appropriate than either a written statement or a Report of Interview.
Examples of such circumstances include compulsory testimony in compliance with a subpoena (the use of court reporters in these instances is the general rule as set forth in paragraph 4.4.6.), situations where the issues are highly technical, an interview of a female witness by one male investigator (or of a male witness by a female investigator), situations where there is a need for accuracy in a lengthy or complicated interview, some confrontational situations, or situations where it is necessary to interview a senior level management official. The decision to use a court reporter during noncompelled interviews is left to the discretion of the investigator and the 01 Field Office Director.
When court reporters are used, however, the investigator must ensure that a clear understanding exists regarding ownership, security, and distribution of the transcripts. Copies of transcripts are not to be distributed by the reporting service to anyone other than the investiga-tor (or the cognizant Field Office Director) who contracted for the service. The interviewee is entitled to a copy of his/her testimony if compelled to testify, but, for good cause, the investigator may limit the interviewee to an inspection of the transcript until after the investigation is completed (see paragraphs 4.4.6., 4.6., and 5.5.).
5-3 I '
At the beginning of such an interview, the same data identifying the interviewee should be placed on the record as on a written statement.
5.E.
Investigative Notes Whether or not to take notes during an interview (or other investigative activity) is a decision left to the discretion of the investigator.
However, contemporaneous notes made by an investigator during an inves-tigation could facilitate the compilation of an accurate, effective, and thorough investigative product.
The term " notes" includes handwritten notes, dictated notes, and other work papers made during an investigation. This term also includes documents prepared outside of but derived directly from an investigative activity.
Notes should contain the dates and locations of record reviews, contents of interviews, or other activities. They should fully identify persons interviewed, other individuals present, and persons who provided assistance or documentation to investigators.
Finally, the notes shou W record the existence of unusual conditions or other devel-opocrts which my impact upon the investigation.
E.6.1.
Method and Amount of Note Taking. The method of taking notes is left to the discretion of the investigator. The amount of note taking will vary with the circumstances. Friendly witnesses seldom object to notes being taken during an interview. On the other hand, hostile or nervcus witnesses nay be reluctant to provide any information, or worse, may hold back important information if they observe the investigator writing notes of their oral remarks.
5.8.2.
Petention of Notes.
Investigators must preserve any notes taken, even informal notes. The first page of any logical grouping of notes should be signed and dated by the investigator, and the related pages stapled er bound together.
Upon completion of the investigation, the notes should be placed in one or nore envelopes. The envelopes shculd in turn be labeled, both back and front, with the name of the case, the case control number, and the title " Investigator's Notes." The envelopes should then be sealed and placed in the investigative file.
5.9.
Retention of Draft Documents In the absence of an ongoing FOIA or Privacy Act request pertaining thereto, all drafts prepared by 01 personnel will be destroyed upon completion of the final written document. As a draft of a Report of Investigation, Report of Inquiry, memorandum, or other 01 document undergoes revision, the initial or any intermediate drafts will be destroyed upon preparation of the next draft or final product.
~
For example, a scquence would begin when an investigator prepares a l
rough draft report. After review, the investigated requests that a j
final draft be typed. Upon supervisory review of the final draft, the i
field office produces a final report and submits it to 01 Headquarters l
E-4 l
1 i
k
O-for review. Minor revisions may require that the final report submitted to headquarters be modified; thus, the submitted final differs from the final report ultirastely issued by 01 Headquarters.
In this example, the rough draft woulc be destroyed when the final draft is completed, and the final draft destroyed when the final report is produced by the originating field office.
If changes are required after the head-quarters revier, the final report submitted by the field office is destroyed upon completion of the final report that is signed by the Director, 01, ano issued by 01 Headquarters.
5.9.1.
Active F0IA and Privacy Act Requests. The exception to the draft destruction policy involves an outstanding F0IA or Privacy Act (PA) request for "any or all" documents associated with a particular investigation or action. All documents, draft or otherwise, that exist on the date of the F0IA/PA request raust be preserved and added to the invectory list provided to 0I Headquarters. This provision does not apply to drafts prepared subsequent to the date of the F0IA/PA request.
Retention of drafts in existence at the time of F0IA/PA requests is required by law even if the drafts in question were in 01 files only because of administrative error; i.e., because the responsible employee failed to destroy them in accordance with the requirements set forth above.
Guidelines for responding to F0IA requests are contained in Appendix 1.
5.9.2.
" Personal" Copies of Draf ts. 01 employees will not keep personal copies of drafts of reports or other official documentation.
These drafts are legally NRC records regardless of their location. The fact that a draft is at ar investigator's residence or other location outside the NRC does not exempt it from the reach of subpoenas or orders granting judicial or administrative discovery motions.
S.9.3.
Disagreements Regarding the Content in Draft Documents. 01 employees may disagree with revisions made during management review of reports or other official documentation. Such disagreements should be voiced at the time through the appropriate chain of command. The draft in question may be retained until a final decision is reached regarding the employee's objections.
If an agreement is reached, the draf t will be destroyed.
If the employee still disagrees with the final 01 manage-ment decision, the employee should prepare a memorandum to the files of 01 documenting the reasons for disagreement. The draft (s) in question shculd be appended to the merrorandum and placed in the appropriate official 01 file. The Director. 01, will ensure that any differing views are provi n d to the Commission or staff as appropriate for use in their review of the final 01 Report of Investigation. This procedure is not intended to preclude an 01 employee's right to make use of the NRC Differing Professional Opinion procedures if the employee so chooses.
5.10.
Case File Management All materiel placed in the case file will be affixed to a blue four-position folder in chronological order. " hen the information concerning a case becomes too voluminous for one folder, an additional
]
1 5-5
Q folder will be set up.
Such folders will be designated 1 of 3, 2 of 3, 3 of 3, as necessary. All 01 investigation case file folders are organized as outlined Lelow:
Position in Folder Attachment Inside Front Cover Case Opening Documents Fonthly Status Reports Other Updating Reports Case Chronology Record Investigative Plan Mail Control Form (Assigned when ROI Received in 01:HQ)
Report Distribution List Front-facing Divider Memorandums to File Notification of Case Opening Telephone Conversation Records Case-related Correspondence Transmittal Correspondence Title Page of ROI Back-facing Divider Congressional Correspondence Media Articles Enforcement Actions Other Pertinent Correspondence Inside Back Cover Department of Justice or Other Referral Correspondence Accordion folder.c will be placed directly behind the blue folder in the folloving sequence:
(1) Accordion Folder Report of Investigation with Attachments Transmittal Correspondence (2) Accordion Folder Board Notification Terrorism / Sabotage threats Policy Issues-SECY Papers Other Pertinent Information (3) Accordion Folder Background Information Investigator's Notes All material will be filed chronologically. Additional folders may be used when the volume of material warrants.
O 5-6 i
e i
CI Ir.cciry filet will be set up in red four-position folders as set
()
forth below:
Inside Front Cover Request for Inquiry Monthly Status Report Front-Facing Divider Related Correspondence Inspection Reports l
Back-Facing Divider Telephone Conversation Records Inside Back Cover Report of Inquiry Transmittal Correspondence All the above material will be filed chronologically.
5.10.1.
Investigator's Working File. The case investigator is authorized to prepare and use a working file during ongoing inves-tigations. This file will be identified as " Working File" with the case number.
It will not contain original documentation other than the investigator's notes, the case chronology record, and the investigative plan. The working file will be destroyed after completion of the field work and final report. The original documents described will then be placed permanently in the official case file folder.
5.10.2.
Retention of File Meterial in Individual Offices.
Original official file copies ano other original documentation will not be retained in an individual's office. This serves to preserve and better account for the original documentation and facilitates F0IA searches.
It is imperative that 01 files be kept complete in the official folders, since the alternative is that each future F0IA request would require a complete and thorough search of all investiga-tors' offices in the field end at headquarters.
5-7
\\
(~N CHAPTER 6 d
COLLECTION, CUSTODY, AND PRESERVATION OF EVIDENCE 6.1.
General The collection of evidence is a fundamental investigative technique.
There are instances where the role of physical evidence is extremely important to the resolution and prosecution of the matter under investi-gation. Thus, it is especially important to collect and handle evidence in accordance with recognized legal and professional standards. The specific procedures to be followed by all 01 6 cstigators who become involved witF the collection, receipt, handling, or disposition of evidencc are stated in the following paragraphs.
These procedures do not apply to original written statements obtained by 01 investigators during the course of investigations, since these are self-authenticator 4 (They should, of course, be safeguarded adequately.)
These proceduras do apply to all other original or best evidence copies cf documentary evidence obtained during investigations, as well as all physical evidence collected during investigations.
6.2.
Appointmer.t and Duties of Evidence Custodians Each Field Office Director will appoint a primary and alternate evidence custodian in writing.
Either the primary or the alternate custodian nust be an investigator other than the Field Office Director. Use of
(
administrative personnel as custodians is authorized, but not as both b
primary and alternate. A copy of each appointing document will be kept in the field office evidence depository. The appointing documents will be brought forward for filing each calendar year that the primary and alternate evidence custodians retain their positions.
6.2.1.
Primary Evidence Custodian. The duties of the primary evidence custodian are as follows:
a.
Acccunt for, preserve, safeguard, and dispose of all evidence received by the Field Office.
2.
Establish an evidence ledger and in it maintain all evidence recordt.
3.
Protect evidence from loss, deterioration, and damage.
6.2.2.
Alternate Evidence Custodian. The alternate evidence custodiar essumes all duties of the primary evidence custodian during any temporary obsence of the primary evidence custodian.
Upon assuming duties of the primary evidence custodian, the alternate evider:ce custodian enters and signs the following statement in the evidence ledger, immediately below the last entry:
(
I, (Name)
, on (Date) assumed all duties of the primary evidence custodian during the tempcrary absence of the primary evidence custodian.
I accept 6-1
l l
respersibility cnd accountability for all evidence contained in the field office evidence depository.
(Signature of Primary Evidence Custodian)
Upon return from temporary absence, the primary evidence custodian ensures that all entries on records that pertain to evidence taken in, releasec, and disposed of by the alternate evidence custodian are correct and accurate. After ensuring that the records are correct, that l
all the evidence is accounted for and properly documented, the primary l
evidence custodian enters the following statement in the evidence Tedger, immediately below the last entry:
l l
I, (Name)
, on (Date)
, resume my position as primary evidence custodian and accept responsibility and accountability for all evidence contained in the field office evidcoce depository.
(Signature of Primary Evidence Custodian) 11 at ery time it is founc thet evidence has been lost, wrongfully cisposed of, or an erroneous entry has been made pertainirg to the ovidence, the Directcr of the Field Office must be immediately informed.
The evidencc custodian should prepare a memorandum outlinino the error and what was done to correct it.
6.2.3.
Changing Primary Evidence Custodians.
If the primary evidence custodian is absent for an extended period or if the office is changing primary evidence custodians, a complete inventory of evidence contained in the depository should be conducted by both the incoming and outcoing custodians, and so noted in the evidence ledger. A newly erpointed primary evidence custodian should also make a notation of his assumption of duties and responsibility in the evidence ledger with bis signature, as follows:
1, (Name)
, on (Date)
, having concucted a satisfactory inventory, hereby relieve
, and assume all duties of the primary evidence custodian.
I accept responsibility and accountability for all evidence contained in the field office depository.
(Signature of Primary Evidence Custodian) 6.3.
Evidence and Property Processing The investigator who assumes initial custody of evidence immediately marks the evidence for future identification.
If possible, a permanent mark is placed directly on the item.
If this is not possible, the investigator shall place the evidence in a container that can be sealed I
end marked. The merking includes the time and date of acquisition and l
the initials of the person who assumes custody of the evidence.
j l
1 6-2 l
i
O a
i O
Ar Evidence / Property Tag or its equivalent is attached to each item of
(
evidence to identify it ard provide for control. Only one tag need be i
l N
usec when iterrs are grouped together (for example, a box containing compone.rt parts) and listed as one item.
A record of the chain of custody of all physical evidence is made, regardless of how it is obtained. The investigator who first acquires, nerts, and tacs the evidence is also responsible for preparation of the Evidence ano Property Custody Document.
Guidelines for preparing this document and further processirg/ accountability of evidence are contained in Appendix J.
Each 01 Fiele Of fice will prepare an Evidence Ledger for physical etidence received by that office, to provide accountability through cross-reference eith Evidence / Property Custody Documents.
Guidelines for preperetion and riintenance of an Evidence Ledger are also conteined ir fppendix 0.
0.4 Handline cf FunciMe Evidence Items which itck individual characteristics and are not easily identifi-ebie (fungiM r itens) shculd be segregtted and marked appropriately as evidence et the ectliest possible time after acquisition.
After wet or damp forcible items have beer visually examined and allowed to dry, they are sealed in a container. The container may be paper or ranila envelcres, cardboard boxes, or wrapping paper. Avoid sealing ir.
plastic containers.
Lo not use containers that show previous markings or seals.
Uhen sealint fungible evicence in cortainers, the investigator should scal all openings, joined surfaces, and edges with paper packaging tape or equivt.lert; cellophane or mashing tape is not used. The investigator should then place the tolicwing markings so that they appear on both the tape and package:
a.
tf ( time anc ce.te of sealing; b.
the initials or signature of the initial custodian; and c.
the 01 case control number.
Items such as small amounts of powder, hair, fiber, small paint chips, or flaker are r,ct placed in plastic bags.
Such small materials ter.d to edhere to the inside of e plastic bag because of static electricity.
They should be placed in paper wrappings, cardboard containers, or plastic or glass vials.
There is no requirement tc seal nonfungible evidence.
However, it may De stiled if desired and handled in the same manner as fungible evi-dence.
L 6-3
c.f.
Maintenance of Evidence Evidence is stored in an evidence depository so that the integrity and physical characteristics are maintained. This depository is normally an office sefe or security cabinet of adequate size and is des;gnated solely for evidence.
Items such as metal objects are kept in a clean, rust-free condition to preserve their value as evidence.
Fingerprint cards obtained for comparison may be maintained in the proper case file instead of the evidence depository. When 01 sends these cards to a laboratory for comparison with other evidence from the depository, the card need not be listed on an Evidence / Property Custody Dccument. The description en the laboratory request is enough to connect the card with the evidence. Replace the fingerprint card in the proper case file when returned by the laboratory.
Documerits that racy directly prove or disprove a point in question are kept in the evidence depository.
Such documents may include forged or altered cocuments, end other questioned documents, along with related standcrds or exemplars.
Statements (including confessions) and copies of documents routinely asscciated with an investigation are kept in the case file anc r,ot in the Evidence depository. Tape recordings of confessier.s or admissions are maintained as evidence. When necessary, large items may be kept in an impoundment lot, warehouse, or other reasonably secure place, so long as the items are properly marked and appropriate control is maintained.
6.6.
Evicence Depository A safe or filing cabinet with e combination lock and locking bar is used tc secure evider.ce. Access tc the safe or filing cabinet is restricted to the primary and alternate custodians.
Only the primary and alternate custodians know the combination of the lock to the evidence depository.
However, copies of all combinations are reccrded in sealed envelopes and forwarded to 01 Headquarters for safekeeping.
Lock combinations are changed when the primary or alternate custodian is changed. All combinations are also changed if there is any indication of possible compromise.
The evidence depository is locked at all times when not in use by the l
evidence custodian.
Only authorized personnel are granted access to the evidence depository and then only in the presence of the responsible evidence custodian.
O 6-4
U CbAPTER 7 CONFIDENTIALITY 7."., General l
l Frequently, 01 investigators must make use of information from individuals while protiding them adequate assurance that the NRC will protect their iden-tities es fully as possible. Each investigator must know and understand the parameters within which the identity of a person providing information to 01 i
can be protected.
l l
7.1.1 Purpose. The primary purpose of grarts of confidentiality is to encourage persons possessing information relating to matters within NRC jurisdiction to report this information to the NRC. Thus, while 01 investi-gatcrs must comply with the procedural requirements set forth in this chapter, each investigated must exercise care that these procedures are applied in a manner that enhances rather than inhibits the flow of such information.
It is particularly important not to present these confidentiality procedures in such a way as to lead the potential interviewee to perceive them as a bureaucratic obstacle. Rather, the investigator should strive to assure that the inter-viewee iully understands the scope of any confidentiality agreement he or sht mcy regotiate vith the NRC.
7.2. Confidential Source of Information This section sets forth 01 policy or," confidentiality," and incorporates the
(
Commission's statement of policy on confidentiality (50 Fed. Reg. 48506, b
November 25,1965). The following chapter will explain:
a.
who may grant confidentiality; b.
the circumstances under which confidentiality may be granted; c.
the circumstances and extent to which the identity of a confidential source may be disclosed; d.
the circumstances under which a grant of confidentiality may be revoked; and e.
procedures for handlirg records pertaining to a confidential source.
7.2.1.
Granting Confidentiality. The Commission has delegated authority to the Director, Office of Investigations (01); the Director, Office of Inspector ned Auditor (01A); and the Executive Director for Operations (ED0) te designate those persons within their organizations who will be authorized to grant confidentiality. The Director. 01, has redelegated this authority to the Deputy Director, the Field Office Directors (F0D) and each investigator in 01.
Confidentiality will be granted only when an 01 investigator authorized to grant confidentiality and the individual requesting confidentiality sign a Confidentiality Agreement (Appendix K), unless it is not practicable to sign 7-1
1 1
the agrerrent at the tire the inferraation is obtained. The form provides a I
space for 'cthcr conditions," which may be used to aodress particular needs.
Investigators will not allow such conditions to alter the general scope of confidentiality without approval from 01 Headquarters.
After the form is signed by both the individual and the investigator, the investigator will retain the original agreement and provide a copy to the interviewee if reouested (see paragraph 7.7., Records).
The agreement explains thc conditiors to which the NRC will adhere when 01 grants confidentiality.
In those circumstances where it is not practicable to sign a confidentiality agreement at the time the information is obtained, e.g., where the information l
is obtained over the telephone, confidentiality may be given orally pending I
signing of the confidentiality agreement, which must be accomplished within a reasonable tirre.
If confidentiality is grant.:d orally, this must be fully documented b3 the person grenting it.
If the confidentiality agreement is not l
signed within a reascoable time, the Directer, 01, in consultation with the l
Field Office Director, will deternine whether the confidentiality should be cJntinUed.
Occasicrally, irv(stigators 7ay encounter interviewees who demand confidtrti-ality, but decline to sign an agreement for various reasons not indicating disagreemeM with its terms. 01 investigators encountering such situations should ensure that the indivioual understands the conditions of NRC granted cerfider.tiality.
If in the judgement of the 01 investigator, the individual toes understtnd these provisions, and the granting of confidentiality appears to be the coct effective way to gain the cooperation of the interviewee, the 4rvestigator rey grant such confidentiality in order to facilitate receipt of the information, notwithstanding the source's refusal to sign the agreement.
The 01 investigator should subsequently execute a confidentiality agreement and document on it the source's refusal to sign the agreement. This agreement should be reviewed by the Director 01, or his/her designee to determine vbether to continue the grant of confidentiality given by the investigator under thest circumstances.
When an interviewee refuses to sign an agreement because of his or her dis-agreement with its tern.s, the investigator should normally advise the interviewee that formal confidentiality cannot be granted.
Investigators may not promist a greater degree of confidentiality than that set forth in the confidentiality agreement.
Once confidentiality is granted, the individual's name may be divulged to NRC employees only on a need-to-know basis.
Each NRC employee with access to a 1
confidential source's identity will take all necessary steps to ensure that J
the identity is not further disseminated. These steps are described in paragraph 7.7., infra.
7.2.2.
Circumstances for Confidentiality.
7.2.2.1.
Restriction on Routine Grants. Confidentiality should not be granted as a routine matter.
Rather, confidentiality should be granted only when necessary to acquire information related to the Commission's responsibilities, cr where warranted by special circumstances.
It should i
ordinerily not be granted when the individual is willing to provide the 1
information without being given confidentiality.
7-2
i 7. P. 2. P -.
Determination of Need.
If an interviewee requests confi-D dentiality, the reouest shoulo not be automatically granted. Rather, informa-H ea should be sought frcr the individual to determine whether a grant of confidentiality wculd be warranted.
In soliciting this information, investi-caters must use tact and discretion to avoid the appearance of badgering the source, or ir ery way conseying the irrpression that the investigator is attempting to obstruct the flow of information to the NRC. As the purpose of confidentiality is to facilitate the flow of information, investigators must always gubre against taking any actions that could tend to have an opposite effect.
The folicving information should be solicited from the individual and/or derived by the investigator from other sources to assist in making the confidtrtiality determination:
a.
Has the individual provided the information to anycne elsei If so, is the individual already widely known as the scurce of the information?
t.
is the f!FC already aware of the information, thereby chiating the need for this confidential source? (but,
- r. notwithstanding any such NRC awareness, is the individual's cooperation necessary or desirable for the completion of thc investigation?)
c.
Does the individual have a past re:ord which would weigh egtirst granting confidentiality in this instance, e.g.,
O has the individual abused grants of confidentiality in the past?
F.
Is the information which the individual offers to provide within the jurisdiction of NRC?
e.
Mg coes the individual desire confidential source status, i.e., what would be the consequences to him/her if his/her idertity were revealed?
Taking En consideration the answers to the foregoing questions, the investi-gator must decide whether granting confidentiality would be in the best intertst of the HEC.
7.2.2.3.
Offers of Confidentiality. When an individual does not expressly requert confidentiality, an investigator has the discretion tc raise the issue when in his/her judgment it is appropriate.
Some exampics of situatiert where raising the issue of confidentiality would be appropriate wculd bc:
1 a.
Wr en it appears that an incividual is not providine infor-l mation because of a fear that his/her identity might be I
cisclosed.
((
7-3
1 b.
When it appears from the surrounding circurrstances that the individual wishes his/her identity to remain confide -
tial, e.g., the interview is being conducted in a secretive manner at the interviewee's request, or the individual refuses to identify himself/herself.
Once the issue of confidentiality is raised with the individual and he/she incicates e desire for confidentiality, the same procedures that apply to ar explicit request for confidentiality would apply (see paragraph 7.2.2.2.).
7.2.2.4.
Discussion with Source. When granting confidentiality, the followiro points should be discussed with the individual:
a.
The sensitivity of the information being provided by the sourct. should be explored to determine whether the very information provided by the source could serve to reveal the source's identity (e.g., when the information is known by very few people);
b.
The source should be informed that, as noted in the confidentiality agreement, due to controls imposed to protect his or her identity within the NRC, he or she should not expect other NPC employees to be aware of his/her confidential source status. Consequently, it would be the source's responsibility to inform such other NRC personnel if confidentiality is expected or desired for ir. formation provided to them; and c.
The other basic provisions of the standard confidentiality agreement should be reviewed, especially in those situatier.s when it is not possible to provide the individeri with a copy to read.
7.2.2.5.
linwitting Sources.
(Guidance to be developed) 7.2.3.
Cisclosing a Cor.fidential Source's Identity.
7.2.3.1.
Within the NRC. A Confidential Source's identity may be disclosed within the NRC pursuant to a request from an Office Direc-tor / Regional Administrator to individuals who the foregoing officials indicate possess both the need and right to know this information in the performance of their official duties.
Note, however, that this does not necessarily mean that the Office Director / Regional Administrator has the recuisite need and right to know.
Rather, they are certifying that certain subordinates are acting as their agents in a manner analogous to 01 investigators being granted access to grand jury material under Rule 6e when the Director, 01, may not have such access.
In certain instances the identity of a confidential source may be so sensitive thet it will not be disclosed outside 01 unless directed by the Commission.
This situation tray trise in the face of a well-grounded belief that a person's 7-4
'e life er physicel safety could be at risk were their identity to become known, O
that their centinued economic livelihood could be in jeopardy (such as when a key executive provides information concerning his employer, or less drenatically, when the source is an NRC employee (see also the discussion at paragraph 7.6.3.).
7.2.3.2.
Disclosure to the Licensee or Other Affected Organization.
If the information provided by a confidential source involves a potentially significant ano immediate impact on the public health and safety, 01 will promptly inforn the appropriate Staff office to assure proper and timely action.
In some cases, release of the information could compromise the identity of the confidential source.
In such cases, release should not be made unless the release is necessary to prevent an immediate threat to the public health and safety.
In such cases, the Director 01, or his designee, shall be consulted, and efforts will be made to contact the confidential source and explain the need for disclosure. Consistent with the Commission's Policy Statener.t, information which would reveal the identity of a confidential source will be disclosed only following best efforts by the agency to protect or limit the possibility of disclosure.
7.E.3.3.
Other Disclosures. 01 employees may be requested by Congrcss, or Statt or Federal Agencies to provide information which may reveal the identity of a confidential source. Each such request will be handled on a case-by-case basis.
Points to consider, however, are discussed below:
a.
Congress:
Disclosure to Congress may be required in response to a written congressional request. The Commission will dis-close the identity of a confidential source to Congress only if tre request is in writing. Best efforts will be made to limit any such disclosure to the extent possible.
This might include assuring that the request is by Congress in its official capacity; the hand delivery of requested information directly to the affected Congress person; and attempting to satisfy the request for information without revealing the identity of the confidential source, b.
Federal and State Agencies:
If another agency demonstrates that, in furtherance of its statutory responsibilities, it requires tne identity of a confidential source or information which would reveal a source's identity, and that agency agrees to provide the same projections to the source's identity that 01 promised when it granted confidentiality, 01 will make a reasonable effort to contact the source to determine if he/she ob-jects to the release.
If the source is reached and does not object, the Director, 01, or his designee is au-thorized to provide the information or the identity to the other agency.
O 7-5
If the source cannot be reached, or objects to the release l
of his/her identity, the source's identity may not be l
released without Commission approval. The other agency l
should be advised of this and be infonned that it may re-
-(
quest the Commission to release the identity.
f 1
Ordinarily, the source's identity will not be provided to l
another agency over the source's objection.
In extraordi-nary circumstances where furtherance of the public inter-est requires a release, the Commission may release the identity of a confidential source to another agency over the objections of the source.
In those cases, however, the other agency must agree to provide the same pro-tections to the source's identity that were promised by 01.
7.2.4.
Revocation of Confidentiality. A decision to revoke confiden-tiality can only be made by the Director of the office originally granting confidentiality or by the Commission. Cases for consideration of revocation include instances where a confidentiality agreement is not signed within a reasonable time fcllowing an oral grant of confidentiality, or where a confidentid source oerscnally takes some action so inconsistent with the grant of confidentiality that the action overrides the purpose of the con-fidentiality.
Some examples would include public disclosure by the confidential source of his or her status as a confidential source, or intentional provision of false information by the confidential source to the NRC. The fact that information provided by the confidential source sub-scquently becores public does not in itself invalidate the confidentiality cgreement so long as the confidential source is not directly associated with the information.
For exanple, an individual executes a confidentiality agreement and provides certain information to 01 which forms the basis for an investigation. Sub-sequently, various media accounts appear which recount substantially the sarie information.
This would not invalidate the confidentiality agreement.
However, the confidential source subsequently holds a press conference and publically prcvides the same information previously provided to 01 in confidence.
At this juncture, it would be prudent to contact the source to determine whether he or she wished to maintain their confidentiality.
If they do, it should be maintained absent some compelling reason to revoke it.
It should be noted that some confidential sources who may not object to public disclosure of information previously provided in confidence would object strenuously to public disclosure of the fact that they had been a confidential source.
Before revokirg confidentiality, OI will attempt to notify the confidential source and provide him/her with an opportunity to explain why confidentiality should not be revoked. All written communications with a confidential source which require / request a reply are to be sent CERTIFIED MAIL-RETURN RECEIPT REQUESTED.
l 9'
7-6 L---___
7.3. Confidential' Source Information O()-
An investighter should obtain as much identifying information as possible about a potential Confidential Source. Minimum identifying information should include'the fellowing:
a.
Name b.
Job title c.
Employer and address d.
Occupetion E.
Home address f.
Telephone numbers (home and work) c.
Such other pertinent data as the Confidential Source may providc Civen the higtly transient nature of many nuclear workers, it would also be useful to elic.it the name and address of any person who might be able to contact th( confider,tial source.
7.4. Employee Protection O
All interviewees seeking confidentiality should be made aware of the pro-tection afforded by Section 210(a) of the Energy Reorganization Act of 1974 (42 U.S.C. 5851) if the employee is apparently covered by the provisions of this statute.
In some instances, interviewees may consider this protection sufficient, and elect not to reouest confidentiality. Those interviewees who nonetheless request confidentiality, should be informed that should they become the victim of discriminatory action in the future and elect to seek remedy with the Department of Labor, it would be unlikely that they could prevail while still maintaining their confidentiality.
7.4.1.
01 Discrimination Investigation.
Should an individual granted confidentiality by 01 become the victim of discrimination as described in Section 210(a) for having'provided information to 01, an investigation will be initiated and the matter pursued on a priority basis.
In the event that any investigation that may have been initiated as a result of information provided by the source is still ongoing, the discrimination matter will be handled as a separete investigation.
7.5. Confidential Source Control Officer (CSCO) 7.5.1.
Appointment of CSCO. The Director. 01, will appoint a CSCO in Headquarters to serve as the central contact pint for Confidential Source natters and maintenance of the Confidential Source records.
(
7-7
7.5.2 CSCO Responsibilities. The CSCO will be responsible for ensuring the integritT~ arc completeness of the Confidential Sour.e records (see $ 7.7).
This will include a quarterly review of 01 resource expenditures related to a confidential source to ensure conformity with existing guidelines / procedures.
A CSCO certified report will be sent to Director, 01.
7.5.3 Field Office Source Records.
Field Office Directors should assign en investigator to maintain all Confidential Source records in their respec-tive field offices. These records will be under the custody of the designated investigator, and will be personally maintained by him or her in,the 01 Field Office. This information will be shared only with those individuals authorized to receive it.
Disclosures te individuals outside 01 will be noted in the file. The Field Office Director is required to inspect these rece7ds at least quarterly.
These records will also be examined during Field Office Reviews conducted by CI:HQ persorr,ei.
7.6. Confidential Source Identifiers When confidentiality has been granted to an individual in accordance with the above described procedures, an alpha-numeric identifier will be used in place of the source's name in reports of investigation or in any other any other references to the source. This applies only to those references that would serve to identify the individual as a confidential source.
In some instances, the omission of the person's name from a report could in itself serve to icortify him er her as a confidential source.( e.g., when the source is or,e of c group of workers interviewed by 01. Listing his/her name in a report of investigation would not disclose the fact he/she was a confidential source, but omission of the interview could.
7. f.. ). Assignment.
Confidential Source Identifiers will be assigned by the headquarters Confidential Source Control Officer (CSCO). When a number is assigned by the CSCO, it will be relayed to the Field Office for recording and incexing (see paragraph 7.7., Records).
7.6.E.
Alpha-Numeric Codes.
Confidential Source Identifiers are 6 digit alpha-numeric codes which reflect the following information:
a.
granting organization (01 uses "01" as a prefix);
b.
calendar year in which the source was developed; c.
sequential numerical identifier reflecting the number of sources developed during the calendar year. A sample Confidential Source identifier is explained below:
01 - 86 07 l
Seventh source developed
.... this year
~
... current calendar year
.... Indicates granting organization 7-8
1 7.6.3.
Peliance on Source Identifiers.
Confidential source identifiers must be uscc in official reports and records to protect an individual's
(
icentity. Disclosure standards will be in accordance with this chapter and SECY-85-34 guidance.
It must be recognized that the use of such confidential source identifiers in reports of investigation seldom are sufficient to protect the identity of a confidential source. Nonetheless. 01 reports must continue to be written in a thorough and objective manner with sufficient dctail to allow the reader of the report to arrive at an informed conclusion regarding the results of the investigation. Thus, 01 investigators should normally write their reports to achieve this goal rather than attempt to withheld from their product detail which could allow the reader to deduce the confidential source's identity.
It is, however, possible to balance these competing interests of thoroughness of documentation and protection of confi-dertiality.
The degree of protection which source identifiers provide is primarily a function of the degree of familiarity that the reader of a report of investi-gation mig!' have with the universe of individuals associated with the instant investigaticr.
In most cases, an NRC employee reading an 01 report would not possess seM icient far,iliarity with that universe of individuals and/or the affected facility to alicw the employee to deduce the identity of the source.
Those NPC erployees whc, might be able to do so would be likely either to have been granted the nerd-and right-to-know such information, or not be given access to thc report. Thus, adequate protection of a source's identity within the NFC coulc be achieved by a combination of administrative controls over access to those reperts containing confidential sources.
The greatest risk of disclosure of a confidential source's identity would be the release of an 01 report of investigation outside the NRC without first removine er:y information which could serve to disclose the source's identity.
Thus, those 01 employees responsible for the review and sanitization of 01 reperts for release outside the NRC must be diligent in removing from the report any information which might disclose the identity of a confidential source included er referenced in the report.
I 7.7.
Fecnrds All records pertainirtg to confidential sources will be under the direct control of the Field Office CSCO for Field Offices, and the CSCO in Head-quarters.
7.7.1.
Oricinal Reccrds. All original records will be retained in Headquarters by the CSCO and duplicates will be retained by the Field Office CSCO. Written communication concerning confidential sources will be ir double sealed anvelopes labeled, "TO BE OPENED BY ADDRESSEE ONLY".
7.7.2.
Source Index. The CSCO will maintain an index of all identifiers and confidentici source identities. This index will be searched to ensure that duplicate numbers are not assigned, and to ascertain whether another investigator is already working with the same individual. A confidential source file should contain the following:
)
a.
Source development (initiation) memorandum from the inves-tigatcr to the Field Office Director; 7-9
l b.
Personal history information (Complete 01 Confidential Source Development form);
c.
Confidentiality Agreement Form; d.
Source closing menorandum (indicating sou ce will no longer be used and why--when appropriate).
Any other appropriate materici such as photographs may also be included.
7.8. Confidential Source Contacts 7.8.1.
Documentation Requirerrents. Resources and circumstances per-mitting, meetings with a confidential source should be with two investigators.
Each meetinc, contact, or conversation should be documented. A copy of this documentation should be forwarded to the CSCO for inclusion in the Cor.f i denti c,1 Source file, and a copy maintained in the Field Office source file.
O 1
l
@1 7-10
O' CHAPTER 8 RELEASE OF INVESTIGATION INFORMATION 1
F.1.
Nuclear Safety and Security Related Information Developed in an 01 Investigation The investigeter is responsible for protecting the integrity of the investigative process during the course of inquiries or investigations.
This responsibility includes controlling the release and dissemination of all information which may be germane to the matter under inves-tigation.
However, when the. nature of this information is, er appears te be, related.to nuclear safety or security or both, the investigator has the additional responsibility of immediately notifying the approviate NRC officials so that corrective action may be promptly initiated.
8.1.1.
Notification Process. When an 01 investigation identifies a potentiel sicriticant safety or security issue, the investigator will immediately notify the Director of the appropriate 01 field office. The 01 Field Office Firector will have the responsibility to furnish the cognizcrt NRC Regional Administrator all available information concern-ing the issue (s) ir question. The notification may be an oral briefing to eg edite transmittal. Tbe Pegional Administrator will determine the actual satety or security significance of the issue and any requirement for prompt corrective action. After consultation with the 01 Field Office Director the Regional Administrator (or designee) may decide to notify the licensee, vendor, or other entity under investigation of those significant safety or security concerns requiring imrrediate action.
Procedures governing such releases are described in MC 0517.
The 01 Field Office Director (or designee) should edvise the Regional Administrator to limit the release of information to the minimum neces-sary to protect the public health and safety.
After notifying the Regional Administrator of the safety or security issue, th CI Fielo Office Director will advise 01 Headavarters at the earliest possible opportunity. The 01 Field Office Director will prepare a written record of the 01 notification which will include, but not be litrited to, the nature of the information, the time and date it 1
was provided to the region, to whom it was provided, and whether it was released outside NRC.
01 bears the responsibility of notifying the Regional Administrator of sefety or security matters which arise during an 01-conducted investiga-tion or inquiry.
When such matters surface during an inspection or inquiry conducted by a particular regional staff, even though 01 inves-tigators may have been asked to assist or participate, the responsibil-ity for any notification remains with the regional personnel conducting the inspection or inquiry.
I 8.1.2.
Threshold for Notification of the 01 Field Office Director l
by an Inn stigator. The significance and immediacy of safety or securi-l ty retters art the responsibility of the hRC technical staff. The threshold at which an investigator should notify the 01 Field Office E-1 L _ _ __ _ _ _ ___ ___ _____.-- _ __
J
l
- irector of a pottr.tial safety / security issue should be very low. When there is any doubt whatsoever, the investigator should transmit the information.
This policy also applies to the notification of the Regional Administra-tor by the 01 Field Office Director. 01 will set aside investigative compromise or future enforcement / prosecutorial considerations when a Regicnal Administrator determines that notification of a licensee is necessary because of the immediate public health and safety aspects of the issue.
8.2.
Releese of Investigative Peports Outside NRC 8.2.1.
Final Reports of Investigation or Inquiry. The Director.
01, must authorize release of all complete Reports of Investigation /
Inquiry.
This authorization includes:
c.
public release of complete reports.
b.
rele6se of investigation reports to NRC licensina boards.
c.
releese of information contained in completed investigation reports or the reports themselves to the Department of Justice er other law enforcement agencies.
As a ceneral principle, 0I reports will not be selectively released cutside the t'PC except to cther agencies for official purposes.
Reports released to licensees or their counsel will be placed simultaneously in the NRC Public Document Room.
Exceptions to this practice require the written apprcval of the Director, 01. Such approvals will document the specific factors warranting such a release, f
8.2.2.
Referrals to Department of Justice (D0J) and Other Agercies.
Formal referrals to D0J and other prosecutorial entities normally occur after completion of the 01 investigation and the final ROI. These referrals occur when the investigation of a violation of an hRC regulator" requirement develops evidence which leads 01 to suspect that the act('s) was committed knowingly and deliberately or otherwise in violation of either a Federal, state, or local criminal statute. When there is reasonable suspicion that a violation of a criminal statute has been committed. 01 will refer the matter to the appropriate prosecutorial office for review and whatever action is deemed necessary. Referrals to the 00J will be in accordance with the Memorandun of Understanding (MOU) between the Department and NRC. This MOU is Appendix L to this manual.
8.2.2.I.
Method of Referral. 01 will refer matters falling within this category to D0J, or a state or local prosecutorial office, by sending them a copy of the ROI attached to a Letter of Referral (LOR). This letter should describe the reasons for referral and request that 01 bc notified of the decision of whether or not the matter will be prcsecuted. The 01 Field Office Director will recommend referral, and forward the draft LOR with the ROI to 01 Headquarters.
01:HQ may provide a ccpy of the proposed referral to 0GC for consultation.
8-2
1 I
J
/'
Althcugh the Directtr 01, is free to refer a matter regardless of the
(
comments provided ty MC during this consultation process, it is 01 policy to accommodate DOC comments and recommendations as much as possible. OI:HO will then issue the LOR under the Director's signature.
8.2.2.2.
Post-referral Investigation.
Normally, referrals are made at the completion of 01 ii.vestigative efforts. On those occasions when a referral is made dJring the pendency of an inves-tigation, absent instructions to the contrary from 01:HQ, the 01 inves-tigation will continue until sufficient information has been gathered to satisfy NRC regulatory needs. To this end, the investigation will be perfected in accordance with the guidance set forth in paragraph 3.3.6 of this manual, i
The agency to which the matter is subsequently referred has the dis-cretion and responsibility to perfect a case for prosecutorial purposes.
01 may, or cccasion and upon request, assist in such endeavors from an investigative and technical coordination standpoint. The extent of assistance will depend on available resources and must be approved in each case by the Director, 01.
Procedures regarding requests for such assistance from the DOJ will be set forth in a Memorandum of Under-stancing between NPC and 00J.
- 8. 2 J.
Release of the ROI " Synopsis" to the Public Document Room As with other investigative documents, the release of ROI synopses O,
requires prior 01 approval. This approval will normally be granted provided the release of the synopsis would not adversely affect an 01 investigative matter or a matter pending other agency action such as l
active referrals to D0J.
01:HQ may authorize the public release of these documents for NRC HQ components. 01 Field Office Directors may i
exercise this authority for NRC regions. The arrangements for the actual placement of these documents is a staff, not 01 function. The staff is also responsible for conducting any pre-release proprietary reviews.
The authorization of these releases should be documented in the case file.
As most ROI synopses on nonreferred matters could be released without adversely affecting an ongoing or anticipated investigative matter.
Field Office Directors should censider including this authority to release the synopsis publicly in the memorandum that transmits the ROI to the Regional Administrator.
S.3.
Forwarding Investigation Information to Other Law Enforcement Agencies 01 investigations may develop information which clearly involves matters within the jurisdiction of Federal, State, or local law enforcement or investigative agencies.
Investigative Policy 14 directs 01 to provide that information to the agency concerned under appropriate controls.
(See Chapter 7 regarding disclosure of confidential sources under such O
circumstances.)
l 8-3
1 8.3.1.
Information Currently Under Investigation by 01. When a i
r:ctter under active investigation by 01 develops information indicating
)
violaticns of law which are apparently within the jurisdiction of j
encther egency, 01 will notify that agency through the formal referral 1
process at the completion of the 01 investigation. Examples of this l
could incluce situations when an 01 investigation may uncover evidence l
of counterf eiting, income tax evasion, or securitiet violations. Those l
matters would be referred to the investigative agency having primary l
jurisdiction.
For example, in the examples cited, the candidate egencies would be the U.S. Secret Service, the Internal Revenue Service, or the Securities and Exchange Commission.
?r instances where a deley in notifying the agency has the potential for prejudicing the other agency's subsequent investigation, the Director, 01, may crove notification prior to completion of the 01 inves-tigatier.
In emererncy circumstances, 01 Field Office Directors may eatherin inriediate notification with expeditious follow-up notification to 01 Headquarters.
Ci investip tions which disclose evidence of sabotage, espionage, theft of r uclear material or terroristic act'vities always require prompt notification of the Federal Bureau of avestigation (FBI). Similarly, 0I will pron.ptly notify the appropria4 / agency if there is a likelihood thet e dtiay could result in the loss or destruction of evidence, or result in dcath or Erricus injury to any person. Lastly, prompt noti-
'icetion is rcr.catory if 01 cbtains information that a crime within the jurisdiction of another ogency is about to occur or is occurring under circumstances where timeiy intervention by that agency could result in immediate arrests end/or seizure of evidence.
In instances where there may be more than one interested Federal agency, 01 will provide the it. formation to the appropriate United States Attor-ney.
Similar procedures would apply to referrals to State or local cathorities. Vhere the second agency initiates activity during the pendency of an 01 investigation., the 01 investigation will continue, unless the other agency reauests otherwise.
01 Headquarters must approve any delay or termination of an 01 investigation.
E.3.2.
Information Pertaining to Matters Not Under Investigation tsy 01.
If 01 develops information regarding violations clearly outside the jurisdiction of NRC, such as tax fraud, counterfeiting, homicide, racketeering, larceny of other than nuclear safety related t dns, and similar matters, and they are not directly related to an ongoing 01 investigation, the 01 Field Office Director should document the informa-tion in a memorandum for file hnd provida a copy of that memorandum to the appropriate Federal, State, or local agency.
If the information indicates more than one agency may have jurisdiction over the matter, the memorandum should be provided to the appropriate U.S. Attorney who in turn may select the agency or agencies to receive the information.
Analogous procedures would apply to referrals to State or local author-ities.
I 1
8-4
('
The 01 Field Office Director should forward the memorandum with a
(
trcosmittai letter that specifies the purpose of providing the memoran-dum and sets forth any apparent restrictions on its use, such as impact of public disclosure on NRC activities, conditions requested by the source of information, or confidentiality issues, if any.
If the information is in the form of a statement or transcript, it may be forwarder' in lieu of the aforementioned memorandum for the file.
On the other hand, it is not appropriate to furnish the other agency information pertaining to NRC matters not relevant to their needs.
Thus, nonrelevant material should be removed, or conversely, the relevant materiel extracted, prior to furnishing it to the non-NRC agency.
8.3.3.
Confidential Sources, Release of the identity of confiden-tini sourcu to other agencies is governed by tne provisions of Chapter 7 cf this manuel.
01 employees are reminded that the normal practice will be not to disclose those identities without the express permission of the clinTidential scurce.
n 8.4 Nctificatiors to Licensees,_ Applicants and Their Contractors and Vendors of the Initiation, Conduct, or Tennination of an Investigation er Inquiry The notification of manecers of the licensee or applicant and their
(T contractors and vercors of an 01 investigation or inquiry is a sensitive
'('j step in the investigative process, and requires discreet behavior by the investigator during the course of his/her activities. 01 may notify responsible management officials of the arrival of an O! investigator onsite.
However, 01 till not normally inform the licensee or applicant of the specific matters being investigated. This docs not preclude discussion of the methodology for conducting the investigat'on, such as interview scheduling, space, or other assistance or support that may be required.
If appropriate, C1 may notify the licensee or applicant and their ccntracton and vendors when the investigated hes completed his or her onsite activities. 01 will not discuss the results of the investigation or inquiry with them at this time.
Information concerning safety or security issues requiring immediate attention will be handled in accor-dance with paragraph 8.1., above.
8.5.
Centacts With the 1%dia Contacts between the news media and 01 employees should be through the Office of Governmental and Public Affairs (GPA). 01 employees contacted by a media representative should courteously refer that pere.on to the appropriate represente.tive of GPA.
GPA personnel are rc,ponsible for responding to media inquiries within the guidelines set forth in this section.
(
8.5.1.
Open Investigations. OI will normally make no public L
comment regarding engoing investigations.
Public Affairs officers may acknowledge that 01 is in fact conducting an investigation, after 8-5 L____-_____________________.__-
obtaining approval fron 01.
However, 01 will not release details regcrding that investigation, such as the specific nature of the inves-tiettion, the number of personnel assigned, or estinates as to its duraticn.
I 8.5.2.
Other Matters. Thi GPA will refer media inquiries regarding other matters including closed investigations, general dis-cussions of investigative procedures, or any general discussions of the I
functions of 01 to the Director. 01. The Director will then decide (1) whether to respond to the media inquiry, and (2) the identity of the 01 employee authorized to respond to the inquiry.
From tinie to timc media representatives wi'
- 2 tempt to contact 01 employees directly. Although the above guivelines apply, it is also O!
policy to deal courteously and honestly with such representatives.
Under ne circumstances will an 01 employee provide false cr misleading information to the medic. An 01 employee should courteously refer the representative to the GPA.
8.5.3.
Obtaining Information Fron the Medie. There may be oc-ccsions wher e redia representatives are believed to possess information of interest to 01. These procedures govern such instances.
i 6.5.3.).
Information Volunteered b_y Media Representatives.
Occasionally, nerbers of the media will contact 01 to volunteer infor-nction regarding a matter potentially within the jurisdiction of the flRC. 01 empicyees should receive this information in the same manner as they would receive any other information.
01 employees should inform the mediu representatives that the information will be evaluated by appropriate agency officials to determine the proper course of action.
01 employees must be careful not to commit to any specific NRC response to the information, and should inform the representative of OI's policy regarding media contacts.
i 8.5.3.2.
01 Initiated Contacts. Occasionally, 01 employees may identify a need to contact a media representative to obtain informa-tion. Typically, this need will arise when a news article or broadcast l
portrays genertl allegations regarding an NRC licensed facility or activity and 01 requires greater specificity in order to make an inves-tigative decision.
Except in emergency conditions, 01 employees should seek the assistence of an NRC Public Affairs officer.
The Public Affairs officer should be advised of the impending contact, and assist in arranging for the interview.
Investigators must be especially careful to comply with 01 guidelines regarding release of information during the course of such interviews.
If the media repre-sentative is reluctant to provide information, the investigator should discontinue the contact and consult his or her supervisor for advice.
Under no circumstances will an 01 investigator attempt to threaten or cajole, to include the discussion of the issuance of subpoenas, a media representative who is urvilling to provide requested information..
8-6
/3 E.0.
Obtainir,c Information From thi, U.S. Postal Service
']
Usuelly a: 01 investigator may obtain a forwarding. ddress of a person, w an actud street address of a particular individual who possesses a rest office l'ox nurrber by displaying NRC credentials and explaining the ourpose. Some U.S. Postal employees will also require a letter, certi-fying that the investigator requires this postal information in the i
performance of official duties.
In such situations, a letter similar to I
the folicwing should be provided:
TI.e undersigned certifie:. that is an Investigator with the Office of Investigations, U.S. Nuclear Eeculatory Commission. Pursuant to 39 CFR 265.0 (Felease of Information--Astilability of Records), please provide to the above-named investigator, without charge, the forwarding addresses or forwarding post office box numbers of the individuals or orga-nizations listed belcw:
In the event the forwarding address is a post office box number, please previde also the ectual strcet address of the individual or c r gariinticr, if knowr.
Such inforr.ation is required to be cb-tainec n iba perforr.ance of the Investigator's official duties witt the U.S. Nuclear Regulatory Cor, mission.
- Director, Field Office p
Office of Investigations (m)
U.S. Nuclear Regulatory Commission P-7 1
I
"' -~
APPENDIX A J
U.S. NUCLEAR REGULATORY COMMISSION sO 0FFICE OF INVESTIGATIONS DIRECTOR'S GUIDANCE 89-001 EFFECTIVE DATE: January 1, 1989
SUBJECT:
SAMPLE DIRECT 0P'S GUIDANCE BACKGROUND This guidance is prepared to oe.monstrate the format for Director's Guidance issuances to be used in accordance with section 1.3 of this nanual.
GUIDANCE This fonrat will t'r implemented as of the effective date of this manual for ali future Director's Guidence issuances for the Office of Investigatiers, Nuclear Regulatory Commission.
rs Approver' for issue by:
, Director 01 Ben b. Hayes 3
,)
SAMPLE FORMAT FOR THE DIRECTOR'S GUIDANCE ISSUANCES h-1
APPENDIX B
!,~,3
\\,/
U.S. NUCLEAR REGULATORY COMMISSION OFFICE OF INVESTIGATIONS Transmittal Sheet for It'ditions tc cr Changes in Director's Giidance File Effective (date)
Change No. ]
This change to Director's Guidance 85-006 (explain nature of change). New or changed material is indicated by an asterisk and a footnote givit,E the effective date of the change.
Remove old pages and insert new pages es indicated below:
ker..ci r Paaer Insert Pages File this transnittel sheet in Director's Guidance File by date.
G, Chance No..'
[V This new guidance issuance is Director's Guidance 85-014, (Subj ect ).
A revised Table of Contents is attached to replace the existing Table of Contents, which is to be discarded.
I Apprcred f or issue by:
, Director, 01 Ben E. hayes (n)
~~-
SAMPLF TRANSMITTAL SHEET FOR MODIFYING LIRECTOR'S GUIDAN_CES B-1
APPENDIX C s_-
U.S, NUCLEAR REGULATORY COMMISSION OFFICE OF INVESTIGATIONS Transmittal Sheet for Additior:s to or Changes in the Manual Effective (date)
Chance No. I This nanuel change to section 1.4., "01 Manual Additions and Changes," providts new procedrres for the annual review of the manual.
Rephce page _ with this page.
Change No. 2 The ettached new naterial, section 10.6., (subject), is to be added as pages l!ith "per. and ink," change 10.6. on existing page to 10.7. and, similarly, chance all succeeding section, paragraph, and page numbers in Chaptc.r 10.
A revised Table of Contents is attached to replacc the existing Table of Contents, which is to be discarded, p
ws).
i Approvec for issue by:
, Director, 01 Pen B. Hayes l
l r\\
l SAMPLE TRANSMITTAL SHEET FOR MODIFYING THE 01 MANUAL C-1
2,.
APPENDIX L
,g,
'{
i 4
.U.
S. NUCLEAR REGULATORY COMMISSION l
0FFICE OF INVESTIGATIONS.
INTERR0GATION/ ADVICE OF RIGHTS YOUR RIGHTS Place Date Time Before. vc ask you any questions, you must understand your rights.
You rave the right to rencin silent.
Anything you say can be used against you in court.
You have the right to talk tc a lawyer for advice before we ask you'any questions and to have a lawyer with you during questioning.
(
If you cannot afford a lawyer, one will be appointed fr,r you before any questioning if you wish.
If you decide to answer questions-now without a lawyer present, you will still have the right te stop answering at any time. - You also have the right to stop answering at any time until you talk to a lawyer.
WAIVER OF RIGHTS I have read this statentnt of my rights and I understand what my rights
- are, I am willing to make a statement and answer questions.
I do not want a lawyer at this time.
I understand and know what I am doing. No promises or threats have been made to me ard no pressure or coercion of any kind has been used against me.
Signed Witness:
Witness:
Time:
O SAMPLERIGHTSWARNINGFORMAl D-1
APPENDIX E
/%
(v}
GUIDELllL5 FOR ADt'INISTERING Afi 0ATH OR OBTAINING AN AFFIRMATION Wher the investigator determines that the affiant is willing to swear or affirrr to the veracity of the information, sworn testimony should be obtained by having the affiant raise his/her right hand. The investiga-tor should also raise bis /her right hand and say:
"De you swear" (or " affirm") "that the" (1)
"steterrent given by you,"
(2)
"information provided by you," or O) "information you are about to give,"
"is the truth, the whole truth, ano nothing *:t the truth, sc help you God?"
An effiroative response validates the oath.
Note that the words, "so help yot Ec" are omitted in the case of an affirmation.
The choice of tFe proper phrase within the oath / affirmation is deter-riined by the fcilowing circumstances:
e.
Phrase (1) is used when the affiant provides a written statement.
O) b.
Phrt.',c (2) is used when the affiant refuses to provide a
>V written statemer.t, but does agree to swear / affirm to the veracity of oral testimony.
l c.
Phrase (3) is used when the oath / affirmation is administered at the outset of the interview.
Wher the affiant provides a written statement, the oath or affirmation is administered after the affiant has read the statement and made necessary corrections, but before the statemcot is signed. The language in the first parenthetical staterrent of the Format as shown on the following page is used.
If the interviewee is only willing to provide a signed statement, the language in the second parenthetical statement is used.
If the interviewee refuses to sign the jurat at the end of the statement, the investigator will sign as a witness.
i (Sample forrat on the following page)
V)
E-1 1
APPENDIX E O
l
- have read thr. +0regoing statement ccnsisting of handwritten / typed pages.
I have trade and initialed any necessary corrections and have signed my name in ink in the margin of each page.
I (swelr) (declare) that the foregoing statement is true and l
Corrcct.
l Signed en at (cate)
(time)
Signature ar.c !ane (Typed cr Printed)
Subscribec ard sworn to before re tFis day of 19 _, at Investigator's Signature and Name (Typed or Printed)
Witness' Signature ano Name (Typed or Printed)
Title:
O SAMPLE FORMAT E-2 i
1 APPENDIX F j
linitch States of America 73 NUCLEAR REGULATORY COMMISSION y/
-WDOCXXo-IN THE MATFER OF:
CASE NO. :
TO:
FOU ARE HEREBY CO3fM4NDED, pursuant to Section 161 (c) of the Atomic Energy Act of 1954, as amended, to appear at on the day of
, 19
, at
.m. to testify in the matter of FOU ARE FURTHER COMM4NDED to provide the NRC N
BY ORDER OF THE DIRECTOR, OFFICE OFINVESTIGATIONS l
BY DATE Requested by:
On motion made promptly, and in any event at or before the time specified in the subpoena for compliance by the D
person to whom the subpoena is directed, and on notice to the party at whose instance the subpoena was issued, the
(
Commission may (1) quash or rnodify the subpoena ifit is unreasonable or requires evidence not relevant to any matter in issue, or (2) condition denial of the motion on just and reasonable terms. Such motion should be directed x
to the Secretary of the Commission, Washington, DC 20555. Failure to complywith the terms of this subpoena may result in the Commission's seeking judicial enforcement of the subpoena pursuant to Section 233 of the Atomic EnerEy Act of 1954, as amended,42 U.S.C. 2281.
F-1
RETURN
^ '
l 9
CERTIFICATE OF PERSONAL SERVICE:
I certify that I delhered a copy of this subpoena in hand to:
or.
,19
, at o' clock M..
at CERTIFICATE OF SERVICE BY MAIL:
I certify that I caused a copy of this subpoena to be mailed by mail, postage prepaid, to the address specified and with delivery restricted to the person named thereon on
,19
, Receipt No.
(Signature)
(Printed Name and Title)
Office of Investigations U.S. Nuclear Regulatoly Commission
~
APPENDIX G 77 CUIDELINES FOR PREPARATION OF INVESTIGATIVE REPORTS V) t C.I.
Preparation of the Report of Investigation (ROI)
The ROI contains the following sections:
TITLE PAGE (not on letterhead)
SYNOPSIS ACCOUNTABILITY SHEET TABLE OF CONTENTS APPLICAELE REGULATIONS (if any)
ORGANIZATIONAL CHART (optional)
DETAILS OF INVESTIGATION SllPPLEMENTAL INFORMATION (optional)
LIST OF E)hlBITS REFERENCES (if any)
(The entire P01 is preceded by a cover sheet indicating the title of the repert. The contents and format of each of the above sections are discussed in the followirc traterial and illustrated in a sample ROI loccted at pace 46 of the IPM Administrative Supplement.)
G.1.1.
Title Pace. The title page presents the information indicated in the sample ROI in the format shown. All Field Offices and p
the Headquarters use th1s format. This page is not numbered.
Descrip-tions of the required entries are as follows:
Title The title is v:ritten to make the case readily identifiable as to site of the violation or event. This is accomplished by starting with (I) the name of the facility (nuclear power plant or other), or (2) the name of the company (other than a power plant) being investigated, or (3) the geographic location if no identifiable facility or entity is involved.
The facility, company, or geographical location is followed by a colon and a sinnie statement of the nature of the investigation.
For exanple:
Title:
XY2 Nuclear Power Station: Alleged Falsification cf Guard Records
Title:
ABC Corporation: Alleged Falsification of QA Records
Title:
New York, N.Y.:
Plutonium Container Found in Junkyard Licensee / Permittee / Vendor / Location The name of the licensee, permittee, vendor, or geographical location involved in the investigation is listed, followed by the complete address for the main office or location. Delete titles that do not apply; that is, use " Licensee," or " Permittee," or " Vendor," or g)
"L oc ati on.
v G-1
APPENDIX G Docket Number TFe hRC docket number, if any, of the entity involved in the inves-i l
tigation is entered.
Omit " Docket No." heading if there is no docket I
number.
Case Number The case number is the number assigned by the Field Office when.the study of a problem results in a determination that a formal investi-gation leading to a " Report of Investigation" is to be made. This may be preceded by inquiries that will become part of the ROI.
" Reports of Inquiry" are assigned a case number preceded by the letter "Q "
If they do ret become part of a case, they retain the Q and are filed separately, khen thcy become part of a case, the "Q" is dropped, and they are filed u part of the ccst.
In some cases, reports of inquiries are not prepared, but the information is provided in the " Details of Investigatict." section of the ROI.
The case t, umber is composed of a single character identifying the ccetrol office (1, 2, 3, 4, 5, or H, signifying 01 Field Offices in hegions I, II, III, IY, V or Headquarters, respectively), two digits signifying the calendar year of case initiation, and a three-digit sequentid nun ter (e.g., 3-84-01E). The case number remains the same recerdless of which office prepares the report or how many reports are preparec.
Interir reports on the same case are identified as 11,12, etc., f ollowing the case number (e.g., 5-84-023 12).
Supplemental reports on tlx same case are identified by S1, S2, etc. (e.g.,
2-84-006 53).
Report D m The report date is the date the ROI is approved for issue and is signed.
This date is added at Headquarters, unless it is a Field Office Director (F0D) closure.
Control Office The 01 Field Office to which the investigation is assigned is the Control Office.
Status There are four categories of status. This item is always entered in capital letters. The categories are:
OPEN When an investigation is initiated, the status is listed as OPEh.
INTERIM When an interim ROI is prepared on an investigation that is incomplete, the status is listed as INTERIM.
CLOSED When the Ps01 is the final report of the investigation, the status is shown as CLOSED.
6-2
APPENDIX G i
SUPPLEMEhT/l When new, significant information is received after an investigation has been closed and it is necessary to write an POI, the status is listed as SUPPLEMENTAL.
Signatere Enoch The names of the reporting investigators, the Field Office Director and the Director, 01, are typed above their printed titles. Each signs above his/her nanc.
Participating Persennel All persons who participated in the investigation, including NRC region staff personnel are listed by name, title, and organization. Their signatures are nct required.
c.1.2.
Synopsis. The " SYNOPSIS" follows the title page.
It starts en page 1.
The synopsis provides the purpose, background, and findings of the investigation.
It summarizes only information presented in tbc body of the report. THE SYNOPSIS IS NORMALLY NO MORE THAN TWO PAGES IN LENGTH.
It will be made available in the NRC Public Document Roor (PDR) by the Regional Administrator or other NRC official responsible for action, if ar;,, based on the investigation.
The purpose for the investigation is stated clearly and briefly. Most investigations arc initiatec at the request of a Regional Administrator or other NRC official. There will be instances, however, when the
(
investigation is based on a telephone call or written correspondence from an outside source, such as an alleger, intervenor, or other government agency. The purpose statement identifies the source (when applicable);explainsthenatureoftheallegation(s);and,when possible, gives the regulation, statute, or procedure violated. Two examples follow:
On June 17, 1983, a memorandum (Exhibit 1) was received from the F49 onbl Administrator, NRC, Region VI, which requested that an i
investigation be initiated concerning alleged falsification of Outlity Ccntrol (QC) records at the Silver Storm Nuclear Power P1 ant, Jefferson, Maryland.
On October 20, 1983, information was received telephonically from an alleger (confidentiality granted) who claimed that welding on piping to the main feedwater system at the Silver Storm Nuclear Power Station, Jefferson, Maryland, was being performed by unqual-i ified welders. The alleger indicated that the licensee management was aware of the problem and was not taking action to correc.t the situation.
The investigative findings or facts relative to each allegation or event are discussed in the same order as in the "Deteils" section of the report. The findings and facts are condensed so that it is not neces-sary to say that investigative findings are the result of investigative effort.
Persons referred to in the " Synopsis" are identified by job G-3
___-___________-______-___-______n
\\
1 APPENDIX G l
i title (as ab n e) or other appropriate description and not by surname.
The last peregraph of the " Synopsis" gives the status of the inves-tigatiori.
G.1.3.
Accountability.
The complication of nnbering pages for accountability as "page of pages" is avoided by using the format of the " Accountability" Dieet. This sheet is numbered. When the ROI is in final forrn, the total number of pages following the " Synopsis" is added in the space provided.
G.1.4 Table of Contents. All ROIs contain a " Table of Contents" section thet lists ell sections and subsections of the report, beginning with the " Synopsis." Unlike a technical report where the contents section precedes all text, this contents section is numbered in sequence with the precMing traterial et the bottom center.
The table of contents section starts on an odd-numbered page and has the foilowing appearance:
TABLE OF CONTENTS Page SYNOPSIS.......................................................
1 ACCOUNTABILITY..................................................
3 TABLE OF CONTENTS...............................................
5 APPLICABLE REGULATIONS.......................................... 7 (with subsection headings the same as in
" Details of Investigation," where applicable)
ORGANIZAT IONAL CHART ( opti onal ).................................
9 DETAILS OF INVESTIGATION........................................
11 (with all subheadings identified)
SUPPLEMENTAL INFORMATION (optional ).............................. etc.
LIST OF EXHIBITS.................................................
G.I.5.
Applicable Regulations. The " Applicable Regulations" section follows the " Table of Contents" section. The first page is odd numbered. The subsection headings are the allegation number; for example, Allegation No. 1.
They are presented in numerical order. The listings of applicable Title 10 Code of Federal Regulations (10 CFR) sections are in the same sequential order as they appear in 10 CFR.
The 10 CFR references are commonly used in the day-to-day regulatory process. Thus it is necessary only to cite the appropriate 10 CFR sections, even though sections of the Atomic Energy Act or the Energy Reorganization Act of 1974 may also relate to an allegation.
G-4
)
APPENDIX G A
'be specific 10 CFR sections that pertain to an allegation or event are Q-normally furnished by the NRC office that reouests the investigation.
If the regu htory process determines that an allegation is substan-
)
tieted, the 10 CFR sections cited serve as part of the basis of the 11nding of'e v'olatien. Thus, for the Office of Investigations, the 10 CFR sections establish the parameters of the investigation.
There are-instances where a specific 10 CFR section does not apply, as in the case of an allegation regarding a licensee's security plan.
In such instances, the appropriate specifications or requirements from.the site security plan that apply to the allegation are listed.
The numerical citation and the title of the applicable section and/or subsection (s) plus text are quoted.
If the 10 CFR section listed is Part 21.21 and only Part 21.21(b)(1)(ii) applies, it is not necessary to list also F6rts 21.PI(a) or (b)(1)(i).
0.1.6.
Organizational Chart. The optional " Organizational Chart" section is used vtto the presentation of the chart will clarify com-plicated relationships and make clear the position of the person inter-viewed and the positions of the suspects, etc.
It appears on a seperate odd-numbered page followed by a blank even-numbered page.
G.1.7.
Details of Investigation. The main bcdy of the report is the " Details of Investigation" section.
It summarizes all pertinent details of the investigation in a brief, but thorough, systematic, comprehensive, and nbjective manner so that NRC management will have adequate information on which to base decisions.
It must be written so that the reader comprehends the significance of the investigation and findings, is convinced of the findings and thoroughness of the investigaticr., and is willing to take action based on the facts set forth.
Captionec subsections divide the material into descriptions of the investigative activity being reported. There are only three mandator These are captioned (1) " Purpose of Investigation" (2) y subsections.
" Background," and (3) " Agent's Conclusions." The " Purpose of Investigation" subsection provides a clear understanding of what the investigation is about. The text under this caption is usually one or two sentences., particularly if only one allegation is involved, but it may be more extensive for a complicated investigation.
It mest parallel the statement in the synopsis that gives the purpose of the investigation.
The text under the " Background" caption is used to succinctly describe the situation or information that led to the initiation of the investi-gation.
It includes the identity of the NRC official who requested or authorized the investigation and any otler information known at the time of initiation of the inytstigatic.. This subsection does not record l
investigative effort undertehan subsequent to initiation of the investi-I gation.
It may discuss inspections or inquiries that provided the basis j
for the request for investigation.
G-5 l
APPENDIX G The " Agent's Conclusions" subsection will be located in the " Details of Invcttigaticr" section after the subsections which present the evidence developed during the investigation. This subsection will state the opinion (s) of the case investigator (s) as to (1) whether or not the allegeo violat4en was committed and (2) whether or not it was committed knowingly and willfully. The " Agent's Conclusions" section will be precedec by a section entitled " Willfulness / Intent." This section will set forth, by filegation, the salient points supporting the conclusion (s).
l In addition, any exculpatory information will be listed. References to l
pertinent exhibits will be indicated following each point listed.
If no evidence of willfulness is developed in an investigation, the " Willfulness /
Intent" section will still be included in the ROI to support the Agent's conclusions.
Captions used in the " Details of Investigation" section other than the three mandatory captions are governed by the nature of the investigation and are determined by the reporting investigator.
In cases with multiple allegations, each allegation is normally treated separately and is a subsection caption, for example: Allegation No. 1--Falsification of (utlity Assurance Records at Silver Storm Nuclear Power Station. The j
allegction subsections provide a step-by-step narrative or chronology of the releunt events, occurrences, and actions of the investigation of the elleged violation (s).
Every statement of material fact bearing on the elements of proof of the alleged violation, including relevant exculpetory information, is documented to the extent necessary to estcblish the validity and accuracy of the allegation.
Simpler invest-igations do not require such detailed separation of allegations.
For complex investigations, allegation subsections may need to be further dividec' into subsections with descriptive captions, as determined by the author.
It is important to include nonproductive interviews and nonsupportive information obtained to give a balanced picture of the evidence or lack thereof. All pertinent information developed is to be included.
If the information is negative, the statement in the " details" section will be very brief and will reference a " report of interview" or similar exhibit.
When an interviewee furnishes a written statement, the salient points are summarized and the statement is referenced as an exhibit. The extent of the information provided is the responsibility of the author, but should be kept to the minimum necessary to convey these points.
Occasionally, an interviewee provides considerable substantive informa-1 tion, but is unwilling to reduce it to either a sworn or unsworn, signed statement.
In this event, the investigator prepares a " Report of Interview," and summarizes only the salient points in the " details" section of the ROI, referencing the " Report of Interview" as an exhibit.
If a witness's testimony is going to be quoted, paraphrased, or summarized in the body of the report in order to support, clarify or otherwise impact on the investigative results, then there must be, at a minimum, a repert of interview as a supporting exhibit.
1 G-6
APPENDIX G Pg Vher pictographs or diagrams enhance understanding, they are referenced Q
u exhibiti end describcd in the text.
0.1.7.1.
Style. Drafts of portions of an ROI, including subsectiorr, vill begin on separate pages, and should be completed as the investigator progresses. This facilitates the writing of the report by more than one person, permits the reporting investigator to arrange the subsections in the order that best presents the informatit,n, end simplifies the preparation of the ROI at the completion of the field work. The final report is then prepared in the proper sequence and standard page fomat.
Surnames of persons identified in the ROI are in all capital letters.
All interviewees arc identified by full name and job title the first time they appear in the text. Thereafter, they are identified only by surname in all capital letters.
If confidentiality has been granted, the interviewees' name is followed by (CONFIDENTIALITY GRANTED) the first tin the name appears in the text and in all lists.
C.1.7.2.
References to Exhibits. When a particular exhibit supports a frct in the narrative, a reference to that exhibit should be made immediately aftcr the statement (Example: John DOE failed the examination (Exhibit 8)).
If the exhibit has numerous pages, the specific page numbcr may be cited (Exhibit 5, page 1). Even where numerous exhibits arr referred to throughout the narrative, the exhibit number should bc given.
Care should be taken in the writing to avoid excessive ccll-out of exhibit nurrbers.
G.1.7.3.
References to Other Documents. References to other documents are made sequentially in the text.
If a document is refer-enced more than once, the number is repeated. The citations for such references are collected and listed sequentially in a " References" section following the " List of Exhibits" section.
G.1.8.
Supplemental Information.- This optional section permits the reporting investigator to record significant discussions and information nertaining to the investigation without disrupting the contbuity oi the narrative in the " Details of Investigation" section.
This ;ection may include, but is not limited to, the following:
a.
reporting observations, ancillary data, and other discretionary information, b.
recording relevant information pertaining to past inspection /
investigation reports concerning individuals and entities discussed in the ROI, c.
discussing referrals to other Federal, State, and local law enforcement agencies of information developed during the investigation, c.
discussinc referrals of technical information to others.
G-7
~
APPENDIX G f
e.
presenting information regarding referrals of safety and technical significance to hRC staff, and f.
reporting pertinent discussions of investigative matters with NPC Regional Administrators, other NRC staff, and public officials.
G.1.9.
List of Exhibits. A sequential " List of Exhibits" is included as a section of the ROI. The order of presentation.of.exnibits within the list is left to the discretion of the reporting investigator.
They retain that number whenever referenced in the ROI, even though the
{
references are not made in sequence.
When possible, exhibits are placed sequentially in the exhibit folder.
Each written exhibit includes a cover sheet that fully identifies it by case number and ROI date.
If the exhibit is not a document that can be placed in the exhibit folder, the location of that exhibit will be indicated both in the list of exhibits and in the exhibit folder.
If the interviewee has t'een granted confidentiality, the signed contract precedes the signed, sworn statement or report of interview in the exhibit folder.
G.;.10.
References. All references to other documents are collected crd h steo sequentially.
Formats for references te documents are given in NL' REG-0650.
C.I.11.
Initial Distribution Sheet. An unbound page, prepared at 01 Headquarters, is included with the initial distribution of an ROI that gives the title, the case number, and the distribution. Subsequent distribution is recorded only at 01 Headquarters.
G.E.
Signature, Approval, and Distribution of Reports of Investigation Field Office Directors are authorized to sign as approving officer and issue those R01s which meet the following criteria:
a.
There is no potential criminal violation requiring referral to the Department of Justice.
l b.
The investigation is not of a highly sensitive nature with 01:HC or Commission monitoring.
c.
01:HQ has not specifically requested that the report be forwarded for Headquarters review prior to issuance.
1 En entially, this procedure will require that all avality and content review for inve::ligative thoroughness, accuracy and to ensure that it is eeninistratively correct will be accomplished at the Field Office level prior to the issuance of the report. Although 01:HQ will continue to arrange for repro-Juction and handh distribution of all reports, those reports approved by Field Office Directors will normally be printed and issued exactly as they are received from the Field Offices. The only 01:HQ review which will be conducted on reports approved by Field Office Directors will be a post-issuance review by 01:HQ Operations Officers.
G-8 l
(_.
t l'
APPENDIX G l
b.ly major siprificant corrections will w made after such issuance.
ihese corrections will be accomplished by preparing and issuing a l
" Corrected Copy' of the Report of Investigation, marked as such on the
{
covtr page, top and botton, in capital letters.
Such major corrections te en alreuy issued report will require concurrence of the Field Office Director and approval of the Deputy Director. 01.
A#ter a PO! is approved and signed, the original report with exhibits (copies) and one copy of the report without exhibits will be retained in
'the case file at 01 Headquarters. A copy of the report with original exhibits will be retained in the case file at the 01 Field Office. A ccpy of the repcrt with exhibits will be provided to the Regional Administrator through the Field Office Director. 01 Headquarters also provides copics of the R01 with exhibits to cognizant staff elements constituting initial distribution.
G.2.
Report of Ir:quiry Format e
lo maintain standard 1zation, the format for documenting inquiries will essentially follow the ROI format described above, with a more limited numbcr cf sections and subsections. A sample Report of Inquiry can be found at page 76 of the IPM Administrative Supplement for further clerificatier. The " Title Page" will be mandatory. The status of the report will bc listed as " Closed." The following sections are not required, but may be included at the discretion of the reporting investigator:
Synopsis, Accountability Sheet, Table of Contents, tO Appliccble Regulations, Organization Chart, Supplemental Information, List of Exhibits, ard References. A section covering the purpose of the investigation, background, details of investigative activities, and finding, is also mendatory, and will be titled " Details of Inquiry."
The last paragraph of this section will provide the reason (s) for cicsure of tbc inquiry. Other subsections included under " Details of Inquiry" are at the discretion of the reporting investigator. This sectier, should be as brief as possible and still convey the details and fir. dings.
G.4 Sionature, Approval, and Distribution of Reports of Inquiry i
Reports of Inquiry are signed by the reporting investigator (s), and approved / signed by the 01 Field Office Director. The 01 Field Office Director will provide the cognizant NRC Regional Administrator a copy of the Report of Irouiry on c. letter of transmittal, without prior review by or approvai of 01 Headquarters. A copy of the Report of Inquiry, without exhibits or attachments, will be subsequently forwarded to 01 Headquarters for post review.
Exhibits or attachments will be forwarded upon request by CI Headquarters.
Release of Reports of Inquiry outside NEC vili be geterned under the same provisionr. as an ROI.
O G-9 I
APPENDIX H r~s OFFICIAL USE ONLY CASE CHRONOLOGY
- st
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activ e *v catt af-l$-#*
Opened case (Ret Torm 305). Requested by RVI (Ref Ex 1).
_f AF F0D review of Inves Plan. OK. tio apparant priority, but at least lets int allerer.
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h 11-2w-E-Went to SSNP and reviewed emelovment record fir-reeerds. L NS E R E'a
,e supervisor who fired BAKER. Obtained Ex : ar.d 3 from CEO at plant. Checked on HENDERSON. No longer around. (. eft no fwd aodress. See Inv Notes.
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1.-12-6 F00 REVIEW. FDD briefed Ren Administrator. Not a Srierity em 9 w is_,nig.
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l y-,
J
r APPENDIX I GUIDELINES FOR RESPONDING TO F0IA RE0 VESTS Respondine to requests for information made in accordance with the Freedom of Information Act (F0IA) is time consuming and tedious.
Nevertheless, it is necessary to respond in a timely manner.
The following guidelines are applicable:
1.
Any written FOIA requests received directly by 01 Headquarters or the Field Office in writing should be immediately forwarded to the Freedom of Information and Local Public Document Room Branch (F01/LPDRB), Division of Freedom of Information and Publication Services, Mail Stop P-378.
The 10-day response time does not start until the request is logged in by the F01/LPDRB.
2.
Telephone requesters should be advised to put their requests in writinc and address them tn Freedom of Information and Local Public Document Room Branch, Mail Stop P-378 Divisicn of Freedom of Information and Publication Services Office of Administration U.S. Nuclear Regulatory Commission
(
Washington, D.C.
20555 3.
The 0! F0IA Specialist will be located in Headquarters. When a F0IA reavest is received from F01/LPDRB, the appropriate Field Office will be determined and a copy of the F0IA request and any other relevant information will be expeditiously forwarded to the Field Office Director.
4.
Upon receipt of the F0IA request, immediately notify, by telephone, the 01 F0IA Specialist and advise whether or not there are records in the 01 Field Office files which are responsive to the request.
Advise the 01 F0IA Specialist of your estimate of the time it will take to accomplish a thorough search, review, and the copying of the records subject to the request. Also advise if the records pertain to open or closed cases or inquiries.
If records pertain to an open case or inquiry, Exemption 7(A) can be applied immediately.
I 1
Follow up with a memorandum of confirmation to the 01 F0IA Specialist.
I 5.
Maintain a log or record of all F01As received and processed.
6.
De not begin te process a F0IA request until instructed to by 01:HQ.
7.
Documents which involve issues of confidentiality will be reviewed g
and redacted by the investigator who granted the confidentiality.
I-1 L__
l APPENDIX 1 l
6.
Preparc an inventory list with a complete description of each docuner.t. This description should be worded in such a manner that the list can be released, i.e., " Statement of a confidential source" rather than " Statement of John Doe," or
" Letter to licensee from a subcontractor" rather than " Letter l
dated 6/14/83 to Louisiana Power and Light from Betchel Corpora-l tion.'
a.
Indicate if a document was obtained from a licensee, vendor, permittee, applicant, or their contractors, since it may contain proprietary data and may or may not be properly marked. Whenappropriate(aftertheinvestigationisclosed),
the document can be referred to the company for revi: 4 to determine if it contains proprietary information.
b.
List your recommendation to release or withhold each document or portion thereof. The law and NRC regulations require that any reasonebly segregable portion of a document be provided to the F01A requester. Therefore, if only a portion of a document is recommended for withholding, that portion should br. bracketed in pencil.
The exerptions most frecuently used by 01 for withholding information are:
Exerption C Exemption 6 permits an agency to withhold persona'i and medical files and similar files, the disclosure of which would constitute a clearly unwarranted invasion of pcrsonal privacy; i.e., names, social security account number, home address, home telephone, date of birth, and radiation exposure.
This exemption is used to delete specific information only when there is genuine concern for the privacy of the individual.
Exemption 7 only applies to law enforcement activities.
It does not apply to routine inspections or audits.
7(A) could reasonably be expected to interfere with enforcement proceedings.
7(C) could reasonably be expected to constitute an unwarranted invasion of personal privacy in the conduct of an investigation. Exemptions 6 and 7(C) are frequently used together.
1 Exemption 7(D) permits the withholding of the identity of a confidential source as well as other information which could reasonably be expected to reveal the idsntity of that source (previous jobs, schools attended, job titles, gender (Mr., Mrs., He, She), names of relatives, 1-2
APPENDIX 1 y
O description of events of which only the confidential source would have knowledge, and in rare instances, the knowledge that NRC has possession of a certain document).
Less. frequently used exemptions are:
Exemption 4 Exemption 4 permits an agency to withhold records that are " trade secrets and commerciel or financial information obtained from a person and.is privileged or confidential."
Exemption E i
Exemption 5 permits the withholding of predecisional information (drafts and other documents which contain preliminary findings, conclusions, evaluations or recommendations).
Purely factual material should be segregeted for release.
Exemption.7(B)
Exemption 7(B) would deprive a person of a right to a fair trial or an impartial adjudication.
Exenstion 7(E)
Exemption 7(E) would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law.
This has been rarely used by the agency.
Exerption 7(F)
Exemption 7(F) could reasonably be expected to endanger the life or physical safety of any individual.
9.
Agency records include all materials which were created or obtained during the course of an inquiry, an investigation, or other 01 business, which are relevent to agency affairs, including as a matter of CI policy, uncirculated notes, logs, or papers which are used to refresh the author's recollections. Thic includes documents collected from sources outside of NRC and incorporated into the case files.
10.
Copies of memoranda -or other internal documents generated by other fEC offices should be provided. However, documents such as Inspection Reports or NUREGs may be simply listed, provided an adequate description is given to enable F01/LPDRB to obtain copies and provided that the copies in the case files do not contain any annotations.
1-3
APPENDIX 1 11.
Documents in the case files which have been placed in the Public botur.cr Roor. (PDR) should be included on the inventory with a notatien of their public availability (if known).
- 12. P.eproduce all of the responsive records and forward them by priority maiT to 01 Headquarters.
In extraordinary circumstances, 01 Headquarters may arrange for the reproduction of the documents i
for you.
1 I
O' 9
4 I-4
APPENDIX J
=.;
EVIDENCE ACCOUNTABILITY C.1.
Preparation of the Evidence and Property Custody Document
)
(
A record is made of all physical evidence on En Evidence / Property Custody Docunent, regardless of how it is obtained. The investigator
'who first ccquires the evidence prepares the Evidence / Property Custody Dccument in an original and three copies. When evidence is received from a person, the last copy of the Custody Document is given to the individual as a receipt.
Any change in custody of evidence is recorded in the " Chain of Custody" section of the Evidence / Property Custody Document. Each person who bandles or prccesses physical e,idence preserves the integrity of the evidence while it is processed ano maintains the chain of custody entries on the original Evidence and Property Custody Document and any ccpies, as appropriate.
When custody of sealed fungible evidence is changed. the ' Purpose of Change of Custody" column is notated " Sealed ceritainer received, contents not inventoried."
Evidence custodians check the Evicence/ Property Custody Document submitted with evidence to ensure that it is correct or to correct any errors, where possible. When evidence is received from another law enforcement agency, the person who first: receives it prepares and narks the evidence.
Ir.vestigators who first receive evidence from non-01 law enforcement agencies mark it cnly if the other agency has not done so
(
and declines to nark it at the time of release to 01. Receipts or chain V
of custody documents furnished by the other agencies are attached to the Evidence / Property Custody Document.
Evidence custodians do not breach or inventory the contents of sealed containers of fungible evidence, but nottte the " Purpose of Change of Custody" column as specified above.
J.?.
Release of Evidence to the Evidence Custodian Except in unusual cases, physical evidence is released to the evidence custodian at the earliest possible time.
Evidence acquired during normal nonworking hours is either secured in a temporary container or controlled by the investigator pending release to the evidence custodian, Upon receipt of the evidence and the Evidence / Property Custody Document, the evidence custodian assigns a document number. This document number consists of two groups of digits, separated by a hyphen. The first greep is the number of the Evidence / Property Custody Document, beginning with the number "001" for the first Evidence / Property Custody Document l
received for the calendar yeer; the second group stands for the current calendar year (for example. 001-84). The document number is shown on all copics of the Evidence / Property Custody Document and on the Evidence / Property Tag.
The evidence custodian distributes copies of the Evidence / Property Custody Document efter the chain of custody is complete and all copies of the form are nsigned the document nunber. The original and first J-1 l
APPEhDfX J copy of the Evidence / Property Custody Document are kept by the custodiar.. The second copy is kept with the item (s) of evidence. The third copy is oiven to the investigator to be placed in the proper case file.
Evidence / Property Custody Document files kept by the evidence custodian contein the original and first copy of the form that pertains to evidence for which the custodien is accountable.
The Evidence / Property Custody Document is put in numbered sequence in a folder. The numbers and years of the documents in the folder are shown on the outside (for example, 001 to 050-84).
The original Evidence / Property Custody Document goes with the evidence when it is temporarily released from the field office evidence depository. The first copy of the Evidence / Property Custody Document, reflectirs the temporary location of the evidence, remains in the field office evidence depository files until the evidence is either returned to the evidence custodian or properly disposed of.
After ull iters of evidence listed on an Evidence / Property Custody Document have been properly disposed of, the evidence custodian retains the original in the evidence voucher file.
J.3.
Evidence Ledaer The Evidence Ledger provides accountability through cross-reference with the Evidence / Property Custody Document.
It is normally an accounting-type ledger book.
It is prepared with six columns that span two facing pages when the book is opened. Both vertical and horizontal lines are used to separate the entries.
Blue or black ink should be used to make the entries.
The columns are completed as follovs:
a.
Docunent Number and Date Received:
The column contains the document number assigned to the Evidence / Property Custody Document. The date the evidence was received by the evidence custodian is entered below this number.
b.
k01/ Docket Number:
The number assigned to the investigation and the licensee docket number, when appropriate, are entered in this column.
c.
Brief Description of Evidence:
A brief description of the evidence is entered in this column.
The iten number from the Evidence / Property Custody Document is included in this entry.
Fungible evidence sealed in a container is briefly described from data on the Evidence / Property J-2
APPENDIX J
- ~
l i
/~
Custody Document. This entry does not imply that the evidence
.(
custodian has inventoried the items.
j 1
l d.
Date of Final Disposition:
1 l
The date the evidence was disposed of,
, shewn in the " Chain l
of Custody" section of the Evidence / Property Cuc.tody Document, l
is entered in this column. When an Evidence / Property Custody j
Document contains several items and they are not disposed of on the same date, the date of disposition for each item is shown opposite its description. When all the items in an j
entry are disposed of on the same date, only one date is entered, followed by the words "all items"; i.e., June 25, 1984--all items.
e.
Final Disposition:
A brief note on the means of final disposition is entered in this colunn cpposite tie item description. When all items in the entry are disposed of in the same manner, the means of oisresal may t'e listed once, preceded by the words."all items"; i.e., all items returned cwner.
f.
Renarts:
g This column may be used to record any information the evidence custodian thinks is necessary. This may include cross-reference to another Evidence / Property Custody Document that contains evidence from the same investigation; names of owners, subjects, investigators; notations to show the presence of funds; or the results of laboratory examinations. When fungible evidence is received in a sealed container and is not inventoried, the notation may be made in this column.
An Evidence Ledger is norrrally completely filled before a new one is started. A small office may use only a few pages per year; therefore, the same Ledger is usec for several years.
After the last entry in the Ledger for a calendar year, a statement of which Evidence / Property Custody Document the Ledger pertains to is entered (for example 001 through 035-84). The first entry for the next calendar year begins on the next page.
The cover of thc ledger book identifies the organization or activity responsible for the evidence depository and the dates spanned by the entries.
J.4 Temporary Removal and Final Disposition of Evidence Evidence may be removec f rom the evidence depository only for permanent disposal or for temporary release for specific reasons. The most common reasons for temporary removal are:
3 -3
.~
APPENDIX J 6.
transmittal to a laboratory for examination, and b.
presentation at some form of board, hearing, triel, or other litigation.
The person to whom evidence is released either temporarily or for permanent dispesal, signs for it in the " Received by" column of the
" Chain of Custody" section. This is done on the original and first copy of the Evidence / Property Custody Document. The person receiving the 1
evidence temporarily must safeguard it and maintain the chain of custody j
until it is returned to the evidence custodian or disposed of. The i
evidence custodian releases the original Evidence / Property Custody Document to the person who assumes temporary custody, or to first-class registered meil or other transmittal channels, along with the evidence.
The evidence custodian retains the first copy of the Evidence / Property Custody Document in the evidence document file. When the evidence is returned, the origircl Evidence / Property Custody Document, properly nctated by the evidence custodian and the person returning the evidence, is put into the evidence document file. When items on the same Eviderce/ Property Custody Document must be temporarily released to more than crc agency or person at the same time, copies are used and procetn d as above.
A note is made on the original and first copy that copies have beer made. The chain of custody for all evidence is recorded on the first copy of the Evidence / Property Custody Document.
Fersonnel not personally known to the custodian who receive evidence, either en a temporary or a permanent basis, are required to present identification to ensure that evidence is only handled by authorized persons, such as law enforcement, judiciary, or authorized Nuclear Reculatory Connission staff personnel.
When evidence is mailed to a crime laboratory, it is sent by first-class registered mail.
The registered mail number is recorded in the
" Received By" block or, the first copy of the Evidence / Property Custody Document and the form is retained in the evidence custody file. The original document is put inside the package. The recipient notes the proper "Iten Number," " Received By," and " Released By" blocks with the item numbers, date, and registered mail number. He then signs for the evidence in the next " Received By" block.
To ensure proper maintenance of the chain of custody, packages contain evidence from only one investigation. A return receipt for registered mail is used when evidence is mailed to the owner for final disposal.
When finally disposing of evidence, a copy of the Evidence / Property Custody Document is sent with the evidence. When the return receipt for registered mail and the signed copy of the Evidence / Property Custody Document is returned, it is pennanently attached to the original Evidence / Property Custody Document and retained in the office evidence files.
Evidence may be sent by means other than registered mail, if proper handling to meir tain the chain of custody is assured.
It may be hand-carried or shipped on a Government Bill of Lading (GBL).
If evidence is J-4
(
APPENDIX J o,
shipped by GBL, a copy of the shipping document is obtained and attached e
(%
to tbc criginal copy of the Evidence / Property Custody Document.
It is kept there until:
i c.
rctice is received from the addressee indicating receipt of the evidence, or b.
th( evidence is returned to the evidence custodian.
When evidence is permanently transferred from one evidence custodian to another, the original and duplicate custody documents, properly notated, are sent with the evidence. The evidence custodian who receives this eviderce enters the next document number of the receiving office on both copies. The prict document number is lined through, but in such a way that it remains legible.
When evidence for judicial proceedings must be mailed, it is sent by first-clast registered mail directly to the requesting individual or other agercy. The individual or-agency returns it to the evidence custodin, in the same way.
J.E.
Final Disposition cf Evidence Evidence is disposed of as soon as possible after it has served its purpose or is deternined to be of no value as evidence.
Evidence released for judicial proceedings is returned as soon as k.
possible to the evidence custodian for final disposition.. If an item of evidence is made part of the record of trial, the investigator immediately notifies the evidence custodian so that the Evidence / Property Custody Document can be properly notated. This is considered final disposition.
J.6.
Inspections and Inventories Inventories are rade for the following reasons and events:
a.
Quarterly Inventories: The evidence custodian and another investigator, appointed by the Field Office Director, make a joint quarterly inventory of the evidence stored in the evidence depository.
b.
Change of Primary Custodian: When the primary evidence custodian is changed, the incoming and the outgoing primary custocians make e joint physical inventory of all evidence in the evidence depository. All evidence records are carefully checked to ensure proper documentation and accountability.
i All discrepancies are resolved by the outgoing primary l
evidence custodian before transfer of accountability.
c.
Inventories in Cases of Lost Evidence or Breaches of Security:
If any evidence is lost or security of an evidence depository O
breached, en inventory is made by another investigator assigned by the Field Office Director.
It normally is made in the presence of the evidence custodian.
J-5
APPENDIX J
/ memorancun is prepared by the primary evidence custodian upon completicr. of all inventories describing the results of the inventory.
l i
O O'
J-6
APPENDIX K C0hFIDENTIALITY AGREEMENT
- bcVe inforntion that I wish to provide in confidence to the U.S.
Nuclear Regulatory Commission (NRC).
I request an express pledge of confidentiality as a condition of providing this information to the NRC.
It is my understanding that, consistent with its legal obligations, the NEC, by agreeir.g to this confidentiality, will adhere to the following conditions:
1.
During the course of an inquiry or investigation, the NRC will make its best effort to avoid actions which would clearly be expected to result in disclosure of my identity to persons subsequently coming in contact with the NRC.
2.
Except as necessary to assure public health and safety and except as necessary to inform Congress or State or Federal agencies in furtherance of their responsibilities under law or pLtlic trust, the NRC will not identify me by name or personal identifier in any conversation, communication or NRC-initiated docurer.t released cutside the NRC. The NRC will use its best effort to minimize any disclosures made outside of the NRC.
O 3.
The NFC will disclose my identity inside the NRC only on a need-to-know basis to the extent required for the conduct of NRC-related activities. Consequently, I acknowledge that if I have further contacts with NRC personnel, I cannot expect that those people will be cognizant of this Confidentiality Agreement and it will be my responsibility to bring that point to their attention if I desire similar treatment for the information provided to them.
4 Even though the NRC will make its best effort to protect my identity, my identification could be compelled by orders or subpoenas issued by courts of law, hearing boards, Administrative Law Judges, or similar legal entities.
In such cases, the basis for granting this promise of confidentiality and any other relevant facts will be communicated by the NRC to the authority ordering the disclosure in an effort to mair.tain my confidentiality.
I also understanc that the NRC will consider me to have waived my right to confidentiality if I take, or have taken, any action so inconsistent with the grant of confidentiality that the action overrides the purpose behind the confidentiality such as (1) disclosing publicly information which reveals my status as a confidential source or (2) intentionally providing false information to the NRC. The NRC will atempt to notify me of its intent to revoke confidentiality and provide me an opportunity to explain why such action should not be taken.
O Other Conditions:
(if any)
K-1
.=
l APPENDIX L CCFFIDENTIAllTY AGREEMENT (Continued)
I have reaf and fully understand the contents of this agreement.
I agree with its previsions.
1 Date:
Name:
Address:
Agreed to on behalf of the U.S. Nuclear Regulatory Commission.
Date:
Signature:
Name:
Title :
1 O
K-2
APPENDIX L (SECY-88-236A)
(EFFECTIVE 11/29/88)
(O
\\
MEMORANDUM OF UNDERSTANDING BETWEEN THE NUCLEAR REGULATORY COMMISSION AND THE DEPARTMENT OF JUSTICE I.
Purpose:
The Nuclear Regulatory Comission (NRC) and the Department of Justice (DOJ) enter into this agreement 1) to provide for coordination of matters that could lead both to enforcement action by the NRC as well as criminal prosecution by DOJ, and 2) to facilitate the exchange of infonnation relating to matters within their respective jurisdictions. This agreement does not affect the procedures and responsibilities set forth in the April 23, 1979 Memorandum of Understanding between the NRC and the Federal Bureau of Investigation regarding cooperation concerning threats, theft, or sabotage in the U.S.
nuclear industry.
Similarly, this agreement do's not apply to those matters e
arising from internal investigations conducted by the NRC Office of Inspector and Auditor.
This Memorandum of Understanding is not intended to, does not, and may not b relied upon to, create any rights ~or benefits, substantive or procedural, enforceable at law by a party to litigation with the United States. Nor are any limitations hereby placed on otherwise lawful litigative prerogatives of DOJ.
l II. 8,ackground:
Under federal statutes, the NRC has the responsibility to protect the
{
radiological health and safety of the public, the public interest, the comon l(A
! j defense and security, and the environment (hereinafter collectively referred to l
as public health and safety), from hazards that might arise from the material l
L-1
ar.d facilities which it regulates. The enforcement program of the NRC is designed to fulfill these responsibilities by ensuring compliance with NRC requirements, obtaining prompt correction of violations and edverte conditions affecting safety, encouraging i;rprovement of licensee perfonnance, and deterring future violations.
In contrast, criminal prosecutions for willful violations of NRC requirements are the responsibility of the D0J.
Such prosecutions provide an additional tool to assure ccmpliance and to deter future violations. Therefore, it is useful and desirable for the NPC and the 00J to coordinate to the maximum practicable extent their differ ent responsibilities.
Under the Atomic Energy Act of 1954, as amended, the NRC has the authority to conduct such investigations as it may deem necessary or proper to assist it in detennining whether enforcement or other regulatory action is required under the Act, or any regulations, licenses, or orders issued thereunder.
Enforcement actions within NRC authority include license revocations, suspensions and modifications, cease and desist orders, civil penalties, and notices of violation. The NRC has the authority to take such action as it deems necessary to protect the public health and safety, including the authority, when appropriate, to take imediate action.
The Department of Justice has the responsibility to detennine whether to institute criminal prosecution for violations of all federal statutes, including the Atomic Energy Act of 195a, as amended. Such violations are L-2
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r typically developed and brought to the attention of DOJ by law enforcement or investigative agencies, such as the Federal Bureau of Investigation, the Postal Inspection Service, and the various Treasury enforcement agencies. Similarly, suspected criminal violations of the Atomic Energy Act, as amended, or Title 18 of the United States Code may be identified during the course of NRC investigations and referred to 00J for prosecutive determination.
Thus, both the NRC and 00J have authority and responsibility to investigate and take action for certain viclations that ray arise out of the same factual matters. Althcugh each agency will carry out its statutory responsibilities independently, the agencies agree that the public health and safety would be enhanced by cooperation and timely consultation on proposed enforcement actions where both civil and criminal violattens appear to exist, and by the timely exchange of infomation of rutual interest. As an example, it may be appropriate in some cases for the NRC to stay its hard pending a criminal prosecution. Conversely, in other cases the public health and safety may require irunediate NRC action that could impact a potential criminal l
l prosecution. Both agencies recognize that these enforcement decisions are 1
inherently matters of judgment for each agency to decide for itself, with due regard, however, for the views of the other.
L-3
e b
O III. Areas of Cooperation:
A.
00J Notification to NRC of Information Concerning Public Health and Safety Should 00J 1 earn of or discover health or safety related information concerning a matter within the jurisdiction of the NRC, and not already reasonably known to the NRC, 00J shall conrunicate such information to the NRC as soon as practicable, unless such infonnation is detennined by DOJ to be grand jury material.
See Rule 6(e) of the Federal Rules of Criminal Procedure.
4 Should DCJ, during grand jury proceedings, discover health or safety related information concerning a matter within the jurisdiction of the NRC, and not already reasonably known to the NRC, which may warrant immediate regulatory action to protect the public health and safety, DOJ promptly will seek a court order, pursuant to the inherent authority of the court to supervise the grand jury, for disclosure of such infonnation to the NRC for use in ' connection with its safety enforcement responsibilities.
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B.
NRC Notification to DOJ of Suspected Criminal Violations If NRC learns of or develops information regarding suspected criminal violations on matters not within the regulatory jurisdiction of the NRC, the NPC will provide the infomation regarding such suspected criminal violations to the appropriate investigative agency having jurisdiction over the matter.
Should NRC learn of or develop infomation regarding any suspected criminal violations, including Atomic Energy Act violations, on matters within the regulatory jurisdiction of NRC, it will r.otify D0J in the following mariner.
With respect to matters not involving special circumstances, as described
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below, the NRC's Director, Office of Investigations (OI), will fonnally refer v
the matter to 00J for prosecutive detennination if, on completion of its investigation, the Director, 01, has determined that sufficient evidence has been developed to support a reasonable suspicion that a criminal violation has occurred. Whenever any of the special circumstances listed below occurs, and the Director, 01, has a reasonable suspicion that a criminal violation has occurred, the Director of OI will promptly notify the 00J of a matter involving such special circumstance (s), notwithstanding the fact that an i
l investigation has not yet been completed by NRC. The special circumstances
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involve:
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(1) a matter where death or serious bodily injury is involved; (2) a matter under investigation whit.h is likely to generate substantial V
national news media attention;
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When a matter arises in which the NRC concludes that regulatory action is necessary to protect the public health and safety, or that it is necessary to propose a civil penalty, and the Director, Office of Enforcement (OE), has been informed by the Director 01, that there is a reasonable suspicion that a criminal violation has occurred, the Director of OE will promptly notify the D0J of such matter, notwithstanding the fact that an investigation has not yet been completed by NRC. Any action by the NRC is to be coordinated with DOJ as prescribed in Section C. below.
Notification to D0J will not normally result in cessation of the NRC investigation.
C.
Procedure When NRC Reculatory Activities Run Parallel to or May Affect Future 00J Activity NRC regulatory activities with respect to matters that have been referred to DOJ for criminal prosecution, or to which the notification provtsions of
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t-l Section B. apply, shall be coordinated as follows:
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1 1.
If the NRC concludes at any time that it lacks reasonable assurance that activities authorized by a license are being conducted without endan-gering the health and safety of the public and the NRC concludes that imediate action is required to protect the public health, safety, or interest, it will proceed with such action as is necessary to abate the imediate problem.
If time permits, the NRC shall notify DOJ of its proposed action prior to acting, but, in any event, shall notify D0J of its. action as soon as practicable. This paragraph shall apply only to those situations that do not allow sufficient time for reasonable consultation.
2.
If the NRC concludes that regulatory action is necessary in the public interest, other then the actions described in paragraphs 1 and 3 herein, the NRC shall first consult with DOJ concerning its contemplated action. The NRC shall take into account the views and concerns of DOJ and proceed in a manner that accommodates such views and concerns to the fullest extent possible, censistent with the regulatory action required.
Such co-operation at the staff level shall include the seeking of a stay, upon D0J's request, of discovery and hearing rights during the regulatory proceeding for a reasonable period of time to accomodate the needs of a criminal investigation or prosecution, provided that DOJ supports such action with appropriate affidavits or testimeny as requested by the presiding officer.
3.
If tne NRC concludes that it is necessary to propose a civil A
pentalty, it shall notify DOJ of its contemplated action, and shall defer the t
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In such event, the NRC staff shall accommodate the needs of DOJ by seeking a stay, upon D0J's request atd with DOJ support as described in paragraph 2 above, of discovery and hearing rights during the civil penalty proceeding for a reasonable period of time.
D.
Time Frame for Notification in Matters Referred to 00J 1.
If, on completion of its investigation, the NRC concludes that civil enforcement action is appropriate, it will notify DOJ of its contemplated action nomally within 45 days of its referral to 00J.
2.
00J will notify the NRC, nomally within 60 days of the referral, of its preliminary decision as to whether a criminal investigation or prosecution is warranted.
E.
NRC Assistance to DOJ The NRC will make reasonable efforts, at 00J's request, to provide informal assistance regarding applicable NRC requireets, techrical issues, and factuai circumstances. Such assistance should be requested directly from the iU Director, O'fice of Investigations, who will forward requests for technical assistance to the Deputy Executive Director for Regional Operations. A request that one or more NRC investigators be assigned to the D0J L-8
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investigation or that NRC technical experts be assigned to assist DOJ and the grand jury should be made in writing. Such requests must bear the signature of a United States Attorney or Deputy Assistant Attorney General, as appropriate. These requests will be considered by NRC on a case-by-case basis.
F.
Exchance of Information Related to Civil or Criminal Enforcement Following a 00J decision not to prosecute a referred case, or at the cenclusion of a criminal proceeding, DOJ will provide NRC, upon its request, information not protected frcm disclosure by Rule 6(e), Fed.R.Crim.P.,
O relevant to the associated civil case. Similarly, NRC will provide infomation to 00J, upon its request, on matters being censidered by DOJ.
IV.
Implementation:
The DOJ official responsible for implementation of the notification respon-sibilities of this agreement is the Chief, General Litigation and Legal Advice Section, Criminal Division; the NRC official responsible for implementation of the notification responsibilities of this agreement with respect to inforn-tion regardir!g suspected criminal violations is the Director, Office of Investigations; the NRC official responsible for the notification resporri-bilities of this agreement with respect to enforcement action is the Director,
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Office of Enforcement, nr the Assistant General Counsel for Enforcement, as 3pprcpriate.
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Effective Date:
This agreement is effective when signed by both parties.
Chairman
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U.S. Nuclear Regulatory ComiMien ddM 3 l, l$ $g Date:
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Msistant Attorney Genera V Criminal Division j
U.S. Department of Jus'tice Date:
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